House debates

Monday, 10 September 2018


Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018; Second Reading

5:20 pm

Photo of Sharon BirdSharon Bird (Cunningham, Australian Labor Party) Share this | | Hansard source

The question is that the amendment be agreed to.

5:21 pm

Photo of Shayne NeumannShayne Neumann (Blair, Australian Labor Party, Shadow Minister for Immigration and Border Protection) Share this | | Hansard source

In a 14 April 2016 submission in relation to domestic violence and gender equality to the Senate Finance and Public Administration References Committee, the Law Society of New South Wales made the point that they supported the views expressed in the National Plan to Reduce Violence against Women and their Children 2010-2022, and that gender inequality has a profound impact on violence against women and children. However, the Law Society noted that the national plan recognises that family violence is a broad term that refers to violence between family members as well as violence between intimate partners. It involves the same sorts of behaviours as described for domestic violence. Domestic and family violence takes many forms. It's not just physical and sexual assault; it can be financial domination, familial isolation, emotional and psychological abuse and even religious persecution.

Before entering parliament in 2007, I had a long and extensive career as a family lawyer and as an accredited family law specialist. During that time I witnessed the distress that comes from a witness who is cross-examined by the perpetrator of violence against them. I've witnessed firsthand the power imbalance and the risk of retrauma. There's a very good reason why effective and competent legal representation is vital to just outcomes in property settlement, parenting and other issues in both complex and even simple cases. The situation for those who are cross-examined by the perpetrators of violence against them can be humiliating, traumatising and even terrifying.

The Family Law Amendment (Family Violence and Cross-Examination of Parties) Bill 2018 seeks to provide appropriate protections for victims of family violence during cross-examination in all family law proceedings. Specifically, the bill seeks to prohibit personal cross-examination in certain circumstances and seeks to necessitate cross-examination by legal representatives, not perpetrators. This is a good reason for why we should be funding legal aid even more. It's why I'm calling on the government—and the member for Isaacs, the shadow Attorney-General, is calling on the government—to put up the money to assist legal aid and to make sure this power imbalance between men and women, and particularly between the victims of domestic violence and the perpetrators, can be addressed.

We've got shocking delays in the Federal Circuit Court and the Family Court. The recent PwC report said that the median time for trials in the Family Court had blown out from 11.5 months five years ago to 17 months now. In the Federal Circuit Court, it has gone from 10.8 months to 15.2 months. These things can wait up to three years, in my experience and observation. For those people who have to wait for their cases to be heard, it is simply another form of trauma. It really is possible to argue that this is a form of institutional abuse that people are going through. They have to wait to settle their affairs financially and wait to make sure their children are settled and the best interests of those children are decided by a court with the best evidence from social workers as well as psychological evidence.

Judicial officers currently have general but extensive powers in relation to asking witnesses questions. In spite of all of this, there's no specific prohibition on one party directly cross-examining another party, particularly if family violence allegations exist. The defunding by this government of legal aid and the lack of support for the Family Court system and the Federal Circuit Court system has resulted in not just delays but more and more people being self-represented in litigation before the Federal Circuit Court and the Family Court. The Australian Institute of Family Studies reported that the majority of cases, 72 per cent, involved direct cross-examination. Thirty three per cent involved fathers cross-examining mothers, and only 28 per cent of cases involved mothers cross-examining fathers. In 11 per cent of cases, both parents cross-examined each other.

Direct cross-examination by perpetrators is very common. I've witnessed, firsthand, the impact, the terrified attitude and the experience that people have had when they're in a court proceeding and they're facing someone who has been physically and sexually violent towards them and who is asking them questions and interrogating them. Even the best and most prudent judicial officer has trouble protecting the witness from the trauma that they're experiencing.

Cross-examination exposes witnesses, I think, to significant risk of retraumatisation. It substantially impacts their capacity to prosecute their cases. I found that, after a client has been through that, it's very difficult to actually get detailed instructions from them. They feel like they want to settle the case—often to their detriment and the detriment of their children. They want the matter over, and that often results in people not getting the just outcomes they need in terms of property, child support and parenting orders. It's not always in the best interests of children. There are safeguards that can be used, including remote witness facilities; screens; judicial intervention, such as rephrasing questions—that's why we need our judges and magistrates to be well trained in this issue and be very sensitive to the issue—and monitoring of direct cross-examination proceedings.

A Women's Legal Services Australia 2015-16 study surveyed 338 women survivors of domestic and family violence. The study cited that 43 per cent were directly cross-examined by the perpetrator in family law proceedings. A substantial number reported feeling frightened, unsafe, retraumatised and intimidated. Overwhelmingly, most cases never get to final hearings. Indeed, it's quite uncommon for cross-examination to take place at an interim hearing. You need leave of the court, and judges rarely allow it to happen. Of all the cases where proceedings are instituted, only a very small number ever get to a final hearing. Most cases have settled and, of those cases where proceedings are instituted, no more than five per cent ever get to a final hearing—that's a historical figure that is accepted within the profession.

Settlement, under certain circumstances, is often done by a witness who is party to the proceedings, and it's often quite unfavourable. They are often really keen to get the whole matter resolved. State and territory courts have already made changes to prevent direct cross-examination of a witness by a perpetrator. In most Australian jurisdictions self-representative accused parties are not permitted to directly cross-examine a complainant in sexual assault proceedings. In Queensland—my home state—in Victoria, in Western Australia, in South Australia, in the Northern Territory and in the ACT, legislation also prevents direct cross-examination in proceedings, for example, where apprehended violence orders are being sought.

A 2016 report by the Family Law Council noted that direct cross-examination can perpetuate and perpetrate the abuse of victims of family violence and lead to incomplete and poor-quality evidence. At the October 2016 COAG National Summit on Reducing Violence against Women and their Children it was agreed that a ban should be placed on direct cross-examination of victims by perpetrators in family violence and family law proceedings. Labor agrees with that position, and we have for quite some time. We've been calling for an end to the practice and we're pleased the government has finally caught up. We've been arguing for it for at least two years. There are other ways to test evidence. We believe the family law courts should be required to consider measures to protect victims and survivors of family violence.

Protective measures, as I've said before, can take place. It can happen because the courts are experienced in this. For example, in conciliation conferences and mediations, it's very rare for someone who is a victim of domestic and family violence to be put in the same room as the alleged perpetrator. Often they're shuttled and taken places with lawyers involved, if they're represented, or by the mediator or the registrar of a court to settle issues, so that limits the risk of trauma.

The Council of Single Mothers and their Children highlighted that the 'courts would require additional resources to implement the protections proposed by the bill and that 'increased use of video and audio technology, separate safe places for parties to enter and wait in courts and alternate venues' would be required under the proposed changes. That's important. It's extremely important, because these are usually public areas and people go in and there are waiting rooms and, unless there is good security, people can feel tremendous trauma if the perpetrators of the domestic and family violence are actually close by, in proximity, and only separated, for example, by a wall or a door. The Law Council went on to state that the bill was:

… likely to prompt parties who have experienced family violence, who may previously have avoided court action for fear of direct cross-examination, to proceed with their cases. This could subsequently cause further delays to court listings and add to the workload of the family courts.

And, as I have outlined, the workload of the family courts has increased and waiting times have blown out.

Labor has committed to provide $43 million to Legal Aid to facilitate a ban on direct cross-examination of survivors of family violence by perpetrators. The Morrison government need to step up. They've junked plenty of policies in the last two weeks. This is another one they should junk and change. I'm asking for a change in their perspective in relation to this. How about telling the legal community how they'll be funded before they seek to implement these changes? How about they put up the $43 million and match Labor's commitment? Those opposite haven't made public any provision of funds to legal aid to assist in the implementation of these changes. I note that the explanatory memorandum states that 'there are no direct financial implications from implementing the measures' contained in this bill. Quite clearly there's no money put up.

The question the Attorney-General must now answer is how payment will be ensured for those who are not eligible for legal aid. I call on them to make a difference, and that's why I'm supporting the shadow Attorney-General's amendment. The financial burden of legal representation could force parties to consent to parenting arrangements which are unsafe and unjust and negatively impact on victims. Labor listened to stakeholders and we listened to legal aid commissions throughout the country, and they told us that this change could not be made based on current levels of funding. That's why Labor made the commitment that I outlined before. The funding will cover all unrepresented litigants, both victims and perpetrators. This means that if a party does not qualify for legal aid and cannot afford a lawyer, they will be provided funding through this appropriation by Labor.

Despite Labor's commitment, the government is refusing to come to the table and provide the bipartisan support of legal aid that it seeks to pass this bill through the chamber. If the government doesn't plan to announce additional funding further down the track, why has the Attorney-General not provided a figure yet? While Labor has committed $43 million to boost Legal Aid to carry out these changes, the Attorney-General simply refuses to announce if any money will be forthcoming. The government needs to give certainty to funding before it expects this bill to pass through the parliament. The government has made no allowances for litigants who are directed to obtain legal representation but do not qualify for legal aid and cannot afford a private lawyer.

The government's stance in this instance is that cross-examination simply cannot go ahead. Cross-examination is a necessity in some proceedings. Without cross-examination, often the evidence can't be tested and a court is left to determine a dispute without a proper and fulsome testing of evidence. The evidence should be put to the test. In short, where there is a dispute of fact but no cross-examination, the court often can't make a finding one way or the other. National Legal Aid gave evidence at a hearing of the Senate Legal and Constitutional Affairs Legislation Committee. They stated that it is it is very difficult for the service to respond to the proposed legislation without details of additional funding. In situations where Legal Aid are unable to fulfil requests for representation, and the ban of cross-examination applies to both perpetrators and victims, a denial of due process could occur, leaving courts unable to test the facts and unable to make findings, and that could lead to further delays and injustice.

Labor supports this important reform in principle, but the government needs to come to the table and provide Legal Aid with the funds it needs to allow the scheme to operate. Labor is committed to an Australia that is free from domestic and family violence, to a legal aid system that is fair, just and appropriately funded and to a court system that provides justice for all. We've listened to stakeholders and we've supported reform, and I hope the government will do the same. I await the Attorney-General's announcement on funding towards this significant transformation to the family law system.

