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“Law in its ideal form might be described as a ‘once-and-for-all’ command that is directed to unknown people and that is abstracted from all particular circumstances of time and place and refers only to such conditions as may occur anywhere and at any time.”― Friedrich A. Hayek, The Constitution of Liberty
Section 102NA of the Family Law Act 1975 provides that:
(1) If, in proceedings under this Act:
(a) a party (the examining party) intends to cross-examine another party (the witness party); and
(b) there is an allegation of family violence between the examining party and the witness party; and
(c) any of the following are satisfied:
(i) either party has been convicted of, or is charged with, an offence involving violence, or a threat of violence, to the other party;
(ii) a family violence order (other than an interim order) applies to both parties;
(iii) an injunction under section 68B or 114 for the personal protection of either party is directed against the other party;
(iv) the court makes an order that the requirements of subsection (2) are to apply to the cross-examination; then the requirements of subsection (2) apply to the cross-examination.
(2) Both of the following requirements apply to the cross-examination:
(a) the examining party must not cross-examine the witness party personally;
(b) the cross-examination must be conducted by a legal practitioner acting on behalf of the examining party.
(3) The court may make an order under subparagraph (1)(c)(iv):
(a) on its own initiative; or
(b) on the application of:
(i) the witness party; or
(ii) the examining party; or
(iii) if an independent children’s lawyer has been appointed for a child in relation to the proceedings–that lawyer.
This section applies both in the case where the examining party is the alleged perpetrator of the family violence and the witness party is the alleged victim, and in the case where the examining party is the alleged victim and the witness party is the alleged perpetrator.
- It gives perpetrators an unearned advantage
Section 102NA of the Family Law Act 1975 means that perpetrators of family violence who may not otherwise qualify for legal assistance now do.
This means that instead of having to pay for legal representation, they can now get it for free and at taxpayers’ expense, no matter what their financial circumstances are.
And if the perpetrator was previously not legally represented, they now have the benefit of legal representation that they otherwise may not have obtained, and therefore their case will be presented far better than if they continued to self-represent.
Section 102NA of the Family Law Act 1975 was not intended to benefit perpetrators of family violence, but that is precisely what it does.
- It also gives false accusers an unearned advantage
False allegations of family violence are a fact of life in family law.
Whenever an allegation of family violence is made, unless it is backed up by hard evidence or another court has made findings or imposed convictions, the accused party will usually deny the allegation. The allegations must then be determined at trial, where findings of fact can be made. Sometimes allegations are proven at trial, and sometimes they are found to be false.
Section 102NA of the Family Law Act 1975 means that the mere making of allegations of family violence may and does result in people who may not otherwise qualify for legal assistance now being entitled to it.
- It results in a waste of Court resources and undue delay
One of the unintended consequences of section 102NA is the deleterious impacts on case management and the allocation of court resources.
No matter how unreasonable parties are when s102NA applies, the trial ordinarily cannot proceed until and unless they are legally represented.
One can imagine a not uncommon scenario where a party forces their lawyers to withdraw at the commencement or mid-trial, and the trial therefore has to be aborted or adjourned because they need lawyers to cross-examine the other party.
Such undue prolongation of cases is contrary to modern principles of case management, which places great emphasis on the public interest: Aon Risk Services Australia Limited v Australian National University  HCA 27 (“Aon”) at .
In Aon, French CJ observed at  that:
“Another factor which relates to the interests of the parties but transcends them is the waste of public resources and the inefficiency occasioned by the need to revisit interlocutory processes, vacate trial dates, or adjourn trials either because of non-compliance with court timetables or, as in this case, because of a late and deliberate tactical change by one party in the direction of its conduct of the litigation”
Another perverse consequence is that a party could potentially be immune from a trial which may make adverse factual findings against them or from being a declared a vexatious litigant simply because they have conducted themselves unreasonably and can’t be represented. If the approach of some judges is anything to go by, achieving finality in family law litigation might be an impossible task in some cases.
- It encourages and rewards unreasonable and conduct
A party that engages private legal representation and is rude to their lawyers or makes baseless allegations of misconduct against their lawyers at least suffers the detriment of having to pay money to have new lawyers get up to speed in their legal matters.
Ordinarily, a legally aided party may have their grant of aid reviewed and they may not have another lawyer appointed.
None of those drawbacks can apply with section 102NA, because the party must be given free legal representation no matter what. It’s a consequence-free little bubble. Some parties know how to game the system: they make unreasonable demands or impose unrealistic expectations on their lawyers knowing full well that they can expect to have another lawyer appointed in their place at public expense, who they hope will yield more to their unreasonable demands and expectations.
