Draft Bill Aims To Prevent Family Violence Victims Being Cross-Examined By Their Abusers
Thursday 20 July 2017 @ 12.01 p.m. | Judiciary, Legal Profession & Procedure | Legal Research
The Attorney-General’s Department has released an exposure draft of a Bill that would prevent the cross-examination of family and domestic violence victims by their perpetrators during the course of family law proceedings. The draft Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2017 (Cth) ("the draft Bill") and an associated consultation paper are currently open for public comment, with submissions to close on Friday, 25 August 2017.
In a media release issued with the exposure draft, Attorney-General George Brandis said:
“The proposed legislative changes are part of the Government’s ongoing commitment to implementing protections against family violence for Australian families, and form part of the Government’s package of measures to further support the family law system…
The draft amendments respond to concerns that family violence victims may experience further trauma from being directly cross-examined by their alleged perpetrators. This issue has been the subject of consultation with stakeholders and was identified as a key area of reform by the federal, state and territory governments at the 2016 COAG National Summit on reducing violence against women and their children.”
Proposed Changes
The draft Bill would insert a new Division 4 at the end of Part XI of the Family Law Act 1975. If either party in a case has been convicted or charged with a threat of violence, or a family violence order applies to both parties, personal cross-examination will be prohibited unless the court determines otherwise. Instead, any questions that the examining party would like to ask must be passed to a person appointed by the court. The court will have discretion to allow personal cross-examination if both parties consent and if the court has considered if the cross-examination will adversely affect the proceedings. If the examining party has legal representation, the cross-examination must be conducted by their legal practitioner.
Consultation Paper
The consultation paper raises a number of questions about the nature of the proposed changes and how they operate. For example, some questions include:
- Whether direct cross-examination should be automatically banned in specific circumstances, whether there are additional circumstances which should be added;
- Whether the ban should apply to both parties or only to the alleged perpetrator questioning the alleged victim;
- Whether the ban should be discretionary and if so, who should apply to prevent direct cross-examination;
- Who should the court-appointed person be and what will their role be in relation to the court proceeding and each party;
- When should the court grant leave for the direct cross-examination to occur; and
- Whether there are there any changes needed to ensure all parties receive a fair hearing and the courts are able to make informed decisions.
Opposition Response
Labor’s spokesman for preventing family violence, Teri Butler, told ABC News that the changes did not go far enough. She also raised questions about how the “court appointed persons” system operates:
“This is a far cry from requiring abusers to be legally represented so that a person with ethical obligations, duties as an officer of the court, and requirements to act professionally, stands between the abuser and the victim…
The Government has also apparently failed to make available information as to how these court-appointed, lay-person questioners will be paid, if at all.”
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