5:34 pm

Photo of Jason FalinskiJason Falinski (Mackellar, Liberal Party) Share this | | Hansard source

It is bewildering that in a free, liberal country such as Australia, many families are entrapped by violence in their own homes. It is disheartening to see the cornerstone of our society, the family, defaced and tarnished with unjustified sadism. Just last year we saw 72,000 women, 34,000 children and 9,000 men seek homelessness services due to domestic violence. Even more alarming, however, is the fact that one in six women and one in 16 men have experienced physical or sexual violence by a current or previous partner. When you begin to account for emotional abuse and violence against children, the figures only appear to loom closer and more threatening than ever.

Aisha Mirza said:

It is not the bruises on the body that hurt. It is the wounds of the heart and the scars on the mind.

This bill will ensure that victims of domestic violence do not have to relive their trauma. These measures will ensure that appropriate protections are in place for victims of family violence during cross-examination in all family law proceedings. The direct cross-examination of a victim of family violence by their alleged perpetrator can expose the victim to retraumatisation and affect their ability to give evidence. Some 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 the matter, often on terms they consider unfavourable. This can place victims and children at risk of harm.

A constituent of mine was in this very same predicament. Her case was before the Federal Circuit Court in Sydney, where my constituent was the victim of serious domestic violence. Her ex-husband was in fact serving a prison sentence after being found guilty of attempted murder. The ex-husband was self-represented and without a lawyer. Under the current law he was able to cross-examine my constituent, the victim. As you can imagine, she was extremely reluctant to proceed with the financial and property matter which was before the court because she was terrified of being cross-examined by her ex-husband, who had been convicted of attempting to kill her. The judge was forced to try to confirm with the ex-husband prior to the trial if he wanted to cross-examine the victim of his abuse. This left my constituent faced with the prospect of being cross-examined by a person who had tried to kill her, or lose the property. She would rather withdraw from the property proceedings than be cross-examined. The judge was at pains to outline that he would ensure that the husband could not get carried away with cross-examination. However, the court was unable to prevent the husband from cross-examination because he was entitled to so-called due process and to test the wife's evidence under cross-examination.

I'm pleased to say that these new laws will prevent this scenario from occurring again and will give victims the certainty that they can have their cases heard before the court without fear of being traumatised or having to face the perpetrator. These measures will amend the Family Law Act to prohibit direct cross-examination where there is an allegation of family violence between the parties to the proceeding and either party has been convicted of or is charged with an offence involving violence or a threat of violence to the other party; or a family violence order other than an interim order applies to both parties; or an injunction under section 68B or 114 of the Family Law Act for the personal protection of either party is directed against the other party. This automatic ban provides certainty for victims covered by these circumstances that they will not be directly cross-examined by their abuser.

Where the circumstances do not apply, the court has discretion to make an order that direct cross-examination is prohibited. For example, the court could make an order prohibiting direct cross-examination where an interim family violence order applies to both parties or where allegations of family violence are raised for the first time in a family law proceeding. Where direct cross-examination is prohibited, the amendments require that the cross-examination be conducted by a legal representative. In circumstances where direct cross-examination is not prohibited, the amendments require that the court apply other appropriate protections, such as giving evidence by video link or using screens so the alleged perpetrator cannot be seen. These measure apply to both parties. Where the prohibition applies, separate legal representatives must undertake the cross-examination on behalf of the victim as well as the alleged perpetrator. 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.

Cross-examination by a violent partner or former partner will often be the catalyst for victims to re-experience their trauma. Victims again have to re-engage with support services such as counsellors, domestic violence workers and some mental health support workers. This also includes children's counsellors because, let's not forget, many children experience vicarious trauma when they know that their parent, who is the victim of domestic violence, has to go to court. Again, this is a tragic and often all-too-real occurrence. A young child in my electorate would engage regularly with a psychiatrist because they knew that their mum had to keep going back to Family Court to try and prevent their father, who threatened to burn down the family home with them inside, from having any time with his children. If we can prevent these cross-examinations from abusers occurring, then we can ensure that the trauma does not continue and that victims can seek appropriate services. They will then not be reliant on government support services every time they have to attend court. They can simply focus on their future.

Matters in the family law courts will not be impacted by the provisions in this bill for nine months. This includes a maximum three-month commencement delay to ensure that the family law courts can put appropriate procedural mechanisms in place to support the implementation of these measures. The amendments will then apply to cross-examinations that occur six months after commencement to ensure that parties have adequate time to obtain legal representation, and prevent any unnecessary delays to their court proceedings. These measures will improve the justice system's ability to support vulnerable witnesses by requiring the use of appropriate protection in all family law proceedings that involve allegations of family violence. There are some avenues which need to be explored to fund this legislation. However, the government is working with National Legal Aid to assess the resourcing impacts for legal aid commissions to provide legal representation where the ban applies and to ensure that adequate funding is available.

In New South Wales we have seen rates of domestic violence decrease. There are, however, some pockets of our community where it has surged. We must continue, as a government, to tackle that scourge. This bill is a welcome step towards supporting victims of domestic violence. It is welcomed by the community, support services and legal professionals. The New South Wales government is also supporting victims of domestic violence, most recently announcing a raft of reforms to extend lengths of ADVOs from 12 months to two years, a new strangulation offence with a maximum sentence of five years and, in the most severe cases, indefinite ADVOs. I'd like to take one moment from this debate to acknowledge family law specialists Robert Tricca & Associates and Brett McGrath from the New South Wales Law Society for their advice and work in representing victims of domestic violence.

This legislation will have a positive effect that will spread throughout the mechanisms that we have and the legal system in our community by reducing stress on victims and, in doing so, allowing those people to get on with their lives and ensure that they can get back on their feet, rather than continuing to mire them in legal processes that so many in the legal profession think that their clients want and, indeed, need. It will also help children. It will also alleviate the pressure on already strained domestic and family violence support services by helping people get back on their feet and get out of the system, and not help them continue to dwell in it. I think that the Attorney-General deserves great credit for this bill that he has brought to the House. I commend this bill to the House.

5:45 pm

Photo of Chris HayesChris Hayes (Fowler, Australian Labor Party) Share this | | Hansard source

I commend the member for Mackellar. I agree with much of what he had to say. The only thing where we would depart is on the fact that, when you bring a piece of legislation of this substance into this House, you should make sure it's funded; otherwise, it becomes inoperative as a legal instrument.

I rise in this contribution to speak on the Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018 because I want to make it clear, firstly, that we support the bill, but we do so because this has been Labor's policy for some time. As a matter of fact, the reforms captured in this bill are the very matters that were discussed in this House over two years ago. They are reforms that Labor committed to in 2016 in the lead-up to that election. We recommitted to them in 2019, and we think this bill is sound in what it does—that is, to impose an outright ban on the direct cross-examination of both victims and perpetrators in family law hearings where there is evidence or allegations of domestic or family violence.

This legal prohibition will be administered through the processes in the courts. The court, through the judicial officer, will make a direction to the party to engage a lawyer, either privately or through legal aid, for the purposes of cross-examining, where either party is unrepresented. We think that's a good thing. We support that. The Queensland Law Society—of which you are no doubt well aware, Mr Deputy Speaker Vasta—says this about what's contained in this bill:

It is well recognised that direct cross-examination of victims of family violence not only perpetuates the abuse but can result in the court receiving incomplete or poor quality evidence.

That's from our legal colleagues in Queensland. I don't think that's rocket science. I think that is precisely the case. If we want to have good-quality evidence, we need someone to be unintimidated when they're presenting evidence to the court.

As are many in this chamber, I am also a White Ribbon ambassador. I think it's good that most of us take an interest particularly in matters of domestic and family violence, and this bill is no different. It's on that basis that I say it is an absolutely shameful practice where we've allowed within our judicial systems for victims of domestic violence to be cross-examined by the actual perpetrators of that violence. We've heard from so many women who say that they have settled for less than adequate outcomes solely to avoid cross-examination by the perpetrators of their violence. Other women have said that they've gone through the experience and it's had horrible consequences.

All of us sitting in this chamber would have to say that that's an absolutely woeful practice that's been allowed to continue. Subjecting victims to hostile questioning in court by the perpetrators of their domestic violence inflicts a new and fresh trauma and often makes victims reluctant, quite frankly, to take their cases through the court process, so it would appear that the aggressor becomes the victor in those situations. It perpetuates a cycle of violence by reasserting the perpetrator's power over the victim, albeit on this occasion through the courtroom.

When we on this side first introduced the policy that is now the subject of this bill, we actually made it with a tag—the tag being that we committed $43 million to Legal Aid in order to facilitate the representation of litigants. We made the funding commitment because we listened to the stakeholders. Legal Aid told us that this change could not be possible on the current funding levels. In highlighting the importance of legal representation in matters of family violence and the need for adequate funding, the Australian Human Rights Commission emphasised that this could not be accommodated under the existing Legal Aid funding levels. So neither side of parliament can be excused for making any mistake about what is in this bill and the fact that there are costs associated with it.

In essence, we are seeing now a bill come through the parliament without proper resources to support its implementation. In its current form, it lacks the necessary teeth to ensure the desired outcome. There has been no additional funding for Legal Aid proposed in this bill—and, for that matter, none was set aside in the last budget. All we have is a statement that says, 'the government is working with the National Legal Aid Office to determine impacts that are expected to result from the measures in this bill'. However, on 28 June this year, it was reported that the Attorney-General said:

… the government was "working closely" with National Legal Aid on implementing the new law.

However, he said there would be no extra legal aid funding as a result of the legislative change, and those prevented from cross-examining their ex-partner would only be able to access legal aid if they met its usual rules for qualifying.

That is pretty simple. There is no intention to put any money aside to support the implementation of this bill. So, while it's pleasing that the government have finally decided to move on preventing the cross-examining of victims of domestic violence by their perpetrators, they have not matched Labor's commitment to properly fund this scheme. As far as I'm concerned, with such critical reform like this, there can only be a true commitment to ban the horrible practice when we have a very clear and strong intention as to how we should fund the scheme in the first place. Without proper funding, this bill is, in effect, holding the general practice now to ransom.

