Abramsson & Abramsson (No 4)

[2025] FedCFamC1F 392

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE

Abramsson & Abramsson (No 4) [2025] FedCFamC1F 392

File number:

BRC 5917 of 2022

Judgment of:

CAREW J

Date of judgment:

12 June 2025

Catchwords:

FAMILY LAW – PRACTICE AND PROCEDURE – Section 102NA – Where an order was made pursuant to the s 102NA(1)(c)(iv) in February 2024 – Where a final parenting order was made in December 2024 after a defended hearing – Where the parenting order was successfully appealed in May 2025 – Where the s 102NA order has arguably lapsed – Where there are significant and competing allegations of family violence – Where an order pursuant to s 102NA(1)(c)(iv) is made.

Legislation:

Family Law Act 1975 (Cth) s 102NA

Cases cited:

Hurley and Melton (No 2) (2020) 61 Fam LR 405

Lazer & Haines [2022] FedCFamC1F 35

Number of paragraphs:

13

Date of hearing:

12 June 2025

Place:

Brisbane

The Applicant:

Litigant in person

The Respondent:

Litigant in person

The Independent Children's Lawyer:

Legal Aid Queensland

ORDER

BRC 5917 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR ABRAMSSON

Applicant

AND:

MS ABRAMSSON

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	CAREW J
DATE OF ORDER:	12 JUNE 2025

THE COURT ORDERS THAT:

1.Pursuant to s 102NA(1)(c)(iv) of the Family Law Act 1975 (Cth) the requirements of s 102NA(2) of the Act are to apply to the cross-examination of each of the parties in these proceedings.

THE COURT FURTHER ORDERS THAT:

2.Paragraph 23(f) of the Order made 29 May 2025 be amended pursuant to the slip rule to remove reference to s 79(4) of the Family Law Act 1975 (Cth).

IT IS NOTED THAT:

A.Given that s 102NA(2) of the Family Law Act 1975 (Cth) applies, the Court has today advised the parties that:

(1)pursuant to those requirements, neither party may cross-examine the other party personally; and

(2)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; and

(3)they are able to apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme for the provision of a lawyer by completing an application form which will be provided to them by Legal Aid Queensland; and

(4)a copy of these Orders will be provided by the Court to Legal Aid Queensland, which administers the said Scheme in Queensland.

B.The Court respectfully requests that Legal Aid Queensland accord any Application submitted by the parties for the provision of a legal practitioner pursuant to the Commonwealth Family Violence and Cross-Examination of Parties Scheme significant priority given that the matter is listed for a final hearing for seven days commencing 28 July 2025.

ADDITIONAL NOTATIONS:

C.There is no Court by the name “Federal Circuit and Family Court of Australia”. This Court was formerly known as the Family Court of Australia and is now known as the Federal Circuit and Family Court of Australia (Division 1).

D.The design of the seal affixed to this Order issued by the Federal Circuit and Family Court of Australia (Division 1) was determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.

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).
In addition to the use of pseudonyms for the parties, other changes have been made to the published judgment to protect the identity of a party or a witness. Such changes (other than when a letter is used instead of a name or an address) are apparent on the face of the judgment by the use of square brackets.

EX TEMPORE REASONS FOR JUDGMENT

CAREW J:

1           A rehearing of competing parenting applications between Mr Abramsson (“the father”) and Ms Abramsson  (“the mother”) is due to commence on 28 July 2025 for seven days. This follows successful appeals by both parties against the final parenting order made by another judge of this Court on 6 December 2024. On 13 May 2025, the Full Court remitted the matter for rehearing.

2           Both parties are currently self-represented.

3 On 29 February 2024, Chief Justice Alstergren ordered, pursuant to the s 102NA(1)(c)(iv) of the Family Law Act 1975 (Cth) (“the Act”), that neither party be permitted to personally cross-examine the other. No reasons for that order have been located but given the serious nature of the allegations of family violence each party makes against the other, the order was unremarkable.

4           As both parties engaged private legal representation for the original final hearing, neither made an application under the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation in reliance on this order, which has arguably lapsed.

5           Legal Aid Queensland operates the Scheme in Queensland, and their general approach is not to allocate representation until trial dates have been set and an application under the Scheme is made to them by the parties.

6 There is no evidence before the Court suggesting that the mandatory application of s 102NA is engaged however as already noted there are competing family violence allegations, including threats to kill, suicidal behaviour on the part of the mother, attempted strangulations by each parent of the other, surveillance and stalking on the part of the father, and other forms of coercive and controlling behaviour alleged by each party against the other. Each parent contends that the other parent poses a safety risk to the children, who are only seven and four years old respectively.

7 As the hearing in July is a rehearing of competing final parenting applications, it is reasonable to assume that each party will wish to exercise their right to cross-examine the other party, as occurred in the original trial. If an order is made under the discretionary provisions of s 102NA, neither party will be permitted to personally cross-examine the other party. There will of course be a legal practitioner able to cross-examine each party as there is an Independent Children’s Lawyer (“the ICL”) appointed in this matter. However, the ICL has no obligation to represent the interests of either party.

APPLICABLE LEGAL PRINCIPLES

8 Section 102NA of the Act provides as follows:

(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.

9           The Act is silent on what matters should guide the exercise of discretion to make an order banning cross-examination. In this context, Hogan J in Hurley and Melton (No 2)[1] considered the purpose of s 102NA of the Act by reference to the Explanatory Memorandum to the legislation which provides as follows:

25. That is, the purpose of the sections might be regarded as protecting 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 adequately to cross-examine the perpetrator.

[1] (2020) 61 Fam LR 405.

10          At this stage of the proceedings there are allegations, denials, and counter-allegations. However, it cannot be the case that the discretion to ban cross-examination can only be made when satisfied of the truth of allegations. That can only occur at trial. There must nevertheless be some assessment undertaken about the nature of the allegations. In this context, I respectfully agree with the observations made by Jarrett J in Lazer & Haines[2]  where his Honour said:

14. The nature and extent of the allegations of family violence will be plainly relevant.  Allegations which are weak or insubstantial will not weigh heavily in favour of an exercise of the discretion.  Allegations which are no more than generalised assertions, bereft of any particularity, will not weigh heavily in the exercise of the relevant discretion.

[2] [2022] FedCFamC1F 35.

11          As already observed, there are extensive competing allegations of family violence in the current case which, if accepted, fall into the very serious category of family violence.

12 If for some reason the trial cannot proceed as listed, I am doubtful that the trial can occur this year. Notwithstanding this, all parties (including the ICL) support the making of an order under s 102NA and if the parties make immediate application under the Scheme and a request is made for Legal Aid Queensland to give the matter priority it might be anticipated that the trial will be able to proceed as planned.

13          On balance, I am satisfied that the circumstances justify the making of an order prohibiting either party from personally cross-examining the other at the upcoming trial and I will so order.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Carew.

Associate:

Dated: 13 June 2025