Furthermore, the lack of negative consequences for failing to comply with trial directions, and secure legal representation provides unwarranted protections to section 102NA litigants from their own glaring failures.
Humans respond to incentives. Section 102NA of the Family Law Act rewards bad behaviour and provides insulation from negative consequences. Inevitably, that will lead to more poor behaviours.
- Taxpayers pay for all this
There is a quadruple whammy for taxpayers from Section 102NA of the Family Law Act 1975.
As previously outlined, there is a consequential and significant waste and misallocation of court resources. Taxpayers pay for those scarce court resources and their waste through unwarranted adjournments and undue delay.
Section 102NA of the Family Law Act 1975 results in taxpayers paying for the legal representation of parties to a much greater extent than previously occurred. That is the second whammy.
The third whammy arises from a combination of these two factors. No matter how much undue cost and delay is incurred as a result of section 102NA of the Family Law Act 1975, the lawyers still get paid by the taxpayer for those delays. Whilst lawyers should be paid for the work that they do, even when they do not assist with the public administration of justice through no fault of their own, the consequence is that the taxpayer has to pay even more.
The fourth whammy is that because section 102NA rewards bad behaviour from parties, we can expect more of it to occur.
Whilst the unmeritorious and unreasonable are often the winners, the taxpayer is invariably the loser.
- It undermines public confidence the administration of justice
In Aon, French CJ observed at  that:
“Undue delay can undermine confidence in the rule of law. To that extent its avoidance, based upon a proper regard for the interests of the parties, transcends those interests.”
Section 102NA of the Family Law Act 1975 results in undeserved advantages and unwarranted delays at public expense, there is a tremendous risk of diminishing confidence in the legal profession and the administration of justice. It’s perhaps only a matter of time that horror stories concerning section 102NA will find their way into the mainstream media.
Section 102NA of the Family Law Act 1975 gives perpetrators and false accusers of family violence alike unmerited advantages, it has significant deleterious effects on case management and Court resources, and rewards bad behaviour by parties, all at enormous public expense.
The federal parliament must consider the following reforms to section 102NA of the Family Law Act 1975:
- Repealing it;
- Modifying it so that parties would only be entitled to a lawyer asking questions on their behalf to the other party the section 102NA order applies to;
- Restricting its scope to only where allegations of family violence have been found by a Court to be true and/or concerns family violence of a sufficiently serious nature;
- Prohibiting any appeal by a section 102NA party on grounds arising from or relating to their failure to secure legal representation for a trial;
- Making costs orders mandatory when costs are incurred because a section 102NA party fails to get or keep legal representatives; and/or
- Requiring section 102NA parties to pay fees into Court that other parties do not.
These measures would ameliorate or abolish many of the negative unintended consequences of section 102NA.
Read full article: sterlinglawqld.com/the-problems-with-section-102na-of-the-family-law-act-1975
The appellant (“the husband”) and the first respondent (“the wife”) had married in 1979 and separated in 2005. In 2006, the husband commenced proceedings under section 79 of the Family Law Act 1975 (Cth) (“the Act”) for orders settling the property of the parties to the marriage. The ensuing litigation, described by the trial judge as “long‑running” and “staggeringly expensive”, also involved the corporate trustee of the Family Trust, a director of the corporate trustee, the executors of the estate of the husband’s father, and the husband’s mother, known as “the Additional Parties”.
In 2011, Crisford J of the Family Court of Western Australia made property settlement orders that were later set aside by the Full Court on the basis that the husband’s mother had been denied procedural fairness.
From 3 August to 17 August 2016, a trial before Walters J occurred. The trial was then adjourned to 13 September 2016 for the parties to make oral submissions and “to be heard in relation to the making of interim or interlocutory orders pending the delivery of [final] judgment” as “[a]ll parties accepted that it would be likely to take up to 12 months for the judgment to be delivered”. Written submissions were filed by the adult children of the husband and wife, as well as the Additional Parties, on 24 August, by the husband on 31 August and by the wife on 7 September.
On 9 September 2016, the Additional Parties applied for the trial judge to recuse himself on the ground of apprehended bias, based on statements and rulings made by the judge during the trial. That application was supported by the husband but opposed by the wife and adult children. The Application was heard and dismissed by the trial judge on 13 September. An appeal by the corporate trustee and the husband’s mother against the dismissal of the Application, supported by the husband, was dismissed by the Full Court of the Family Court of Australia.