Statistics tell us that there are still many, many cases where direct cross-examination of family violence survivors remains prevalent. A study by the Australian Institute of Family Studies published in June this year, found that there were 173 direct cases of cross-examination in family law matters over the course of the last two years alone. But, as the Women's Legal Services Australia points out, this does not include the many cases which were settled before they even went to court. The National Legal Aid has voiced its concern about the funding aspects of this bill and it has given evidence at a hearing of the Senate committee, noting the difficulty the service has in responding to a direction by the court without additional funding.

Passing this legislation without guarantees of additional funding could create a crisis situation in the family law system. We could see a situation in which Legal Aid is unable to fulfil requests for representation when made by a judge. This could result in the denial of due process and the court being unable to test the facts or make the necessary findings. The Law Council of Australia has explored this issue in detail, warning that it could have many unintended consequences, particularly in relation to the delivery of justice. In discussing the ramifications of this bill, the Law Council went on to say:

It is foreseeable that the Bill will have the consequence of trials being adjourned or trial listings being vacated so that legal representation can be obtained. The new provisions may also give parties the opportunity to delay for strategic reasons.

In other words, unless this is funded and the victim is able to have representation in terms of cross-examination by the perpetrator of the violence, this could inordinately delay those court proceedings, and delaying that is justice denied.

We have also been issued a number of comments from stakeholders—principally the Law Council of Australia. It goes on to say that, in the event that a legal aid commission may not be able to redirect funding away from other essential services, to comply with a judge's direction Legal Aid may have to take money that otherwise would have been used in other cases funded by the legal aid commission. Quite frankly, this is inefficient, ineffective and certainly mitigates against the broad thrust of this piece of legislation that it before us, the intent of which, as I said at the outset, is a good thing. It will pass the parliament, but, because of these concerns that we have, I do support the second reading amendment made by the shadow Attorney-General.

We do think that the government should be acting quickly to explain how it expects Legal Aid to facilitate these important reforms if they are not going to be funded. The government must give certainty on how it intends to meet the funding questions, and it must be done before this bill not only passes the parliament but comes close to being enacted, because it would be absolutely embarrassing, for all of us that have the honour of sitting in this chamber, to think that we've passed a piece of legislation that had no teeth, because there will be consequences which will be borne mainly by women, who in the main are the victims of domestic violence, seeking redress and justice through our judicial system. It is the absolute least this government should be doing for survivors of abuse, for those families, for the women and children and for those who have been so active in calling for reform in this area, that we show not only that we care but that we will do everything we can to mitigate the ongoing suffering in this regard.

Labor will always remain committed to be an Australia free from domestic and family violence. We think this is a measure going to that and we support it on that basis, but we ask the government to consider the amendment of the shadow Attorney-General. We need these measures appropriately and properly funded.

5:58 pm

Photo of Cathy McGowanCathy McGowan (Indi, Independent) Share this | | Hansard source

For my colleagues: what an opportunity to stand in this House tonight. I want to tell you a story. As a newly elected member of parliament for north-east Victoria, one of my first constituent meetings in Wodonga was with Eleanor. Eleanor came to me and said, 'Cathy, we need to change the law, and you as my member of parliament need to help me do this.' So it is with enormous pleasure tonight that I stand in this house and say to Eleanor, 'Finally we're there.' I would also like to acknowledge the support of my staff member, Karen Keegan; previous Chief Justice Diana Bryant; and, in particular, the Women's Legal Service for the work they've done on this; and I name Angela Lynch and Pasanna Mutha for their work in getting us to this stage.

Colleagues, tonight I want to read some of Eleanor's words because I think she tells the story of why this legislation is so important. She writes:

My name is Eleanor and I thank-you for the opportunity to speak to you today. Section 221 of family law restricts my ability to identify myself fully particularly in the media. In all interviews I have taken the name 'Eleanor' to ensure I am not in breach of this federal law. This law was introduced to protect children in family law proceedings but unfortunately it has also been a factor in muting the victims of their experiences in the courts once they leave their perpetrator.

Eleanor writes:

I am someone who has had direct experience of escaping a perpetrator of violence, then having to deal with the complexity of the system in keeping myself and my children safe from the abuser. My ex-partner was sentenced, finally after five years, this last January. Throughout the last five years I have been subjected to intense system trauma both via the Victorian system and the federal family law.

Eleanor goes on to tell the story of what happened to her in the intervening years, but this is the bit I'd like to read into the Hansard tonight:

The criminal system and civil system for intervention orders and the family law system are not aligned. Navigating your way through these systems is complicated, emotionally draining and, dare I say, dangerous. After a contested hearing I was granted an intervention order on the grounds it was not safe for me to have my perpetrator near me. I remember looking over to the mantel in the room where a quote by Henry VIII was in pride of place. He too was a rapist. A week later I was back in that same courtroom for family law proceedings. I was sick to my stomach to discover on day 1 of the hearing that he, my previous partner, had become a self-litigant and was going to be directly cross-examining me. That day I stood on the stand and the Federal Court allowed him to directly cross-examine me. It was a massive slap in the face. How could they give my rapist his power over me back? He asked questions I was forced to answer. He was only metres from me. How could this happen when another magistrate had already said that this circumstance was not appropriate or safe? It is this system flaw that I was able to identify as a major flaw, an obstacle in my recovery from trauma. Having your rapist stand only metres from you, asking intimate and personal questions about your relationship, your parenting, your social media account—every aspect of your personal life—is invasive, disempowering and cruel. This person does not deserve the right to cross-examine his victim.

She goes on:

This is what drove me to seek support in reforming the family laws that are massive obstacles to women escaping violence. I created an online support group called Tea Leaves, named from the quote of Eleanor Roosevelt, "Women are like tea leaves. You don't know their strength until they are in hot water." This group enabled me to have a place to discuss issues and find solutions and share those solutions with other women like me. I have listened to the journey of others, and all have the same link—that same thread of system abuse that they are faced with when the family law process is started.

Eleanor writes:

I began writing letters to all who would listen. I have corresponded and met with federal leaders and representatives. I have received sympathy and empathy for the predicament I and other victims have been placed in, but what I haven't received till that time is real action by the federal government on this issue. It seems simple to me. No person, male or female, should be cross-examined by the person who raped or beat them. When I had no joy from local members of parliament or from the Attorney-General, I began to turn to the media. My letters and emails came before the likes of Angela Lynch and Pasanna Mutha, who have taken on this issue in the media and at high levels of government. These women have been relentless and beside me in addressing this flaw. Working with the WLSA has helped me to politicise this issue and keep it in the foreground of discussion in a variety of forums. Angela and Pasanna were able to provide the legal knowledge of how this change could occur. I was an example of why it should occur.'

Eleanor continues:

Meeting Sally Sara from the Lateline program was life-changing for me. She listened to my story and cried with me over the injustice of the trauma of not only being cruelly abused by my intimate partner but the system trauma I had suffered at the hands of the government. Sally gave me a voice, and this was the first time I had to use a false name, due to section 221. I chose Eleanor. In the media, the voice of Eleanor has been loud and it has been heard. The headline is catchy, I guess, and a shock for many. How can our community allow a woman to be cross-examined by her abuser? It sounds dreadful, doesn't it? But not dreadful enough for the government to amend its laws and use other avenues to stop this event from happening to criminals on a daily basis. The voice of Eleanor has enabled me to speak on behalf of those who have no voice, those who have been unable to fight for change as they are fighting too hard to survive each day. It has enabled me to talk to important people … who each day deal with victims of violence who are restricted and challenged in a system that should be supporting them and helping them to recover and progress as a protective parent. While we have laws that force mothers to be cross examined by their perpetrator then are given family orders that force her to co-parent with her rapist we are eroding a woman's ability to heal and become the strong parent she needs to be for her children. This is not about stopping fathers [having] access to their children it is about protecting the vulnerable from further trauma and abuse by their perpetrator.

Eleanor finishes by saying:

I will not rest until this law is amended and I know that what I went through has some purpose.

Colleagues, it gives me enormous personal pleasure and great pride to be able to stand in parliament today and be part of a combined effort from both the government and the opposition in passing this amendment to the law. But, in doing so, I would particularly like to knowledge the work of the Labor Party in coming to the fore. I won't name your team, but you've done a fantastic job in helping Independents like me get the support we need. It was when you guys came on board that we actually got the traction we needed, so thank you for that. But I want to say to Eleanor and, if I could through her, to all the members of my community: it really is worth going and seeing your member of parliament. It is really worthwhile saying: 'We've got a problem with this law. Can you help me fix it up?' And, sure, for someone newly elected like me, I go, 'Oh my word, how do we do that?' But, through your work, Eleanor, through the work of the legal service, through the work of the very many women you worked with and through the fantastic support of the media—and I too would like to give a call out to the ABC and say thank you so much for giving voice to many, many people on this issue—it works. Then you get to the parliament, and we are going to vote on this legislation tonight, and I hope, with the changes that we need to see regarding funding, which clearly is so important—you can't make changes at this level without putting the money into the legal system and the community legal services to make sure that the staff and the support are there; it's so obvious—we will be able to bring this law in as a combined parliament.

To the people of Australia, I say: trust us because, sometimes—more often than not—we really can deliver the changes that we need to fix up the problems in the system and to be the representatives that you really want us to be. So, Eleanor, thank you for your work, for your dedication and for the persistence you've shown in being such a strong spokesperson, and to my colleagues: I look forward to your support with this legislation tonight.

6:07 pm

Photo of Matt KeoghMatt Keogh (Burt, Australian Labor Party) Share this | | Hansard source

As many of you know, I came to this place as a lawyer with a history in prosecution work in corporate law—I was working in a corporate law firm and working on international disputes—but what many don't know is that I started my legal career working in a small, suburban practice that was started by my grandfather and then carried on by my mother. The majority of the work done in that legal practice was in the area of family law. In addition to that, I also spent time as a board member for Starick, which is a local community service in my electorate that runs refuges for victims of domestic violence.

