Thursday, 28 June 2018
Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018; Second Reading
That this bill be now read a second time.
The Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018 sees the government committed to addressing family violence and improving the protections offered through the family law system to those affected by violence and abuse. I will just add that I am joined in the chamber by the Minister for Women, who has been of great assistance in the drafting of this legislation. The Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018 will ensure that protections are in place for victims of family violence during cross-examination in all family law proceedings.
Family violence is very unfortunately a very serious problem that profoundly affects individuals, families and the communities in which they live. According to a report released by the Australian Institute of Health and Welfare in February, one in six Australian women and one in 16 Australian men have experienced physical and/or sexual violence by a current or previous partner, and one in four women and one in six men have experienced emotional abuse by a current or previous partner.
Research conducted by the Australian Institute of Family Studies found that, over two years between 2015 and 2017, direct cross-examination in final hearings occurred in 173 matters where there were allegations of family violence and one or both parties were self-represented.
This bill implements the October 2016 recommendation of the Council of Australian Governments that perpetrators of family violence should be banned from directly cross-examining their victims in any family law or family violence proceedings.
The bill also responds directly to recommendations in the House of Representatives Standing Committee on Social Policy and Legal Affairs 2017 report A better family law system to support and protect those affected by family violence by introducing legislative amendments to ensure that victims of family violence are protected from being directly cross-examined by their alleged perpetrators. These amendments apply equally to parenting and property proceedings, thereby ensuring that appropriate safeguards for victims of family violence are in place in all types of family law proceedings.
The direct cross-examination of a victim of family violence by their alleged perpetrator can expose the victim to significant re-traumatisation and affect their ability, importantly, to give clear and cogent evidence. The power dynamics underlying family violence can also make it difficult for victims to effectively cross-examine their alleged perpetrator.
Victims of family violence also cite the fear of being cross-examined directly by their alleged perpetrator as a significant factor in deciding to settle a matter, often on terms they consider to be unfavourable. This can place victims and children at increased risk of harm.
This bill will amend the Family Law Act to prohibit direct cross-examination where there is an allegation of family violence between the parties to proceedings in certain limited circumstances:
In circumstances where allegations of family violence have been raised, but direct cross-examination is not prohibited, the bill requires that the court apply other appropriate protections. For example, the victim might appear via video link from a safe room, or support persons or screens could be utilised.
Where direct cross-examination is prohibited, the bill requires that cross-examination must be conducted by a legal representative.
Parties would be able to obtain their own legal representation where possible and, where a party is unable to obtain private representation, would be able to access legal aid according to the usual rules and standards.
The government is working closely with the family law courts and National Legal Aid to determine appropriate processes, fully consider anticipated impacts and ensure adequate funding is available to ensure the bill is effectively implemented. These will be in place well prior to the provisions being applied to matters before the courts.
It is important to note that the measures in the bill apply to both parties. That is, where the prohibition applies, a party's legal representatives must undertake the cross-examination on their behalf, regardless of whether the party is the perpetrator or the victim. This ensures that the victim is given appropriate protection and support both when cross-examining the alleged perpetrator and when being cross-examined by the alleged perpetrator.
This will help to ensure the provision of more reliable evidence to the court. It will strengthen the court's ability to protect victims of family violence and make decisions in the best interests of their children.
The government does of course understand the need to ensure procedural fairness for all parties in family law proceedings. Cross-examination is a critical part of family law proceedings, allowing the evidence of each party to be tested, and so assisting the court to make evidence based findings. The government considers that this bill provides protection while continuing to provide appropriate procedural fairness to all parties.
Given the aim of the amendments is to reduce trauma to victims of family violence in family law proceedings, and given the important role that cross-examination plays in testing evidence, the government proposes to comprehensively review the operation of the proposed amendments after the second anniversary of the legislation's commencement.
The bill includes a maximum three-month commencement delay, to ensure the family law courts can put appropriate procedural mechanisms in place. The amendments will then apply to cross-examinations that occur six months after commencement, to ensure parties can obtain legal representation in an appropriate time period, and prevent any unnecessary delays to their court proceedings.
This bill will improve the justice system's ability to support vulnerable witnesses by requiring the use of appropriate protections in all family law proceedings where there is family violence. It is another demonstration of the government's continuing commitment to addressing domestic violence in Australia and to ensuring that the family law system protects victims of family violence. For those reasons, I commend the bill to the House.