Cross examination banned in Family Law proceedings where Family Violence has occurred

“For parties who have experienced family violence, fear of being cross examined by the person who has perpetrated the abuse may lead them to avoid the court and consent to arrangements that do not provide security they need“ Australian Law Reform Commission Issues Paper

The Federal Government has passed legislation amending the Family Law Act 1975 (Cth) to protect victims of Family Violence from being cross examined by their abusers in Court.  Many victims of family violence have likened the trauma of being cross examined as akin to the actual violence which took place.  The cross examination can retraumatise the victim, thus making recovery from family violence difficult and certainly delays that recovery.

The Family Law Amendment (Family Violence and Cross-examination of Parties) Act 2018 will come in to effect in 2019 and will provide a blanket ban on cross examination in circumstances where a party is self-represented and:

  1. There is a criminal conviction involving violence or a threat of violence to the other party;
  2. A final Intervention Order is in place; or
  3. An injunction is in place for the protection of a party to the proceedings.

The new laws also allow the Court to make a determination that cross examination of a victim of family violence is not appropriate.  The Court can also put in place protective measures for victims of family violence who do not meet the criteria as set out above.  This includes measures such as giving evidence by audio or video link to the Court.  The blanket ban applies not only to the perpetrator of family violence, but also to the victim to protect them from having to confront their abuser and cross examine them.

Cross examination will be permitted in circumstances where the parties are legally represented.  Strict rules of evidence are applied to protect a victim from improper or unduly harassing questioning by a legal practitioner of a victim of family violence.  Additional funding is being discussed for Legal Aid to allow for “non-means tested” representation in circumstances where family violence has occurred and the parties are prevented from cross examining each other.

The new laws are welcomed by the legal profession, particularly in circumstances where, according the Australian Law Reform Commission “self-representation has become an increasingly common feature of family law litigation, affecting around half of the family law trials in the Federal Circuit Court.”

Victims of Family Violence are currently protected by the Family Violence Protection Act 2008 (FVPA) from being cross examined by the perpetrator in the Magistrates Court in relation to Intervention Orders.  Section 70(3) of the FVPA states that a “protected person must not be personally cross-examined by the respondent” unless they consent.  However, no such protection has existed, until now, for a victim of Family Violence when they present in the Family Court system.

If you have experienced family violence or are concerned that the new reforms will affect your Family Law proceedings, we recommend that you make an appointment to speak to one of the lawyers at Caroline Counsel Family Lawyers for tailored advice about your situation.  All lawyers at Caroline Counsel Family Lawyers have received specialised Family Violence training.

The information in this blog does not constitute legal advice and cannot be relied upon by you. If you require advice specific to your situation, you must contact Caroline Counsel Family Lawyers for legal advice. The contents of this blog are relevant as at 7 December 2018.  We recommend you obtain specific advice relevant to you and your family’s situation.

By Sarah Damon

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