From my experience of working in the law, and from many other experiences, I got to work, as my mother and my grandfather did, firsthand with many victims of domestic violence who were trying to work their way through the Family Court system. Since that point, in many different guises, I have met people in that situation. If there's one thing that is continually reinforced to me from my conversations with them and from working with them, it is not only the degree of trauma that they have been through but indeed also the degree of trauma that they continue to go through and the way in which the Family Court system allows further violence to be perpetrated against victims of family and domestic violence through its processes and, for some—in fact, for way too many people—for an extended period of time.

This bill seeks to address but one aspect of the Family Court system, which is a system that should be there to allow people to get on with their lives. It addresses one part of that system to try and make it a system that is a bit easier for victims of family and domestic violence, because having to suffer through a legal process is difficult and it's difficult for anybody. It's part of why I went into the legal profession, because I knew that I was very fortunate to receive a good education and I saw from my grandfather and from my mother the use of a skill to help other people. I chose to use that in many different ways in the legal profession and I now find myself in this parliament. What I think is typical for lawyers working in family law all over Australia is that people at their most vulnerable are using the system to try to find justice. It is a system, in effect, that they cannot avoid and they need the assistance of, but unfortunately it presents retraumatisation time and time again for the people using it.

When we think about family and domestic violence, in the state of Western Australia it is a scourge. Over the past decade, we have seen increasing numbers, unfortunately. As I said, I was a board member of Starick services from 2005 to 2007. Back in 2007, in Kelmscott, where I'm from, 38 people were reported to have suffered from family violence. Last year, that number was 125. In Armadale, in 2007 it was 104. Last year, it was 321.

Since joining the official campaign trail in 2015, I've campaigned around many issues, but one which was particularly dear to my electorate was making the Armadale Police Station open 24 hours a day. There are many reasons for that, but one of those reasons was that it provides a safe haven that people know they can go to when they need safety and security. That's very important. I'd like to say at this point to those who criticise a 24-hour police station as a waste of police resources that, if they're worried about that, they should talk about the resources, not talk about the station being open for 24 hours a day, because it is so important for those who need to find a safe haven when they feel under threat. It is but a step, though, in helping those in our community who need it and need it quickly. We're moving in the right direction to help the people who are suffering at the hands of those they thought love them, but what about the individuals who have already encountered violence? What about the individuals who have had to impose trust in our legal system, as I mentioned before, in the hope that it will also keep them safe?

This bill allows the Family Court to prevent the direct cross-examination of a victim by a perpetrator in family law hearings or in situations of family and domestic violence. It will apply where there is an allegation of family violence between the parties or if there's been a conviction related to violence between the parties. It also applies for those who have sought personal protection orders. It is, of course, still open to the court, even in its discretion without those matters, to prevent such cross-examination. Reports and inquiries have been calling on the government to help better protect victims of family and domestic violence in our courts for many years. It goes back many years indeed. Various agencies, inquiries and reports have been calling for this annually—in fact, sometimes even more than once a year—since 2014. There are countless examples of cross-examination of domestic abuse survivors by their perpetrators causing more harm and more trauma to them. There are huge numbers of women who say that they settled for imperfect outcomes just to avoid cross-examination by their perpetrator or that they went through the experience and suffered horrible consequences as a result. Our court system, especially our Family Court system, should be a system of solutions, protection and assistance. It should not be a system that allows for further traumatisation and, effectively, further violence against those who have suffered. This practice needs to stop.

On White Ribbon Day in 2016, the Leader of the Opposition pledged $43 million for legal aid to facilitate the representation of unrepresented litigants in order to allow for family law cases to continue in a situation where lack of representation would prevent such cross-examination. Unfortunately, this government, in its many iterations, has refused to meet that pledge in the two years since it was made by Labor. In fact, the Attorney-General has indicated that he has no intention at all to give that funding to legal aid, and that's despite the fact that, when the Attorney-General was the Attorney General of Western Australia, he continued to rail against the fact that there was insufficient funding from the Commonwealth for legal aid. Now that he finds himself in a position to do something about it, what does he do? Nothing.

Subjecting victims to hostile questioning by their perpetrators in court inflicts new and fresh trauma, and, as I said, it is deterring those victims from taking legal action where they should or from being able to pursue Family Court matters to their just conclusion, settling instead for a situation that they are not happy with and sometimes settling for a situation which they feel leaves their children more unsafe. The government have long promised to address this situation, but so far, until now, they have failed to act on the legislation. This bill is a start, but, without the legal assistance funding to go with it, the injustice will not be properly addressed. So I implore the Attorney-General to re-evaluate this situation and to think seriously about the fact that additional funding is going to be needed for legal aid to make this work.

As an aside, when it comes to dealing with these matters of family law, I'd like to make a point in respect of the Western Australian Family Court. While the Attorney-General's thinking about funding and resourcing for family law here in Australia, he might like to think about the fact—of which I know he is very well aware—that, at the moment in Western Australia, we have but five Family Court judges. The interesting thing about that number of five Family Court judges is that that's exactly the same number that Western Australia had in 1975 when the Family Court was created.

It probably won't surprise members of this House to know that there's been a little bit of an increase in the population of Western Australia since 1975. It might be a small mercy to think that at least we're back up to five, because there was a period of time where we didn't even have our full complement of just five Family Court judges in Western Australia. We have seen commentary by members leaving the judiciary in Western Australia about how perilous a situation this leaves our Family Court justice in in that state.

Again, when we think about the cumulative impact, when we talk about the risks that are perpetrated and the trauma that is perpetrated on victims of domestic violence by being cross-examined by the person who inflicted that violence on them, we have a situation in our courts because of this lack of resourcing, whether it's in Western Australia or in other states, where that trauma is not just revisited within a short time frame. Because of the way in which these cases are dragged out, we have a situation where, years later, that trauma is revisited on these victims of family and domestic violence, and in the intervening period they are continually traumatised because they know this is coming. They know, as they progress towards trial, that they will have to sit in a witness box and have the person who inflicted violence upon them re-inflict it in the aggressive way in which they can cross-examine, in the way in which they can push buttons in a witness box against them, and cause deep psychological trauma and damage to them through a system that is supposed to deliver them justice.

Instead, we could—and by this law we will—prevent that cross-examination. We will remove a stress for those victims of domestic violence going through the courts. But, as I say, we only remove that stress if we properly fund legal aid in the process. Otherwise, we reach a situation where courts will be forced to prevent the cross-examinations from occurring, which may result in an even more significant injustice where those Family Court matters can't properly be resolved, because legal aid won't be afforded to those perpetrators so that a lawyer can cross-examine properly so that cases can reach resolution. We now have a problem that will exist on both sides—which really already exists—where part of the delays in our family law processes is because we have self-represented litigants trying to deal with a complicated process of law to resolve very complex issues, whether they are related to property or related to who will have primary custody and support of children. Those issues are very important, but these matters can also be matters of life and death, so it is appropriate that the state and the Commonwealth afford the proper supports to those parties by making sure that legal aid is provided to them so that the system can move as swiftly as possible and in the most just manner possible. This law will help with that. It will make a difference. We absolutely support it for that reason. But in order for it to function properly—indeed, like for our courts to merely function properly—appropriate legal aid must be made available and the government must stand up to do that.

Finally, I would like to make this observation. It's probably lost on many members of this chamber and on those in the other place. Western Australia, being the exceptional place that it is, has its own family court system. What that means is that, when this legislation passes, it won't provide protections to those going through the Family Court of Western Australia, because this law will not automatically apply in Western Australia. I also call on the West Australian government—and in particular the WA Attorney-General—to promptly move to amend the WA Family Court Act 1997 to pick up and adopt similar provisions as contained in this bill to ensure the protections awarded to family violence victims outside of Western Australia are also afforded to those within Western Australia.

To that end, I note positively that the now Attorney-General has made comments to exactly this effect in the state parliament back when he was in opposition in 2016. I have no doubt that the government will go down that path once this decision is passed. Of course, it, along with the Commonwealth, will still need to find the additional funding and resources that are required to support legal aid, to support the operation of these laws to ensure that justice is actually done by the passing of these laws to protect victims of family and domestic violence. These victims, these families, have waited long enough.

I was calling in 2015 for this government to get on with the job of proper support for victims of family and domestic violence. Three prime ministers later—and indeed three years later—we now get around to debating this bill in this chamber. It still has to work its way through that other place as well, so I say this to the Attorney-General and to the government: you still have time to find that $43 million; I suggest that you do your absolute best in finding that money to make sure that, by the time this legislation passes the Senate, there is proper legal aid funding and resources to support this much-needed and unfortunately much-delayed legislation.

6:22 pm

Photo of Cathy O'TooleCathy O'Toole (Herbert, Australian Labor Party) Share this | | Hansard source

Labor has been calling for the Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018 for some two years. The ongoing cross-examination of domestic violence survivors by their perpetrators is a shameful practice which has gone on for far too long. This is a demeaning, stressful and shocking practice that must be stopped as soon as possible. Subjecting victims of domestic violence to hostile cross-examination by their perpetrators in court causes people to relive devastating experiences and creates fresh trauma. This often makes victims reluctant to take their case to court. This is completely unacceptable, so many women say that they have either settled for imperfect outcomes to avoid cross-examination by their perpetrators or they have gone through the experience only to suffer horrible consequences.

My sister is a family law barrister, and as such I am very well aware of the stress, anxiety and re-victimisation that occurs when an alleged abuser cross-examines their alleged victim. Although my sister is a family law barrister, I am not a lawyer. I have never been through or experienced the family law court system myself. However, in preparation for debates like this one this evening, I wanted to be educated and aware of the issues on the ground. At the invitation of Judge Coker, I spent a full day listening to interim hearings regarding matters before the family law court. I witnessed a very professional and caring approach to what is, in fact, an extremely complex and distressing environment. I was surprised at the number of people who present to the court unrepresented, and, as such, this takes more of the judge's and the court's time. I witnessed a very effective court process where procedural fairness was delivered for all parties. I also witnessed a strong focus on the needs of children who are powerless and sadly caught up in very complicated cases.

