On 11 September 2019 amendments to the Family Law Act 1975 with respect to cross examination of self-represented parties where there are allegations of family violence will come in to effect.
In effect, cross examination will not be permitted where there is a self-represented party, regardless of whether they are a victim or perpetrator.
If a party (the examining party) intends to cross examine another party (the witness party) and there are allegations of family violence between the examining party and the witness party and any of the following are satisfied:
- 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 to protect the welfare of a child or an injunction to protect a party to a marriage;
- the court makes an order that the requirements of the following are to apply to the cross examination
then both of the following apply to the cross-examination:
- The examining party must not cross-exam the witness personally, and
- The cross-examination must be conducted by a legal practitioner acting on behalf of the examining party.
So what does that all mean?
That in cases where parties are either victims or perpetrators of family violence and they satisfy the above criteria then they will be prevented from cross examining the other party.
How does this come in to effect?
The court may make an order on its own initiative, on the application of the witness party, or the examining party or if an independent children’s lawyer has been appointed for a child in relation to the proceedings then by that lawyer.
What happens when the matter comes before the court?
If the matter satisfied the criteria the Court will set the matter down for trial and make an order for the matter to be referred to the Cross Examination Scheme. The party who is self-represented will need to make an application to the Scheme. Once that application has been received and approved a lawyer will be assigned to the self-represented party and that lawyer will then prepare the matter for trial.
What happens if the matter is referred to the Cross Examination Scheme and the self-represented party decides they do not wish to make an application to be included in the Scheme?
If a party elects not to be included in the Scheme then there will be no cross examination when the matter comes before the Court for trial.
If you wish to know more about this and any other family law matters, please do not hesitate to contact Michell Meares, Lawyer, Accredited Specialist Family Lawyer/Mediator, Sue Barnett, Senior Family Law Paralegal or Bonnie O’Brien, Junior Family Law Secretary on (020)4324 7699