From 10 September 2019, for any family law proceedings where there are allegations of family violence, the court may say there is a ban on personal cross-examination.
If personal cross-examination is banned by the court, cross-examination will need to be conducted by a lawyer. A person can organise their own lawyer, or they can apply to the Commonwealth Family Violence and Cross Examination of Parties Scheme for a lawyer. All parties in the family law proceedings will need to have a lawyer for cross-examination to occur.
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 is there a ban on personal cross-examination?
A ban on personal cross-examination may apply in any family law proceeding where there is an allegation of family violence between the people involved. The ban may apply automatically, or the court may make the decision to impose a ban. Either way the court will make it clear in an order that the ban applies.
Applying to the Commonwealth Family Violence and Cross-Examination of Parties Scheme for a lawyer
Legal aid commissions have been given specific funding to provide legal representation to people where a ban on personal cross examination has been made. Access to this scheme is not limited by your financial circumstances or the details of your case, but you may be asked to contribute to the cost of your legal representation. This will depend on your ability to pay and your circumstances. Conditions apply to legal representation under the scheme and ongoing legal representation in your proceedings is not automatic.
To get a lawyer through the scheme a notice of ban on personal cross-examination pursuant to s102NA of the Family Law Act 1975 (Cth) must be received by Legal Aid Queensland from the courts.
Once the notice is received by Legal Aid Queensland, if you are listed on the notice as a party to the proceedings, and the matter is listed for trial after 10 September 2019, a Family Violence and Cross Examination Scheme application form will be forwarded to you inviting you to apply. If you need a lawyer you must complete this application form and return to Legal Aid Queensland.
The completed form can be returned to:
A lawyer may help you to complete the application form, but this doesn't guarantee that the same lawyer will be able to represent you. All application forms for funding under the scheme must be returned through email, post or in person. Applications received through our online grants system can't be accepted.
After we have received the application form
Once we receive a completed application form:
- If the trial date is within 12 weeks, we will confirm that funding is available within the scheme and where available allocate a lawyer.
- If the trial date is outside 12 weeks, we will register the application and notify you in writing that we have received the application. The application will then be processed between 6-12 weeks out from the trial date.
When allocating a lawyer, you may receive a Legal Aid Queensland lawyer or a private lawyer doing family law work for legal aid clients who has been approved to undertake these types of matters. You will be allocated a lawyer depending on their capacity to take on matters and their location.
A letter will be sent to you and your allocated lawyer setting out what assistance has been approved, and any conditions that may apply. These conditions may include asking that you contribute financially to the cost of providing you with legal representation.
Where requested, we will also inform the court that legal assistance has been approved for the purposes of cross-examination.
Where no funding is available within the scheme you will be notified in writing.
Funding provided under the scheme
The scheme will pay for a lawyer to prepare for and represent you at a hearing where personal cross-examination has been banned. The scheme will also pay for standard disbursements, interpreter costs, travel, parking and accommodation as they relate to the hearing where personal cross-examination has been banned.
The scheme will not pay for a solicitor to represent you at other court events not directly related to the hearing at which cross examination has been banned. Additional costs, such as expert reports, subpoenas and witness costs, will also not be covered by scheme funding. Clients are responsible for gathering any evidence (and any costs associated with this) from various sources, for the purpose of the hearing. Funded preparation provides for assessing the information provided by the client.
Requests for late state dispute resolution, extra days of hearing and allowable disbursements can be submitted through Grants Online (authentication required).
We will consider a request for a change of lawyer under the Scheme in very limited circumstances, as determined by Legal Aid Queensland where the reason is not attributable to the conduct of the client. There's no right of appeal to the external review officer against a decision to refuse to transfer a grant of aid to a new lawyer. The matter can be referred to a senior officer for reconsideration and final determination.
XN1 - Cross-examination Scheme – Prepare for trial
XN10 - Cross-examination Scheme - Additional standard preparation for trials listed for 5 or 6 days (solicitor and counsel)
XN11 - Cross-examination Scheme - Additional standard preparation in stage 3 – interpreter or multiple parties
XN12 - Cross-examination Scheme - Additional standard preparation for trials listed for 7 or more days (solicitor)
XN13 - Cross-examination Scheme - Additional standard preparation for trials listed for 7 or more days (counsel)
XN2 - Cross-examination Scheme – Attend day/s of trial
XFFF - Cross-examination Scheme - non-monetary grant of aid (XN3 - Cross-examination Scheme – Family Dispute Resolution Conference (litigation) - to be issued after a conference has been able to be arranged)
XN14 - Cross-examination Scheme - Representation at a court ordered family dispute resolution conference
XN5 - Cross-examination Scheme Family Dispute Resolution conference chairperson
XN6 - Cross-examination Scheme – Additional preparation for an adjourned or part heard trial (solicitor)
XN7 - Cross-examination Scheme – Additional preparation for an adjourned or part heard trial (counsel)
XN8 - Cross-examination Scheme - Additional standard hours where trial does not proceed after 2 court appearances
XN9 - Cross-examination Scheme - Additional standard preparation for trials listed for 3 or 4 days (solicitor instructing counsel)
XN1R - Cross-examination Scheme - Replacement counsel
XNAG - Cross-examination Scheme - Agent fee
XNA1 - Cross-Examination - Overnight Accommodation Capital City
XNA2 - Cross-Examination Scheme - Overnight Accommodation Non Capital City
XNAF - Cross-Examination Scheme - Airfares
XNBO - Cross-Examination Scheme - Counsel Outlays
XNCP - Cross-Examination Scheme - Photocopying
XNFO - Cross-Examination Scheme - Outlays (Family Law)
XNI1 - Cross-Examination Scheme - Interpreter Fees spoken language
XNI2 - Cross-Examination Scheme - Interpreter Fees hearing/speech impaired
XNPK - Cross-Examination Scheme - Car parking expenses
XNRF - Client Referral to Cross-Examination Scheme
XNTE - Cross-examination Scheme – Travel expenses
XNTT - Cross-examination Scheme – Travel Time
All applications for funding under the cross-examination scheme will be determined by the Grants Functional Support Team.
Review of decisions
Requests to review a decision will be determined by a Grants Manager.
Contact Legal Aid Queensland's Grants Division at firstname.lastname@example.org or call 1300 65 11 88.