But I also witnessed how incredibly underfunded and under resourced the family law courts are. Our family law court in Queensland is underfunded as people are waiting lengthy periods to have their cases heard in the court. Legal Aid and community legal centres are also stretched to their maximum capacity and are in desperate need of significant additional funding. Although I wholeheartedly support this bill, when workloads are significantly increased and the system is already underfunded, more funding must be allocated not only for the courts, but also extra funding for Legal Aid, community legal centres and Aboriginal legal centres. This is supported by the fact that the Australian Law Reform Commission report has identified a funding shortfall for Legal Aid to the tune of $400 million.

Labor is ahead of the government on this vital issue of funding. Labor committed to this important change ahead of the 2016 election and recommitted in November 2016 on White Ribbon Day. As part of our policy pledge, Labor is committed to amending the Family Law Act 1975 to compel a judge, when domestic violence is alleged, to consider whether any vulnerable witness should be protected during court proceedings under a range of mechanisms already available under the Family Law Act 1975 using existing resources and facilities so that, if the judge believes that the available mechanisms under the Family Law Act 1975 are insufficient to protect the vulnerable witness, the judge is empowered to direct all unrepresented litigants in the matter to be represented by Legal Aid. The commitment included $43 million for Legal Aid in order to facilitate the representation of unrepresented litigants.

Labor made that funding commitment because we listened to stakeholders, in particular Legal Aid, who clearly stated that this change could not be made on current funding levels. The government, by contrast, is refusing to commit to any additional funding for Legal Aid as it seeks to pass this bill through the parliament. In fact, signals have been given through the media that indicate that the Attorney-General, Christian Porter, has no intention of giving additional funding to Legal Aid. The government has already thrown Legal Aid and community legal centres into crisis with its cruel funding cuts, and now the government wants to add additional workload to Legal Aid and community legal centres without any extra funding on top of the previous cuts. The government has not explained just how it expects Legal Aid to facilitate this very important change if it is not given any additional funding to take on the extra unrepresented litigants. If the government does plan to announce additional funding, why can't that happen now? Why can't the government at least give Legal Aid a pledge that additional funding will be forthcoming?

These concerns are serious, and I want to reiterate the concerns expressed by a number of legal organisations regarding the need for extra funding for Legal Aid, community legal centres and Aboriginal legal centres. A number of submitters raised concerns regarding the funding arrangements to support the bill's proposed model. These submitters noted that the bill requires a party to seek private legal representation or a grant under Legal Aid in order to cross-examine a witness if the mandatory protections are found to apply. This may significantly increase demand for Legal Aid representation in addition to other legal services such as community legal services or Aboriginal legal services. Some submitters argued that National Legal Aid and other community legal services operate on tight budgets and may not be able to absorb the cost of the bill's proposed model. Rape and Domestic Violence Services Australia stated in its submission:

The Bill envisages that legal aid commissions will provide assistance where parties are prohibited from personal cross-examination but cannot afford to access private representation. However, R&DVSA are concerned that legal aid commissions are not equipped to respond to even the current level of demand for legal assistance in relation to family violence.

Several witnesses recommended that the Australian government establish a separate funding stream for the bill's measures. National Legal Aid, for example, recommended the creation of a dedicated Commonwealth family law and family violence fund which would support the bill's measures and assist in funding legal assistance centres. Rape and Domestic Violence Services Australia also supported the creation of a separate funding stream for the measures contained in the bill. Rape and Domestic Violence Services Australia believes that additional dedicated funding to legal aid commissions is vital to ensure that legal assistance is accessible to all parties who are prohibited from personal cross-examination, especially women who have experienced family violence. Moreover, a dedicated funding stream will ensure this initiative does not detract from other vital services provided by legal aid commissions to people who have experienced sexual, family or domestic violence. Women's Legal Services Australia also stated in its submission that, without a separate funding stream for the bill's measures, legal aid commissions, community legal centres and other specialised legal services would be unable to cope with the demand to provide lawyers to conduct cross-examination without redirecting resources from other areas of major need.

Other submitters put the view that the bill's provisions may create an added burden on court resources and cause delays in proceedings. The Law Council of Australia noted that trials would likely be delayed due to the bill's proposed requirement that parties seek legal representation in certain circumstances. It stated:

The Law Council struggles to see how the family courts can oversee parties acquiring legal representation without, at least, one more extra procedural for each case before trial, adding to the costs of any represented litigant and delays. It is foreseeable that the Bill will have the consequence of trials being adjourned or trial listings being vacated so that legal representation can be obtained. The new provisions may also give parties the opportunity to delay for strategic reasons.

The Law Council further observed that the bill did not provide additional funding for the family courts to enable them to implement the bill.

The Council of Single Mothers and their Children also highlighted this issue, stating that the courts would require additional resources to implement the protections proposed by the bill, including increased use of video and audio technology, separate safe spaces for parties to enter and wait in the courts and alternative venues. The Law Council also stated that the bill was likely to prompt parties who have experienced family violence who may previously have avoided court action for fear of direct cross-examination to proceed with their cases. This could subsequently cause further delays to court listings and add to the workload of the family courts. Clearly these calls echo the concerns of Labor. The law profession is making their case very clearly: funding is needed, and it's needed urgently.

I want to acknowledge the work and dedication of my colleague shadow Attorney-General, Mark Dreyfus, whose continual lobbying and hard work has led Labor to put real commitment and real funding on the table for legal organisations. If people in this place are committed to real change in domestic and family violence, additional funding must be put on the table. Labor is committed to an Australia free from domestic and family violence. I call on the government to match Labor's funding of $43 million for legal aid. Addressing the legal issues associated with family and domestic violence is essential in reducing the fear, anxiety and stress associated with complex family law cases. Labor is clearly focused on the welfare of families, especially children, which is evident in the fact that Labor has committed the additional funding to the sector.

6:33 pm

Photo of Bob KatterBob Katter (Kennedy, Katter's Australian Party) Share this | | Hansard source

I am supportive of both sides of the parliament—the minister for introducing the legislation and the opposition for putting this little rider at the end of it. I think both are very necessary developments. I think that all members of parliament should try and relate what they're doing and what they're saying to actual cases. I could select a number of cases, but I will select one. After 45 years of being a member of parliament, I've had many of these cases come through my office, but I'll select this one case.

In this case, the husband was a school teacher. He was living with two of his students in a house, and I mean 'living' in the bad way, if I can use that expression. So there was the wife and these two 15-year-old girls all living together and having relationships together. There were three little kids involved. The mother came to me a long time after the situation reached a hiatus. I learnt about the situation where the two 15-year-old schoolgirls were living with the school teacher and the mother at the same time. They were quite a prominent family, actually—it was like everybody knew the family—but very few of them knew what was going on with the two schoolgirls, and the school officials had a lot to answer for here.

The courts awarded two of the children to the mother, but the third child said he wanted to go with the father. The courts awarded custody to the father, and the mother came to me for help in appealing the situation. On top of this, the father drove his car at two of the kids, who were on horseback. He drove his car recklessly at the two horses. Whether he was attempting to kill them or just scare them, we don't know. When I rang the sergeant of police for the area, he said: 'Shut up, Bob; I know exactly what you're going to say and I have exactly the same feelings. If I learnt that the whole family had been wiped out tomorrow, I would not be surprised. I would be deeply upset but not surprised. We have a 24-hour watch on the house.' So we're dealing here with a bloke that was so arrogant and so personable and charming that he got away with, quite literally, blue murder.

Let me go back to the mother. Let's just say her name was Cindy. It wasn't Cindy, but I'll say Cindy. I said: 'Cindy, how could you have put up with this? For a whole year you accepted this situation?' And she said, 'Well, there was no "Cindy".' I said, 'All right; I can see what you're saying.' She said: 'When I did have the temerity to speak up against the situation, he punched me in the jaw, broke my jaw in two places and sent me flying through a glass door. And, both for physical reasons and for emotional and psychological reasons, I did not speak for nearly three months.' The woman then had to appear in court, and this is where I think the Dreyfus amendment is needed.

She had to appear in court. She didn't have any money, and legal aid said they'd contest the first case but they wouldn't contest this case—the appeal—so we had no legal aid. I did everything humanly possible to get some legal aid for her but couldn't. I applied to some of my friends to see if they would do it for free. They wouldn't. So I tried to school up the lady to represent herself. She said she would and I schooled her up, but, when the day came for her to appear in court, she was not game to appear in court. I suppose, who could blame her? She was terrified to appear in court.

The very sad sequel to this story was that a private school in Brisbane took him on as a teacher. He was a very charming, personable, good-looking sort of bloke, and they thought they had a good person there. Within a year and a half they realised what they had on their hands, and they agreed that, if he left the school voluntarily, they would not give him an adverse report even though they knew what he'd been up to. He then appeared at a school in New Guinea. I rang the headmaster of the school in New Guinea, and he said: 'That explains so many things. I will get rid of him immediately.' I said: 'I don't want you to get rid of him; I want the child back. The mother wants her son back.' So, seven years later, a lady rang up our office and said: 'There's a little boy here, and he's naked except for a pair of shorts. He is 13 years of age. He stands outside the house and looks out into the distance, and his father is having it off with a mother and the two daughters all at the same time in New Guinea.' And I rang the inspector of police for the area, and he said, 'He is a monster.' He said, 'I'm going to get him; I'm going to get him.' He said, 'I wish I was in the Highlands, because they know how to deal with these sort of people and I'd be out of town when they dealt with him!'

This little boy hadn't been to school for two years. He lived by himself and just looked wistfully out into the distance. What damage was done, I don't know and I don't want to know. But, after seven years, we were able to get the inspector of police to move and the child to be restored to his mother. Some would say it was all too late at that stage. But, whether it was or whether it wasn't, I tell the story because I think the Dreyfus amendment is needed and I would like the government, who have acted with all the right intent here, to take a further step.

