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University of Technology Sydney Law Research Series |
Last Updated: 16 March 2018
Preventing personal cross-examination of parties in family law proceedings involving family violence
Miranda Kaye,* Jane Wangmann‡ and Tracey Booth†
This is a pre-publication version of an article published in (2017) 33 Australian Journal of Family Law 94
Abstract
Recent concern has focused on the difficulties faced by victims of family violence who are personally cross-examined by the alleged perpetrator of that violence or are required to personally cross-examine the alleged perpetrator of that violence in family law proceedings. Not only can such personal cross-examination be traumatising and intimidating, but it might lead to unsafe consent orders and disadvantageous property settlements. Nor is it likely to produce the high quality evidence required by the court. These concerns are not new and have been the subject of discussion and/or recommendation in several past enquiries. Protections from personal cross examination exist for alleged victims of sexual assault in criminal proceedings in all state and territory jurisdictions. Some jurisdictions provide similar protections to alleged victims of family violence in criminal and civil protection order proceedings. In family law proceedings there are no express protections for victims. On 17 July 2017, the Attorney-General released a Public Consultation Paper and an exposure draft of a Bill to address this gap in family law proceedings. This article analyses the model presented in the Bill. We argue that more detailed exploration of the problem of personal cross-examination and how best to address it in family law proceedings is required before implementing legislative reform in this area. We note that the Australian Institute of Family Studies has recently been commissioned to conduct research in this area that will go some way to addressing gaps in knowledge in this area, however, we also argue that further research needs to be conducted about how the various state and territory approaches to address personal cross-examination operate in practice and how such reforms might be translated to the family law arena.
Introduction
Recent attention has focused on the difficulties faced by victims of family violence[1] who are personally cross-examined by the alleged perpetrator of that violence in family law proceedings. The absence of specific legislative protections to prevent this from taking place in family law proceedings, stands in contrast to the existence of protective measures in criminal and civil protection order proceedings dealing with family violence in state and territory jurisdictions. On 17 July 2017, the Attorney-General’s Department released a Public Consultation Paper and an exposure draft of a Bill to address this gap.[2] This would amend the Family Law Act 1975 (Cth) (‘FLA’) to prevent direct cross-examination by an alleged victim or perpetrator of family violence in cases where one or both parties has been convicted or charged with a violent offence in relation to the other person, or where there is a civil protection order in place between the parties, or where an injunction has been issued under the FLA. If none of these trigger circumstances is present, the proposed amendments also provide the court with discretion to prevent direct cross-examination where there are allegations of family violence.
There are key tensions in this area between assisting an alleged victim of violence to be able to present the best evidence possible, and the alleged perpetrator’s rights to be able to test the evidence and to represent themselves.[3] While the State and Territory approaches in criminal and civil protection order proceedings provide potentially useful models for approaches in family law, there is considerable variation between the models that have been implemented. In addition, the distinct differences in the nature and focus of criminal and civil protection order proceedings vis-à-vis family law proceedings also needs to be considered in any legislative reform.
Reform in this area also raises important questions about the nature of cross-examination more generally, particularly for victims of family violence and sexual assault. There has been considerable research which has detailed the traumatising impact of cross-examination in the context of criminal sexual assault proceedings particularly for children and other vulnerable witnesses.[4] The negative experience of cross-examination is not confined to whether an alleged perpetrator is personally conducting the cross-examination, although the traumatising nature of cross-examination would be clearly compounded and intensified in these circumstances. In addition the difficulties that result from an alleged perpetrator of violence being without legal representation in any type of proceeding (whether criminal or civil) is not confined to the conduct of cross-examination but may in fact permeate the entire proceedings. In civil proceedings there are also concerns where the alleged victim is without legal representation in terms of her capacity to present her own case and be able to conduct effective cross-examination of the alleged perpetrator.
This article focuses on the model that has been presented by the Federal Government for comment in the exposure draft Bill. It first provides an overview of the extent of self-representation in family law proceedings and the measures currently available to judicial officers to prevent or limit the trauma that might be caused by cross-examination by a self-represented perpetrator of violence. This is followed by a discussion of the reform context in which the Bill has been developed. The article then examines the particular model presented in the Bill; exploring its strengths and weaknesses. Ultimately, we argue that there is a need for more detailed exploration of the problem of direct cross-examination and how best to address it in family law proceedings before implementing legislative reform in this area.
