Addressing the problem of direct cross-examination in Australian family law proceedings

Abstract

Difficulties experienced by victims of family violence who are cross- examined by the unrepresented perpetrator of that violence (or vice versa) in family law proceedings are well-documented. Such direct cross-examination can be traumatic and unlikely to generate high quality evidence. In 2019 this problem was addressed in Australia by the Family Violence and Cross-Examination Scheme (‘Scheme’). Under this Scheme, direct cross-examination by self-represented litigants is prohibited on a mandatory or discretionary basis in certain family law cases involving allegations of family violence. This article examines the implementation of the Scheme by drawing on data from a large ethnographic project that was concerned with self-representation in family law proceedings involving allegations of family violence and an analysis of recent case law. We highlight issues in the early administration of the Scheme as well as more complex ongoing issues. This article provides an evidence base to guide policy and legislative developments in this area.