Home  |   The problems with section 102NA of the Family Law Act 1975

The problems with section 102NA of the Family Law Act 1975

“During the longest period of human history—so-called prehistorical times—the value or disvalue of an action was derived from its consequences: the action itself was considered as little as its origin, it was rather the way a distinction or disgrace still reaches back today from a child to its parents, in China, it was the retroactive force of success or failure that led men to think well or ill of an action… In the last ten thousand years, however, one has reached the point, step by step, in a few large regions on the earth, where it is no longer the consequences but the origin of an action that one allows to decide its value… one came to agree that the value of an action lay in the value of the intention. The intention as the whole origin and prehistory of an action: almost to the present day this prejudice dominated moral praise, blame, judgment, and philosophy on earth.— But today—shouldn’t we have reached the necessity of once more resolving on a reversal and fundamental shift in values, owing to another self-examination of man, another growth in profundity—do we not stand at the threshold of a period which should be designated negatively, to begin with, as extra-moral: today, is not the suspicion growing, at least among us immoralists, that the decisive value of an action lies precisely in what is unintentional in it, while everything about it that is intentional, everything about it that can be seen, known, “conscious,” still belongs to its surface and skin—which, like every skin, betrays something but conceals even more? In short, we believe that the intention is merely a sign and symptom that still requires interpretation, moreover, a sign that means too much and therefore, taken by itself alone, almost nothing—that morality in the traditional sense, the morality of intentions, was a prejudice, precipitate and perhaps provisional, something on the order of astrology and alchemy, but in any case something that must be overcome.”

― Friedrich Nietzsche, Beyond Good and Evil (1886)

“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

Relevant Legislation

Section 4AB of the Family Law Act 1975 provides that:

(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.

(2) Examples of behaviour that may constitute family violence include (but are not limited to):

(a) an assault; or

(b) a sexual assault or other sexually abusive behaviour; or

(c) stalking; or

(d) repeated derogatory taunts; or

(e) intentionally damaging or destroying property; or

(f) intentionally causing death or injury to an animal; or

(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or

(j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.

Section 4 of the Family Law Act 1975 provides that:

“family violence order” means an order (including an interim order) made under a prescribed law of a State or Territory to protect a person from family violence.

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.

The problems with section 102NA

1. It gives perpetrators an unearned advantage

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.

2. 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.

Many proceedings where a section 102NA order has been made have involved very minor allegations of family violence, or allegations which do not appear to be particularly plausible. The necessity or even the desirability of a Section 102NA Order in such cases is not clear, and in our experience it appears to be something that Judges have sometimes freely ordered because they would prefer not to deal with self-represented litigants.

3. 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. A few cases will demonstrate this point.

In one case in Toowoomba we were involved in, the mother had completely failed to comply with the trial directions or secure legal representation through the cross-examination scheme. She had even failed to notify the Court that she had become self-represented, as required by the trial directions. When the parties turned up for the trial, the mother sought an adjournment because she was unrepresented and could not cross-examine the father in person. Judge Purdon-Sully granted the adjournment, despite our protestations. Our efforts to comply with the trial directions were all for nothing. Court time was wasted. The mother didn’t even suffer a costs order against her. It was a disaster effectively condoned by the Court.

In other cases, we have been appointed by Legal Aid to act for extremely unreasonable parties.

One insisted that we do not ever communicate with the lawyers for the other parties unless he was also a party to such conversations. That request was unreasonable, and we requested this party to sign an instruction sheet confirming that they would remain ‘on the record’ until shortly before the trial and at their own risk so we would not have to communicate with the opposing lawyers. The party refused to sign the instruction sheet. We notified Legal Aid that we could no longer assist this client. We doubt that any solicitor could deal with such an unreasonable and difficult client. But unless one does, the trial may not proceed.

Another paranoid party, who was subject to an application to have him declared a vexatious litigant, called our office and said that he did not trust solicitors and was looking for one that he could have confidence in. He asked to see us to decide whether he would engage our firm. We asked him to send through the Legal Aid paperwork to see if he was being permitted by Legal Aid to appoint his own solicitors as he claimed. Weeks later, we are yet to receive anything. One wonders if he ever will find a solicitor so that his hearing may proceed.

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 [2009] HCA 27 (“Aon”) at [93].

In Aon, French CJ observed at [24] 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”

As Judge Riethmuller recently observed in Lawson & Glenning [2021] FedCFamC2F 118 (15 September 2021):

“The Federal Circuit and Family Court of Australia Act 2021 (‘FCFCOA Act’) contains a number of provisions with respect to case management and the purpose of the Court. Sections 190 and 191 of the FCFCOA Act make it very clear the Court has an overarching purpose of attempting to facilitate the just resolution of disputes as quickly, inexpensively and efficiently as possible. They focus on the efficient use of Court resources and efficient disposal of cases that come before the Court to carry out the work in a timely manner, and to conduct the Court in such a way as to best promote the overarching purposes. It is important that litigants take into account these purposes and ensure that they conduct their litigation in a manner that does not cause unnecessary use of Court resources or their own resources.”

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.

4. It encourages and rewards unreasonable and conduct

For some people the only barrier to them from behaving poorly is the negative consequences that may result. Witness the easy anonymity of social media and how that incubates abusive behaviour and causes it to flourish, free of any adverse consequences.

The consequence of no negative consequences for section 102NA parties that act unreasonably is that such unreasonable conduct can be expected to proliferate.

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.

5. 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.

This article has highlighted a number of farces that have occurred and will continue to occur under section 102NA of the Family Law Act 1975.

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.

6. It undermines public confidence the administration of justice

In Aon, French CJ observed at [24] 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.

Conclusion

No economist would endorse section 102NA of the Family Law Act 1975. It is plain that whatever the benefits of this section, they are significantly outweighed by the costs. 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:

1. Repealing it;

2. 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;

3. 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;

4. Prohibiting any appeal by a section 102NA party on grounds arising from or relating to their failure to secure legal representation for a trial;

5. Making costs orders mandatory when costs are incurred because a section 102NA party fails to get or keep legal representatives; and/or

6. 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.

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