Direct cross‑examination in family law matters

Incidence and context of direct cross‑examination involving self-represented litigants
Courts Family law Family Court Australia
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This report sets out findings from the Direct Cross‑examination in Family Law Matters project, which was commissioned and funded by the Australian Government, Attorney-General’s Department. The project explores quantitative and qualitative data relevant to direct cross‑examination involving self-represented litigants in family law matters, derived from court files and audio and transcripts of proceedings, collected from the Family Court of Australia (FCoA) and the Federal Circuit Court of Australia (FCCoA), together with an analysis of relevant unreported judgments of the Family Court of Western Australia (FCoWA).

The data analyses were undertaken to explore:

  • the extent to which direct cross‑examination was a feature of matters involving self-represented litigants in families characterised by alleged or substantiated family violence; and
  • the factual and legal context characterising these family law matters as compared to those matters where direct cross‑examination involving self-represented litigants did not take place.

The analyses highlight that the most common form of direct cross‑examination was one where fathers directly cross‑examined the mother only. The data also show that there were higher rates of allegations of family violence against both parties in court files where direct cross‑examination occurred. The data suggest that specific safeguards were typically not in place when direct cross‑examination was permitted. If specific safeguards were in place, the most common forms involved judicial officers actively intervening to relay questions.

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