Cross-examination

  • Family Court of Australia and Federal Circuit Court of Australia, Family Violence Best Practice Principles (4 ed, 2016).

    The Family Violence Best Practice Principles are applicable in all cases involving family violence or child abuse (or the risk of either) in proceedings before courts exercising jurisdiction under the Family Law Act 1975 (Cth) (FLA).

    The latest edition reflects the extensive powers of the judiciary in regard to the cross-examination of vulnerable witnesses by alleged perpetrators of family violence. For example, in child-related proceedings, the power to make orders limiting, or not allowing, cross-examination of a particular witness (Section 69ZX(2)(i) FLA)* and/or to, with forewarning, refuse permission to continue cross-examination.

    The Statement of Principle on pp. 4-5 provides inter alia that:

    ‘These Best Practice Principles have been developed by the Family Court of Australia (FCA) and the Federal Circuit Court of Australia (FCCA). They contribute to furthering the courts’ commitment to protecting children and any person who has a parenting order from harm resulting from family violence and abuse.

    The Best Practice Principles recognise:

    • the harmful effects of family violence and abuse on victims
    • the place accorded to the issue of family violence in the FLA and
    • the principles guiding the Magellan case management system for the disposition of cases involving allegations of sexual abuse or serious physical abuse of children.

    The Best Practice Principles are applicable in all cases involving family violence or child abuse or the risk of family violence or child abuse in proceedings before courts exercising jurisdiction under the FLA (FCA and FCCA). They provide useful background information for decision makers, legal practitioners and individuals involved in these cases…

    Ensuring the safety of a child is central to all determinations of what is in a child’s best interests.

    The courts aim to protect children and family members from all forms of harm resulting from family violence and abuse.

    All persons attending courts exercising family law jurisdiction are entitled to be safe and the courts will take all appropriate steps to ensure the safety of their users. This includes the creation of an individually tailored safety plan where appropriate.

    A safety plan is a document that can be varied at any time and which includes a variety of options available to a person to ensure their safety at court. These include attendance by electronic medium, attendance with support persons, staggered attendances, use of security entrances and, where necessary, security personnel. All court staff are able to prepare a safety plan. Safety planning is one of the strategies that may be implemented to ensure that a person who fears for their safety remains protected from harm. A safety plan for attendances at court events is but one component of safety planning that needs to be incorporated into the individual’s overall plan for their safety.’

    *This provision is mirrored in Section 202L Family Court Act 1997 (WA)