In a positive step towards protecting victims of family violence, a perpetrator of family violence is now not allowed to personally cross-examine a victim of family violence in the Family Court.
Cross-examination is a process that takes place during a hearing in the Family Court where one party asks questions of the other party in the witness box. This usually takes place by the party’s lawyer asking questions of the other party; however, it has caused significant issues in family law matters where a party who has perpetrated family violence is not legally represented. This means that party, who has perpetrated family violence, is able to directly question their victim during the course of the Court proceedings, which can be very distressing.
The new scheme was implemented on 10 September 2019 and requires a legal representative to conduct the questioning on behalf of a perpetrator of family violence in certain circumstances where allegations of family violence have been raises. The changes to the legislation implement mandatory protections in circumstances where:
1. One party (the cross-examining party) intends to cross-examine another party (the witness) and the cross-examining party is not legally represented; and
2. There is an allegation of family violence between the cross-examining party and the witness; and
3. One of the following applies:
a. A party has been convicted of or charged with a domestic violence offence; or
b. A family violence order (such as an ADVO) applies to both parties; or
c. The Court has previously made an order for the personal protection of either party; or
d. The Court decides that the cross-examining party should not be allowed to cross-examine the witness based on the circumstances.
If points 1 and 2 apply along with one relevant factor in 3, then the Court must not allow the cross-examining party to cross-examine the witness and any cross-examination must be conducted by a legal practitioner.
The consequence of this is that the cross-examining party must then have a lawyer appointed. The Government has provided $7million dollars in funding to enable Legal Aid to organise legal representation for parties that are subject to the ban. Unfortunately, at the moment, there is no means test or merits test to be eligible for Legal Aid representation meaning it does not matter how much money you have or whether you have a strong case, if the Court decides the ban applies to a party, then they will be referred to Legal Aid to obtain legal representation.
The practical effect of the section is yet to be fully seen. The idea behind the scheme is extremely positive. In the past, we have seen the victims of family violence have been afraid to pursue their matter to a final hearing for fear of being cross-examined by their perpetrator. The scheme will support victims of family violence to pursue their legal entitlements and resolve their family law matters without being further abused.
We have already seen Final Hearing dates being delayed as the law states the Court must make an Order if the above circumstances apply meaning the banned party then has to go through the application process with Legal Aid, which can take weeks or months.
If you, or someone you know needs family law advice of help on what to do next, contact us on (02) 4322 0251 to speak to one of our Family Law specialists.