Overview of self-representation in family law proceedings involving family violence
There are no official figures on the extent of self-representation[5] by one or both parties in family law proceedings in which there are allegations of family violence. Nor is there data available on the extent to which direct personal cross-examination takes place in these cases.[6] Most of the data available either reports on the extent of self-representation, or the extent to which cases involve allegations of family violence (not both). The Australian Institute of Family Studies has been recently commissioned to undertake research to identify the extent to which direct cross-examination takes place generally in family law proceedings and its context.[7] This research is due to be completed by the end of the year.
An exception to this general absence of data on both self-representation and allegations about family violence in family law proceedings is recent work by Judge Harman in which he has analysed a sample of cases filed in the Federal Circuit Court of Australia (FCCA).[8] This study involved a sample of 201 matters within which family violence was alleged in 76.12% of matters.[9] In the cases in which family violence was alleged, the applicant was without representation at the first court date in 28.76% of cases, and the respondent was unrepresented on that date in 38.56% of cases.[10] It is important to note, however, that these figures are only for representation noted on the first court event which could change over time, and that a sizeable number of those who were without representation on this court date had indicated that they were awaiting the outcome of their legal aid application.
The Family Court of Australia [FCA] provides data on the extent of self-representation in its annual reports. The FCA has noted that the rate of self-representation has remained relatively steady in first instance proceedings since 2012, but has been increasing in appeal proceedings.[11] The most recent annual report for the FCA notes that in 23% of all finalised cases one or both parties did not have representation at some stage in the proceedings (it was 22% in 2011-2012).[12] It is worth noting that in terms of representation at the time of ‘finalisation of their trial’, when cross-examination is likely to be taking place, the rate of self-representation was even higher (37% in 2015-2016; and 33% in 2011-2012).[13]
Kaspiew and colleagues’ recent study on court outcomes (Court Outcomes project) that formed part of their evaluation of the 2012 amendments also reported on levels of self-representation.[14] This study examined a sample of court files from three courts (the Family Court of Australia, the Federal Circuit Court of Australia[15] and the Family Court of Western Australia) and found that 22.0% of the case files involving children’s matters lodged prior to the 2012 amendments,[16] and 19.9% of cases lodged after the reforms[17] involved one or both parties being without legal representation. [18]
The reasons why parties may be without legal representation in family law proceedings are multiple and varied;[19] for some parties it is because they are unable to afford legal representation and do not qualify for legal aid,[20] for others it may be because they do not want to be represented by a lawyer. In this latter category some people do not want to be represented by a lawyer because they may ‘distrust’ lawyers,[21] or have had a ‘previous bad experience with lawyers’,[22] some simply want to represent themselves,[23] others may not agree with the legal advice they have received about their prospects of success, and others may seek to have a ‘greater opportunity to harass the other party’.[24] The intersection with allegations about family violence raises particular concerns about the latter group who may seek to use the proceedings as a means to extend their abuse of the victim,[25] however, it may not be this opportunity alone that has led the person to be without legal representation but rather the combination of factors and circumstances.
The extent to which allegations of family violence are raised in family law proceedings is high. The FCA 2015-16 annual report states that a notice of risk form (what is referred to as a ‘Form 4’) was lodged in 20.9% of applications for final orders.[26] Other research has revealed the extent of allegations of family violence across matters that are resolved in different ways before the family law courts. Kaspiew and colleagues’ Court Outcomes Project (referred to above) found that 40.8% of court files lodged post the 2012 amendments raised allegations of child abuse and/or family violence, with 18.9% raising allegations of family violence in the absence of child abuse, 17.0% of cases containing allegations of family violence and child abuse and 4.9% containing allegations of only child abuse.[27] This includes all the court files examined whether they were resolved by consent before or after proceedings, or by judicial determination. In the post 2012 amendment sample those cases that were judicially determined or settled after proceedings commenced had a much higher proportion of allegations of family violence than those that reached consent without litigation;[28] just over 65% of cases that were judicially determined and almost 53% of those where consent orders were made after proceedings had commenced involved allegations of family violence alone or in combination with child abuse compared to just over 4% of cases that reached consent without litigation.[29] Looking at the cases which are judicially determined is important as it is in these cases that cross-examination takes place. It is also important to investigate the cases which settled after proceedings commenced to ascertain the reasons why the parties consented; in some cases cross-examination may well have taken place, and in others cross-examination may have been threatened and this may be a reason why some women have settled the matter.[30]
It is also important to note that for many parties, family violence may be only one of the factors that makes their case more complex. Many cases also raise concerns about child abuse, mental health, parenting capacity, and drug and alcohol issues on their own or in combination with family violence and other factors.[31] Difficulties that arise as a result of the absence of representation for one or both parties are also critical to the carriage of cases with these other factors.
