The Court's Discretion to make a 102NA(1)(c)(iv) Order - Relevant Cases

Statutory Framework

Section 102NA of the Family Law Act 1975 (Cth) (“FLA”) aims to shield victims of alleged family violence from being directly cross-examined by the perpetrator in family law proceedings. Where certain conditions exist, such as a conviction or charge for violence, a final family violence order (not an interim ADVO), or a personal protection injunction, personal cross-examination is automatically prohibited. In cases that do not meet those automatic triggers (for example, no Apprehended Domestic Violence Order in place), the court retains a broad discretion under section 102NA(1)(c)(iv) to make orders that prohibit direct cross-examination. This discretionary power can be exercised on the court’s initiative or on application by a party or an Independent Children’s Lawyer. If an order is made under section 102NA, neither party may cross-examine the other personally, questioning must be done by a legal representative. A self-represented party who is restrained from cross-examining will typically be referred to Legal Aid to obtain representation under the federal Family Violence Cross-Examination Scheme at no cost to the individual personally.

Recent Case Examples

• Joyner & Lyons [2025] FedCFamC2F 168 (“Joyner”): In this case, the court made orders pursuant to section 102NA(1)(c)(iv) of the FLA banning personal cross-examination of the other party for the defended hearing commencing 28 April 2025. In this case, the mother made the application and the applicant father opposed the order sought as it relates to the mother, but consented to an order being made in respect of him. The father was self-represented. The court helpfully discusses the application of section 102NA from [11] as follows:

  
  

  “As I noted during the course of the hearing on 5 February 2025, there is some guidance in relation to the interpretation, construction and purpose of section 102NA(1) and s 102NA(2) of the Act. For example:

  (a) Hurley and Melton (No 2) [2020] FamCA 917; (2020) 61 Fam LR 405, the purpose of the statutory provisions is gleaned from the Explanatory Memorandum relating to the provisions. They include having regard to protect the integrity of the litigation process by protecting against the potential that being cross-examined by a perpetrator of family violence can affect a victim’s ability to give clear evidence, and also protecting against the possibility that, by virtue of the impacts of family violence, a victim may not be able to adequately cross-examine the perpetrator;

  (b) Owen & Owen [2020] FamCA 90 per Gill J at [2] to [28], identifying that the preconditions to making an order are:

  (i) An intention to cross-examine a witness party by a party in person;

  (ii) An allegation of family violence between the examining and witness party; and

  (iii) Satisfaction of one of the factors in s102NA(c) of the Act.

  (c) Hills & Caldwell [2020] FamCA 574, where the conditions in s102NA(1)(c) (i), (ii) and (iii) are not satisfied and the Court may rely on the discretion at s102NA(1)(c)(iv) for the purpose of being satisfied that the order should be made, it is relevant to consider if the allegations of family violence are vague or sparse in nature or a single allegation only;

  (d) Where the conditions in  s102NA(1)(c) (i), (ii) and (iii) are not satisfied and the Court may rely on the discretion at  s102NA(1)(c)(iv) it is relevant to consider if the examining party would be overborne by the experience of having to cross examine the other party, such that there would not be a fair hearing;

  (e) Naisby & Naisby (No 2) [2024] FedCFamC1F 699 at [6], it is the allegation that is important, not the truth of it or the prospect of it being proved at trial. But the truth of allegations is not irrelevant to the exercise of the discretion under s 102NA(1)(c)(iv);

  (f) Carano & Carano [2023] FedCFamC2F 1566, where the preconditions in s102NA(1)(i) ,(ii) and (iii) were not satisfied, but the Court considered the likelihood of an order in the near future and the seriousness of the allegations of family violence to be a basis for exercising the discretion in  s102NA(1)(c)(iv), to ensure the hearing proceeded in a seamless and timely manner;

  (g) Peng & Anh [2023] FedCFamC1F 281, where the making of a cross-examination ban order pursuant to  s102NA(2) is dependent on the exercise of discretion in  s102NA(1)(c)(iv), it is necessary for the Court to be satisfied that the witness party is required for cross-examination by the examining party and that the examining party intends to personally conduct the cross-examination; and

  (h) Where the pre-conditions to making an order are satisfied, the order applies to the purported victim or perpetrator alike.

  12. Although I have not found an authority that directly addresses the issue posed to the solicitor for the mother, as a matter of construction I consider that the time for satisfaction of the preconditions for making an order pursuant to  s102NA(2) must be forward-looking and at the time the intended cross-examination is to occur. If it were otherwise, there would be capacity to obtain a pre-emptive order very early in the proceedings having the effect of banning cross-examination which may never be sought or may for some other reason become unnecessary at a future time.

