Recent changes in the law mean that from 10 September 2019, the Family and Federal Circuit Courts will no longer allow a person to cross-examine the other litigant in some circumstances.
This applies where there is an allegation of family violence and one of the following applies;
- (i) either party has been convicted of, or is charged with, an offence involving violence, or a threat of violence, to the other party;
- (ii) a family violence order (other than an interim order) applies to both parties, such as an AVO or DV Protection Order;
- (iii) an injunction for the personal protection of either party is directed against the other party; or
- (iv) the court makes an order.
If these criteria are met then a self-represented litigant must have a legal practitioner (eg a solicitor or barrister) undertake the cross-examination of the other party on their behalf. This means that a self-represented litigant must either engage a lawyer to cross-examine for them or apply to the government’s scheme for a lawyer at least 12 weeks before the trial.
The Court can also direct that when there is direct cross-examination by one party of the other, that this take place by video or audio link.
The interesting thing to note is that this language is broad so that this applies irrespective of which party wants to cross-examine and which party is being cross-examined. So for example, an aggrieved party to a DV order cannot themselves cross-examine the respondent to the Order.
It is not limited to litigation regarding children either, this applies to any family proceedings.
These changes do not replace other existing provisions regarding how witnesses are cross-examined, they are in addition to those measures.
For more information call us to see one of our dedicated family lawyers on 5576 9999.
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