In 2019 an important amendment was made to the Family Law Act, which prohibits personal cross-examination by a party where there are allegations of family violence.

This section prevents victims of domestic violence from being cross-examined directly by the perpetrator of domestic violence and vice versa. Personal examination means this provision applies to self-represented litigants. 

This section aims to minimise victims of family violence being exposed to further abuse. An additional policy consideration behind the introduction of this section is to minimise the risk of proceedings being undermined. 

Parties who are banned from direct cross-examination are nonetheless afforded procedural fairness as they are given the opportunity to appoint a lawyer.

The Commonwealth government has established a scheme called the Family Violence and Cross-Examination of Parties Scheme (the Scheme) to assist parties who cannot afford to pay a private lawyer. 

Both parties legally represented

The section does not apply where allegations of family violence are made, but both parties are legally represented because the cross-examination will be undertaken by the legal representatives and not the parties. 

One or both parties not legally represented

An unrepresented party will be banned from cross-examining the other if: 

  1. If either party has been convicted of an offence involving violence or threat of violence; 
  2. there is a current family violence order; or 
  3. either party has a personal protection injunction against the other. 

If any of these criteria are satisfied, the cross-examination must be done by a legal representative. The Court can direct the self-represented party to hire a lawyer if they have the means to pay for one or direct them to apply for a Legal Aid lawyer through the Scheme. 

Even where one of the above criteria do not apply, for example, where the allegations are historical, the Court nonetheless has the discretion to ban the personal cross-examination. If a Judge makes such an Order, then the same principles apply. The party can appoint a private lawyer or apply for a Legal Aid lawyer through the Scheme. 

Costs of an Independent Children’s Lawyer 

Often an Order is made in family law litigation where an Independent Children’s Lawyer (“ICL”) has been appointed, that each party pay half of the costs of the ICL each. The Court has the power to make orders as to costs and security for costs under Section 117(2).

However, section 117(4) of the Family Law Act states where an Independent Children’s Lawyer has been appointed, and a party has received Legal Aid, or the Court considers they would suffer financial hardship if they had to pay for the costs of an Independent Children’s Lawyer, the Court must not make an order for costs or security for costs. 

It has been made clear in the recent case of legal Aid v Westwell [2021] FamCAFC 50 that where a party is appointed a lawyer through the Scheme, they are nonetheless required to pay for their share of costs for the Independent Children’s Lawyer.

The Full Court states that “the reference to “legal aid” in subsection 4 does not include a reference to the provision of funding of a lawyer under Section 102NA where that funding is from a legal aid body.”