Sadia & Sadia [2026] FedCFamC1F 112 (23 February 2026)

(a) The costs of today's hearing of the application relating to the provisions of section 102NA;

(b) The costs of the vacated hearing dates (if relevant);

1. On or before 4:00 pm on 23 March 2026, the respondent is to file and serve an affidavit directed to:

(a) The costs of today's hearing of the application relating to the provisions of section 102NA;

(b) The costs of the vacated hearing dates (if relevant).

1. The costs of and incidental to the Application in a Proceeding filed 4 February 2026 are reserved following receipt of the evidence.
2. If both parties consent to costs being determined on the papers, they will be determined in chambers. If one party does not consent, the matter will be allocated a hearing date.
3. Leave is granted to the parties to provide copies of the following documents to Louise Salmon ("the single expert"):

(a) A copy of the amended Initiating Application;

(b) A copy of the amended Response;

(c) All lay evidence, including trial evidence and excluding the annexures to affidavits, on the proviso that should the single expert request a copy of an annexure, it is to be provided to the single expert.

1. Pursuant to s 102NA(1), an injunction under s 68B was made on 19 September 2023 and the Court has made an order that the requirements of subsection (2) are to apply to the cross examination.
2. The parties have each been advised by the Court that:

(i) Pursuant to those requirements, neither party may cross-examine the other party personally;

(ii) Pursuant to those requirements, any cross-examination of either party may only be conducted by a legal practitioner acting on behalf of the other party;

(iii) As to the availability of the Commonwealth Family Violence and Cross‑Examination of Parties Scheme and the means by which they may apply to that scheme for the provision of a lawyer; and

(iv) A copy of these orders will be provided by the Court to Legal Aid NSW.

1. The parties accept that the fees of the single expert for cross-examination will be met in equal share.

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. This is an application for appointment of a solicitor to act for the husband pursuant to section 102NA of the Family Law Act 1975 (Cth) ("the Act").
2. The wife raised the issue during case management and there was no consent and accordingly, she filed an application supported by an affidavit. The matter remained in contest and I allowed an adjournment to provide the respondent with sufficient time to answer the applicant's material.
3. The matter is listed for final hearing on 5 March 2026, less than a month away. I am concerned that an order may not be able to be complied with by Legal Aid NSW (and the solicitor engaged) within the timeframe.
4. The Act provides:

102NA Mandatory protections for parties in certain cases

(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.

1. In this case there have been allegations of family violence. In order to make the order I must be satisfied that one of three factors is present in addition to the allegations:

(1) A charge or conviction;

(2) A final Apprehended Domestic Violence Order; or

(3) A Family Law Act personal protection order.

1. If one of those factors is present, then the protections in s 102NA of the Act are mandatory. If the protections are not mandatory, there is a discretion to make an order.
2. The question which arises in this case is whether the making of an order for sole occupancy, mutual restraints or other matters canvassed in the wife's affidavit make an order mandatory or engage the discretion and are a sufficient basis for the making of an order.
3. If I am not satisfied that s 102NA applies, the applicant asks that there be accommodations as contemplated by s 102NB.
4. Section 102NB provides:

102NB Court‑ordered protections in other cases

If, in proceedings under this Act:

(a) a party (the examining party) intends to cross‑examine another party (the witness party) personally; and

(b) there is an allegation of family violence between the examining party and the witness party; and

(c) section 102NA does not apply to prevent the examining party cross‑examining the witness party personally;

then the court must ensure that during the cross‑examination there are appropriate protections for the party who is the alleged victim of the family violence.

Note 1: For example, the court may consider it appropriate to give a direction under subsection 102C(1) that the cross‑examination be conducted by video link or audio link.

Note 2: This section does not limit other laws that apply to protect the witness party (for example, section 101 requires the court to forbid the asking of offensive questions and section 41 of the Evidence Act 1995 requires the court to disallow certain questions, such as misleading questions).

1. I propose to consider whether the mandatory provisions apply first as that will dispose of the matter in the event that I find that they do. Accordingly, I do not propose at this stage to have regard to the allegations concerning conduct in the proceedings, alleged family violence during the relationship which did not result in charges or Apprehended Domestic Violence Orders, or events after separation as set out in the wife's affidavit.

1. The wife contends that s 102NA protection is mandatory by virtue of an interim exclusive occupation order made on 19 September 2023.
2. The question is whether the relevant order is an injunction made under sections 68 or 114 "for the personal protection of either party" and "directed against the other party" as per s 102NA(1)(iii).
3. Personal protection is not defined in the Act.
4. In addition, as Harper J observed in Stopford Malloy & Malloy (No. 3) [2021] FamCA 284 ("Stopford"):

There are surprisingly few authorities on "the issue of the personal protection of a party to the marriage": Cross & Cross [2007] FamCA 387 ("Cross") at [21].

