Earlier this week, Attorney General Christian Porter commended the Family Law Amendment (Family Violence and Cross-Examination of parties) Bill 2018 to the House of Representatives and this initiative is supported by many in the legal profession. The Family Law Section of the Law Council of Australia made substantial contributions to the debate by virtue of the submissions to government. Caroline Counsel provided commentary to the panel of The Project on 28 June 2018 about the benefits of the Bill but also the impact on what is ostensibly the abolition of the Family Court when merger of the Family Court and the Federal Circuit Courts are due to occur.
The Bill aims to protect “victims of serious family violence will be protected from having to directly cross-examine or be cross-examined by perpetrators of violence during family law proceedings, under legislation to be introduced into parliament by the Turnbull Government.”(AG’s press release)
AIFS did a study between 2015-2017, there were 173 and one or both parties were self represented and cross examined the other party involving serious allegations of Family Violence.
It will apply to victims and perpetrators in parenting and property matters in circumstances where:
- There is a conviction of an offence or threat to commit family violence/assault etc
- Intervention Order (Final not Interim) or similar provisions in the Family Law Act (injunctions)
If perpetrator falls into one of these categories, and is not legally represented in Court, they will not be permitted to cross examine the victim and vice versa.
In the event the allegations have arisen during the proceeding, have not been proven or are subject to an interim Intervention Order and cross examination can occur it will be at the judge’s discretion as to whether the ban on cross examination is enacted. The Judge may alternatively use video link or safe rooms to protect the victim during cross examination.
This restriction regarding cross examination does not apply if the perpetrator is legally represented. Any cross examination must be conducted by a lawyer. Unfortunately the government did not announce additional funds for legal aid although the government has said they will be working with Legal Aid to manage this.
The government is indicating it will review the impact after 2 years to assess the impact of the amendments they are seeking to have passed by parliament. The review will assess whether the proposed changes have been successful.
The Attorney General in the government’s press release indicated that the government believes that this Bill balances procedural fairness and allows the evidence to be adequately tested and protects victims of family violence. The Parliamentary debate in relation to the Bill has been adjourned until next full day sitting after the winter break. Some have queried why this restriction on cross examination took longer to be proposed in the Family Courts than in other jurisdictions such as the criminal courts. It should be noted that judges have always had the ability to curtail needless or vindictive cross examination and to bring such cross examination to an end.
Judges will benefit from legislative changes as it enables them to shut down self-represented perpetrators of violence and point them to the law as the reason why they will not permit cross examination of a victim of family violence. Often self-represented litigants present as highly dysfunctional and may deliberately choose to be self-represented so that they can use the litigation process to continue to engage with their former partners and usually in this way, they are able to re-traumatise their former partners .
NB: Some interesting statistical information regarding the volume of cases in a one year period: Family Court annual report 2016/2017, 20,741 applications filed – 13,919 finalised by consent, 216 Full Court Judgments published, 1,106 First Instance Judgments published, 377 Appeals, 93% of cases finalised within 12 month
Federal Circuit Court of Australia– 82,000 Family Law Applications per year.
f you would like advice specific to your situation, please contact our office to make an appointment on 9320 3900 or email [email protected].
The information in this blog does not constitute legal advice and cannot be relied upon by you. If you require advice specific to your situation you must contact Caroline Counsel Family Lawyers for legal advice. The contents of this blog are relevant as at 29 June 2018. We recommend you obtain specific advice relevant to you and your family’s situation.
By Sarah Damon and Caroline Counsel