The Federal Government is currently in the process of amending the Family Law Act to protect victims of Family Violence from being cross examined by their abusers.
The proposed legislation will prevent a perpetrator of family violence from directly cross-examining a victim if they are self-represented. The current proposal suggests that the court appoint someone to ask questions on behalf of the perpetrator to reduce retraumatisation of victims of family violence in family law proceedings.
Cross-examination by its very nature is a difficult and is sometimes a traumatising experience. Cross-examination occurs in Court after a witness has provided their evidence in chief to the Court. Cross- examination is conducted by the barrister (or self-represented litigant) who asks questions of the witness to try and “undermine the other party’s case by exposing deficiencies in a witness’ testimony.” A witness can be questioned for hours at a time about tiny details of their memory of an event. Some victims of family violence and sexual abuse have likened being cross-examination to being just as traumatic as the abuse itself.
The Family Court system experiences a significant level of self-represented litigants due to the significant costs associated with conducting a matter in the Family Law Courts. Statistically the rate of self-represented litigants increases in parenting matters, where the issue of family violence are often heavily contested and scrutinised.
Victims of Family Violence are currently protected by the Family Violence Protection Act 2008 (FVPA) when being cross-examined in the Magistrates Court in relation to Intervention Orders. Section 70(3) of the FVPA states that a “protected person must not be personally cross-examined by the respondent” unless they consent. However, no such protection exists for a victim when they present in the Family Court system.
The Federal Government is currently reviewing the proposed amendments and submissions in relation to the proposals. It is unknown when the proposals are likely to be implemented.
If you have experienced family violence and require advice in navigating the complex and daunting family law system please contact our office to discuss your matter with a member of our staff on 9320 3900 or at [email protected]. At Counsel Family Lawyers we understand how difficult separation can be when family violence has been present throughout the relationship.
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 Counsel Family Lawyers for legal advice. The contents of this blog are relevant as at 30 August 2017. We recommend you obtain specific advice relevant to you and your family’s situation.
By Sarah Damon and Caroline Counsel