  13. Further, in theory, it could mean that a party regardless of whether they can afford to retain a lawyer or obtain a regular grant of aid and be represented by a lawyer, would be entitled to have an order made irrespective of when or if cross-examination occurs. This would be inconsistent with the intent of the statutory provisions as demonstrated by the Explanatory Memorandum.”

  At [4] the court said: “The material referred to above demonstrates the following and I find:

  (a) There has been a family violence order in place protecting the mother since early 2023, with the current order due to expire in early 2025;

  (b) The mother has alleged that during the relationship there were:

  (i) Numerous occasions of verbal abuse, denigration, anger outbursts, and put downs which scared the mother;

  (ii) Physical violence where the father pushed the mother, blocked her from leaving, and whacked his hand on her hatted head; and

  (iii) Withholding the child in September 2023 without reason when the interim family violence order was in place.”

  The orders would have expired at the time of the final hearing.

  The court raised concerns about the scantness of the parities evidence that they will self represent at the final hearing, stating “That information causes me to doubt the bone fides of the parties’ assertions that they cannot afford legal representation. But this close to the defended hearing, I am effectively compelled to accept their claims that they will be self-represented at the defended hearing as the Court cannot compel a party to pay for private legal representation.”

  Ultimately, the court decided “At the time of cross-examination of one another at the defended hearing, the pre-conditions at  s102NA(1)(c)(i) , (ii) or (iii) will not be satisfied. However, I am persuaded that I ought to exercise my discretion pursuant to s102NA(1)(a)(c)(iv) in respect of both parties because of the findings referred to at [4] of these reasons.”

  At [22] the court provided the following helpful guidance “For the sake of the fair and effective administration of justice, in my view:

  (a) Only genuinely self-represented parties who do not have financial means to pay for legal advice privately should seek  s102NA(2)  orders where the ban to personal cross-examination is justified for the policy reasons discussed in Hurley & Melton (No.2) [2020] FamCA 917; (2020) 61 Fam LR 405;

  (b) Applications for cross-examination ban orders should only be made within two to three months from when the cross-examination is to occur;

  (c) If it is necessary to make application for an order, there should be relevant evidence put before the Court about all the prerequisites in  s102NA(1), including evidence which identifies if there are grounds for the order because of one of subsections s102NA(1)(c)(i), (ii) or (iii) or otherwise if the discretion in  subsection s102NA(1)(c)(iv)  is relied upon, evidence weighing in favour of exercising discretion; and

  (d) Consideration should also be given to whether directions made pursuant to s102NAB would otherwise provide the necessary protections about cross-examination between the alleged victim and perpetrator.”

  
  

• Bellanger & Wemble (No 4) [2024] FedCFamC2F 1606: By way of background, the Mother alleged that she took the children to Country D to visit her father in late 2021 and that Mr Wemble and his mother, the Second Respondent, Ms Paige, also went to the same place in Country D at that time. She says that Mr Wemble initiated parenting proceedings in Country D and that the matter finalised in 2022 with the court recognising the final orders of this court made on 16 August 2021. She says that shortly after that, Mr Wemble had her father arrested in proceedings relating to repayment. She says that she and her family, including the children, went to a hearing in early 2023 relating to that matter and while there, Mr Wemble, Ms Paige (the Father’s mother) and a group of their supporters beat her up and took the children away in a motor vehicle, and that she has not seen them since and has only spoken to them once since then. She says that Mr Wemble and Ms Paige are keeping the children in City B, a city in C State in Country D. The court exercised discretion and made 102NA orders that prohibited the mother and farther from cross examining one another and also orders that prohibited the Paternal Grandmother and mother from cross examining one another. From [12] the court discusses the legal pathway applicable to a 102NA of the FLA application. From [19] the Court says “The fourth branch of the third limb means that the section or mandatory requirements would apply where I considered that they should, or what has been described as a discretionary provision.

  20.I am not satisfied that I have a discretion to take into account any matter that might assist a final hearing. Frequently a party seeks the advantages of section 102NA, that is representation at taxpayer expense, for forensic or strategic purposes in the actual litigation. In this case, the Independent Children's Lawyer asserts that matters that should inform that discretion on that fourth branch of the third limb include the following;

  (1) the risk to the welfare of the children at issue in the proceedings;

  (2) the effect of the parties or any of them being unrepresented and the impact that would have on the welfare of the children; and

  (3) the very grave consequences alive in the proceedings for not only the children, but also the paternal grandmother.”

  “21.The ICL notes that the allegations against the Paternal Grandmother are most serious and that the Mother asserts they are of sufficient importance that the court should not only consider but impose a sentence of imprisonment.

