Written by Montana Messina.
Family Court and Family Violence:
A recent parliamentary inquiry into the Family Law system has examined the effectiveness of current practice and procedures in the Family and Federal Circuit Courts, and the family law system more broadly, involving families appearing before the Courts where one or more party is self-represented and where there are allegations or findings of family violence.
Family violence became a focus for policy and law reform after a number of reports highlighted the extent to which family violence applied to adults and children post-separation.
Studies have concluded that elements of power and control are at the centre of family violence. Family violence is recognised as a means of asserting dominance and control in a relationship, with a variety of physical and non-physical mechanisms being used by the perpetrator. The definition of family violence in the Family Law Act, 1975 (“the Act”), was accordingly amended and expanded in order to recognise additional circumstances or behaviours that constitute family violence, including non-physical abuse and behaviour that is designed to control, coerce or create fear.
Intersection of Family Violence and Self Represented Litigants:
The expanded definition of family violence in the Act created greater awareness of the issue amongst practitioners and other professionals engaged in the court system, however it did not alleviate practical difficulties. There is an increasing trend for self-representation in state and federal courts and it is not uncommon for at least one party to be unrepresented in family law proceedings. Self-representation poses many challenges for Judges, court staff and family law practitioners, and these challenges are made more difficult when there are allegations or findings of family violence in cases where one or both of the parties is self-represented. The difficulties are magnified in the family law context because of the personal nature of the issues considered or litigated in each case and the relationship between the parties to the litigation.
With an increased number of self-represented litigants and increasing disclosure of family violence by parties in family law matters, the difficulties in relation to cross-examination have been highlighted. It is a fundamental right of a party in the justice system to cross-examine a witness in their case. However, cross-examination of a former partner or spouse can further perpetuate abuse and control, regardless of intention.
If the perpetrator is self-represented, they have the right to cross-examine their ex-partner, a process that can be incredibly traumatic for the victim. This court process can be utilised by the perpetrator of family violence to continue their harassment, control and abuse.
If the victim is self-represented, this also poses a problem as they are expected to cross-examine the perpetrator. In this instance, their capacity to appropriately and fully question their former partner may be diminished or negated by their fear of the perpetrator.
The Court must balance procedural fairness and access to justice, a balancing act that is very difficult in cases where there is family violence and where one or both of the parties are self-represented.
Current Practice and Proposed Amendments:
Currently, allegations or findings of family violence do not prevent cross-examination of their former spouse or partner by self-represented litigants. Whilst the court can stop a witness from answering a question that is regarded as offensive, abusive or humiliating, a question must be answered if it is believed to be in the interests of justice. The court is bound by its obligation to provide procedural fairness to both parties in a trial and, in practice, the court can be reluctant on that basis to deny a party the right to cross-examine. Cross-examination plays an important role in testing evidence.
Direct cross-examination potentially exposes victims to re-traumatisation and can affect their ability to give clear evidence. As they stand, the current arrangements in court where one or more party is self-represented and there are findings or allegations of family violence are ineffective in protecting victims from further family violence, whether or not this is intended. Victims are not protected due to the weight given to procedural fairness by the Court.
Currently, the Family Law Amendment (Family Violence and the Cross Examination of Parties) Bill 2018 is before the Senate. This Bill aims to ensure there are appropriate protections in place for victims of family violence during cross-examination in all proceedings by prohibiting direct cross-examination between parties where allegations of family violence are raised.
Specifically, and if passed by the Senate, the Bill will:
- Prohibit personal cross‑examination where there is an allegation of family violence between parties and if any of the following applies:
- either party has been convicted of, or is charged with, an offence involving violence, or a threat of violence, to the other party,
- a family violence order (other than an interim order) applies to both parties,
- an injunction under section 68B or 114 of the Act for the personal protection of either party is directed against the other party,
- the court makes an order that personal cross-examination is prohibited.
- Provide that, if personal cross‑examination is prohibited, cross‑examination is conducted by a legal representative.
- Provide that, if there is an allegation of family violence but personal cross‑examination is not prohibited, the court applies other appropriate protections.
In proceedings where there are allegations or findings of family violence, cross-examination is to be conducted by a lawyer and, if necessary, a lawyer to be provided by Legal Aid.
This Bill aims to bring the Family Court procedure in line with other jurisdictions, such as the criminal law practice in New South Wales. It aims to balance the right to a fair hearing, with the critical consideration being the ability to test evidence, and the rights of the victim, in particular focusing on the need to reduce the potential distress and humiliation caused by direct cross-examination.