I don't come here as one of the lily-pad lefts that jump up every time there is a problem and want to solve it by taking tax money and throwing it at the problem. But, in this case, I think there has to be legal representation provided, because the mothers are just too terrified. With the number of mothers in Australia that get murdered each year, there is no doubt at all that there is still a very serious problem, even though women may have become governors, governors-general, prime ministers of Australia and chief justices of the High Court—and leapt over every other boundary that they could possibly want to leap over. Mothers are the greatest people on the planet. They are mothers of children. But there are mothers that are married to men who are, to put it at its kindest, cowardly dogs. Where I come from, they would have taken a bashing until they started behaving themselves. Unfortunately, those days aren't over and the police have their hands very much bound in these cases.

To ask a mother who is terrified out of her mind—who is subject to continuous domestic violence of a very physical nature—to go into a court to fight the man who is terrorising her psychologically as well as physically, and to ask her to represent herself in the court or to be questioned in the court by the perpetrator of this brutality just can't be allowed. The government should take the place of those good men who, when I was a young lad, went around and bashed people that belted women. They deserved a good hiding and they got it in the good old days. If the government can step into the shoes of those good men from the past they must, but they also have to provide money. Money must be provided here.

I go back to the case of a mother who was deprived of her little seven-year-old child who was brought up by a monster that was living in the lowlands of New Guinea with a New Guinea lady and her two daughters—all living in sin, if I could use that expression. The inspector of police for that area was determined that he would throw him in jail and deal with him in the way he should be dealt with as speedily as humanly possible. When we got the phone call that the child had been returned to the mother, all seven employees of my office shouted out, screamed, clapped and yelled in happiness, because we'd fought the battle for seven years to rescue that little kid. We'd lost him for four or five years and we had no idea where he was. It was just that a lady in New Guinea felt so sorry for this little kid, she tracked down where he came from and who could help him. Thank the good lord they came to our office. I can give you a lot of cases like that.

We commend the government on making this move. I think they've done it for all the right reasons. We also commend the opposition and the initiative taken by the shadow Attorney-General, because I think in this case it is very, very necessary.

6:43 pm

Photo of Emma HusarEmma Husar (Lindsay, Australian Labor Party) Share this | | Hansard source

I rise to speak on the Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018. Many women have settled for really imperfect outcomes when it comes to settlements offered in family law courts, and they do so in order to avoid cross-examination by their perpetrators—and it is absolutely shameful. We in this place need to do things that will empower women to leave bad and abusive relationships not condemn them to live through them. Women are strong and many, as we know from the statistics, have faced countless horrible situations and trauma. The ongoing cross-examination of domestic abuse survivors by their perpetrators is a practice that has gone on for far too long. As parliamentarians in this place, we are in the extremely privileged position of affording and providing safety to all of our citizens, including women—predominantly women—going through the family law courts. We are able in this place to make a difference to hundreds and thousands of people who are affected by domestic and family violence—and we should. It is now at epidemic levels and has remained at high levels for far too long.

Labor's announcement during the 2016 election campaign and commitment to end cross-examination of DV victims by their perpetrators are a really important step, but we matched it with $43 million worth of funding for legal aid. It cannot be delivered by those in the government without that commitment to funding legal aid to make sure that everybody has access to justice. I'll use my time here again to ask the third Prime Minister, perhaps, to stand up for victims and survivors of domestic violence.

Subjecting women and sometimes their children to this form of hostile questioning retraumatises and creates new trauma for victims. It can also be why a case is dropped and a perpetrator is allowed to remain out of any kind of punishment or gets off the hook, and it's simply unacceptable. Sadly, there have been far too many promises to address it. I think we go back to George Brandis when he was here. He was talking a big game about doing it but actually did nothing, and I have no great hope that the current leader is going to act anytime soon. We hear of the bipartisan support and the words—which, quite frankly, are very, very empty and very hollow—about ending domestic violence for women and children and for men, where it occurs, but where is the action that backs up the rhetoric?

One of the more shocking cases of domestic violence is a woman I've come to know whose story is horrific. It's so bad that it's amazing that she and even her girls survived what she went through. Her former husband is now tucked away behind bars for what I hope will be a very long time, but not before she was subjected to him cross-examining her in their case. During one of the court hearings, the abuser attended court unrepresented, and that gave him the privilege and the legal right to ask his victim questions. It was such a horrific experience.

It defeats the purpose of courts having safe rooms or 'shine rooms' for women to go into before they have to attend court. It defeats the purpose of the WDVCAS support staff going with these women, when you then throw them under a bus, essentially, and let their perpetrator cross-examine them. Of course, this is just one of thousands and thousands of examples that I could cite in here of women who have had to endure this kind of hostile experience at the hands of their abuser.

This reform to end cross-examination has been called for by survivors—and women, predominantly—for years, and it is an absolute failure of this government to have not delivered it. Allowing an alleged perpetrator of domestic violence access to the ability to cross-examine a victim has the effect of perpetrating violence once again through a court-sanctioned process, an endorsed procedure. The perpetrator has the opportunity to continue the fear, to create intimidation, to undermine and to exercise control in a courtroom setting. It cannot be accepted any longer. When we know better, we do better.

Tackling domestic and family violence will be a priority for us when we are in government, and in opposition we will continue to call for those things to happen. I'll continue to work towards changing legislation, advocating on behalf of thousands of women who are affected by this.

Changing legislation in family law is just one step that this government can take now to help end the scourge of family violence. Imagine being a woman stuck in a relationship and then being too scared to leave because this is what she fears; this is what she's going to face. It's hardly a solution. It's a crisis that's going to take the whole of society to change, and it can't be left to just governments alone to end the rampant behaviour, of course.

Society, corporate Australia, unions, schools, workplaces, media outlets, police and law enforcement all have a role to play. There is not a single person in this country who should feel excluded from the efforts to end family and domestic violence. We all have a role to play, and we in here can play the biggest role. Not one single person is exempted from the responsibility of protecting mothers, sisters, daughters, aunties, grandmothers, colleagues, neighbours and friends. We all ought to feel obliged in helping end all forms of violence against women.

It is worth pointing out here that respecting women and valuing women equally in all areas of society would go a long way in demonstrating an understanding of how and why violence against women has reached epidemic levels, which includes the halls of this place too. Broad gender inequality is the root cause of men's violence against women; indeed, there is a clear link between issues of gender equality and issues of domestic violence. So in our efforts to reduce violence against women we should seriously consider what we can do to reduce the markers of gender inequality that stubbornly remain in our society and in our economy today. The gender pay gap, the lack of women in corporate positions of power, the lack of women in political positions of power, the lack of support for working women with children and the lack of support for older women in our communities—these all contribute to a broader sense of powerlessness that may be difficult to understand when you're not on the receiving end of it.

The correlation between this sense of powerlessness and the fear, anxiety and despair that many victims of domestic and family violence feel is obvious. We have to have a very serious discussion about what we're doing to reduce gender inequality alongside the discussion we're having about what we're doing to tackle family violence. The fact is that these things go hand in hand. In my community there were 1,068 domestic assaults over a 12-month period. Ninety per cent of the work done by my local police command is related to domestic violence. The scale of the problem is simply daunting, but as a community and as leaders we must find ways to tackle this much better.

In my community, over a one-month period, 56 women and 95 children sought help from a specialist domestic violence service and were unable to be helped. They were turned away from a shelter, a safe place to go when they needed it, because of massive gaps between the huge demand for services from women fleeing domestic violence and overcrowded, underfunded shelters that have borne the brunt of state and Liberal government funding cuts. Just today we see the New South Wales state Liberals rushing through the tender process, with just a three-week time frame, that's going to privatise the support services that aid women who need to attend court through the WDVCAS service. When is enough just enough? When do we take the problem of supporting victims of DV seriously, so those who need to leave can? And so that, when they do leave, they know they won't be subjected to cross-examination; they know they'll be supported in a specialist accommodation service; they know they won't face more trauma compounding the trauma they have already been through.

I draw this House's attention to the family law court and the situation happening there. I know that there's some legislation being tossed about and a time-frame being rushed through again over through the Senate with the family law court reforms, trying to melt the Federal Circuit Court and the Family Court together. That is not going to solve the problem that most of these complex cases deal with. We must do more to support these women fleeing violence, and we as leaders here need to be advocates to stop it.

Under our policy, the policy that we were proud to announce during the 2016 election campaign and re-announced again since then, where family violence is alleged the family law courts will be required to consider measures to protect the victims and survivors, including, if other measures such as video conferencing are insufficient, refusing to allow an unrepresented litigant to personally cross-examine the other party. Legal aid will be made available to allow all unrepresented parties in the matter to be legally represented at trials and in circumstances where the judge has decided that the alleged perpetrator cannot personally cross-examine the other party without first obtaining legal representation. This bill cannot go through unless the $43 million that is required to be committed to support this is matched. Labor is committed to changing the status quo for women around Australia with some tangible commitments and some tangible outcomes for these victims. We are committed to facilitating the representation of unrepresented litigants, while the government is more concerned with ripping more money away from Legal Aid and leaving women worse off. Without certainty and without commitment organisations like Legal Aid cannot function and continue to provide services to some of the most vulnerable members of our community.

This government need to do a far better job of protecting women, and they are falling grossly short on the promises that they have made. Last year they announced they would spend $12 million trialling the use of innovative technology to keep women safe—so far falling ridiculously short and only delivering a measly $180,000 of that commitment.

Family violence in Australia is not something that any of us should take lightly. We should provide more than rhetoric. We need to do better to combat this crisis where Australian women and families currently face being cross-examined. The current arrangement for women going through family law is inadequate and woeful. The times in the Family Court, the three-year delays for some of the most complex matters, and the associated high costs are barriers for some to even enter there—a barrier to even having their matter heard in the first place. I call on this government to match this bill with the $43 million of funding that it requires.

