The Family Law Act has recently been amended. The purpose of the amendments is to protect victims of family violence from their abusers when they go to court.
In effect from the 10th March 2019, the Family Law Amendment (Family Violence and Cross-examination of Parties) Act 2018 will apply to all family hearings that take place after 10th September 2019.
Family violence in Australia is surprisingly prevalent. More than 16% of women and 6% of men have been sexually or physically abused by their partners. One-quarter of Australian women and more than 16% of men have been emotionally abused.
In the years from 2015 to 2017, there were as many as 173 court cases where the abused partners were directly cross-examined by their abusive partners. Victims of violence may find such direct cross-examination distressing.
Cross-examination of the parties takes place after they have given evidence in the case. It is a normal part of any court proceeding. During the proceedings, the evidence is given to strengthen the case against the perpetrator. The lawyer for the accused party is then expected to cross-examine the witnesses in an attempt to punch holes in the evidence. The cross-examination also seeks to uncover more information that will mitigate the case of the accused.
Cross-examination is not pleasant but it is necessary if the other party is to get a fair hearing. The court must consider all of the evidence. Cross-examination seeks to expose inconsistencies in the evidence, allowing both parties a fair hearing.
Usually, a lawyer would do the cross-examination. In some matters of family violence, however, the parties do not hire legal representatives. In these cases, the parties will cross-examine each other directly.
A large number of family matters never actually go to trial, but for those that do the effects on the victims of being cross-examined by the perpetrator of abuse or violent behaviour can be traumatic.
The Council of Australian Governments made a recommendation in October 2016 that in matters pertaining to family violence the perpetrators of such violence should not be allowed to directly cross-examine family members who had been victims of the violence at their hands.
The amendments to the act were made to take account of these recommendations. The Attorney General in reading the change proposals accepted that cross-examination of the victim by the abuser is distressing. The stress of the situation could taint the evidence given and would make it difficult for the victim to properly question the perpetrator of the violence. In many cases, the victim might settle for less than their due, rather than see the case go to court.
When the amendments take effect on the 10th September 2019 neither party in family violence matters will be allowed to cross-examine each other directly, if they allege violence from one or the other and:
Once the law is in place both parties will have to hire legal representation to do the cross-examination on their behalf. The amendments apply to property and parenting matters.
If the parties are not covered by the law even though there have been claims of family violence, the courts must nonetheless provide them with protection. This may include appearing in court via a video link, provision of support and screening of the view of the perpetrator. The law will also prevent verbal abuse or misleading questions.
The parties may not cross-examine one another directly. They must, therefore, hire legal representatives. This will cost. Legal Aid is available to partners fighting parenting matters. The same is, however, not true when it comes to matters relating to property.
The government has launched the Family Violence and Cross-examination of Parties Scheme. The aim of the scheme is to help fund legal representatives where direct cross-examination has been disallowed. The monies will cover legal costs for the hearing and cross-examination.
Protection is not automatically provided for victims where the violence has not been reported to the authorities. This happens all too often. Many people prefer not to report such incidents for various reasons. Even a victim with an interim family violence order does not automatically receive protection.
The court has the discretion to apply for a ban on direct cross-examination. The parties may also apply for a ban themselves. Those who represent themselves, however, may not have the legal know how to apply for such a ban. This is why the court may apply its discretion in banning direct cross examination. We will have to wait until the 10th of September to get an understanding of how the courts will apply their discretion.
Some may argue that all parties in family violence matters should receive the court’s protection when it comes to banning direct cross-examination. For now, we’ll have to see how the first cases pan out in the courts once the amendments take effect.