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Family violence and the cross-examination of parties scheme

Information on the ban that applies to self-representing litigants cross-examining the other party at an interim or final hearing before the family law courts.

The Family Law Act 1975 has been amended to prohibit self-represented litigants from personally cross examining the other party where there is family violence. This change has been made to protect victims of family violence from having to cross examine or be cross examined by a partner who has used family violence. This means that a party cannot ask questions of another party or witness directly during court proceedings, they will need a lawyer to do this.

From 10 September 2019, unrepresented litigants will not be able to cross examine the other party at an interim or final hearing if family violence is alleged, and:

  • either party has been charged or convicted of an offence that involves violence or the threat of violence to the other party
  • a final family violence order applies to both parties
  • an injunction has been made under the Family Law Act 1975 for the personal protection of one party against another, or
  • the court decides that the prohibition should apply.

An order, based on the first 3 grounds is automatic. That is, if these grounds are satisfied, the judge, must order a cross-examination ban.

If a party is concerned about family violence but they cannot satisfy the first 3 grounds, they may apply to court under s. 102NA(!)(c)(iv). for an order to be made. The judge may also decision on their own initiative that an order is needed.

See s. 102NA, 68B, 114—Family Law Act 1975 (Cth)(opens in a new window).

What is a family violence order?

A family violence order is an order made under a state or territory law to protect a person from family violence. Although the definition includes an interim order, the family law court will not automatically make an order prohibiting parties from personal cross examination if the family violence order is an interim order. .

See .s. 4—Family Law Act 1975 (Cth)(opens in a new window)

How the scheme works

In circumstances of family violence a judge may make an order banning cross-examination by the parties. If an order is made, both parties will need a lawyer.

A copy of this order will be sent to Victoria Legal Aid. VLA will keep this on file. The self-represent litigant can then choose to engage a private lawyer or can apply to VLA for funding under the scheme. If a party with this order fails to get a lawyer to represent them, either privately, or by applying under the scheme to a Legal Aid Commission, then they will not be permitted to cross-examine the other party.

Once an order banning personal cross-examination is made, the unrepresented parties may apply directly to Victoria Legal Aid (VLA). for a grant of legal assistance under the scheme. Matters funded under this scheme are not subject to the usual VLA guidelines and merits tests, however the person may have to contribute to the cost, depending on their financial circumstances..

This scheme is funded by the Commonwealth Government and, in Victoria, is adinistered by Victoria Legal Aid. This funding will be available for Commonwealth family law matters that are listed in the Federal family courts. VLA will pay for a lawyer to prepare for the hearing and to represent the party at any hearing where personal cross-examination may happen. The funding will enable either a VLA lawyer or family law lawyer on the VLA panel to assist the party.

Legal assistance will be limited to the work that the lawyer needs to do to prepare the matter for trial. This may include preparing affidavit material or work ordinarily required to prepare for trial, and legal representation at the trial..This may include the following grants of legal assistance.

  • stage 3 trial preparation
  • stage 4 trial costs (for all days listed and at full rate)
  • stage 2H litigation intervention limited to one conference
  • stage 2G interim contest (in rare instance where personal cross-examination may occur)
  • any procedural hearings
  • disbursements, such as process servers, travel
  • other disbursements where reasonable and after prior approval from VLA.

Who is eligible to apply?

VLA may provide funding under the scheme to an unrepresented party where the ban applies. The unrepresented party could be an applicant, a respondent or an intervening party (if that party has been involved in the allegations of family violence, either as an alleged victim or perpetrator).

Where to get the forms

The form and information to help applicants can be downloaded below. Forms are also available from VLA offices or from duty lawyers and Federal Advocacy and Support Services (FASS) duty lawyer at court.

A duty lawyer may be able to help an applicant to fill out the form.

See Commonwealth Family Violence and Cross-examination Scheme application form (docx, 193 KB)(opens in a new window)

More information

Legislation

Family Law Act 1975 (Cth)

  • s. 68B—injunctions (in relation to orders about children)
  • s. 114—injunctions
  • Part 11—Procedure and evidence, Division 4—Cross-examination of parties where allegations of family violence
    • s. 102NA—mandatory protections for parties in certain circumstances
    • s. 102NB—court-ordered protections in other cases
    • s. 102NC—review of the decision

See Family Law Act 1975 (Cth)(opens in a new window)

Reference

Family Court

See Family Court—Family violence and cross examination of parties scheme(opens in a new window)

Victoria Legal Aid

The 'Find legal answers' part of the Victoria Legal Aid website has information about the scheme and an application form for self-represented litigants who are banned from cross-examining the other party under this scheme.

See Commonwealth family violence and cross-examination scheme(opens in a new window)

Updated