WA Introduces Family Court Amendment Bill 2021
The Family Court Amendment Bill 2021 (WA) (“the Bill”) was introduced into the Western Australian Legislative Assembly (“the Assembly”) on 2 June 2021 by the WA Attorney-General John Quigley ("the Attorney-General").
The Bill proposes amendments to the Family Court Act 1997 (WA) (“the WA Act”) and has yet to pass the lower house.
The Bill’s Explanatory Memorandum (“EM”) explained that in October 2016, the Council of Australian Governments' National Summit on Reducing Violence against Women and their Children recommended that:
“a ban should be placed on the personal cross-examination of victims by the perpetrator in family violence and family law proceedings”.
The EM also stated that:
“personal cross-examination by a perpetrator of family violence can cause additional trauma to victims and also have an adverse impact on the quality of their evidence”.
Furthermore, the EM highlights that due to the power dynamics within relationships involving family violence:
“it is also difficult and distressing for victims if they have to personally cross-examine the perpetrator”.
The Proposed Amendments
Clause 4 of the Bill seeks to insert a new division into Part 8 of the WA Act. The proposed division would contain provisions regarding cross-examination of parties in cases where there are allegations of family violence.
Clause 5 of the Bill proposes amendments to section 243 of the WA Act to address issues identified by the Parliamentary Counsel’s Office error reporting processes. I passed, section 243 will be amended to improve the clarity of the section and better set out the respective higher and summary penalties for each crime.
Outcome of the Proposed Amendments
Similar to the Family Law Amendment (Family Violence Cross-examination of Parties) Act 2018 (Cth), the Bill will prohibit personal cross-examination in family law proceedings in certain circumstances. These amendments seek to reduce trauma to victims of family violence.
According to the EM, in cases where there is an allegation of family violence between the parties to a Family Court proceeding, they 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. The court may make such an order on its own initiative or upon application from either party or an independent children’s lawyer."
Further, the EM notes that the Bill is seeks to additionally:
- put an end to victims being cross-examined by perpetrators, in order to improve their ability to give clear and cogent evidence;
- reduce situations where victims are cross-examined by a perpetrator; and
- lessen discrimination against women, and thereby encourage them to be fully involved in presenting their case to the Family Court, and enhance their right to a fair hearing and access to justice.
Comment on the Bill
The Attorney-General said in his second reading speech:
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Family Court Amendment Bill 2021 (WA) and explanatory materials available from TimeBase's LawOne Service.