The Federal government has enacted changes to the Family Law Act 1975 (FLA) that will prohibit the cross examination by self-represented parties in proceedings where there are family violence issues.
Family violence in the FLA means violent, threatening or other behaviours that coerces or controls a family member or causes them to be fearful.
The changes will apply when family violence is alleged in child custody, property settlement or spousal maintenance proceedings, and any one of the following situations also occur:
- One of the party’s has been convicted or charged with an offence involving violence, or threatening violence to the other party. Typically, this would be a situation when a party has breached a domestic or family violence order or committed assault and has been charged or convicted.
- A domestic or family violence order has been made under State legislation (such as a DVO, AVO or Protection Order – the terminology differs between States) and applies to both of the parties i.e. they are the aggrieved and respondent. While the new rules apply to family law matters which are under Commonwealth jurisdiction, domestic or family violence orders come under the powers of the States. Temporary orders aren’t relevant here, only a final order.
- An injunction under Section 68B or 114 of the Family Law Act 1975 for the personal protection of either party has been made. This is effectively the Commonwealth version of a State domestic or family violence order.
- The Court determines that cross examination by self-represented parties should not occur in the particular facts of the case. Thus, the Judge can decide the parties shouldn’t be permitted to cross examine each other.
Therefore, in family violence matters as set out above, the parties will need their own family law advice and divorce lawyer to conduct the cross examination for them.
We specialise in family law matters and can assist parties from Lismore to the Sunshine Coast, throughout Greater Brisbane, Northern NSW, Tweed and the Gold Coast with court representation and advice. Get in contact today and in an initial consultation we can give you guidance as to your options, likely outcomes and costs.
What if a party can’t afford legal advice or legal representation?
In these circumstances a party may apply to the Commonwealth Family Violence and Cross Examination of Parties Scheme, to have a family lawyer and barrister appointed for them to conduct the cross examination.
Applying for a lawyer will be done via the state Legal Aid offices, is not merit or means tested and the application must be made at least 12 weeks before the final hearing.
This means that regardless of your financial circumstances you will be able to have the lawyer represent you for the cross examination.
We are Legal Aid Queensland panel solicitors and can assist you with applying for Legal Aid as well as Legally Aided court representation.
When is cross examination necessary?
Cross examination of a witness in family law cases usually only occurs at a final hearing.
Therefore, if you have reached an agreement via mediation or through consent orders or parenting plan, then cross examination won’t be necessary.
If your matter is going to court and you need assistance, contact Hooper Family Lawyers at Victoria Point on (07) 3207 7663; or Hooper Family Lawyers Coolangatta on (07) 5599 3026.