Section 102NA Cross-Examination in Family Law (Melbourne): What It Means and What to Expect

1. What Is “Section 102NA Cross-Examination”?

In family law, cross-examination is when one party (or their lawyer) asks the other party questions in Court to test their evidence.

Section 102NA of the Family Law Act 1975 (Cth) can require that cross-examination be conducted by a legal practitioner, rather than directly by a self-represented party, in certain cases involving family violence (and related protective concerns).

In practical terms, it may mean:

• a person cannot personally cross-examine the other party in Court; and

• if cross-examination is permitted, it is done through a lawyer.

This rule is designed to reduce harm, intimidation and re-traumatisation, and to support the Court’s focus on safe, fair evidence testing.

2. Why Does Section 102NA Exist?

Parenting and family violence cases can involve allegations of serious harm, coercive control, threats, or intimidation. Cross-examination can be confronting in any case. Where there is a history (or risk) of violence, cross-examination by the other party can be unsafe or unfair.

Section 102NA exists to help ensure:

• parties can participate in proceedings without fear; and

• the evidence is tested in a way that is safe, controlled, and appropriate.

  
  

3. When Does Section 102NA Apply?

Section 102NA operates alongside a set of provisions in the Family Law Act that restrict personal cross-examination in particular circumstances. It commonly becomes relevant where there are:

• Family Violence Intervention Orders (FVIOs) in Victoria (including interim orders);

• injunctions or orders in the family law proceedings related to personal protection;

• findings, admissions, or current allegations of family violence that trigger the statutory restrictions; and/or

• concerns about intimidation, harassment, or power imbalance between parties.

Whether the section applies depends on the specific facts and the orders in place. The Court will usually identify the issue ahead of a hearing and make procedural directions.

4. What Happens If a Party Is Self-Represented?

This is often the key issue for clients. If the restrictions apply, a self-represented party may be told they cannot ask the other party questions directly. Instead, cross-examination (if it is to happen) must be done by a legal practitioner.

In practice, this can lead to:

• an adjournment to allow a lawyer to be arranged;

• Court timetabling changes; and/or

• discussion about what evidence is actually in dispute and whether cross-examination is necessary.

Important practical point: these rules do not mean the case “stops”. They change how questions can be asked.

5. Does It Mean There Will Be No Cross-Examination?

Not necessarily. Section 102NA is about who conducts cross-examination (and in what circumstances). Whether cross-examination occurs at all depends on:

• the type of hearing (interim vs final);

• whether the Court considers cross-examination necessary to resolve key factual disputes; and

• how the evidence is being presented (affidavits, subpoena material, expert reports, family reports, etc.).

At interim hearings, cross-examination is often limited. At a final hearing, cross-examination is more common—particularly where credibility and disputed facts matter.

6. What This Means for Clients: Key Things to Know

6.1 Expect the Court to manage the process closely

Where section 102NA restrictions apply, Judges will generally be proactive about:

• confirming whether the restrictions are triggered;

• ensuring cross-examination occurs (if at all) in a controlled way; and

setting clear rules about procedure and time.

6.2 Court is not a “free conversation”

Cross-examination is not an opportunity to tell a story or argue. It is focused questioning aimed at:

• clarifying issues;

• testing inconsistencies; and

• putting important propositions to the witness.

6.3 Preparation is critical

Evidence in family law is usually in writing (affidavits). If cross-examination is likely, preparation generally includes:

• identifying what facts are genuinely disputed;

• collecting documents that support your version (messages, emails, medical/school records); and

• making sure your affidavit is clear, accurate, and consistent.

6.4 Behaviour in Court matters

The Court forms impressions about reliability and parenting capacity from courtroom behaviour. Calm, child-focused conduct and answering questions directly can be significant.

7. How to Prepare for Being Cross-Examined (Client-Friendly Guide)

Do:

1. listen to the question fully before answering;

2. answer only what is asked (short and accurate is often best);

3. say “I don’t know” or “I don’t recall” if that is true;

4. ask for a question to be repeated if necessary; and

5. remain respectful, even if the questions feel unfair.

Avoid:

1. guessing dates or events you cannot properly recall;

2. arguing with the questioner;

3. adding extra commentary to “fix” the question;

4. exaggerating or using absolute statements (e.g., “never”, “always”) if not strictly accurate; and

5. criticising the other parent in a way that is not connected to the child’s wellbeing or a specific issue before the Court.

8. How Section 102NA Can Affect Parenting Cases (Real-World Impact)

In Melbourne parenting matters, section 102NA restrictions can change the shape of a case by:

• influencing whether parties seek legal representation for trial;

• affecting timetables and adjournments;

• narrowing the issues in dispute (because cross-examination must be structured); and

• reducing opportunities for direct conflict in the courtroom.

This is especially relevant where there is a history of family violence and the Court is balancing:

• protecting children from harm; and

• ensuring decisions are made on properly tested evidence.

9. Frequently Asked Questions

“If there’s an intervention order, does section 102NA automatically apply?”

Intervention orders are a common trigger, but the precise effect depends on the type of order, who it protects, and what findings or conditions exist. The Court will determine whether the statutory restrictions are engaged.

“Can the Court still make parenting orders if cross-examination is restricted?”

Yes. The Court can and does make parenting orders. Section 102NA affects the procedure for cross-examination, not the Court’s power to decide the case.

“Does this only apply to men?”

No. The rule applies based on the circumstances and protective concerns, regardless of gender.

10. Key Takeaways

1. Section 102NA is part of the family law framework that can restrict personal cross-examination in matters involving family violence and safety concerns.

2. If it applies, cross-examination (if needed) must generally be conducted by a lawyer, not directly by a self-represented party.

3. These rules are intended to reduce intimidation and keep the evidence-testing process fair and safe.

4. Preparation, written evidence, and courtroom conduct remain crucial to the outcome.