Stopping re-traumatisation of victims in the family courts

The Family Courts will now take real steps to prevent victims of violence from being psychologically re-injured during court proceedings.

Cross examination of parties

Currently, self-represented parties may run their case as a lawyer would, including by cross-examining the other party.

Where there has been family violence, this can create, at a minimum, enormous stress for the victim, who may be cross-examined by their perpetrator and have to cross-examine the same perpetrator. 

Sadly, this has caused many to succumb to the influence of their abuser or settle poorly to avoid facing further trauma in court.

Under current Victorian law relating to intervention orders, Magistrates have for many years had the power to compel Victoria Legal Aid to offer legal representation to unrepresented parties for the purpose of cross-examining the other. The relevant legislation states not that the court may order representation in these circumstances, but that they must.

Despite what happens in intervention order cases, those same two parties have been permitted to cross-examine each other in family law proceedings.

Why is it so different in the Family Law courts?

The problem can be traced to Australia’s Constitution – family law operates at a federal level while legal aid is operated independently by the states and territories.  Family violence protection funding exists in intervention order cases but not federal family law cases.

Community concern has increased pressure to introduce similar provisions in family law cases. Further, a government study in 2018 found that the majority of family law cases involving direct cross-examination had no specific family violence safeguards in place for either party.

What do the new amendments do?

Simply put, the new amendments change all this. The cross-examination by either party (who is unrepresented) of the other will now be prohibited – in all cases involving family violence that are listed for final hearing from 10 September 2019.

This applies when there is an allegation of family violence and:

  1. Either party has been charged with or convicted of a criminal offence that involves violence (or a threat of violence) against the other party;
  2. Where there is a final intervention order (or other family violence order as may be applicable outside Victoria) that applies to both parties;
  3. There is an injunction made pursuant to section 68B or section 114 of the Family Law Act for the personal protection of one of the parties against the other.

The court can also make an order that personal cross-examination will not be permitted in some other circumstances. This may occur, for example, where the parties only have an interim intervention order in place from their incomplete state-based proceedings and the court determines that this is necessary for a person’s protection.

Where a self-represented party is prohibited from cross-examining the other, they will now have to get a lawyer, either privately or through a new government funded scheme administered by Legal Aid.

Thankfully, the family law and family violence landscape continues to adapt.

In other news, the Australian Law Reform Commission recently recommended that family law matters be administered at a state-based level to improve communication between the family violence, criminal, child protection and family law sectors. On the other hand, the federal government seeks to merge the Family Court and the Federal Circuit Court with the new merged court to retain only federal powers. As they say, watch this space. 

For any family law enquiries, please do not hesitate to contact us.