Parliamentary Committee Report Released on Cross-Examination in Family Violence Cases

Monday 10 September 2018 @ 12.09 p.m. | Legal Research

On 13 August 2018, the Senate Legal and Constitutional Affairs Committee (‘the Committee’) released their report into the Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018 (CTH) (‘the Bill’).  The findings in the report indicate that the Bill is likely to be passed. However, the Committee recommended that details regarding the funding of the measures in the Bill be made public.

Background to the Bill

The Bill was originally released in July 2017 as a draft by the Attorney-General’s Department. The amendments proposed responded to concerns by victims of family violence that they would be subjected to cross-examination by their perpetrators, leading to trauma. For more information on the draft bill, please read TimeBase’s earlier article.

Main Amendments

The Bill proposes to amend the Act to make the following amendments:

  • Prohibit personal cross-examination where there is an allegation of family violence between the parties, subject to certain conditions being satisfied;
  • Provide that if cross examination is prohibited then cross-examination must be conducted by a legal representative;
  • Provide that if there is an allegation of family violence and personal cross examination is not prohibited, the court musts till ensure that there are appropriate protections for the party who is the alleged victim of the family violence.

Committee Report

The Bill was referred to the Committee on 28 June 2018 to ensure that the Bill was fit for its intended purpose, and to allow stakeholders to provide any input on improvements to the bill. A public inquiry was held on 1 August 2018. The following concerns were raised in the report:

• access to justice issues, including ensuring legal representation for all parties affected by the bill; and achieving procedural fairness;
• ensuring adequate funding for the bill's proposed provisions;
• issues relating to the role of legal representatives, including the duration of representation;
• the exclusion of interim family violence orders from the scope of the bill's proposed provisions; and
• the bill's reliance on judicial discretion and whether training will be provided to judicial officers. [p 7]

In addition, an issue was raised regarding the financial implications of the Bill. The explanatory memorandum of the Bill indicates that the Government will be working with National Legal Aid to determine the impacts of the Bill and ensure funding. Stakeholders have expressed concern in relation to working with National Legal Aid services and the family courts.

In response to the general intent of the Bill, the Committee noted that the Bill had achieved a balance between procedural fairness and protection of parties who have experienced family violence:

[2.53] ‘The committee notes that a critical tension emerged in evidence, which was the balance between procedural fairness and the protection of parties who have experienced family violence. The committee acknowledges the importance of striking a balance between both elements in order to ensure that parties to such proceedings are protected, but also have equal opportunity to present their cases and receive a just outcome. After carefully considering the evidence presented to the committee in relation to these matters, the committee finds that the correct balance has been achieved by the bill.’

Regarding the issue of funding, the Committee noted that there should be clarity around funding from Legal Aid:

[2.56] ‘The committee believes there should be a commitment to additional funding for Legal Aid before the bill is put to a vote in the Senate, including the amount, timeline for distribution and method of distribution; and in any additional funding for Legal Aid that is announced, the government make clear the eligibility of litigants who do not meet regular eligibility requirements but could not otherwise afford a private lawyer.’

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Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018 (CTH), and associated second reading speech and explanatory memorandum, available from TimeBase's LawOne service.

Senate Legal and Constitutional Affairs Legislation Committee, ‘Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018 [Provisions]’, 13 August 2018. 

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