Family Law Amendment (Family Violence and Cross-examination of Parties) Act 2018

Overview

The Family Law Amendment (Family Violence and Cross-examination of Parties) Act 2018, enacted by the Parliament of Australia, aims to amend the Family Law Act 1975, specifically addressing the issue of family violence in family law proceedings. The Act was designed to provide enhanced protections for parties involved in family law matters where there are allegations of family violence, particularly during the cross-examination process. It introduces mandatory protections where there are serious allegations of family violence, requiring that cross-examinations in such cases be conducted by a legal practitioner rather than the examining party personally. This aims to safeguard the wellbeing and rights of parties, particularly those who are alleged victims of family violence, by reducing direct confrontation and potential harm during proceedings. The Act also mandates that the court must ensure appropriate protections are in place for the alleged victim in cases where the mandatory protections do not apply. The Family Law Amendment (Family Violence and Cross-examination of Parties) Act 2018 was introduced to address the gap in protection for parties involved in family law proceedings where allegations of family violence exist. The policy objective of this Act is to enhance the safety and rights of individuals in such proceedings, particularly focusing on the cross-examination phase where the risk of further harm or intimidation may be heightened. By implementing these measures, the Act seeks to create a more protective environment for victims of family violence within the family law system, ensuring that their rights and safety are prioritised during legal proceedings.

Scope and Application

The Family Law Amendment (Family Violence and Cross-examination of Parties) Act 2018 amends the Family Law Act 1975 to introduce mandatory protections for parties involved in family law proceedings where allegations of family violence are present. This Act applies to proceedings under the Family Law Act, affecting all parties, including those who are directly involved in the proceedings and intervening parties such as independent children’s lawyers, when they are implicated in the allegations of family violence. The legislative changes are intended to ensure the safety and well-being of parties, particularly those who are alleged victims of family violence, during cross-examinations. The Act has a national reach as it amends Commonwealth legislation. The amendments apply to cross-examinations that occur six months after the commencement of the Act, regardless of whether the proceedings were instituted before or after the commencement. The Act does not specify any exclusions or exemptions but allows for the possibility of the court applying additional protections in cases where the mandatory provisions do not apply. The Act also mandates a review of its operation two years after its commencement to assess its effectiveness and make any necessary adjustments.

Key Provisions

The Family Law Amendment (Family Violence and Cross-examination of Parties) Act 2018 (Act) amends the Family Law Act 1975 (FLA) to introduce new provisions around the cross-examination of parties where there are allegations of family violence. Section 102NA (subsections 102NA(1) to 102NA(3)) requires that if a party intends to cross-examine another party in proceedings under the FLA and there is an allegation of family violence between the parties, certain requirements must be met. Specifically, if either party has been convicted of, or is charged with, an offence involving violence or a threat of violence to the other party, or if a family violence order applies to both parties, or an injunction for personal protection is directed against the other party, or the court makes an order under section 102NA(1)(c)(iv), then the cross-examination must not be conducted personally by the examining party. Instead, the cross-examination must be conducted by a legal practitioner acting on behalf of the examining party. The Act imposes obligations on the parties involved in family law proceedings. The examining party must not cross-examine the witness party personally if the requirements of section 102NA are met. Instead, the cross-examination must be conducted by a legal practitioner acting on behalf of the examining party. The court must also ensure that appropriate protections are in place if the examining party intends to cross-examine the witness party personally and there is an allegation of family violence, but the requirements of section 102NA are not met. The court may consider it appropriate to give a direction under subsection 102C(1) that the cross-examination be conducted by video link or audio link. The Minister must cause a review of the operation of these provisions to be commenced as soon as possible after the second anniversary of the commencement of this section. There are no specific offences or penalties outlined in the Act for breaches of its provisions. However, the courts have inherent jurisdiction to manage proceedings in a way that ensures fairness and justice. The court may make orders or directions under the FLA to ensure that the proceedings are conducted in a manner that protects the parties, particularly the alleged victim of family violence. Failure to comply with a court order or direction may result in civil or criminal consequences, depending on the nature of the order or direction and the circumstances of the case. For example, contempt of court is a criminal offence that may be committed by disobeying or disregarding a court order or direction. The penalties for contempt of court may include fines and imprisonment.