What happened

Mr Hills (the father) and Ms Caldwell (the mother) have been engaged in parenting proceedings since 2015 concerning two children, Y (14) and Z (12) ([1]). The mother alleged family violence, including a sexual assault on 26 October 2015, and there was an interim Apprehended Family Violence Order made in December 2015 which expired because police did not proceed; no final order was made ([11]–[13]). The mother sought an interlocutory order under s102NA of the Family Law Act 1975 to prevent the father personally cross‑examining her at the final hearing and to require that any cross‑examination be conducted by a legal practitioner ([8], statutory text reproduced).

At a directions hearing listed on 1 July 2020, counsel for the mother raised the s102NA application. The parties agreed the matter would be determined on the papers. It was not disputed that if the court required the father to be represented, allocation of hearing dates in August could not proceed and the substantive hearing would be delayed, potentially by many months; the proceedings had been on foot since 2015 ([5]–[7]). A Family Consultant report dated 14 May 2020 indicated that day‑to‑day arrangements were established and working well and both parents adopted the consultant's recommendations; the only live issue was parental responsibility (sole versus equal shared) ([16]–[18]). The father denied the allegations of family violence and stated he would limit his questioning to matters relevant to the children's current best interests and arrangements ([13], [21]).

Rees J was asked to exercise the court's discretion under s102NA(1)(c)(iv) to impose the mandatory protections in s102NA(2). The judge concluded the statutory automatic triggers in s102NA(1)(c)(i)–(iii) did not apply (no conviction/charge, no final family violence order, no injunction) and, given the narrow issues, the temporal remoteness of the allegations, the father's stated limited scope of cross‑examination, the court's ability to control cross‑examination, and the practical consequence of delay, declined to exercise discretion to make a s102NA order ([9]–[12], [16]–[25]). The respondent's oral application was dismissed (orders delivered 17 July 2020).

Why the court decided this way

Statutory framework: s102NA prescribes two mandatory protections when engaged: the examining party must not personally cross‑examine the witness party, and cross‑examination must be conducted by a legal practitioner (s102NA(2)). Those protections are applied automatically when s102NA(1)(a) and (b) are met and any of subparagraphs (i)–(iii) of s102NA(1)(c) are satisfied, these provide concrete triggers (conviction/charge, a family violence order, or an injunction under s68B or s114). Subparagraph (iv) permits the court to make an order that subsection (2) apply, that is a discretionary pathway ([8] statutory reproduction).

Application of that framework: the judge accepted there was an allegation of family violence and that the father intended to cross‑examine, but the automatic triggers (conviction/charge, final family violence order, injunction) were absent ([9]–[12]). The decision therefore turned on whether the court should exercise its discretion under s102NA(1)(c)(iv).

Rees J approached that exercise pragmatically and factually. Key reasons were:

• Narrow issues: the Family Consultant's report and the parties' positions showed the day‑to‑day arrangements were largely agreed, leaving parental responsibility as the principal contested question ([16]–[18]). Where the contest is limited, the need for broad protective measures is reduced.

• Temporal remoteness and relevance: the alleged conduct occurred nearly five years earlier. The judge found it hard to see how those events were relevant to current parenting questions and that the court could limit cross‑examination to matters of relevance ([22]–[24]).

• Parties' conduct and statements: the father stated he would confine his cross‑examination to contemporary best‑interests issues and not 'probe' the events of 2015; that informed the court's assessment of the likely scope and effect of any cross‑examination ([21]).

• Case management and delay: ordering legal representation for the father would delay allocation of hearing dates and the substantive hearing by months, which was a material consideration in proceedings commenced in 2015 ([6]–[7]).

• Judicial control: the court affirmed its capacity to control cross‑examination to prevent traversal of irrelevant or abusive matters, which can mitigate the need to apply the s102NA protections in every case where allegations exist ([24]).

Balancing these factors, Rees J concluded the discretionary power should not be exercised in this limited factual context and dismissed the respondent's application ([25]).

Before and after state of the law

Before this decision, s102NA was understood to create mandatory protections when its statutory triggers were met, and to provide the court with a discretionary pathway where they are not. Hills & Caldwell reinforces a fact‑sensitive approach: the mere existence of allegations of family violence does not automatically require the discretionary imposition of s102NA protections. The judgment confirms that courts will:

• require the statutory triggers in s102NA(1)(c)(i)–(iii) for automatic application;

• exercise careful discretion under s102NA(1)(c)(iv), taking into account relevance, probative value, case management, likely scope of cross‑examination, risk of harm, and delay;

• rely on the court's inherent powers to control cross‑examination as an alternative safeguard.

