Cross Examination
Personal Cross Examination - Ban in Certain Circumstances
Personal cross-examination is now banned in Family Court proceedings in certain circumstances where allegations of family violence have been raised.
Personal cross-examination is where a party asks questions of another party or witness directly, rather than having questions asked by a lawyer. Cross-examination usually occurs only at trials/final hearings.
The ban exists because personal cross-examination by an alleged perpetrator can expose victims of family violence to re-traumatisation and affect their ability to give clear evidence.
When Does the Ban Apply?
The ban may apply in any family law proceeding where there is an allegation of family violence between the parties. The ban may be applied automatically or the court may use its discretion to impose a ban.
Automatic ban
If any of the following circumstances apply, the ban will apply automatically:
- 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.
- an injunction for the personal protection of either party directed against the other party has been made.
Discretionary ban
The court can make an order to ban personal cross-examination even if those circumstances do not apply.
The court can decide to ban personal cross-examination itself, or may impose a ban following an application by either party, or an independent children’s lawyer.
If the court decides not to ban personal cross examination, the court must put in place other appropriate protections.
Legal Representation
When the ban applies, cross-examination of both parties can only be conducted by a lawyer. Parties will need to hire a private lawyer or apply to Legal Aid WA for legal representation under the Commonwealth Family Violence and Cross-examination of Parties Scheme (the Scheme). If a party does not have legal representation, cross-examination by that party will not be permitted.
Legal representation under the Scheme will be available for the hearing (generally the final hearing/trial), including preparing for that hearing and for late-stage legally-assisted family dispute resolution, if appropriate.
Access to the Scheme is not means or merits tested, but parties may be asked to contribute to the cost of the legal representation depending on their ability to pay and their circumstances.
Conditions will apply to legal representation under the Scheme and ongoing representation is not automatic. For further information on the Scheme and to obtain an application form see the Legal Aid WA website links below.
Legal Aid Website Links
Information about the Family Violence Cross-Examination Ban
Last updated: 17-Sep-2021
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