Common questions about the Commonwealth family violence and cross-examination scheme

Common questions about the Commonwealth family violence and cross-examination scheme

Wednesday, 1 May 2019

Family Violence and Cross-Examination Scheme logo

The Family Law Act 1975 has been amended to ban direct cross examination in cases where there is family violence.

The changes will apply to hearings that occur from 10 September 2019 onwards.

In Victoria, Victoria Legal Aid will administer the Commonwealth Family Violence and Cross-examination Scheme to provide legal representation in cases where the ban applies.

What is personal cross-examination?

Personal cross-examination is where a party asks questions of another party or witness directly, rather than having questions asked by a legal representative.

When does a ban apply?

The ban on personal cross-examination will apply where there is an allegation of family violence between the parties and any of the following circumstances apply (subsection102NA1(c)):

  • 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 is directed against the other party under sections 68B or 114 of the Family Law Act.
  • the court makes an order of its own initiative, or on application by a party or ICL.

If there is a ban on personal cross-examination, who does it apply to?

The parties are prohibited from personally cross‑examining each other and the cross‑examination must be conducted by a lawyer.

If a party does not have legal representation, cross-examination will not take place.

VLA may provide funding under the scheme to any unrepresented party where the ban applies, including:

  • applicants
  • respondents
  • intervening parties, but only if the intervening party is involved in the allegation of family violence, whether as the alleged perpetrator or as the alleged victim.

What happens once the court has made the order banning personal cross-examination?

The court will ordinarily make an order banning personal cross-examination at trial directions stage. Once an order is made, the court will provide a copy to VLA for our records. VLA will hold the order on record until such time that a party submits a completed application form for funding under the scheme. Where a party applies to the scheme, VLA will allocate a lawyer and advise the court.

Where VLA does not receive an application from the party, we will write to the court to let them know that no application was received.

How does a party apply for funding under the scheme?

The party must complete the scheme application form and return the completed form to Assignments Family, Victoria Legal Aid, GPO Box 4380, Melbourne VIC 3001 or email crossxnscheme@vla.vic.gov.au.

Where can I find the scheme application form?

The scheme application form will be made available:

  • on VLA’s website
  • any VLA office
  • from duty lawyers at the Federal Circuit or Family courts
  • from FASS duty lawyers.

The scheme application form will be available from 20 May 2019.

Can a lawyer apply for funding on behalf of a party?

No. Where a ban on personal cross-examination has been made, the onus is on the party to apply directly to VLA. A lawyer may assist a party in completing the form, and the party may list their preferred lawyer on the form, however, VLA cannot guarantee that the matter will be allocated to the preferred lawyer.

Who can act in these matters?

Matters funded under the scheme will only be allocated to VLA lawyers or lawyers on VLA’s family law panel.

If a party has their legal aid funding terminated or refused, can they receive funding pursuant to the scheme?

If assistance for a family law matter is refused or terminated for any reason by VLA, the client and lawyer will be informed in the refusal or termination letter that if a ban of personal cross- examination applies, they may apply for assistance under the scheme by using the relevant application form on the VLA website.

What funding will be available under the scheme?

Under the scheme, representation will be available for Commonwealth family law matters listed in the Federal family courts. VLA will pay for a lawyer to prepare and represent the party at any hearing where personal cross-examination may occur. Assistance will be limited to the work the lawyer needs to do to prepare the matter for trial (this may include preparing affidavit material or work ordinarily required to prepare for trial) and representing the party at the trial.

The following grants of legal assistance may be approved by VLA:

  • Stage 3 trial preparation
  • Stage 4 trial costs (for all days listed and at full rate)
  • Stage 2H litigation intervention limited to one conference
  • Stage 2G interim contest (in rare instances where personal cross examination may occur)
  • Procedural hearings where applicable
  • Disbursements such as process server fees, travel fees
  • Other disbursements where reasonable and prior approval has been obtained from VLA.

Fees payable under the scheme will be in accordance with applicable VLA fees as contained in Table 4, of the VLA Handbook.

Do any conditions apply to legal assistance under the scheme?

If legal assistance is provided, VLA’s standard conditions of legal assistance will apply. There may also be further conditions that, if imposed, will be outlined in the letter you receive from VLA approving legal assistance.

Matters funded under the scheme are not subject to VLA’s guidelines and merits tests.

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