Cross-examination in the absence of legal representation
Concerns have recently been raised about problems that arise from the absence of legal representation in proceedings dealing with allegations of family violence.[32] The concerns are twofold: the direct cross-examination of the alleged victim by the alleged perpetrator of that violence, and the reverse situation where an alleged victim of family violence without legal representation is required to personally cross-examine the alleged perpetrator of that violence. Being directly questioned in court by an abusive former partner, or having to test his evidence personally, can be traumatising and intimidating. Whilst there is potentially an argument that the presentation and demeanour of an alleged perpetrator of family violence may be very revealing to a judge presiding over a matter,[33] this potential outcome would appear to come at a high cost to the victim in terms of additional trauma and stress. In addition, cross-examination in these circumstances is highly unlikely to produce high quality evidence on which a judicial officer must base their decision. Additionally, the possibility of such cross-examination may prevent victims from proceeding with applications.[34] This may lead to unsafe consent orders in parenting matters or to victims abandoning a much-needed property claim.[35] Unsafe consent orders may be made for a variety of reasons, but the possibility of personal direct cross-examination, may increase the likelihood of unsafe consent orders being made that ‘perpetuate[] rather than prevent[] the [perpetrator’s]... future control and abuse’.[36] In 2015, Women’s Legal Services Australia (WLSA) conducted a survey to support their work around change in this area; 330 women responded to this survey. Some women who were personally cross-examined made comments in the survey about how this impacted on them. Comments included:
I felt he had the privilege to continue his intimidation and threats, yet in a confined legal space.
I felt as though the court was enabling my ex husband to re-abuse me but publically this time. I was so traumatised I lost 10 kilos and lost my hair.
It defeats the purpose of having a safety room at court – my support person and I sit there to avoid seeing him, yet we are ‘thrown to the wolves’ when we enter the court room. It made me feel all the feelings over again. It made me sick to the core. [37]
The WLSA survey found that ‘[t]hirty-nine per cent of matters settled before judgment and 45 per cent of those respondents said the fear of personal cross-examination by their abuser had been a significant factor in their decision to settle’.[38]
Given the extent of self-representation noted above, it is likely that the possibility of direct cross-examination in these circumstances occurring is not uncommon given the high levels of both self-representation in the family law courts and of the high proportion of cases involving violence.[39]
Current measures
The Family Law Act 1975 does not currently explicitly prohibit perpetrators of violence from cross-examining their victim. There, however, are a number of key measures available to the Family Court of Australia and the Federal Circuit Court of Australia (the ‘Family Law Courts’) that can assist victims in the giving of their evidence and these may minimise the impact of cross-examination for witnesses who are considered vulnerable. While these measures have been available to judges for a considerable period of time, it was only in 2016 that the Family Violence: Best Practice Principles (BPP) made specific reference to them.[40]
The measures currently available include:
These are all discretionary powers and it would be useful to ascertain whether more judges are using these provisions since they have been highlighted in the BPP.[46] There are certainly recent cases documented in research which point to the lack of resort to these protective provisions.[47] For example, a woman interviewed by Kaspiew and colleagues in their recent research on domestic and family violence and parenting details her recent experience in which these provisions were not called on by any of the legal professionals to assist her during her cross-examination by her former abusive partner:
