Even more provisions to prevent the truth being told. Those accused of domestic violence will not have an opportunity to directly cross-examine the accuser. If the accused cannot afford a lawyer presumably it will mean Legal Aid will have to fund their defence. We will watch carefully to see if this happens as Legal Aid is usually extremely reluctant to provide funding for the accused. The quality of the representation may also be called into question.

  1. If direct cross-examination is permitted, it is to be undertaken by legal representatives only including by legal aid being provided in accordance with the usual rules and standards to enable a party to have legal representation.

The Family Law Amendment (Family Violence and Cross examination of Parties) Bill 2018 was given assent on 10 December 2018. It represents a commitment by the government to continue to implement the recommendations of the Council of Australian Governments, including that perpetrators of family violence should not be permitted to directly cross examine their victims. The amendments address community concerns that a perpetrator’s ability to directly cross-examine their victims may constitute a continuation or extension of family violence.

The amendments provide mandatory protections for parties in certain cases. Personal cross-examination is now prohibited where:

  1. Either party has been convicted of or is charged with an offence involving violence or a threat of violence, to the other party.
  2. Where a final family violence order applies to both parties.
  3. Where the court has already made a personal protection order against a party pursuant of section 68B or 114 of the Family Law Act 1975.
  4. If none of the above apply, at the discretion of the court where an allegation of family violence has been made by a party to proceedings.

The court is required to ensure that appropriate protections are in place for the party who is the alleged victim of the family violence, including:

  1. If direct cross-examination is permitted, it is to be undertaken by legal representatives only including by legal aid being provided in accordance with the usual rules and standards to enable a party to have legal representation.
  2. By allowing a victim to give evidence via video link from a safe room.

The amendments are designed to strengthen the Court’s ability to protect victims of family violence and to illicit more reliable evidence to assist in the Court’s ability to make decisions in the best interests of children.

While the amendments were given assent on 10 December 2018, the new procedures come into effect in 6 months, from 10 June 2019.

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