The Family Law Amendment (Family Violence and Cross-examination of Parties) Act 2018 (the Act) commenced on the 11th March 2019, and will apply from the 11th September 2019.
Ban on Personal Cross Examination
The Act bans personal cross-examination in family law proceedings involving allegations of family violence in specific circumstances. Where possible, a legal representative is to conduct the cross-examination, and it is intended that legal aid would be available where a party is unable to obtain private representation.
The ‘specific circumstances’ are as follows:
Where either party has been convicted of, or is charged with, an offence involving violence, or a threat of violence, to the other party
Where a family violence order (other than an interim order) applies to both parties
Where an injunction for the personal protection of either party is directed against the other party, or
Where the court makes an order that the mandatory requirements apply to the cross-examination
Only one of these circumstances must be satisfied for the ban to apply.
The court may then make an order to prevent personal cross-examination on its own initiative, or on the application of a party to the proceedings (i.e. the examining party, the witness party, or an independent children’s lawyer).
Other Protections
The Act also requires the court to use other protections for victims where allegations of family violence are made but the specific circumstances do not apply. The ‘other protections’ refers to the range of existing protections available to the court under the Family Law Act 1975, the Evidence Act 1995, and the courts general power to control proceedings.
These protections are laid out in the Family Violence Best Practice Principles, and may include the following:
direct or allow a person to give testimony and/or appear by video or audio link
change the venue of a hearing to a safer location
require that an alleged perpetrator be shielded from view while the victim is giving evidence
allow the victim to have a support person near them while giving evidence
close the court to the public or exclude specific persons from the courtroom
refuse permission to continue cross-examination (with forewarning)
Please note that this list is not exhaustive.
The implementation of these amendments recognize that personal cross-examination by an alleged perpetrator can expose victims of family violence to re-traumatisation and can affect their ability to give clear evidence. It can also be problematic for victims to personal cross-examine their alleged perpetrator due to the power imbalances created by family violence.
The amending legislation drew on the Australian Institute of Family Studies Report 'Direct cross-examination in family law matters: Incidence and context of direct cross-examination involving self-represented litigants'.
The amending legislation can be accessed at
A copy of the Explanatory Memorandum and the First and Second Reading speeches can be obtained at https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r6152.
