Cross-examination

Cross-examination may present particular difficulties in family disputes where there are allegations of domestic and family violence between the parties to the proceedings, and a self-represented perpetrator wishes to cross-examine the victim or a self-represented victim is expected to cross-examine the perpetrator.

Where a party who is a victim of domestic and family violence is self-represented and required to cross examine the perpetrator, their capacity to appropriately and fully question may be diminished or negated by their fear of the perpetrator. Where the perpetrator is represented, a self-represented victim may feel particular pressure to withdraw or not proceed with an application, or to consent to orders as a result of fear or intimidation, or to avoid being compromised or intimidated by a hearing or other ongoing proceedings.

In some cases a perpetrator may choose to be self-represented so as to secure the opportunity to directly cross-examine the victim. The victim’s capacity to give evidence or the quality of the victim’s evidence in these circumstances may be compromised by the victim’s fear of the perpetrator and, as a consequence, the probative value of the evidence may be diminished or negated.

Where a perpetrator uses their own or the victim’s self-represented status to subject the victim to further abuse through judicial processes, the victim may experience a form of secondary abuse.

These scenarios should be understood in the context of the complex dynamics of domestic and family violence characterised by a pattern of abusive behaviour involving a perpetrator’s exercise of control over the victim, often for an extended period.

Judicial officers have extensive powers in regard to the cross-examination of witnesses.

Family violence allegations in family law proceedings – personal cross-examination ban

Recent amendments to the Family Law Act 1975 (Cth) (FLA) (no equivalent in the Family Court Act 1997 (WA)) ensure that, from 10 September 2019, appropriate protections for victims of family violence are in place during cross-examination in all family law proceedings.

Section 102NA FLA bans personal cross-examination in family law proceedings in certain circumstances where allegations of family violence have been raised. The ban may apply automatically or the court may use its discretion to impose a ban.

The automatic ban applies where there are allegations of family violence between two parties and any of the following circumstances apply:

  • either party has been convicted, or is charged with, an offence involving violence, or a threat of violence, to the other party.
  • a family violence order (other than an interim order) applies to both parties.
  • an injunction under section 68B or 114 FLA for the personal protection of either party is directed against the other party.

The court also has discretion to make an order to ban personal cross-examination even if those circumstances do not apply. The court may make such an order on its own initiative or on the application of either the examining party, the witness party, or an independent children’s lawyer (subsection 102NA(3) FLA).

Where personal cross-examination is prohibited, cross-examination of both parties must be conducted by a lawyer (subsection 102NA(2) FLA). Parties will need to engage a private lawyer or apply to their relevant state or territory legal aid commission for legal representation under the Commonwealth Family Violence and Cross-Examination of Parties Scheme. If a party does not have legal representation, they will not be permitted to cross-examine the other party.

Section 102NB FLA requires that where there is an allegation of family violence, but a party is not prohibited from personally cross-examining another party under section 102NA FLA, the court must ensure that during cross-examination there are appropriate protections for the party who is the alleged victim on the family violence.

Other powers to control proceedings

More generally, in the federal jurisdiction, section 26 Evidence Act 1995 (Cth) gives the court power to make orders it considers just regarding the questioning of witnesses; and under section 41 Evidence Act 1995 (Cth) the court must disallow questions that it considers improper on certain grounds. In the family law jurisdiction specifically, Part VII, Division 12A of the Family Law Act 1975 (Cth) and Part 5, Division 11A of the Family Court Act 1997 (WA) contain provisions relating to the conduct of child-related proceedings (see also the Family Violence Best Practice Principles). Section 69ZN FLA and Section 202B FCA set out the governing principles, including the court’s role in actively directing, controlling and managing the conduct of the proceedings, and in safeguarding children and parties against family violence. Section 69ZT FLA and Section 202H FCA empower the court to dispense with certain rules of evidence, and Section 69ZX FLA and Section 202L FCA give the court considerable flexibility to make orders and directions in relation to evidentiary matters, including to limit or not allow cross examination of a particular witness.

Where a judicial officer is concerned about the safety of a party they may facilitate a safety plan, which may, for example, provide for the party to give evidence by electronic medium and to be attended by a support person in the courtroom and precinct.

A judicial officer must balance the need for procedural fairness in the presentation of both parties’ cases, including proper testing of evidence by cross-examination, with the need to ensure the safety of parties.

It is acknowledged in case law that judicial officers have a high level of discretion in the management of these proceedings, including whether cross-examination will proceed, and its nature and scope. A recent survey of judicial officers conducted by the Australian Institute of Family Studies indicated that the Division 12A provisions are used to varying extents by the court to minimise trauma to parties who had experienced domestic and family violence, in relation to evidence being led and the conduct of cross-examination.