Direct cross‑examination in family law matters
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. A description of the sample characteristics and key findings from the quantitative analysis of the court files are summarised below.
The sampling strategy employed for the Direct Cross-examination in Family Law Matters project was to sample all Family Court of Australia (FCoA) and Federal Circuit Court of Australia (FCCoA) matters, in all case categories finalised in the 2015/16 financial year and the 2016/17 financial year that involved:
- one or more self-represented litigants;
- allegations of (or substantiated) family violence; and
- that had progressed through to a final hearing and the hearing had commenced, with the matter finalised either by consent during the proceedings or by judicial determination.
Court files meeting these criteria were deemed to be "in-scope" cases.
In total, 97 in-scope cases spanning the 2015/16 and 2016/17 financial years were sampled, and detailed data was collected from these files and (where applicable) from the audio of proceedings. Key characteristics included:
- The majority (76%) were heard in the FCCoA.
- FCoA cases were more likely to have an independent children's lawyer (ICL) appointed.
- Almost all (99%) involved a dispute about children/parenting matters. Around one-fifth of cases involved financial matters, with this being more likely in FCoA cases.
- Two-thirds of all cases proceeded to full judicial determination.
- Male parties (mostly fathers) were more likely than female parties (mostly mothers) to be self-represented and this pattern was consistent for applicants and respondents. Specifically, in just more than one-half of files (52%), fathers were self-represented and mothers were legally represented; compared to just over one-quarter of cases where the mother was self-represented and the father was legally represented (27%).
In one-fifth of files (20%), both mothers and fathers were self-represented.
- Direct cross-examination took place in more than two-thirds of in-scope cases (72%; n = 70).
- Direct cross-examination was also more likely to occur when multiple matters were in dispute.
The process undertaken by the FCoA and FCCoA to identify all in-scope court files over the selected two financial year periods was a complex one that involved an assessment of a number of data fields in CaseTrack and, in some instances, the perusal of file notes. It was not possible within the project time frame to collect comprehensive data from all the court files identified as highly likely to be in-scope (n = 138), or to identify whether direct cross-examination took place in each of these cases. For these court files, which were not part of the detailed data collection for this project, small numbers of court files (n = 30) were randomly selected to assess the level of in-scope files and the occurrence of direct cross-examination. This assessment indicated that this supplementary sample mirrored the study sample in terms of the extent to which files were in-scope and involved direct cross-examination. These similarities mean that the findings made in relation to the study sample may be regarded as representative of overall in-scope cases.
If we assume the 30 randomly selected files were reflective of all the court files identified in the second round, this suggests that 90-130 cases would be in-scope and 52-103 cases may have involved direct cross-examination. Together with the cases from which detailed data were collected, approximately 187-227 would be in-scope and 122-173 cases across the two courts over two financial years may have involved direct cross-examination. Further details of the steps required to identify the relevant sample are provided in Chapter 1.
Limited data were also collected from 39 unreported judgments available via the PLEAS online service that were identified as in scope from the FCoWA over the 2015/16 and 2016/17 financial years. Parenting and children matters were in dispute in around three quarters of these judgments, with financial matters in dispute in 33% of judgments analysed. Matters heard in the Family Court were more likely to involve multiple issues compared to those heard in the Magistrates Court (22% compared to 10%). Direct cross-examination was a feature in around one half of the judgment sample (44%). However, as information was collected from judgments rather than directly from FCoWA court files, it is possible that direct cross-examination may have been undertaken but not mentioned in additional judgments in the Western Australian sample, however, data collectors had no way of identifying this as a feature in any such judgments.
Summary of key findings
Matters involving direct cross-examination
The majority of cases (72%) involved direct cross-examination. Most commonly, fathers cross-examined mothers only (33%). In a further 28% of cases, mothers cross-examined fathers only. In 11% of cases, both parents cross-examined each other and there was no cross-examination in the remaining 28% of files. Of the cases that did not involve cross-examination, some settled prior to cross-examination (n = 10) and in some instances the opposing party did not appear in court (n = 5), while in the remaining cases the reason that cross-examination did not take place was unclear.
The data can also help shed light on the characteristics of the cases where there is direct cross-examination.
- There were higher rates of allegations of family violence against both parents in files where there was direct cross-examination compared to files with no direct cross-examination.
- The rate of allegations of family violence against the father was higher than that against the mother (83% vs 39%). This pattern applied to cases involving direct cross-examination and those without direct cross-examination.
The majority of both self-represented fathers and mothers conducted direct cross-examination. While fathers were more likely than mothers to be self-represented, interestingly, self-represented mothers were more likely than self-represented fathers to conduct direct cross-examination in the in-scope sample (81% vs 62%).
The analysis also examined when a parent was self-represented and whether direct cross-examination was influenced by the other parent's legal representation and/or by the existence of allegations or substantiated family violence.
- When a father was self-represented, the likelihood that he would directly cross-examine the mother was associated with the mother having legal representation (being more likely to take place in these cases).
- Fathers were more likely to conduct direct cross-examination where the allegations of family violence involved children as victims.
The qualitative data provides insight into the experiences of both parties undertaking direct cross-examination and parties being directly cross-examined where these matters were characterised by alleged or substantiated family violence.
