On 10 December 2018 the Family Law Amendment (Family Violence and Cross-examination of Parties) Act 2018 received Royal Assent. It inserts a new section in the Family Law Act 1975 (Cth) – section 102NA which bans personal cross-examination in family law proceedings that involve allegations of family violence. Instead, the court will require the cross-examination to be conducted by a legal practitioner acting on behalf of the examining party. If the examining party is self-represented, they will not be permitted to cross-examine the witness party. This legislative amendment aims to protect victims of family violence in family law proceedings but maintains procedural fairness for the parties.
This will apply to cross-examinations that occur on or after 11 September 2019 on all proceedings regardless of when they were instituted. In addition to prohibiting personal cross-examination in a family law proceeding where there is an allegation of family violence between the parties, it also prohibits personal cross-examination where:
- Either party has been convicted of or charged with an offence involving violence or threat of violence to the other party;
- A family violence order (other than an interim order) applies to both parties;
- An injunction under sections 68B or 114 for the personal protection of either party is directed against the other part; or
- By Court order (either on its own initiative or an application of one of the parties, being the examining party, the witness party or an independent children’s lawyer).
Where direct cross-examination is not prohibited, the court must find other appropriate protections for the victim, for example by using video link.
Unrepresented parties will, where possible, retain private legal advice, or make an application to the Commonwealth Family Violence and Cross-Examination of Parties Scheme. Under the Scheme, parties may have to contribute to the legal costs depending on their circumstances and ability to pay.
If the above circumstances relate to you and you require advice or assistance, please do not hesitate to contact us.
