Changes to Cross-Examination in Family Law Proceedings

By 20 September 2019Family Law

The Australian Government has now amended the Family Law Act 1975 (Cth) to include restrictions on perpetrators of family violence, directly cross-examining their victims in family law proceedings. These amendments commenced on 10 September 2019.

What is cross-examination?

Cross-examination occurs at a final trial/hearing for a matter, which allows each party to question witnesses (under oath or affirmation) as to the evidence they have put before the Court, in an attempt to identify flaws, shortcomings and weaknesses in their evidence. There are very specific rules that apply when conducting cross-examination to prevent improper or misleading questions.

Given that the very nature of cross-examination is to challenge the evidence of a witness, it can be very confronting and stressful to be the person cross-examined. In family law proceedings and domestic violence proceedings a large portion of the evidence to consider at a final trial comes from the parties themselves and as a result they are required to be cross-examined at a final trial/hearing.

Ideally, cross-examination would be conducted by a Barrister which would avoid the situation where a perpetrator is given the opportunity to directly ask their victim questions. However, in many cases, parties are not able to afford legal representation and choose to self-represent. If a party chooses to represent themselves at a final trial/hearing they are tasked with conducting their own cross-examination.

The primary concern and risk here is that the perpetrator may use this opportunity to continue to engage in family violence through a legitimate and necessary court process. Additionally, where the victim of family violence is self-represented, they will be required to directly cross-examine the perpetrator, which understandably can be very daunting and potentially place them in a position of being subject to further family violence.

The amendments to the Act now place a ban on self-represented parties from cross-examining the other in family law proceedings, where the issue of family violence is present, however the ban will only occur in certain circumstances.

When does the ban apply?

If each party is legally represented the ban will not apply as cross-examination will be conducted by their legal representative.

However, should either party to the proceeding be self-represented, the ban will apply automatically in any of the following circumstances:

  1. If either party to the proceedings has been convicted of, or is charged with, an offence, involving violence, or a threat of violence, to the other party;
  2. If there is a Final Protection Order in place protecting one of the parties from the other (this does not include Temporary Protection Orders); or
  3. If the Court has ordered a personal protection injunction for the protection of one of the parties from the other.

If any of the above circumstances apply, then the ban will automatically be in place regardless of whether the person who is self-represented, is the victim or perpetrator of family violence.

If the above does not apply and allegations of family violence have been raised during the course of the proceedings then the Court, of its own initiative or upon application from a party, is able to implement the ban after considering the matter.

What to do if the ban applies?

If the ban applies (either automatically or as decided by the Court), then each party MUST engage legal representatives for the trial.

The options in this regard are as follows:

  1. Privately engage a legal representative; or
  2. Apply for Legal Aid.
    .
    In conjunction with the amendment of the Family Law Act, the Australian Government, has committed extra funding through the Commonwealth Family Violence and Cross-examination of Parties Scheme. This funding is provided to Legal Aid Commissions in each state, to allow them to assist parties where the ban has been applied.
    .
    There are certain conditions that will apply to accessing this funding, so we would recommend that you contact Legal Aid Queensland for more information, if you are considering this option.

What to do if the ban DOES NOT apply?

If the ban does not apply either automatically or as decided by the Court at their discretion, then the self-represented party can proceed to cross-examine the other.

However, if an allegation of family violence between the parties has been made during the course of the proceedings, then the Court must ensure that there are appropriate protections in place during cross-examination. This may include cross-examination being conducted via video or telephone link, so that the alleged victim does not have to be in the physical presence of the alleged perpetrator, having a support person present, or closing the Court room to the public.

In addition to this, the Court will naturally have regard to the specific rules in place as to cross-examination to prevent improper or misleading questions.

Comparisons to domestic violence proceedings (Queensland)

Given the changes to the Family Law Act 1975 (Cth), it is also appropriate to address protections provided to victims during the course of domestic violence proceedings, to obtain Protection Orders as similar difficulties will also be present. There are a number of similarities between the protections now offered in family law proceedings and in domestic violence proceedings in Queensland. The key difference between the two, is the implementation of an automatic ban of cross-examination.

In domestic violence proceedings in Queensland, the Court firstly needs to identify if the alleged victim is a protected witness. This is likely to be the case, given that the definition of a protected witness includes the ‘aggrieved’ (being the alleged victim as we have been referring to them in this article). If this is the case, then the Court may seek to either:

  1. Impose certain conditions on how cross-examination is to occur (whether or not the respondent or alleged perpetrator is self-represented or not).
    .
    This can include their evidence being given via video or telephone link, having a support person present or any other arrangement that the Court considers appropriate in the circumstances. These provisions are similar to the changes being introduced to family law proceedings.
  2. Prevent a self-represented party from directly cross-examining the self-represented respondent.
    .
    The Court will make an Order, preventing a self-represented respondent from cross-examining the alleged victim if, the Court considers that it likely to cause the alleged victim to:

    1. Suffer emotional harm or distress; or
    2. be so intimidated as to be disadvantaged as a witness.

If the Court decides that it is not safe for the self-represented respondent to directly cross-examine the alleged victim, then the only option available to the self-represented respondent is to obtain legal representation, otherwise cross-examine will not take place.

This means that is that there is no automatic ban that is put in place, in domestic violence proceedings in Queensland, by virtue any previous Orders regarding domestic or family violence being made, any personal protection injunctions made during the course of family law proceedings, or any prior convictions or current charges against the respondent/alleged perpetrator of an offence involving violence to the alleged victim.

The Court, in domestic violence proceedings in Queensland, will consider the facts and circumstances of each case and make Orders they consider appropriate to ensure the safety of the alleged victims whilst balancing the parties fundamental right to due process and natural justice.

If you are likely to be impacted or allegations of domestic and family violence are present it is important that specialised advice is sought. Our experienced Family Law teams in Brisbane and Toowoomba are readily able to assist you with these queries so please contact us today.

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