Recent amendments to the Family Law Act will ensure greater protection to victims of family violence who have to face their abusers in court.
The Family Law Amendment (Family Violence and Cross-Examination of Parties) Act 2018 came into effect on 10 March 2019 and will apply to all family law hearings from 10 September 2019.
What is cross-examination?
Cross-examination occurs during a trial after each party has given their evidence. The lawyer for the other party will ‘cross-examine’ that party on their evidence, asking them questions to expose holes or inconsistencies in their evidence and to elicit further facts that supports the other party’s case.
Cross-examination can be an unpleasant part of the court process, but it is important in order to test the evidence of both parties and assist the court to make findings based on the evidence.
If a family law matter goes to trial, where one or both parties are self-represented, the parties themselves would have to cross-examine each other on their evidence. Whilst it is only a very small number of matters that go all the way to trial, the effects of this can be detrimental for people who have been the victims of family violence.
Family Violence in Australia
One in six Australian women and one in 16 Australian men have experienced physical or sexual violence by a partner. One in four women and one in six men have experienced emotional abuse.
Between 2015 and 2017, there were 173 matters in which parties were directly examined by their ex-partners in circumstances where there had been allegations of family violence.
Why the Family Law Amendment (Family Violence and Cross-examination of Parties) Act 2018 was made?
In October 2016 the Council of Australian Governments recommended that perpetrators of family violence should be banned from directly cross examining their victims in family law matters. Amendments to the Family Law Act were proposed to deal with this issue.
In his first reading of this bill, the Attorney-General acknowledged that cross-examination is especially traumatic for victims of family violence who must answer questions directly from their abusers. This distress can affect their ability to give proper evidence in court, and likewise to effectively question the other party on their evidence. They may also be driven to settle the matter before trial for an outcome that is less than what they may be entitled to, in order to avoid being confronted by their abuser in court.
What changes will we see from the Family Law Amendment (Family Violence and Cross-examination of Parties) Act 2018?
As of 10 September 2019, both parties will be banned from directly cross-examining each other if there are allegations of family violence between the parties and:
- Either party has been convicted of or charged with an offence including violence or threat of violence to the other party;
- A family violence order (other than interim order) applies to both parties;
- An injunction for the personal protection of either party is directed against the other party; or
- The Court orders that the ban should apply.
This will apply to both parenting and property matters. If the ban applies, both parties will need to engage legal representatives to conduct the cross-examination and cannot do it themselves.
What happens if a ban does not apply?
If the ban does not apply, but there are allegations of family violence, the court must ensure that the alleged victim has other appropriate protections. This might include either party appearing in court via video link from a safe room, support persons being present or screens blocking any direct view of the abuser. They will also have the usual protection from the law against offensive or misleading questions from the other party.
Potential disadvantages of the Family Law Amendment (Family Violence and Cross-examination of Parties) Act 2018
1. More costly
Where direct cross-examination is banned, this means more cost for both parties at trial. As always, Legal Aid may be available to parties in parenting matters. Legal Aid is usually not offered with respect to property matters. To bridge the gap, the Australian Government has introduced the Family Violence and Cross-examination of Parties Scheme which will provide funding for legal aid practitioners to assist specifically where direct cross-examination has been banned. This funding will cover a lawyer’s fees to prepare for and conduct the hearing including the cross-examination.
2. Protection is not a given:
The protection is not automatically provided for someone who has an interim family violence order, or who has not reported their abuser to authorities (which we find is very common). Many people who have experienced family violence in their relationship do not want to report it or obtain a family violence order, for many different reasons.
In these cases the court will have discretion to apply the ban anyway. Either party can apply to the court for the ban, or the court can decide to order the ban on its own. Self-represented litigants will have a limited understanding of the Court process and may be reliant on the court deciding to exercise its discretion to order the ban in each case. It will not be until after the ban commences and the Court commences making such decisions that we will know more about when a Court will or will not decide it is appropriate to make such an order.
There is still a debate to be had as to whether automatic protections should be applied at the outset where there has been an allegation of family violence. For now, these amendments appear to be a step in the right direction.