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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.

 

 

Separation is usually stressful but often more so where domestic violence has characterised the relationship, or has become present on separation.

Domestic or family violence has several definitions and can be physical, emotional, financial, sexual, social or spiritual. Often domestic violence is grounded in one person attempting to exercise their control over another person.

Research into domestic violence indicates there are categories or characteristics to the behaviour that professionals working with people caught up in violent relationships ought to recognise. Some examples are:

  • “Coercive and controlling violence” – where violence is used to disempower or control another person;
  • “Situational” -where arguments escalate to the point of violence, often by both parties towards each other;
  • “Violent resistance” – when a partner uses violence to defend against abuse;
  • “Separation induced violence” – often isolated acts of violence in response to the stress of separation, seeking to regain control.

Nobody should ever feel unsafe in a relationship. But for your health and safety, there are important steps to take when you separate in circumstances of family violence.

Escape – Physical safety first

If you are in a situation of immediate danger remove yourself, children and pets from that situation.

If you are unable to get to safety you should immediately call Police.

Getting to safety is often very difficult for practical, financial and emotional reasons however there is support available.

Some of the assistance currently available is:

  • DV Connect Women’s Line 1800 811 811
  • DV Connect Men’s Line 1800 600 636
  • Kids Help Line 1800 55 1800
  • Lifeline 13 11 14

Currently the Queensland Government has useful information available on the following link:

https://www.qld.gov.au/community/getting-support-health-social-issue/domestic-family-violence-getting-help/

Some organisations recommend preparing a “go bag” that includes clothes, cash and essentials for the children. Having copies of financial information, and other important paperwork such as pass ports is important as well. The Domestic Violence Crisis Service has a useful checklist that can help with the planning.

Get a lawyer

Empowering yourself includes getting a legal specialist on your side to assist you.

In this situation knowledge is power; and knowing your rights with respect to Protection Orders, child custody, property settlement and court procedures, can assist you to with separation strategy. Your lawyer is your guide during this tough time.

Some charity organisations against domestic violence offer free advice or you may be eligible for legal aid. Some lawyers, such as Hooper Family Lawyers, are private firms on the Legal Aid Queensland panel who can make the application for you, and be nominated as your family law solicitor.

Tell someone

If you are living with family violence speak up.

Ideally you would make a complaint to Police if you are a victim, however you may not yet be prepared to make a formal complaint.  

Counselling services such as those referred to above may be able to assist and if you need someone to talk to.

Trusted friends and family members can also be good people to talk to regarding the situation as well as a trusted general medical practitioner.

It is important that you are certain whoever you talk to will not report back to the perpetrator.

What if a Protection Order is breached?

A breach of a Protection Order in Queensland is a criminal offence.

If a Protection Order has gotten breached, the Police will require evidence before bringing criminal charges against the perpetrator. In criminal court matters, there is a higher standard of proof (“beyond a reasonable doubt”). The evidence the Police need must be sufficiently strong.

Police will often say to victims they should record any breaches if possible. This should only be done however when it is safe for you to do so. For information regarding your legal rights to make recording please refer to our article of the topic:

https://www.hooperfamilylawyers.com.au/recordings-as-evidence-in-courts-exercising-jurisdiction-under-family-law-act-1975-2/