6:55 pm

Photo of Linda BurneyLinda Burney (Barton, Australian Labor Party, Shadow Minister for Preventing Family Violence) Share this | | Hansard source

I rise to speak on this important bill, the Family Law Amendment (Family Violence and Cross-Examination of Parties) Bill 2018, and the important reforms. The direct cross-examination of domestic abuse survivors by their abusers is a truly shameful practice. Labor has heard from so many women who have been forced to go through this trauma. They are forced to endure intimidation and continued psychological abuse from their abusers in the courtroom. They are forced to relive their trauma and abuse. We have heard about women who have chosen to settle for imperfect outcomes just to avoid the intimidation and trauma of direct cross-examination. When we look back, we'll wonder how we let this practice go on for so long. It was, of course, Labor who called for an end to this practice two years ago—a commitment we made at the 2016 election and recommitted to on White Ribbon Day that year.

While it goes without saying, it's important to note, in light of some comments on social media, that this is not about preventing the cross-examination of victims of domestic and family violence; this is simply about the direct cross-examination by perpetrators of family violence of people who have experienced family violence. Parties to the family law dispute involving domestic violence will still be able to undertake cross-examination of each other through their respective legal representatives. To that end and to fully realise the intent of this important change, we need to ensure that parties to court matters involving family and domestic violence have the necessary legal representation so they can avoid the need to directly cross-examine each other. That is often very difficult given the financial circumstances of many of the people we are talking about. It is for this reason that Labor has committed $43 million for legal aid in order to facilitate the representation of otherwise unrepresented litigants. The government, by contrast, as a member for Lindsay articulated, is refusing to make the same commitment for additional funding to legal aid. Without any explanation as to how legal aid will take on the additional workload that this reform will necessarily bring about, this particular issue will undo the good intentions of this bill.

The way this bill will function is by placing an automatic ban where, first, there is an allegation of family violence between the two parties; second, if either party has been convicted of or charged with an offence involving violence or threat of violence or if one of the parties is subject to a violence or protection order by the other. Alternatively, a court can make orders banning direct cross-examination. If there is an allegation of family violence and personal cross-examination is not prohibited, the court must ensure that there are appropriate protections in place for the party who is the alleged victim of family violence. For example, the court could be required to provide alternative protections for the victims such as a video link or screens during cross-examination. When a ban has been imposed, parties will be required to obtain legal representation, either privately or through legal aid, should they be eligible.

We know that many women and children who have experienced domestic or family violence will be retraumatised and will relive the abuse when they are directly cross-examined by the perpetrator of that abuse. According to the Family Law Council, this practice risks perpetuating the abuse in the courtroom and can lead to incomplete or poor-quality evidence to the court. Matters involving unrepresented litigants are significantly less likely to contain the kind of evidence needed to determine matters involving child safety concerns. The council expressed concern about the capacity of self-represented litigants to stick to the relevant issues in the dispute. The council also acknowledged that the adversarial nature of litigation is not necessarily the most effective way of resolving family law disputes, especially where the litigants are self-represented.

One respondent from the ACT to the House inquiry on family law stated:

It was extremely traumatic being cross-examined by my [ex-partner]. Even having him sit in the courtroom while I was questioned earlier on in the process was enough to make me feel uncomfortable and intimidated—he was laughing and smiling and making comments as I spoke and staring at me the entire time.

Another respondent, from Victoria, said:

The cross-examination process makes the victim feels like they are partly to blame, it re-traumatises the victim and brings up unnecessary history to shame and rattle the victim.

Even Victoria Legal Aid said:

… the mere possibility that direct cross-examination could occur can … cause victims of violence to agree to unsafe consent orders—

or to abandon proceedings altogether, which, of course, is the tragedy. It is for these reasons that many jurisdictions have enacted vulnerable witness protection measures, which prevent direct cross-examination in certain circumstances.

We also note that judicial officers do have some discretion in managing these types of proceedings. However, we know that, according to the Australian Institute of Family Studies, direct cross-examination in circumstances of family violence occurred in 173 matters between 2015 and 2017. It is clear that something must be done to prevent this unnecessary and detrimental practice, and this bill does it.

Of course, prohibiting direct cross-examination in these circumstances necessarily means that parties will require legal representation to continue proceedings. We also know that legal representation can be expensive, if one is not eligible for legal aid. Labor is concerned, as many stakeholders have expressed concerns, about ensuring that all litigants in these circumstances have access to legal representation. Labor is concerned about the gap in access to legal representation between those who are eligible for legal aid and those who can afford private legal representation. We feel that some individuals will fall through the cracks between those who do not qualify and those who cannot afford legal representation. The Productivity Commission's 2014 report quantified this gap in finding that more than 14 per cent of people live in poverty, yet only eight per cent will be eligible for legal aid.

With these bans, we would also be increasing the workload and dependence on legal representation in these type of litigated proceedings. As such, it is clear—and Labor has said this—that additional funding must be available. It is necessary to ensure that people do not miss out on the opportunity to have witness testimony cross-examined. This call has been made by National Legal Aid, and the Australian Bar Association has expressed similar concerns. The consequences of a party not being able to afford representation are dire. These people would essentially be denied the opportunity to cross-examine a witness, a key and often crucial legal right to test the credibility of a witness and their evidence in the resolution of litigated proceedings.

According to the Australian Bar Association:

A Court is left in the unenviable position of determining a dispute without a proper and fulsome testing of the evidence.

The ABA states:

The suggestion in the Explanatory Memorandum that an unrepresented party would be able to receive a fair hearing on the basis that there "would also be some scope for the court itself to ask questions of a witness who was unable to be cross-examined" ignores the likelihood of procedural fairness complaints arising from the intrusion or intervention of a trial judge in adversarial proceedings.

For those who can afford legal representation, it can still present a significant financial burden. Rape and Domestic Violence Services Australia told the Senate inquiry that the significant financial hardship that private representation presents could force parties to consent to parenting arrangements which may be unsafe or unjust for the victims of family violence and/or their children. Instead of parties being coerced into consent arrangements out of fear of facing direct cross-examination, we will have parties entering into consent arrangements as a result of financial coercion.

It is absolutely imperative that the government attach some money to these changes. If not, things will grind to a halt and people will absolutely fall through the cracks. As the Leader and the Deputy Leader of the Opposition have said in their letter to the government regarding the issue of funding: 'The message, even from your own government's senators, is crystal clear. Without the necessary money, the reform is just an empty shell; an expression of good intentions with no practical effect.' I ask the government to give serious consideration to the question of funding, if we want to fully realise the intentions of this bill.

7:04 pm

Photo of Gai BrodtmannGai Brodtmann (Canberra, Australian Labor Party, Shadow Assistant Minister for Cyber Security and Defence) Share this | | Hansard source

The ongoing cross-examination of domestic abuse survivors by their perpetrators is a shameful practice and it has gone on for far too long. It has forced victims to settle with underwhelming outcomes in order to avoid being questioned by their perpetrator. We know that victims who are cross-examined by their abusers are less likely to reveal the full extent of their abuse, and courts are less likely to find out the truth. This is an incentive for perpetrators to cross-examine their victims, and we need to remove that incentive.

This bill imposes an outright ban on direct cross-examination of both victim and perpetrator in family law hearings where there is evidence of, or allegations of, family violence. Labor support this bill; we have done so for at least two years. We understand the importance of it, so much so that we took it to the 2016 election. It is a relief to see the government finally joining us in this commitment. There is one major difference, however, between Labor's plan and this bill; the government has failed to guarantee additional funding for Legal Aid or to set aside funding in this year's budget.

National Legal Aid has stated it is very difficult for the service to respond to this proposed legislation without additional funding. Passing this legislation without a guarantee of additional funding could create a crisis situation in the family law system. Legal Aid will not have the appropriate resources to fulfil requests for representation when made by a judge. This means the ban on cross-examination automatically applies to both perpetrators and victims. This could result in a denial of due process, with courts being unable to test facts and thereby being unable to make actual findings. This is the outright denial of justice.

The government says it is conducting ongoing discussions with Legal Aid, which include the topic of funding. At a Senate committee hearing this year, National Legal Aid said those discussions were at an early stage and were not conclusive. If they're 'not conclusive' and they're 'at an early stage', where is this government actually up to in terms of those discussions with National Legal Aid?

Attorneys-General, past and present, have also sent mixed messages about funding for this legislation. In June this year, the Attorney-General told The Australian there would be no extra Legal Aid funding as a result of the legislative change and those prevented from cross-examining their ex-partners would only be able to access Legal Aid if they met the usual rules for qualifying. This means, where the ban on cross-examination applies, parties will be directed to obtain legal representation either privately or through Legal Aid, but only if they are eligible. If a party cannot obtain or refuses to obtain legal representation, no cross-examination can take place. In the government's plan, no-one wins. The accused may lose their right to a fair trial and the affected person may be forced to wait years for the outcome of their case. That is why Labor's plan committed additional funding to support this change.

In the lead-up to the 2016 election, and again on White Ribbon Day in November that year, the Leader of the Opposition announced Labor would commit $43 million to Legal Aid to facilitate a ban on direct cross-examination of survivors of family violence by their perpetrators. This $43 million would be a separate, standalone fund operating outside of ordinary Legal Aid eligibility and it was designed to cover all who are underrepresented. For example, if parties do not qualify for Legal Aid but cannot afford a lawyer, they will be provided for through this fund. This includes both victims and perpetrators.

Without additional funding, the right to a fair trial may be at risk. If the accused isn't eligible for Legal Aid, the government simply says the cross-examination cannot go ahead. This is simply not good enough. National Legal Aid told the Senate Legal and Constitutional Affairs Legislation Committee that it is increasingly difficult for the service to respond to this proposed legislation without additional funding. Without a guarantee of additional funding, passing this legislation could create a crisis situation, as I said, in the family law system.

Here in Canberra, the nation's capital, we are feeling this sting. In its annual report the Law Society of the ACT reported it donated over $1 million in funding to legal aid and community legal centres in the ACT and its pro bono work program helped more than 1,000 Canberrans seeking legal advice in areas of property and tenancy, family law, employment and wills. This is at the same time that the government cut $30 million to legal aid funding right across Australia.

