Commencing Monday 16 October 2017 is the annual Week Without Violence global campaign to end violence against women.
Reducing violence against women and children
In October 2016, national summit was held on reducing violence against women and their children. A key area of reform identified was to protect victims through court proceedings, including by imposing a bar on direct cross-examination by perpetrators of family violence.
In July 2017 following this was the release of proposed amendments to the Family Law Act 1975 (Cth) (“the exposure draft”) to address direct cross-examination of parties in family law proceedings involving family violence. A corresponding public consultation paper setting out the Government’s proposed approach to amending the law was published.
The amendments seek to address the following:
- Minimising re-traumatising victims of family violence and providing support systems when providing evidence.
- Ensuring false allegations of family violence are not encouraged.
- Ensuring the process does not support people being self-represented.
There are currently existing protections to control proceedings when it comes to vulnerable witnesses. However, there remains a concern that when a person is cross-examined directly they are exposured to re-traumatisation and their ability to provide clear and truthful evidence.
The exposure draft seeks to propose a prohibition on someone who represents themself from directly cross-examining or being cross-examined by, another party if there is an allegation of family violence between them.
This applies for both circumstances where the examining party is the alleged perpetrator of the family violence and the witness party is the alleged victim, and in the case where the examining party is the alleged victim and the witness party is the alleged perpetrator. The proposal seeks to then take this a step further and include any other intervening parties involved in allegations of family violence.
The Court’s discretion will also provide a general power to prevent direct cross-examination in circumstances where appropriate where there is an allegation of family violence.
How will it work?
If a party is legally represented then cross-examination must be conducted by a legal practitioner. If party is self-represented, any questions the self-represented party would like to ask the other party in cross-examination must instead be asked by a person appointed by the court. A court-appointed person will not be a legal representative for a party and they will not provide any legal advice to a party.
The appointment by the court of a person to act as an intermediary to ask questions in cross-examination is intended to prevent trauma to the alleged victim and safeguard against any abuse of court processes by the alleged perpetrator.
Turn, to Turner Freeman
The Bill proposing such amendments is yet to be passed, however is indicative of reforms necessary to the Court structure for those involved in matters where family violence is an issue. If you have an enquiry about family violence in relation to a family law matter contact our Parramatta office on (02) 8833 2500 to speak to an Accredited Specialist.