Since 2019, there have been new laws regarding cross-examination in family violence cases. There now exists a ban on cross-examination in family violence cases where perpetrators can no longer personally cross-examine the survivors of family violence.
Personal cross-examination occurs when a party asks questions to another party or witness directly, rather than the lawyer asking questions. Cross-examination usually occurs at trials or final hearings.
The ban, which came into effect in September 2019, applies in certain circumstances where there are allegations of family violence. The ban was in place after the passing of the Family Law Amendment (Family Violence and Cross-examination of Parties) Act 2018.
Its purpose is to avoid direct cross-examination of survivors by perpetrators of family violence. This is because it can further traumatise victims of abuse. The ban exists because personal cross-examination by an alleged perpetrator can affect the ability of the victim to give clear testimony and evidence.
After the amendments, perpetrators can no longer personally cross-examine survivors in family law proceedings where there are allegations of family violence.
Part XI, Division 3, Sections 102NA to 102NC of the Family Law Act 1975 contains provisions on cross-examination in family violence cases. This article discusses cross-examination in family violence cases under the relevant provisions.
Section 102NA: Mandatory Protections for Parties in Certain Cases
Section 102NA of the Family Law Act provides when the ban on cross-examination of survivors applies. Under Section 102NA, a party cannot cross-examine a witness if there is an allegation of family violence between the examining party and the witness party and if any of the following circumstances apply:
- Either party has been convicted of, or is charged with an offence involving violence, or a threat of violence to the other party,
- A final family violence order applies to both parties, or
- An injunction under Section 68B or Section 114 of the Family Law Act for the personal protection of either party is directed against the other party.
Under this Section, the ban is mandatory, and the court must apply the ban. It is important to note that when this Section does not apply, the ban is discretionary. In either case, the court may make an order on its own initiative, or on the application of:
- the witness party,
- the examining party, or
- if an independent children's lawyer has been appointed for a child in relation to the proceedings, then that independent children's lawyer.
When the ban on cross-examination in family violence cases applies, either automatically or by the discretion of the court, a legal representative of a lawyer myst conduct cross-examination of survivors of alleged family violence. If the party does not wish to appoint a lawyer, then cross-examination of the witness cannot occur.
The court will identify in the early stages whether the ban applies and make the appropriate orders when parties bring the matter before the court.
The Judge or the Magistrate will then direct the parties to obtain representation or forgo cross-examination of the family violence survivor in the final hearing or the trial.
Section 102NB: Court-ordered Protections in Other Cases
As mentioned earlier, the Court can make a discretionary ban on cross-examination in family violence cases. The court can make an order to ban personal cross-examination by the perpetrator even if circumstances under Section 102NA do not apply. Additionally, the court can decide to ban the personal cross-examination itself, or may impose a ban following an application by either party, or an independent children's lawyer.
It is important to note that the passing of the Family Law Amendment (Family Violence and Cross-examination of Parties) Act 2018 amends the Family Law Act 1975 only. Thus, the cross-examination of survivors by alleged perpetrators is banned only in family law proceedings.
But where there are allegations of family violence and the Court chooses not to apply its mandatory or discretionary ban, know that the Court needs to put in place other appropriate protections to ensure the safety of the parties.
Section 102NB provides that where circumstances under Section 102NA are not present, the court may make a direction under Section 102C(1) of the Family Law Act that the cross-examination be conducted by video link or audio link.
Additionally, Section 102NB provides that such Section does not limit other laws that apply to protect the witness party (for instance, Section 101 requires the court to forbid the asking of offensive questions and Section 41 of the Evidence Act 1995 requires the court to disallow certain questions, such as misleading questions).
Section 102NC: Review of this Division
Under Section 102NC, the Minister must cause the commencement of the review of the operation of this Division (cross-examination of parties on allegations of violence) as soon as possible after:
- the second anniversary of the commencement of this section, or
- if, before the second anniversary, the regulations prescribe a day that is after the second anniversary - that day.
The ban on cross-examination in family violence cases applies to cross-examinations that occur after 10 September 2019. From 10 September 2019, for any family law proceedings where there are allegations of family violence, the ban on cross-examination in family violence cases can be applicable
The Importance of Seeking Legal Advice
The provisions discussed in this article show the importance of obtaining legal advice in cases of domestic or family violence. However, if you are a victim and the court decides not to ban the personal cross-examination, remember that the court must put in place other appropriate protections for your safety.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
