Family Violence Cross-Examination Ban

In Family Court proceedings, cross-examination is something that usually occurs at trial and involves asking questions to parties and witnesses who are giving evidence in the case. If you have a lawyer representing you at trial, the lawyer does the cross-examination. If you are representing yourself, you will ask questions of the other side and their witnesses yourself during the trial. This is called personal cross-examination and it will no longer be allowed in some cases where there are allegations of family violence.

When the ban applies, both parties are banned from personally cross-examining each other and will need to have a lawyer at trial to do the cross-examination.

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. The law has recently changed and the ban may also now apply in parenting and property cases where the parties were in a de facto relationship. The cross-examination ban will begin operating in de facto cases listed for trial commencing from 9 December 2021.  

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 charged or found guilty of a criminal offence involving violence, or a threat of violence, to the other party,
  • there is a final family violence order in place, or
  • the Family Court has made a personal protection injunction for the personal protection of one party from the other. 

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 court room together.
 

Reviewed: 18 October 2021

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.