Family Law Amendment (Family Violence and Cross-examination of Parties) Act 2018
The Family Law Amendment (Family Violence and Cross-examination of Parties) Act 2018 (the Act) came into effect on 10 March, 2019. The Act changes the law in relation to cross-examination in some family law proceedings, where there have been allegations of family violence. The Act allows for the court to ban personal cross examination in certain circumstances.
Personal cross examination is where a party asks questions of another party or a witness directly, rather than having a lawyer ask those questions.
The changes are intended to offer greater protections to victims of family violence so that they are not cross examined directly by a perpetrator and are not required to cross examine the perpetrator directly.
The Act provides that a party must not personally cross-examine another party, but must instead engage a lawyer to conduct the cross-examination, where:
- There is an allegation of family violence between the parties (regardless of which party the allegation is made against), and
- One or both of the parties has been charged with or convicted of an offence involving violence or a threat of violence to the other party; or
- There is a family violence order (other than an interim order) applying to both parties; or
- An injunction has been granted against one party for the personal protection of the other party; or
- The Court makes an order that personal cross-examination not occur.
If there are allegations of family violence between the parties and one of the above points applies and a party does not have legal representation, then that party will not be permitted to cross examine the other party.
In cases where there are allegations of family violence between the parties but the above points do not apply, personal cross-examination may be allowed, however the Court retains the discretion to ban personal cross examination if it is appropriate to do so.
If the Court permits personal cross examination, then the Court must ensure there are suitable protections in place for the party who is the alleged victim of family violence. An example of such a protection is the cross-examination being conducted by video link rather than in person.
Whilst the Act has already come into effect, it only applies to cross-examination occurring from 10 September 2018 onwards. The delay is to ensure that parties involved in family court matters have enough time to engage a lawyer and limit any unnecessary delays in proceedings.
If you are thinking of separating, commencing family law proceedings, or are involved in family law proceedings where allegations of family violence have been made, it is important that you get legal advice at the earliest opportunity.
Johnston Withers’ team of family lawyers located across South Australia has extensive experience in dealing with matters where family violence has occurred or has been alleged.