The Family Law Act was recently changed. These changes were to ban personal cross-examination in family law proceedings involving allegations of family violence. This new legislation only applies in specific circumstances from 10 September 2019 (6 months after the commencement of the amendments).
The Court is also now required to use other protections for victims where allegations of family violence are made but personal cross examination is not prohibited.
What is Personal Cross-Examination?
Personal cross examination is when a self-represented litigant questions the other party directly during cross examination in a Hearing.
Personal cross examination is prohibited in any of the following circumstances:
- 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 (In NSW a Apprehended Domestic Violence Order);
- An injunction has been made by the Court for the personal protection of either party is directed against the other party;
- The Court makes an order that the mandatory requirements apply to the cross-examination.
If any of these conditions are met, a lawyer will need to conduct the cross-examination on behalf of the self-represented litigant. If they are not represented then they will not be permitted to cross-examine the other party.
The Commonwealth Family Violence and Cross-Examination of Parties Scheme has been set up to assist parties in obtaining legal representation. This will allow for cross-examination to continue to occur for self-represented litigants. This legal representation may require a financial contribution.
There is some circumstances where there may be allegations of family violence but the self-represented litigant is not prohibited from cross-examination of the other party. In this case, the Court must ensure there are appropriate protections for the party who is the alleged victim of the family violence.
These new amendments make it more difficult and complex for self-represented litigants in family law proceedings in the Family Court and Federal Circuit Court. If you are a self-represented litigant it is important for you to obtain legal advice from a solicitor. They will assist you in understanding how these amendments will impact your Court case and Final Hearing.
Written by Steven Ng