  22.I am not satisfied that the paramount consideration in considering Part XI of Division 3 of the Act is the best interests of the children. The paramount consideration of the best interests of the children applies to Part VII of the Act, but not Part XI. However, the best interests of the children are a relevant consideration even though they are not the paramount consideration.

  23.I also take into account the very serious nature of the allegations between the Father and the Mother and between the Paternal Grandmother and the Mother. Those allegations are of the utmost seriousness. The scheme of section 102NA is, as discussed in the matter of Middleton & Redmond [2021] FCCA 316, is primarily concerned with ensuring that a victim of family violence is not further traumatised by being personally cross-examined by the person that has assaulted them.”

  There is a helpful discussion about the explanatory memorandum and the reason 102NA was enacted and ultimately the court decides at [24] “I am satisfied that the nature of the allegations is such that it may well be very traumatic to the Mother to be personally cross-examined by the Paternal Grandmother. I am satisfied that it may well be very traumatic for the Mother to be personally cross-examined by the Father. I am also satisfied that it would be very difficult for the Paternal Grandmother to defend, or refute, or rebut the serious allegations of complicity in a serious scheme to remove the children from Mother's care would entail if unrepresented.” The Court relied on its discretionary powers to make a 102NA order.

  
  

• Gerver & Gerver [2025] FedCFamC1F 379: The proceedings involved very serious allegations as to the perpetration of family violence by the father including allegations that the father had threatened to kill both the mother and the children, as to sexual violence occasioned by the father upon the child, [Mr D], and as to the impact of the mother’s experience of family violence upon her capacities as the uncontested parent with whom [X] and [Y] will live. The Court relevantly stated the following from [5] “The mandatory provisions of s 102NA(1)(c)(i)-(iii) of the Act do not apply in this case.

  6.Neither the father, the mother nor the Independent Children’s Lawyer oppose the discretionary application of s 102NA(1)(c)(iv) of the Act.

  7.The father puts into issue the serious allegations of family violence including those of lethality and sexual violence. The court child expert’s report records the extensive allegations of family violence made by the mother occasioned by the father.

  8.A reading of the legislation does not require allegations of family violence to be recent. It does not require the allegations of family violence to be the primary foundations to conclude a finding of unacceptable risk. The object of s 102NA of the Act is to ensure the protection of alleged victims of family violence from traumatisation due to being cross-examined by the alleged perpetrator. The section seeks the preservation of the integrity of the evidence in the proceedings by ensuring that alleged victims of family violence can give their evidence in circumstances that promotes their ability to adduce that evidence in a clear and coherent fashion and seeks to ensure that the context of any power imbalance does not occur by way of direct cross-examination. In the circumstances of this matter, having regard to the very serious allegations as to family violence and the likelihood that the father will need to appear on his own behalf on the termination of his grant of Legal Aid in three days’ time, the Court is obliged to accept the wife’s allegations at face value.

  9.I am of the view, in all the circumstances of this, that the discretion under s 102NA of the Act is engaged to be exercised. For the foregoing reasons I will make orders pursuant to s 102NA of the Act that will apply for the purposes of the forthcoming trial such that the father must not cross-examine the mother personally, and any cross-examination must be conducted by a legal practitioner acting on behalf of the father. I will make further orders and notations for engagement with Legal Aid NSW for the provision of funding to meet the father’s legal representatives’ costs pursuant to the Commonwealth Family Violence and Cross-Examination of Parties Scheme.”

  
  

• Newett & Newett (No 9) [2023] FedCFamC1A 23 (“Newett”): The mother in this case appealed final orders made during proceedings on various grounds, including allegations that she was not afforded procedural fairness as she was unable to cross-examine the father at the final hearing. The court made 102NA orders during prior proceedings, it was mandatory to apply the section as there were final ADVO orders in place. The mother had three lawyers appointed by way of a legal aid grant, all of whom had filed Notices of Ceasing to Act. Legal aid would not provide further legal aid funded lawyers and as a consequence, the mother was unable to cross-examine the husband at the final hearing as she self represented. The court noted that the ICL put the substance of the mother’s case to the father under cross examination and explained that the legislation was clear and the consequence of the section was clear (under no circumstances could she cross examine the father). The mother’s appeal was dismissed.

  
  

• Kaba & Zemin [2024] FedCFamC1A 114: the appellant sought to extend a section 102NA order to the appellate proceedings (apparently to prevent personal cross-examination on appeal). The Full Court noted this was unnecessary because on appeal no witnesses are cross-examined and thus no section 102NA order is necessary in that forum.

  
  

In practice, the Judge often flags the 102NA issue at the compliance

readiness hearing. Whether or not the court will exercise its discretion to make a 102NA(1)(c)(iv) order is highly case and fact specific.

Katherine Guilfoyle