WA Bill to Provide for Greater Protection in Family Court Matters

The Family Court Amendment Bill 2019 (WA) (the “Bill”) was introduced into WA’s Parliament on 16 October 2019, by the Attorney-General, the Hon John Quigley. The Bill proposes amendments to the Family Court Act 1997 (WA) (the “WA Act”) to “provide protection in relation to the cross-examination of parties who are parents of ex-nuptial children or who were in a de-facto relationship”.

Background

The federal Family Law Amendment (Family Violence Cross-examination of Parties) Act 2018 (Cth) passed the Federal Parliament on 10 December 2018, and amended the Family Law Act 1975 (Cth) to “provide protections for victims of family violence during the cross-examination process in all family law proceedings”.

As a result, the WA Act has been amended to mirror the amendments made to the Family Law Act 1975 (Cth), thus ensuring that the parents of ex-nuptial children and people who were in a de-facto relationship are treated in the same way as married couples.

Key Changes to be Made

The Bill will prohibit personal cross-examination in family law proceedings in certain circumstances. In cases where there is an allegation of family violence between the parties to a Family Court proceeding, the parties will be prohibited from directly cross-examining each other in any of the following circumstances:

• Where either party has been convicted of, or is charged with an offence involving violence, or a threat of violence, to the other party;
• Where a family violence order (other than an interim order) applies to both parties;
• Where an injunction made under the WA Act for the personal protection of either party is directed against the other party; or
• If the above circumstances do not apply, the court, in its discretion, makes an order that the parties cannot cross-examine each other. 

Proposed Amendments - Details

The WA Act is proposed to be amended by inserting a new Division 3 “Cross-examination of parties where allegations of family violence” and the following amendments:

• insertion of s 219AJ “Application of Division”;
• insertion of s 219AK “Mandatory protections for parties in certain cases — FLA s. 102NA”; and
• insertion of s 219AL “Court-ordered protections in other cases — FLA s. 102NB”.

Attorney-General's Comment on the Bill

Commenting on the Bill in his second reading speech, the Attorney-General said:

Anticipated Outcome of the Amendments

As indicated in the Bill’s EM, it is hoped that apart from reducing trauma to victims of family violence, there are also a number of other benefits that will arise from the legislation:

• Putting an end to victims being cross-examined by perpetrators will improve their ability to give clear and cogent evidence, furthermore, the cross-examination of perpetrators by legal practitioners will ensure their evidence is appropriately tested and therefore more reliable;
• Aiming to reduce potential situations where some victims prematurely settle their matter on terms which are less favourable for them;
• Provisions in the Bill equally apply to perpetrators so their rights to procedural fairness and a fair hearing will not be unduly impinged; and
• It is anticipated the new laws will help to lessen the discrimination against women by encouraging them to be fully involved in presenting their case to the Family Court.

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