Um, you know, at one point when my ex was representing himself, ... he questioned me directly for days on the stand. ...And at one point, he started questioning me completely off topic and not related to anything, about [sexual practices] and nobody stopped him. I’m sort of looking at the judge and looking at my solicitor, looking at the barrister, and they all just looked the other way, [indistinct], I don’t know, was asleep or something. Nobody stopped him.[48]
Anecdotally it appears that some judges have attempted to manage direct cross-examination where there are allegations of violence by relying on what the Family Law Council has described as ‘court craft‘,[49] that is, by using some of these provisions, by relaying questions themselves,[50] or by relying on Independent Children’s Lawyers (ICL) to cross-examine the parties.[51] However, the use of all of these tools is unpredictable and dependent on the discretion of the individual judge. Victoria Legal Aid has commented that ‘the measures available to promote safety are inconsistently applied, and even where applied are ultimately inadequate in many cases’.[52] Recent work has emphasised the ‘devastating impact’ of the absence of specific protections and the gaps in court practice.[53]
Not a new concern
The call for change to protect victims from being personally cross-examined is definitely not new. Reports of victims being traumatised by direct cross-examination have been uncovered by several past inquiries. As the WLSA noted in their submission to the 2017 Better Family Law System to Support and Protect those Affected by Family Violence (the ‘Better Family Law Inquiry’) by the House of Representatives Standing Committee on Family and Community Affairs,[54] numerous inquiries and reports have made findings, recommendations or relevant comments in relation to the problems of direct cross-examination. Indeed one of the terms of reference for the current Better Family Law Inquiry is focused on the ‘effectiveness of arrangements’ in the family law system ‘where one or more party is self represented, and where there are allegations or findings of family violence’.[55] It is worth noting at this point that it is unclear how this present inquiry relates to the Exposure Draft Bill (discussed below) nor how, or whether, the findings of the Better Family Law Inquiry will be acted on by the Attorney-General’s Department.
Three recent inquiries devoted some attention in their reports to this issue and took different approaches in their respective recommendations. In 2016 the Family Law Council (FLC) in its work on families with complex needs expressed concern about the ‘cross-examination of vulnerable witnesses by abusive former partners’ and the problem created by unrepresented parties not presenting ‘the kind of evidence needed to determine matters involving child safety concerns’.[56] The recommendation made by the FLC in this area was to pilot a ‘counsel assisting model’.[57] As the FLC noted, counsel assisting are employed in a number of inquisitorial settings, including coronial inquests, Royal commissions and boards of inquiry.[58] The counsel assisting gathers all relevant information and evidence and presents the material in a way that assists the decision-maker to make a determination. The FLC noted the advantage of the use of such a role in parenting proceedings where there were safety concerns.[59] In addition the FLC emphasised the need for further research to enhance our ‘understanding of the extent, experience and dynamics of self-representation in family law matters involving families with complex needs, including matters where there are family violence and mental health issues’.[60] The FLC also recommended research that addressed the growing concern about systems abuse by perpetrators of violence (an aspect of which is direct cross-examination).[61]
In 2014 the Productivity Commission in its work on access to justice also focused a great deal on the absence of legal representation across a wide range of legal areas, including family law.[62] In the area of direct cross-examination in family law proceedings, the Commission recommended that the Government, in consultation with the Family Law Courts, amend the FLA to ‘include provisions restricting personal cross-examination by those alleged to have used violence along the lines of provisions that exist in State and Territory family violence legislation’.[63] This appears to be the approach taken by the Federal Government in the Exposure Draft Bill.
