Gerver & Gerver
[2025] FedCFamC1F 379
•6 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gerver & Gerver [2025] FedCFamC1F 379
File number(s): SYC 6529 of 2024 Judgment of: CAMPTON J Date of judgment: 6 June 2025 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application under s 102NA of the Family Law Act 1975 (Cth) – Where none of the mandatory provisions of s 102NA(1)(c)(i), (ii) or (iii) apply – Where discretion under s 102NA(1)(c)(iv) of the Act is engaged and ought be exercised. Legislation: Family Law Act 1975 (Cth) s 102NA Division: Division 1 First Instance Number of paragraphs: 9 Date of hearing: 6 June 2025 Place: Sydney Solicitor for the Applicant: Mr Norkin of Status Libertatis Solicitor for the Respondent: Ms Nadeem of Chidiac Legal Pty Ltd Solicitor for the Independent Children's Lawyer: Ms Green of Russell Kennedy Lawyers ORDERS
SYC 6529 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GERVER
Applicant
AND: MS GERVER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
6 JUNE 2025
THE COURT NOTES THAT:
A.Pursuant to s 102NA(1) of the Family Law Act 1975 (Cth), there is an allegation of family violence between the applicant and the respondent, and the Court has made an order that the requirements of subsection (2) are to apply to the cross-examination.
B.The parties have each been advised by the Court that:
a.pursuant to those requirements, neither party may cross-examine the other party personally;
b.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;
c.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
d.a copy of these orders will be provided by the Court to Legal Aid NSW, which administers the said scheme.
C.If the applicant fails to apply to Legal Aid NSW for legal representation pursuant to these orders, Legal Aid NSW will notify the Court and the matter will be relisted for further directions.
THE COURT ORDERS THAT:
1.UPON NOTING that the requirements of s 102NA(2) of the Family Law Act 1975 (Cth) will apply to any cross-examination occurring in these proceedings, the applicant must not cross-examine the respondent personally and any cross-examination must be conducted by a legal practitioner acting on behalf of the applicant.
2.Within seven days of the date of these orders, the applicant shall complete the "Scheme Application Form" and provide that form to Legal Aid NSW (…@...) for the allocation of a legal practitioner.
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 the pseudonym Gerver & Gerver has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
These reasons determine a consideration on the Court’s own motion for an exercise for discretion in making an order pursuant to s 102NA of the Family Law Act 1975 (Cth) (“the Act”) prohibiting the father, who currently has the benefit of a grant of Legal Aid that will terminate on 9 June 2025, from personally cross-examining the mother in a parenting trial that will be scheduled to commence on 29 September 2025 before Justice McGuire.
There are three children of the relationship, Mr D born in 2007, X born in 2014 and Y born in 2015. The current parenting proceedings relate to X and Y only.
The following notations were made today 6 June 2025:
A.The father has not spent time with or communicated with the children since 2018.
B.The proceedings involve very serious allegations as to the perpetration of family violence by the father including allegations that the father has 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.
C.The father commenced the current parenting proceedings on 21 August 2024. He moves on the relief contained in his further Amended Initiating Application filed on 15 May 2025 seeking that he and the mother be jointly responsible for making of long-term decisions for [X] and [Y], that the children live with the mother and spend supervised time with him on one occasion each month. He proposes electronic communication with the children and to access the children’s medical records.
D.The mother by way of a Response to Final Orders filed on 23 September 2024 seeks to be solely responsible for long term decision making for [X] and [Y], for the children to live with her and that there be no order as to time spent by the children or communication by the children with the father. She seeks a raft of final personal protection orders for she and the children pursuant to s 68B of the Family Law Act 1975 (Cth).
E.The Independent Children’s Lawyer expresses a preliminary view consistent with the recommendations of the court child expert as contained in her comprehensive report dated 14 April 2025 that there be no order as to time spent with the children or communication with the father.
F.Interlocutory orders were made on a defended basis by a senior judicial registrar on 26 November 2024 for the mother to have, pending further order, sole responsibility for the children, for the children to live with the mother, for the children to spend no time with the father and orders of a personal protection character pursuant to s 68B of the Family Law Act 1975 (Cth).
G.The mother and the children live at an undisclosed address.
H.The proceeding was transferred to this Court from Division 2 on 16 May 2025.
I.The father’s current grant of Legal Aid will terminate on 9 June 2025.
J.Neither the mother nor the Independent Children’s Lawyer propose to cross examine the court child expert at the trial.
The mother had the benefit of a final Apprehensive Violence Order that expired in mid-2024.
The mandatory provisions of s 102NA(1)(c)(i)-(iii) of the Act do not apply in this case.
Neither the father, the mother nor the Independent Children’s Lawyer oppose the discretionary application of s 102NA(1)(c)(iv) of the Act.
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.
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.
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.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 10 June 2025
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