Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2017—Public Consultation on Cross-examination Amendment
The Law Council acknowledges that, for survivors of family violence, the prospect of being crossexamined by a violent ex-partner can cause significant emotional distress and trauma, and discourage them from continuing litigation. The Law Council therefore supports consideration being given to alternatives to direct cross-examination wherever possible.
However, the Law Council is concerned that proposals that preclude, automatically ban or constrain cross-examination are inimical to each of:
- the interests and rights of litigants, whether victim or perpetrator;
- the ability of the court to properly determine issues, including to properly identify and address issues of and arising from family violence;
- the efficient delivery of access to justice;
- the cost-effective and timely delivery of justice in cases involving family violence, and fundamentally misunderstand the nature and role of cross-examination.
To that end, the Law Council considers that:
- the existing legislative structure provides sufficient power to the Family Court of Australia, the Federal Circuit Court of Australia and the Family Court of Western Australia to properly protect the rights and interests of both victims and perpetrators;
- the Family Court of Australia and Federal Circuit of Australia have published the “Family Violence Best Practice Principles” which set out how the existing legislative structure will be used by those courts, in particular in relation to vulnerable witnesses;
- legislative amendment to Division 12A of the Family Law Act 1975 (Family Law Act) could ensure the availability of those powers in all proceedings (rather than just parenting proceedings) where determined to be necessary and appropriate;
- further, and targeted, education of judicial officers and the legal profession will serve to ensure appropriate levels of awareness of the powers and practices available to appropriately protect the interests of litigants; and
- for those small number of cases where no other alternative to direct cross-examination is suitable, the Family Law Act could be amended to allow a judge to request a legal aid commission to provide representation for the unrepresented, alleged perpetrator (and the victim if they are unrepresented). The Law Council suggests that the proper administration of justice requires that such a lawyer be engaged for the whole trial, not just the cross-examination. If legal aid commissions effectively become a measure of last resort in this context, they should be provided with additional Commonwealth funding to effectively perform the role.
You can read the full submission below.