The Family Law Act 1975 (Cth) provides protection to victims of family violence who are cross-examined as part of family law proceedings.

A party intending to personally cross-examine the other party may be prevented from doing so in certain circumstances where there are allegations of family violence between the parties. Instead, the cross-examination must be conducted by a lawyer (or barrister) acting on behalf of the examining party [Family Law Act 1975 (Cth) s 102NA(2)].

Personal cross-examination is automatically prohibited where there is an allegation of family violence between two parties and one or more of the following applies [s 102NA(1)]:

If the above circumstances do not apply, the Court still has the discretion to make an order that personal cross-examination is prohibited [s 102NA(1)(c)(iv)].

The court may make an order preventing the personal cross-examination on its own initiative, by application of either the witness party or the examining party, or by application of the Independent Children's Lawyer [s 102NA(3)].

An order pursuant to section 102NA will apply to all parties the subject of the family violence allegations. All impacted parties are required to have their own lawyer if they intend to cross examine the other party.

Legal representation may be arranged privately or by applying to the Legal Services Commission under the Family Violence and Cross-examination Scheme. Applications pursuant to the Scheme are made using the Scheme Application Form. They are not required to meet the Legal Services Commission’s usual means, merit and guideline tests, although a means tested contribution may be payable.

Where there are allegations of family violence but the provisions of section 102NA of the Act are not satisfied, the court must still ensure that appropriate protections are put in place for the alleged victim in the cross-examination proceedings [s 102NB]. This may include, for example, requiring that the cross-examination be conducted via video link or audio link.

For more information, see our Family Violence and Cross-examination Scheme Information Sheetor Mee & Tomkins[2022] FedCFamC2F 1129.