In the third inquiry that directly addressed this problem, Richard Chisholm in his 2009 Family Courts Violence Review, noted that ‘cross-examination of a victim by an unrepresented violent partner can be experienced as a continuation of the violence’ and ‘[i]n such cases children are at risk, because they do not have the protection of a well-informed judicial outcome’.[64] Chisholm further noted that:
Where one or both parties are unrepresented, even with the benefits of increased judicial involvement arising from Division 12A, it can be almost impossible for the court to receive the sort of evidence and argument that can lead it to make an informed decision about the child’s best interests. Settled cases, too, are a worry when parties are unrepresented, because they may reach agreements in ignorance of the legal situation, or because they know they cannot properly put their case before the court.[65]
Chisholm directed his recommendation to the need for greater consideration in the funding and administration of legal aid ‘to the serious implications of parties, and especially children, being legally unrepresented’.[66]
Direct personal cross-examination was also raised in a number of other recent inquiries but was not the subject of specific recommendations. The 2015 Senate Inquiry Report received submissions on the trauma of a family violence victim being directly cross-examined by her abuser, or the victim having to conduct the cross-examination of the abuser. Some of the submissions identified this as increasing due to recent restrictions on legal assistance funding for family law matters.[67] Direct personal cross-examination in family law proceedings was also raised in the Victorian Royal Commission into Family Violence.[68] However, the Royal Commission did not make a specific recommendation on this area noting that it was ‘a matter for the Commonwealth Government’.[69]
At this juncture it is worth reflecting on the plethora of public inquiries related to family violence and family law in recent years.[70] The abovementioned inquiries represent a small number of the inquiries and research reports that have focused on family law and/or family violence completed over the last decade. It is unclear how, and whether, these inquiries and recommendations (and research findings) overlap and interrelate. Given that most of these reports called for submissions to be made by interested parties and that not all of the recommendations made in these reports have been implemented it might be fair to consider that many Family law advocacy groups and experts are suffering from “submission fatigue”. Patrick Parkinson, in his submission to the Better Family Law Inquiry commented that there is a ‘problem of reinventing the wheel’.[71] We would agree and generally endorse his call for an audit of the previous reports so there is an overall picture of recommendations, a summary of which of those recommendations have been implemented and why options have not been adopted.[72]
The Exposure Draft Bill
The Family Law Amendment (Family Violence and Cross-Examination of Parties Bill 2017 (the Exposure Draft Bill) is part of a package of announcements made by the Attorney-General through the Budget papers including a comprehensive inquiry by the Australian Law Reform Commission into “Transforming the Family Law System”. The Exposure Draft Bill responds, in part to the various inquiries mentioned above, but also the more intense focus that was placed on the problem of direct cross-examination in family law proceedings during 2015-2016. In October 2016, the Council of Australian Governments (COAG) hosted a national summit on reducing violence against women and their children. One of the ‘five priorities for reform’ identified by the family law roundtable was to protect victims through court proceedings and they recommended imposing a ban on direct cross-examination by perpetrators of family violence. [73]
It is clear, then, that this Exposure Draft Bill responds to a particular problem or identified ‘mischief’,[74] namely that there are no specific legislative provisions or practice directions in Family law proceedings protecting victims of violence from being personally cross-examined by the perpetrator of that violence.
An outline of the provisions
The Exposure Draft Bill would insert a new Division 4 at the end of Part XI of the Family Law Act 1975. There are 2 main clauses – 102NA a mandatory prohibition on direct cross-examination and 102NB which allows the court to prohibit cross-examination in certain circumstances. Clause 102NA of the exposure draft of the Bill provides a mandatory prohibition on personal cross-examination where there is an allegation of FV and certain circumstances apply. The circumstances that trigger the protection are:
(i) Either party has been convicted, or is charged with, an offence involving violence, or a threat of violence, to the other party;
(ii) A family violence order (other than an interim order) applies to both parties;
(iii) An injunction under section 68B or 114 applies to both parties.
The only exception to the mandatory prohibition would be where a court grants leave for direct cross-examination. Such leave cannot be granted unless both parties consent to the personal cross examination, the court has considered the ability of the parties to either testify or cross-examine and the court has considered whether the cross-examination will have a harmful impact on the alleged victim of family violence.
Clause 102NB of the Exposure Draft Bill enables the court to exercise discretion to prohibit direct cross-examination where there are allegations of family violence but no triggering circumstances of criminal proceedings, protection orders or injunctions.
