It’s been several years in the making but this year changes were finally made to the Family Law Act 1975 which will ban alleged perpetrators of family violence from personally cross-examining their victims in the family courts. Cross-examination must now be undertaken by a solicitor, whether privately engaged or one engaged under the Family Violence and Cross-Examination of Parties Scheme. This is an important change which will extend the protections available to sufferers of family violence.
Personal cross-examination happens when a party asks questions of another party or witness directly, instead of having questions asked by a lawyer. Until this year, personal cross-examination of abuse victims by self-represented litigants during family law proceedings has been possible, but the need to protect victims from further trauma has fuelled demand for change.
Victim support groups have been concerned with the practice of cross-examination of abuse victims by their alleged abuser, saying it enables abusers to use the court system as an avenue to continue their abuse. Lawmakers have now implemented the ban in recognition of effects on the ability of the victim or witness to provide evidence, if they are personally cross-examined by their abuser.
The Family Law Act 1975 was amended in March 2019 to include a new section, section 102NA. This new section bans parties from direct cross-examination under certain circumstances. The changes to the Act will apply to matters listed for final hearing after 10 September 2019.
The section will afford more protection to victims of family violence by requiring that cross-examination is undertaken by a legal representative, whether a privately engaged solicitor or one engaged under the Family Violence and Cross-Examination of Parties Scheme. The Family Violence and Cross-Examination of Parties Scheme, funded by the Federal Government, is administered by the state and territory’s Legal Aid commissions.
Practitioners who will work within the Scheme are trained in screening for domestic and family violence, risk assessment, managing safety, working with alleged perpetrators of family violence, trauma informed practice and how to prepare and run cases involving allegations of family violence.
What are automatic bans?
Automatic bans will apply in certain circumstances defined as:
- Situations where either party is charged with or has been convicted of an offence involving violence or a threat of violence to the other party;
- When a family violence order other than an interim order applies to both parties; and
- When an injunction for the personal protection of either party is directed against the other party under section 68B or section 114 of the Family Law Act 1975.
What are discretionary bans?
Even if the above circumstances do not apply, courts will have the power to use their discretion to make an order to ban personal cross-examination, whether by itself or after an application by a party.
If the decision is made by the court not to ban personal cross-examination, the court has to implement other protection as appropriate. These available protections are defined in the Family Violence Best Practice Principles.
Obtaining legal representation
If the ban is imposed, then cross-examination must be undertaken by a lawyer. A lawyer can be hired privately or the party can apply to their state or territory’s Legal Aid Commission to obtain legal representation under the Commonwealth Family Violence and Cross-Examination of Parties Scheme. The Scheme provides for legal representation (typically for the final hearing) but will include work done in preparation for that hearing and for late-stage legally assisted family dispute resolution.
Note that access to the Scheme is not merit- or means-tested, but parties may be asked to contribute to the cost of their legal representation depending on their circumstances and ability to pay. Continuing representation will not be automatic.
Conditions will apply, so contact the duty lawyer service of the family law courts or your nearest Legal Aid office. To obtain a lawyer through the Scheme, you will need to fill in the “Family Violence and Cross Examination Scheme” application form available through the relevant Legal Aid commissions.
Without securing legal representation, no cross-examination will be allowed to take place.
Source: Legal Aid NSW
Do you need assistance with a family law matter involving family violence? We are experienced in this area, so please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.