Risk assessment procedures and outcomes
Analysis of the data collected in the court files in-scope sample shows that the conduct of family violence/safety risk assessments by family consultants were more common than not. In almost 60% of files there was evidence that a risk assessment had been undertaken by a family consultant, with this being more likely in the FCoA (74%) compared with the FCCoA (54%).
The analysis also revealed that family violence or child safety risks were more likely to be substantiated and to consequently have the involvement of state child protection agencies in cases where the mother directly cross-examined the father (30%) than among other cases where the father directly cross-examined the mother (13%).
The analysis regarding judicial findings on allegations of family violence or abuse or risks to safety were similar for fathers and mothers; that is, the allegations against the cross-examiners (both fathers and mothers) were more likely to be upheld. For 45% of mothers who directly cross-examined the father, the allegation of family violence or abuse or child safety risk about her was upheld in part or in full; this applied to 31% of fathers who conducted direct cross-examination.
The court file data highlight that multiple forms of evidence were commonly used to support family violence or abuse allegations. In 63% of cases, at least two forms of evidence were identified on the given file. The most frequently submitted forms of evidence were family violence orders (57% of cases) and a family report or other evidence from a family consultant (42%).
A notable finding when this data was further analysed in relation to direct cross-examination was that for most of the evidence types for which information was collected, a higher proportion of cases where no direct cross-examination occurred had each form of evidence when compared to the corresponding proportion of files where direct cross-examination did take place.
Arrangements to accommodate cross-examination
The majority of cases (58%) involving direct cross-examination did not involve specific safeguards in place for either party (witness and cross-examiner). Specific safeguards could include remote witness facilities/screens, judicial intervention (including by relaying or rephrasing questions or reprimanding the parties) and monitoring of the direct cross-examination process or permitting assistance by a McKenzie friend. Where specific safeguards were in place, they were provided more commonly for the protection of mothers when cross-examining (42%) than for fathers when cross-examining (33%) or for either mothers (23%) or fathers (24%) as witnesses, and these safeguards were most likely to involve judicial intervention primarily to take an active role in formulation of and/or relaying of questions.
Final parenting and property orders
When looking at the relationship between direct cross-examination and children's final care-time arrangements ordered by consent or by judicial determination, an association was found between the parents' time with their children and the parent who undertook direct cross-examination. More specifically, it appears that fathers and mothers who conducted direct cross-examination had less overnight time when compared with their counterparts of the same gender who did not undertake direct cross-examination.
The patterns of final judgment orders regarding general parenting and property-related matters were similar overall across the cases whether or not direct cross-examination occurred and whether it was the mother or father who conducted the direct cross-examination. Contravention orders were more common in cases where the mother cross-examined the father and supervised contact orders were more common in cases without direct cross-examination or where the father directly cross-examined the mother.
1 The phrase “fathers cross‐examined mothers only” means that fathers directly cross‐examined the mothers but the mothers did not directly cross‐examine the fathers in these cases and the phrase “mothers cross‐examined fathers only” means that mothers directly cross‐examined the fathers but the fathers did not directly cross‐examine the mothers in these cases.
Authors and Acknowledgements
This report was commissioned and funded by the Australian Government Attorney-General's Department (AGD).
The authors would like to acknowledge the support and assistance provided by the AGD, in particular by AGD officers Esther Bogaart, Kerry Wolke, Margaret Freyne, Kimberley Williams, Lisa Zehetner, Adam Brooker, Celia Thompson, together with former AGD officer Tamsyn Harvey.
We also extend our particular thanks to the Family Court of Australia, the Federal Circuit Court of Australia and the Family Court of Western Australia, in particular Steve Agnew (Executive Director Operations, Federal Circuit Court), Haylee Hobbs (Judicial Associate, Federal Circuit Court), Patricia Christie (former Chief Executive Officer of the Family Court of Australia), and the members of the research and ethics committees of both courts; the Hon. Justice Stephen Thackray, (Chief Judge of the Family Court of Western Australia), Magistrate Gail Sutherland and the staff at the WA Law Library.
We would like to acknowledge and thank our dedicated data collectors Amanda Saleh and Méabh Loughnane for their hard work and great attention to detail, and to Dr Julie Lahausse (former Research Fellow, Australian Institute of Family Studies) for her expertise in programming the data collection instrument for this study. We are also very grateful to the Australian Institute of Family Studies (AIFS) library team, and in particular Gillian Lord for her research assistance, together with the AIFS communications team, and Katharine Day and Michael Day in particular for editing this report.
We would also like to thank Anne Hollonds, Director of AIFS, Kelly Hand, Deputy Director (Research) and Dr Michael Alexander, Acting Deputy Director (Corporate and Strategy) for their advice and support throughout this research. We also extend our sincere thanks to Dr Rae Kaspiew for her support in reviewing a draft of this report.
Views expressed in this publication are those of individual authors and may not reflect those of the Australian Government or the Australian Institute of Family Studies.
Featured image: © iStock/Avosb
Carson, R., Qu, L., De Maio, J., & Roopani, D. (2018). Direct cross‑examination in family law matters. Melbourne: Australian Institute of Family Studies.
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