Legislation was introduced to the Federal Parliament in late June that, if passed, will give judges the power to prevent an alleged perpetrator of violence from cross-examining their alleged victim in family law hearings.
Between 2015 and 2017, there were more than 170 family law cases with claims of domestic violence where at least one of the parties was self-represented. Under current legislation, at the hearing of those cases, the alleged perpetrator of the violence can directly cross-examine their alleged victim about those allegations.
Direct questioning by the alleged perpetrator is not only confronting for the victim, it could unsettle them to such a degree that it affects their evidence and compromises their case. For example, the victim is so shaken they fail to respond fully and properly, thus failing to provide the Court with important information that could protect their children in the future. Should this happen, not only has the victim been traumatised by being questioned by the perpetrator but the victim and children suffer a worse outcome because of it.
The movement to protect victims from self-represented perpetrators was instigated by a mother who, along with one of her children, suffered under cross-examination from her abusive ex-partner. They were unprepared for the experience which she felt allowed her ex-partner to further attempt to control and traumatise them. She launched a Fair Agenda petition online which gathered over 5,000 signatures. In 2016 the Royal Commission into Family Violence also recommended the change. Influential figures such as former Family Court Chief Justice, Diana Bryant, and previous Australian of the Year, Rosie Batty, have made submissions to the government on the issue. If passed, it will be an important and significant step in reforming family law in Australia.
Criminal law has already been amended to ensure alleged perpetrators cannot cross-examine the alleged victim, and so it should be in the family law jurisdiction, where domestic violence is too often a feature of cases.
These changes to family law will give victims of domestic violence a degree of protection from further intimidation and traumatisation by their abuser in Court.
At this stage, the government has committed to further amendments to the Family Law Act which compels judges to consider whether a vulnerable witness should be protected during court proceedings involving family violence. It is not clear if the witness would be questioned by the judge directly in that case, or if the judge may decide to determine the issue of the alleged violence on the documentary evidence available.
Representatives of the various Legal Aid bodies around the country say government funding for Legal Aid will need to be increased to ensure fairness to all parties. If the alleged self-represented perpetrator is ordered not to cross-examine a witness, then legal representation will be required to do so on their behalf.
While the proposed reforms signify much needed protection for vulnerable witnesses, it is clear that other measures are also needed to ensure procedural fairness for all parties, including those who do not qualify for Legal Aid and who otherwise cannot afford legal representation.
This article was written by Senior Associate, Catherine Leis.
Practice Area: Family Law