Through pressure from Labor, National Legal Aid and community legal centres, the government restored funding in 2017, announcing an additional $39 million to the legal aid sector, but this was just a restoration of funding. The only new funding was $8.4 million over a three-year period. The government stated the full amount, the $39 million, was intended to prioritise frontline family law and family violence services. But in a sector that is already struggling to meet the needs of the community, taking funding away and rebadging it for something else doesn't really help anyone. It doesn't fix the underlying problem. It doesn't make all the other legal issues people need assistance with go away. It just forces community legal centres to reprioritise their case loads in favour of one area over the other because they are so strapped; they are so up against it. This is the sting on Canberra's legal system right now, even before this bill comes into effect. This bill has the potential to flood Legal Aid with both victims and those accused, yet the government is failing to compensate—or even recognise or discuss it. It's still early days in those discussions, and they're still not conclusive. This is the situation we are facing at the moment.

A recent study by the Australian Institute of Family Studies found there were 173 cases of direct cross-examination of family violence survivors over the course of two years. Organisations, including Women's Legal Services Australia, say this figure does not represent the full extent of the issue, because it fails to include cases that settle before a hearing in order to avoid the prospect of direct cross-examination. According to an Australian Institute of Health and Welfare study, women are at far greater risk of family violence than men. On average, one woman is killed every week by a current or former partner, one in three women has experienced physical and/or sexual violence perpetrated by someone known to her, and one in five women over the age of 18 has been stalked in her lifetime. Domestic violence is the principal cause of homelessness for women and their children, and this compares to one in 16 men. We have heard from so many women who say either they settled for an imperfect outcome to avoid cross-examination by their perpetrators or they went through the experience and suffered really horrible, horrendous circumstances and consequences. Women are likely to be the main beneficiaries of this policy. That makes this a women's issue. Domestic violence is one of Australia's most pressing issues, and the numbers that prove it are alarming. For every woman who comes forward, there are so many who won't have their story heard. They suffer in silence.

A recent report published by the Women's Centre for Health Matters found that here in the ACT most women who experience domestic violence are staying in their homes post crisis and not accessing the crisis service and the crisis system. This means that they're not accessing homelessness services and do not have access to the support systems that are available to others. Many of these women are middle-income earners and are employed full time. They are not able to access financial assistance and support, because they don't qualify for hardship provisions or loans. So it's not just a case of women being afraid to leave; in these circumstances they can't leave. They're caught in this vicious cycle of being compelled to stay in an abusive situation because there's nowhere for them to go. There is simply nowhere for them to go. Without additional funding to legal aid, we are providing another roadblock for women in this situation. These women can't escape. They're caught in this vicious cycle of not having the money to leave or not having the homelessness support systems and the legal support systems because of the income that they're earning, and yet that income is relatively modest. These women may not be eligible for legal aid and are unable to afford private legal representation, and this gives them another reason to stay in an abusive relationship, to stay in an already dire situation.

We already know how this government feels about women. You don't need to look further than their frontbench to figure it out, and we've had it all playing out for us over the last three weeks. Women make up 51 per cent of the population, yet representation of women on the other side is about 20 per cent in the lower house and 32 per cent in the upper house. This is outrageous and shameful in 2018. On this side, however, tackling equality for women is very important. We have nearly 50 per cent women in the House of Representatives. Compare that to those opposite. For us, tackling family violence is a priority, in government or in opposition. We are extremely proud of the work that we've done, but there is always more to do.

Labor supports the substance of this bill. That is why we have been calling for it for two years now. We committed to this important change ahead of the 2016 election and we recommitted to it on White Ribbon Day in November 2016. That commitment included $43 million for Legal Aid in order to facilitate the representation of under represented litigants. We made that funding commitment because we listened to stakeholders. We listened to women who were in abusive relationships, women trying to escape abusive relationships, women who had been victims of this cross-examination. We spoke to Legal Aid, legal societies, women's support services, rape crisis services. We spoke to stakeholders long and extensively. They told us that this change could not be made on current funding levels. Labor will welcome any form of announcement from the government to commit to additional funding to support this bill. We encourage the government, we beg the government to invest in Legal Aid and to fund to properly fund this legislation—not with reheated money, but with new money, with significant funding to ensure that people actually have access to their legal rights, particularly those women who are fleeing domestic violence relationships, fleeing hardship, fleeing horrible consequences in their homes. We ask the government, please, please commit the funding so that we do not have already stretched Legal Aid services and support services being flooded with the changes that arise from this bill.

7:17 pm

Photo of Jason WoodJason Wood (La Trobe, Liberal Party) Share this | | Hansard source

I rise to speak on the Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018. First of all I must congratulate the Attorney-General, Christian Porter, for bringing this bill forward. It is a very important bill. I also acknowledge that the other side have also been very supportive of the bill. Right at the outset I make the point that not all men are involved in family violence or want to intimidate women in any way. That is in some ways wrongly portrayed. On the other hand, as a former police officer, I have seen some men acting in the most barbaric and cruel ways to the so-called family that they are supposed to love. So many times you'd go to a family violence situation and walk in the door and the husband and wife would be screaming at each other. You'd see the young children cowering in the same room, absolutely terrified of what was going on. But when you walked in and the parents were just abusing each other, those were the good family violence cases to go to. The really bad ones were where there was so much violence and women were really badly beaten. There were cases I've been to—in one case a lady, the spouse, was raped. This was when I was at the Knox criminal investigation branch. She had very horrific injuries and had been badly beaten. We took her to a hospital. At that stage I think it was the community policing squad that looked after her. As detectives we were very confident that we had sufficient evidence to take the offender, the husband, to court. However, within a week or so the victim came to the office and there was the husband behind her. She'd been to a solicitor and provided a statement that she wanted no further police action. In those days, too, we tried to get it up, but the DPP wouldn't proceed with the case where the victim had withdrawn the complaint.

Things have definitely improved over time when it comes to law enforcement, prosecution of cases and the way police respond to family violence. I still recall another time when a lady I attended in Collingwood who had very, very poor English was trying to explain to me and my partner at the time that her ex-husband had basically been stalking her and she was in fear. She was able to produce an intervention order, and eventually I said, 'Okay, I'll take this on and see how we can go.' Then she supplied to me 27 other occasions that police members had attended, with their name, rank and the date they attended, and where absolutely no action was taken. So you could tell this poor lady had been living through hell. The good news is we ended up proceeding with the case and proving by phone calls that the offender had breached his intervention order. It was all about fear. It was all about control.

You then, sadly, look at my electorate of La Trobe. In Casey Cardinia, the family violence figures seem to me like they have to be wrong. I have been told that one in five families has family violence. When I speak to schoolteachers, again they speak of family violence, quite often caused by drugs, quite often caused by financial problems. But, in saying that, it always comes back to the male figure in the household. He can't control his anger. Everyone in life at times has the ups and downs of really bad things happening, but it doesn't mean you yell and beat your wife or your partner and also the children.

Sadly, in the last couple of years we've seen in the country that the amount of family violence ending in murder seems to be getting worse and worse. Nearly every week there's some poor female victim who has met someone on social media or has been in relationships where the other person has decided to take it out on their wife or spouse—or, in cases where a complete stranger has met a person on a dating site, they have decided to take revenge on them.

When it comes to the cross-examination, yes, I've got no doubt that there'll be some men who would do it in the correct manner in which it is supposed to be done, but, sadly, I find through my personal experience that, when you get a person who is absolutely vindictive, they would be using the process just to humiliate and intimidate their wife or spouse in the witness box, asking those so-called 'personal questions', which the court at the time would be nearly obliged to allow. In doing so, as I said, the victim would just be suffering and suffering. That's why we find that there is a huge reluctance for, in the first place, women to place intervention orders on men. I've spoken to a number of female victims, some of whom have been personal friends, who have told me that, especially when you have children, you're thinking first, 'Okay, how am I going to look after those children?' I remember raising this with Rosemary Batty when she attended a forum up here in Canberra. Sadly, she had the tragedy of losing her son, and her big issue was that women in family violence situations, especially with children, quite often feel compelled to stay there if the violence is only on them and not their children; they can put up with that for the sake of their children. But, normally, you find that the acts don't get any less violent or threatening and eventually the children, even if they are completely removed from the situation, get dragged in by these awful threats and intimidation.

Having, as proposed by this legislation, the cross-examination only conducted by a legal person acting as a defence counsel, puts a barrier in front of the victim. It puts a barrier in front of the female and stops them being cross-examined by their perpetrator and having unnecessary, intimate questions—quite often asked just to humiliate or intimidate them—asked. Going through a defence counsel takes that away from them. So this is very important legislation. The bill amends the act by prohibiting personal cross-examination when:

          So there are safeguards in place to ensure that, if it's a situation where there are threats of violence against the parties involved, the person can have the defence counsel ask those questions.

          I fully support this legislation, and I acknowledge that both sides are supportive. I make the final point that I have been a very strong advocate of community legal centres of Victoria and have been able to secure funding for them in the past.

          7:27 pm

          Photo of Craig KellyCraig Kelly (Hughes, Liberal Party) Share this | | Hansard source

          I'm pleased to rise this evening to speak on the Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018. I'm sure all of us will have heard horror stories from our constituents who have been through the mill of the family law courts. The best advice I think I could ever give any of my constituents who come to me about an issue to do with family law courts is to stay out of court if you possibly can. I've heard horrendous stories of people having legal bills of $100,000, $200,000, $300,000, $400,000, $500,000 and even $800,000 as a result of going through the family law courts. One thing that we must look at when trying to see how we can improve access to and issues of family law are the legal costs. There is of course the emotional hardship that people go through but, for many people, the financial hardship of being dragged through the family law courts is more than they can bear.

          There is quite a bit of work that we need to do, and I'm very glad that the Attorney-General is making some very important steps to improve the family law courts, to improve access to justice, to try to take away some of those legal costs and to try to take away some of the strict and harsh rules of the family law courts. Of course, one of those laws goes to cross-examination and where each party is cross-examining each other. It is important that someone who is accused of an offence has the right to full and fair legal defence, and that includes being able to cross-examine. But there is a line where family violence has been involved and where the person who is the perpetrator of that family violence gets to cross-examine their witness often for hours and hours on end.

          Debate interrupted.