Since 10 September 2019, personal cross-examination is no longer allowed in family law proceedings in which there is an allegation of family violence.
Personal cross-examination is where a party (the witness party) is asked questions by another party (the examining party), instead of by a legal practitioner.
The ban was introduced to protect victims of family violence from re-traumatisation in the witness box and allow them to give clear evidence in family law proceedings.
Family violence is defined in the Family Law Act 1975 as violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes them to be fearful. It may include acts such as:
- repeated derogatory taunts
- sexual assault or sexually abusive behavior
- intentionally damaging or destroying property
- unreasonably withholding financial support
- preventing a family member from remaining connected to their family, friends or culture.
The examining party will be automatically banned from personal cross-examination of the witness party if there is an allegation of family violence between the parties and any of the following apply:
- either party has been convicted of, or charged with, an offence involving violence, or a threat of violence, to the other party
- a protection order applies to both parties
- an injunction is in place for the personal protection of a party, directed against the other party.
Where these circumstances do not apply, so that there is no automatic ban of personal cross examination, the court still has the discretionary power to ban personal cross-examination.
If the court does not ban personal cross-examination, but there is an allegation of family violence, it must ensure there are appropriate protections in place for the alleged victim of family violence.
Some of the protections the court may put in place include:
- allowing a party to give testimony by video or audio link so they are not in the same room as the alleged perpetrator
- disallowing questions that are asked in a manner that is inappropriate, offensive or abusive
- allowing the victim to have a support person near them while giving evidence
- requiring the alleged perpetrator to be shielded from view while the victim gives evidence
- closing the court to the public or excluding specific persons from the courtroom.
Parties who are banned from personal cross-examination must retain a lawyer or apply for legal representation from the Commonwealth Family Violence and Cross-examination of Parties Scheme through their local legal aid office. If a party does not have a lawyer, the other party will not be cross examined.