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Changes to cross-examination in matters of family violence

New provisions will commence in the Family Court and Federal Circuit Court on 10 September 2019 in an effort to provide protections to the victims of family violence. 

The Family Law Amendment (Family Violence and Cross-Examination of Parties) Act 2018 introduced new sections including to the Family Law Act including s.102NA which prevents personal cross-examination where there is an allegation of family violence between the examining party and the witness party (“the parties) and:

·  There is a current final Apprehended (Domestic Violence) Order between the parties;

·  There is a conviction (or current charge) for an offence involving violence or threats of violence between the parties;

·  There is an injunction under the Family Law Act for the personal protection of one party from the other; or

·  The Court is otherwise of the view that the provisions should apply.

The provisions relate to cross-examination of the victim by the perpetrator and vice-versa.  Any cross-examination in these circumstances must be undertaken by a lawyer.

In family law matters, cross-examination generally only occurs at a Final Hearing, so on a practical level, in matters where the provisions apply a solicitor will be appointed by Legal Aid to represent the self-represented litigant for the purpose of the Final Hearing.  The onus is on that person to make the appropriate application to the Legal Aid Commission, and pay any fee charged by Legal Aid.  If these steps are not taken, the self-represented litigant may lose the opportunity to cross-examine.

Where an allegation of family violence has been made between the parties, however, a court deems that s.102NA does not apply, s.102NB requires the Court to ensure that there are appropriate protections for the alleged victim during any cross-examination (these protections may include the giving of evidence by telephone or video remotely).

Interestingly the amendments also include a mandatory review of the provisions as soon as possible after 10 September 2021 (set out in s.102NC Family Law Act).

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