Changes to Family Law Act
The Federal Government’s Amendment (Family Violence and Cross-examination of Parties) Act 2018 came into effect on 11 March 2019. The amendment to the Family Law Act aims to protect victims of family violence by prohibiting personal cross-examination where there has been family violence.
What is prohibited?
The amendment allows the Court to make an Order prohibiting a self-represented party from cross-examining the other party in matters where there is family violence (referred to as “personal cross-examination”). The prohibition applies to both alleged perpetrators and alleged victims of the family violence.
If an order is made the self-represented party must have a lawyer cross examine the other party.
Parties will be required to engage a private lawyer or legal aid lawyer to conduct the cross-examination. Legal Aid will be operating a scheme to provide lawyers to conduct cross-examination when the Court has made such an Order.
If the self-represented party does not obtain a private lawyer or lawyer under the scheme, then cross-examination of the other party will not take place.
When is an order made?
For an Order to be made, there must be:
an allegation of family violence between the parties; and
and any of the following apply:
(a) either party has been convicted or charged with an offence involving violence or the threat of violence to the other party
(b) a family violence order applies to both parties
(c) the Family Court has made an injunction for the personal protection of either party
(d) the Court makes an Order that the prohibition will apply in this case.
The Order prohibiting personal cross-examination can be made by request of a party, a witness, an Independent Children’s Lawyer or by the Court’s own initiative.
If the Court does not make an Order prohibiting the cross-examination, they can still make orders for appropriate protections to be put in place for cross-examination. This may include allowing the witness to be crossed by audio link or telephone.
When do the changes come into effect?
The amendments will apply to all cross-examinations from 11 September 2019, regardless of when the matter was set down for hearing.