After Hills & Caldwell, practitioners should expect interlocutory s102NA applications to be decided by close analysis of the issues actually in dispute and the prospective scope of cross‑examination, not merely by reference to the existence of historical allegations. The decision is not a change in law but an application that illustrates the discretionary and contextual nature of s102NA orders.

Key passages with plain-English translation

• "It is not in dispute that, in the event that an order is made for the father to be represented pursuant to the provisions of s102NA, then it cannot be ready for the allocation of hearing dates in August and the substantive hearing will be necessarily delayed, perhaps for many months." ([6])

  Plain English: If the court forces the father to have a lawyer for cross‑examination, scheduling will be pushed back a long time. Delay is a practical downside the judge must weigh.

• "Both parents advised that the current time spending arrangement is well established and working well for the children." ([17])

  Plain English: The parents largely agree on daily arrangements for the children, so the trial is unlikely to involve contested living‑arrangement issues.

• Father's quote: "I will certainly not be interested in probing that time ... I will be confining my attention to what is in the best interests of the children now..." ([21])

  Plain English: The father said he will not question the mother about the 2015 events and will focus on present parenting issues.

• "In circumstances where there is no, or very limited, dispute about the children's day to day living arrangements, it is difficult to foresee how it can be asserted that anything that occurred almost five years ago ... is relevant to the present issues." ([22])

  Plain English: Old events are unlikely to matter to the decision the court has to make now about parental responsibility.

• "The Court has, and will exercise, power to control cross‑examination so that matters which are not relevant ... will not be traversed." ([24])

  Plain English: Even without ordering s102NA protections, the judge can stop irrelevant or abusive questioning in court.

• "In the limited circumstances of the dispute in these proceedings, I decline to exercise my discretion to make an order pursuant to s102NA." ([25])

  Plain English: The judge refused the mother's request for the special protections in this case.

What fact patterns trigger this precedent

Hills & Caldwell is most on point where:

• The alleged family violence is historic (years before the hearing) and not accompanied by convictions, charges, a final family violence order, or an injunction under s68B or s114.

• The substantive issues at trial are narrow and primarily concern current parenting arrangements rather than past conduct.

• There is evidence that day‑to‑day arrangements are agreed and functioning, with parental responsibility being the primary contested issue.

• The examining party signals a limited scope of cross‑examination confined to issues directly relevant to the children's present best interests.

• There are real case management concerns and potential for significant delay if the court were to order legal representation for cross‑examination.

In such fact patterns, Hills & Caldwell supports decline of a s102NA order and reliance on judicial control of cross‑examination.

How later courts have treated it

This is a single‑judge Family Court decision applying s102NA to its facts. It exemplifies a pragmatic, contextual exercise of discretion rather than a precedent that alters statutory meaning. Later courts should treat the decision as a clear application of s102NA principles: automatic protections require statutory triggers, and discretionary orders depend on proportionality, relevance, and case‑management considerations. Practitioners invoking or opposing s102NA orders should refer to the specific factors Rees J identified (narrow issues, temporal remoteness, agreed arrangements, risk of delay, and ability to control cross‑examination).

(As this deep dive is based on the single judgment, readers should check subsequent appellate decisions for further development or qualifications.)

Still-open questions

• Threshold for discretionary intervention: Hills & Caldwell shows the court will decline discretionary s102NA relief where issues are narrow and allegations remote. What precise evidential threshold should justify using s102NA(1)(c)(iv) when allegations are more recent but still lack statutory triggers? The decision gives guidance but not a formula.

• Balancing delay against risk: Rees J placed weight on delay. How should courts balance the systemic imperative to avoid delay against the individual risk of re‑traumatisation where the risk is contested and the alleged conduct is significant but no prosecution or final order exists?

• Role of the ICL and trauma evidence: The judgment did not make extensive findings on trauma risk beyond reciting reports. How much detailed expert evidence about ongoing risks or likely re‑traumatisation will be necessary to tip the balance in future cases?

• Uniformity of approach across registries: Different judges may reach different discretionary outcomes on similar facts. The decision indicates factors to consider but leaves room for variance; appellate clarification would assist consistent application.

• Interaction with other procedural protections: Where courts decline s102NA orders but retain robust control over cross‑examination, the boundaries of acceptable management (e.g. closed court, evidence by affidavit, use of screens or intermediaries) remain to be more fully articulated in contexts where statutory triggers are absent.

Practitioners should therefore prepare to address relevance and scope of proposed cross‑examination, provide targeted evidence on current risk and trauma, and anticipate that courts will weigh delay and case management strongly when statutory triggers for s102NA are absent.