On 12 February 2018, the trial judge delivered judgment and, among other things, purported to make orders under s 79 of the Act (“the 2018 Property Orders”). Those orders did not set aside or vary the 2011 Property Orders but were inconsistent with them. Three days later, the trial judge retired. On 12 March 2018, the husband appealed to the Full Court of the Family Court of Australia against the 2018 Property Orders.
On 8 May 2018, the husband’s solicitor wrote to the barrister who had appeared for the wife before the trial judge about “gossip” that while the trial judge was seised of the Charisteas matter, the barrister and the judge had engaged outside of court in a manner inconsistent with her obligations and those of the judge. The letter requested the barrister provide written assurance that “during the time the former Judge was seised of the [Charisteas] matter, [she] had no contact with him outside of court”; and if she could not provide that assurance, she was asked to “outline the circumstances of [her] dealings with him”.
Two weeks later, the barrister responded stating that she had met with the judge for a drink or coffee on approximately four occasions between 22 March 2016 and 12 February 2018; had spoken with the judge by telephone on five occasions between January 2017 and August 2017; had exchanged “numerous” text messages with the judge between 20 June 2016 and 15 September 2017 (except for a brief hiatus during the evidence stage of the trial); and had exchanged “occasional” text messages with the judge from 15 September 2017 until 12 February 2018. The barrister concluded by stating that the “communications” with the trial judge did not concern “the substance of the … case”. The husband filed an amended notice of appeal adding grounds alleging apprehension of bias.
In Ebner v The Official Trustee in Bankruptcy  HCA 63, a majority of the High Court of Australia said that:
“The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.”
In Johnson v Johnson (2000) 201 CLR 488, five High Court judges observed that while the fair‑minded lay observer “is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice”.
In the same case, Kirby J observed that:
“It is a “fundamental rule” of natural justice and an “abiding value of our legal system” that every adjudicator must be free from bias. This same principle has been accepted in the international law of human rights, which supports the vigilant approach this Court has taken to the possibility that the “parties or the public might entertain a reasonable apprehension” that an adjudicator may not be impartial.”
In R v Magistrates’ Court at Lilydale; Ex parte Ciccone in 1972, Gibbs CJ and Mason J said that:
“The sound instinct of the legal profession – judges and practitioners alike – has always been that, save in the most exceptional cases, there should be no communication or association between the judge and one of the parties (or the legal advisers or witnesses of such a party), otherwise than in the presence of or with the previous knowledge and consent of the other party. Once the case is under way, or about to get under way, the judicial officer keeps aloof from the parties (and from their legal advisers and witnesses) and neither he nor they should so act as to expose the judicial officer to a suspicion of having had communications with one party behind the back of or without the previous knowledge and consent of the other party. For if something is done which affords a reasonable basis for such suspicion, confidence in the impartiality of the judicial officer is undermined.”
This week, Sterling Law obtained a costs order on the indemnity basis against a solicitor in the Federal Circuit and Family Court of Australia. We are so glad that our client was fully compensated for a frivolous Application in a Case after a trial to re-open the evidence.
We had no assistance from Counsel or anyone else, we pulled this stunning result off single-handedly. Senior Counsel for the other side was lucky that he avoided getting a costs order against him as well.
This case is a handy reminder of the need for lawyers to only bring proceedings that have some merit, and not for an ulterior motive of causing undue delay.
The High Court has upheld the casual nature of the employment of a labour hire worker by looking to the terms of the contracts of employment.
Robert Rossato was employed by WorkPac, a labour-hire company pursuant to a series of six contracts, or “assignments” between 28 July 2014 and 9 April 2018, when he retired. During that time, WorkPac provided his services to Glencore at one or other of the Collinsville and Newlands mines. Each contract was entitled “Notice of Offer of Casual Employment – Flat Rate” except for the third contract, which was entitled “Notice of Offer of Casual Employment”. At all relevant times, WorkPac treated Mr Rossato as a casual employee.
On 2 October 2018, in reliance on the decision in WorkPac Pty Ltd v Skene  FCAFC 131, Mr Rossato wrote to WorkPac claiming that he had not worked for it as a casual employee, and claiming that he was entitled to be paid for untaken annual leave, public holidays, and periods of personal leave and compassionate leave taken by him during his employment. These entitlements were said to be due under the Act and the WorkPac Pty Ltd Mining (Coal) Industry Enterprise Agreement 2012 (“the Enterprise Agreement”), which governed Mr Rossato’s employment.
WorkPac denied Mr Rossato’s claims, and promptly filed an originating application in the Federal Court of Australia seeking declarations that throughout his employment Mr Rossato had been a casual employee for the purposes of the Fair Work Act and the Enterprise Agreement.
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