Sometimes in Family Law matters either one or both parties are self-represented litigants at a trial.
In the past, in cases that involved domestic violence, this would mean that victims of domestic violence could end up being cross examined at a trial by those who have allegedly perpetrated violence against them.
Following the recommendations made by the Royal Commission into Domestic Violence, changes were made to the Family Law Act 1975 and such changes recently came into effect. These changes provide for a legislative ban on personal cross examination in matters that involve family violence.
Section 102NA prohibits 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 section 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.
The court may also make an order to prevent personal cross-examination on its own initiative or on the application of either the examining party, the witness party, or an independent children’s lawyer.
So that parties to proceedings that are banned from personal cross examination are able to have witnesses cross examined in their case, the government has provided for a process whereby those subject to a ban without legal representation, can apply to Legal Aid to have a lawyer appointed for the purpose of cross examination of a witness. Access to this scheme is not means or merit tested, although parties may be asked to contribute to the cost of their legal representation where appropriate.
If you are a self-represented litigant you should seek advice from a specialist Family Lawyer about how section 102NA will apply to you. Contact Macrossan & Amiet for an appointment today.