Last Wednesday, 5 December 2018 the Morrison Government passed legislation protecting victims of family violence from direct cross-examination by their alleged perpetrators in family law proceedings.
The Family Law Amendment (Family Violence and Cross-examination of Parties) Act 2018 bans direct cross-examination between parties in proceedings where allegations of family violence are raised. Instead, the Act requires that cross-examination be conducted by a legal representative.
Under the new legislation, where there is an allegation of family violence and an individual’s circumstances do not meet the criteria for the prohibition on personal cross-examination, the Courts are required to ensure that there are appropriate protections for the victim — including installing screens or video links in courtrooms where questioning is allowed to occur.
The new legislation responds to concerns that victims of family violence can be re-traumatised by direct cross-examination by their alleged abuser. This can in turn affect their ability to give clear and cogent evidence.
Victims often cite fear of being cross-examined by their alleged perpetrator as a factor influencing their decision to settle a matter, even on unfavourable terms. Fearing the repercussions of providing evidence before their abuser, victims hold back on sharing all information regarding their abuse. As a result, courts are limited from assessing the full circumstances of the abuse and victims feel discouraged from exercising their fundamental legal rights.
Research from the Australian Institute of Family Studies indicates that, between 2015 and 2017, there were 173 hearings in the federal family law courts involving allegations of family violence where one or both parties were self-represented.
The practice of direct cross-examination between a self-represented litigant and their victim was prohibited many years ago in the criminal jurisdiction for sexual violence and rape matters. In the federal family law courts, judicial officers exercise a high level of discretion to manage proceedings, including directing whether and how cross-examination will proceed. The new legislation allows judges to take the further step of appointing a legal aid lawyer to conduct cross-examination of victims of family violence.
In order to meet the anticipated increase in demand for legal representatives, the Government will apply an initial $7 million over three years toward establishing a Family Violence and Cross-examination of Parties Scheme. The scheme will fund legal aid commissions to provide legal representation to parties’ subject to the ban. The usual legal aid means and merits tests will not apply to parties eligible for representation under the new scheme.
The new scheme will begin in 2019, allowing courts the opportunity to put necessary procedural mechanisms in place.