Family Violence Cross-Examination Ban

In Family Court proceedings, cross-examination is something that usually occurs at trial and involves asking questions to witnesses and parties who are giving evidence in the case. Personal cross-examination is where a party asks the the questions themselves, because they are not represented by a lawyer at trial.

From 10 September 2019, personal cross-examination may be banned in Family Court proceedings if allegations of family violence have been raised. When the ban applies, both the victim and perpetrator are banned from personally cross-examining each other and can only ask questions in cross-examination through their lawyers.

The ban exists to help protect victims of family violence in family law proceedings and to help ensure reliable evidence is given. It stops perpetrators of family violence from being able to directly question the victim, and means that victims do not have to undertake cross-examination of the perpetrator themselves. 

In what type of cases does the ban apply?

The ban may apply in parenting and property cases in the Family Court of WA where the parties were married. 

At this stage, the ban does not apply in Family Court cases where parties were in a de facto relationship. It is expected the law will change in the future and apply to both married and de facto parties in WA.

When does the ban apply?

The ban may apply in any family proceedings where an allegation of family violence between the parties has been raised.

The ban will automatically apply in any family law proceeding when:

  • either party has been convicted of, 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, or
  • a Family Court injunction for the personal protection of either party is in place.

If the ban does not automatically apply, the Family Court can also make its own decision to ban personal cross-examination where an allegation of family violence between the parties has been raised.

What happens if the ban is made? 

When the ban applies, cross-examination questions of both parties must be asked by a lawyer.  If a party does not have a lawyer, they are not allowed to ask questions of the other party in cross-examination.

Legal representation 

If the ban applies, each party will need to arrange to be represented by a private lawyer, or make an application to Legal Aid WA for a lawyer under the Commonwealth Family Violence and Cross-Examination of Parties Scheme

Other protections

If an allegation of family violence is raised, but the court decides not to make the ban, the court must put in place other appropriate protections. For example, the court may allow personal cross-examination, but order that it be conducted by video or audio link so the parties are not in the same physical location together.
 

Reviewed: 26 June 2019.

Disclaimer

The information displayed on this page is provided for information purposes only and does not constitute legal advice. If you have a legal problem, you should see a lawyer. Legal Aid Western Australia aims to provide information that is accurate, however does not accept responsibility for any errors or omissions in the information provided on this page or incorporated into it by reference.