By Georgia Dalton, BTLawyers Family Law Solicitor
Last week, the Federal Government introduced the long overdue Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018 into the House of Representatives, implementing a ban on perpetrators of domestic violence cross-examining their ex-partners.
Specifically, the Bill proposes the following amendments to the Family Law Act:
- That personal cross-examination be prohibited where there are allegations of family violence between the parties and the following applies:
a. Where either party has been convicted of, or is charged with, an offence involving violence, or a threat of violence, to the other party; or
b. Where a Domestic Violence Protection Order is in place (other than an interim order) and it applies to both the parties to the family law proceedings; or
c. Where an injunction under section 68B or 114 of the Family Law Act has been made for the personal protection of either party and it is directed against the other party; or
d. the court makes an order that personal cross-examination is prohibited.
- That, once personal cross-examination is prohibited, cross-examination must be conducted by a legal representative (either a private lawyer where possible, or Legal Aid).
- That, if there is an allegation of family violence but personal cross-examination is not prohibited, the court must apply other appropriate protections.
The fall back to “other appropriate protections” refers to the range of existing protections already available under the Family Law Act and Evidence Act to protect victims of family violence in court proceedings, including, for example, allowing a party to give testimony by video or audio link or requiring the alleged perpetrator to be shielded from the view of the victim.
Whilst a step in the right direction, the Bill raises obvious questions about the capacity of our Legal Aid services and Community Legal Centres to manage the resulting increase in demand without further or adequate funding.
The recently proposed restructures to the family law courts, and in particular, to the proposed abolition of the Family Court of Australia, also has the potential to impede the success of the Bill, which requires the identification of family violence, in a system which is moving away from specialist and experienced family law judges and professionals.
You can learn more about the Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018 here, or if you are a victim of domestic violence and want to seek legal advice, you can discuss you matter in confidence with one of our Family Law Practitioners. Book in for a free one-hour consultation here.