The Family Law Amendment (Family Violence and Cross-examination of Parties) Act 2018 commenced on 11 March 2019. The amendments protect victims of family violence by banning personal cross-examination in certain circumstances in family law proceedings, and requiring instead that cross examination be conducted by a legal representative. The amendments will apply to cross examinations that occur after 11 September 2019, in proceedings instituted before or after that commencement.
The amendments prohibit personal cross-examination in family law proceedings where there is an allegation of family violence between two parties and 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 family violence order (other than an interim order) applies to both parties
- an injunction under sections 68B or 114 for the personal protection of either party is directed against the other party, or
- the court makes an order that the mandatory requirements apply to the cross examination.
When the ban applies, cross examination of both parties must be conducted by a lawyer. Parties will need to hire a private lawyer or apply to their relevant state or territory legal aid commission for legal representation under the Commonwealth Family Violence and Cross examination of Parties Scheme.
While these measures apply in family law proceedings, they also have relevance for family violence matters in state and territory courts as the presence of a conviction or a final family violence order will now result in parties being unable to personally cross-examine one another in a family law proceeding where there are allegations of family violence.
A copy of the legislation and explanatory memorandum is available on the Australian Parliament House website.