1. Having discussed the authorities, his Honour Justice Harper sets out a useful summary at [64] of Stopford:

On the basis of this discussion of the authorities, I conclude that the concept of personal protection in ss 68B, 114(1) and 102NA(1) is broad and open ended, and an injunction for the personal protection of a party includes, non-exhaustively, the following types of order:

An order which protects the physical integrity of a party: Murkin; Oates;

An order which restrains one party from denigrating the other, or parties denigrating each other: Plows; K v K;

An order protecting the right of one party to lead their own life without undue interference from the other party, including interference with the employment or business or social life of the other party: Kemsley;

An order designed to safeguard a party's mental or emotional wellbeing: Kemsley; Modlin

An order restraining one party from communicating with the other party other than through that party's lawyers: Oates; and

An order which protects a party from intimidation, harassment and infringement of their right of privacy, including by surveillance: Cross.

1. Section 68C(2) which relates to the powers of arrest created by s 68C(1) provides: "For the purposes of subsection (1), an injunction granted under section 68B is an injunction for the personal protection of a person if, and only if, it is expressed to be for the personal protection of the person."
2. The relevant interim orders were those made 19 September 2023:

Exclusive Occupancy

4. That by 4pm on the 18th October 2023, the Husband vacate the [Suburb B] property.

5. That from 4pm on the 18th October 2023, the Wife have exclusive occupancy of the [Suburb B] Property to the exclusion of the Husband, pending further Orders.

...

Restraints

24. On a without admissions basis, the Father and the Mother are restrained from:

...

24.4. assaulting, harassing or interfering in any matter with the other parent.

1. The exclusive occupation order is an injunction made under s 114(1)(f) "relating to the use or occupancy of the matrimonial home". However, I have formed the view that it was not made for the personal protection of the mother as against the father - a condition of s 102NA(1)(iii).
2. Senior Judicial Registrar Hayward granted exclusive occupation of the former matrimonial home to the mother upon consideration of the parties' respective financial resources, the children's needs and the alleged risk of the husband disposing of the property by sale. The mother's Case Outline for the interim hearing filed 5 September 2023 submitted her limited financial resources and her care of the children as reasons for seeking injunctive relief under s 114(1). The exclusive occupancy order was not sought by reference to allegations of family violence or the need for personal protection.
3. In the Senior Judicial Registrar's ex tempore oral reasons, the Senior Judicial Registrar said:

The Court has taken into account the means and needs of the parties, the needs of the children, hardship considerations to either party and finds that it is proper that exclusive occupancy order be granted to the wife and children. The husband originally sought orders that the [Suburb B] property be listed for sale by the end of October. Therefore the Court will allow him a period of time to rehouse himself or find alternative accommodation and it is appropriate that he do so within 28 days from today. Further it is appropriate to grant the injunction sought by the wife pursuant to s 114(3) as it is just and convenient to ensure that the [Suburb B] property is not listed for sale by the husband.

1. Therefore, I conclude that the exclusive occupation order is not an injunction for the personal protection of either party that mandatorily engages protection pursuant to s 102NA.
2. Order 24.4 - which on a without admissions basis restrains each party from assaulting, harassing or interfering in any matter with the other parent - does not use the expression "for the personal protection of..." but is plainly an exercise of power under s 68B. The language of the order itself makes it tolerably plain that it is an order for the personal protection of both the husband and the wife.
3. The restraint in Order 24 was made by consent as between the parties at the interim hearing on 12 September 2023. Its terms are set out above. It can only have been made in reliance upon either s 68B or s 114(1)(a) of the Act. The husband does not identify any other power which would give the Court jurisdiction to make Order 24.
4. The husband submitted that Order 24 was not an order for personal protection because it binds both parties and a mutual restraint which binds both parties does not satisfy the requirements of the statute. I disagree. Unfortunately, it may be necessary in some cases to issue injunctions which bind (and protect) each party.
5. The husband further submitted that the fact that Order 24 was made on a without admissions basis did not confirm the allegations and hence, Order 24 would not be regarded as an order for personal protection of the wife. I disagree. The fact that there was no finding made about the allegations is not material. The Court made an order, an order which it had power to make and the order was one which prevented either the husband or wife from assaulting, harassing or interfering with one another. The husband further submitted that the fact of the parties' consent to the order was relevant to categorisation of the order. He did not advance the submission further and I reject it.
6. I accept that the relevant order does not have a power of arrest attached to it, because of the operation of s 68C(2), but I am not persuaded that changes its character for the purpose of s 102NA.
7. The language of Order 24.4 is the language of personal protection and the court's power is its injunctive power under s 68B. Accordingly I am satisfied, the provisions of s 102NA are mandatory and I am required to grant the application.
8. That does not oblige the husband to utilise the scheme but it has the following consequences:

(a) If the husband is self-represented, he will not be permitted to cross-examine the wife;

(b) If the husband engages lawyers, they may cross-examine the wife;

(c) If the husband engages lawyers under the s 102NA scheme, those lawyers may cross‑examine the wife; and

(d) This decision has consequences for the hearing dates which have been allocated.

NOTE:

These reasons have been corrected from the transcript. Topic headings have been inserted and grammatical errors have been corrected. In addition amendments have been made to make the orally delivered reasons clear and easy to read.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Christie.