Amendments to the Family Law Act 1975 (Cth) have been made that provide protection to victims of family violence who are cross-examined as part of family law proceedings.
A party intending to personally cross-examine the other party may be prevented from doing so in certain circumstances. Instead, the cross-examination must be conducted by a legal practitioner acting on behalf of the examining party [Family Law Act 1975 (Cth) s 102NA(2)]. Legal representation may be arranged privately or by applying to the relevant legal aid commission.
Under these amendments, personal cross-examination is automatically prohibited where there is an allegation of family violence between two parties and one or more of the following applies:
- either party has been convicted of, or is charged with, an offence involving violence or a threat of violence to the other party;
- a family violence order (other than an interim order) applies to both parties; or
- an injunction under section 68B or section 114 of the Family Law Act 1975 (Cth) for the personal protection of either party is directed against the other party.
See Family Law Act 1975 (Cth) s 102NA(1).
If the above circumstances do not apply, the Court still has the discretion to make an order that the personal cross-examination is prohibited [see s 102NA(1)(c)(iv)].
The court may make an order preventing the personal cross-examination on its own initiative, by application of either the witness party or the examining party, or by application of the Independent Children's Lawyer [s 102NA(3)].
The cross-examination provisions commenced on 10 March 2019 and will apply to cross-examinations that occur after 10 September 2019.
Where there are allegations of family violence but the provisions of section 102NA of the Act are not satisfied, the court must still ensure that appropriate protections are put in place for the alleged victim in the cross-examination proceedings [s 102NB]. This may include, for example, requiring that the cross-examination be conducted via video link or audio link.
For more information, see our Family Violence and Cross-Examination Scheme Information Sheet.
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