If a prohibition on direct cross-examination arises either mandatorily or due to the court exercising discretion then any questions that the examining party intends to ask in cross-examination must be asked ‘by a person appointed by the court‘.[75]
It is beneficial that the proposed model seeks to address the difficulties in conducting direct cross-examination by both victims and perpetrators of family violence who are not legally represented in proceedings. This is important. Little attention generally has been paid to issues that arise when a victim is self-represented. Although a range of practical measures may enhance access to representation for victims (e.g. court support services and legal aid), there has been little in the way of legislative or policy/practice reform for victims who cannot access such assistance. For example, in reforms made to civil protection order legislation very few jurisdictions have considered the position of self-represented victims who ‘need’ to cross-examine their alleged perpetrator. Victoria is an exception: its civil protection order legislation enables a private applicant to be assisted by legal aid for the purposes of cross-examination of the defendant. One woman in evidence before the Victorian Royal Commission into Family Violence explains not only the negative impact of being cross-examined by her abusive former partner, but also the negative impact of being a victim without representation:
... we had a four-day trial set with the Federal Circuit court in [Removed]
for custody.
I had a Barrister set to represent me though Legal Aid. At 5pm
on the Friday before
the Monday start date, I was advised that Legal Aid had
pulled my funding for the Barrister so I had to represent myself in court.
There
was simply no time to find another legal representative ... I was in shock and
dismay at this happening.
As my ex-husband had chosen to represent himself, he was allowed to cross-examine me on the witness stand. I believe that this day on the stand was possibly the most traumatic day that I have ever been though. He attempted to bribe me in the court room by saying to the judge ‘I will be prepared to negotiate for custody of the children, if my wife drops the rape charges’.
I was exhausted and suffering from extreme anxiety and negotiated for custody
on the second day of the trial. I was not able to cross-examine
him, the
witnesses I had called were sent home and the court reporter and psychiatrist
were not called up. At the end of the two
days, my ex-husband demanded that I
pay for his court costs.[76]
WLSA also found that this was an area of concern in the survey that they
conducted in 2015-2016, where 38 of the 338 participants
indicated that they
‘had to personally cross-examine their
abuser’.[77] One woman in this
position commented ‘I was afraid to really question him and I felt when I
tried the Judge continually silenced
me’.[78] The inclusion of this
measure in the Exposure Draft Bill represents an important extension of the
measures to protect victims who
are without representation in family law
proceedings.
Concerns with the model set out in the Exposure Draft Bill
It should be clear from this outline of the Exposure Draft Bill that many questions are currently left unanswered in relation to how the model would actually work. We have listed some of our concerns with the model into two categories: the first group of concerns are directed at specific aspects of the model contained in the Exposure Draft Bill (namely, the circumstances required to trigger the mandatory prohibition; the discretionary approach and the ‘person appointed by the court‘), the second group of concerns centre on overarching preliminary questions about whether it is possible to transpose a model used in civil protection order and criminal proceedings to the family law jurisdiction.
1. Specific concerns with the model contained in the Exposure Draft Bill
(a) Mandatory approach for a small number of cases
Obvious questions arise in relation to whether the triggering circumstances in clause 102NA(1)(c) are too narrow.
The requirement in clause 102NA(1)(c)(i) for a conviction or charge with an offence involving violence or a threat of violence to the other party is difficult to satisfy for many victims of family violence. Domestic and family violence remains a highly unreported crime,[79] and even when it is reported to the police has a high rate of attrition as that complaint proceeds through the legal system.[80] It is also unclear whether (i) would include a case where the party has been found not guilty of a violence offence to the other party. Such convictions are notoriously difficult to obtain, particularly if they involve sexual violence.[81] This potentially makes the satisfaction of clause 102NA(1)(c)(i) difficult for many victims of family violence.
We are also concerned that the requirement for ‘an offence involving violence, or a threat of violence’ which is undefined in the Exposure Draft Bill, appears to emphasise physical forms of violence rather than the much wider understanding of ‘family violence’ incorporated in the FLA since 2012 which refers to a wide range of acts and behaviours which are used to coerce or control the victim or cause the victim to be fearful.[82] A number of these acts and behaviours that are experienced by victims as coercive and controlling (and are specified in the FLA) are not necessarily amenable to the types of legal evidence/ orders required by the proposed mandatory provision. Whilst the various civil protection order schemes recognise a wide range of violent and abusive behaviours, few jurisdictions have sought to criminalise non-physical forms of violence – exceptions are criminal offences related to stalking and intimidation,[83] torture in Queensland,[84] and criminal offences of emotional and economic abuse in Tasmania.[85]
It would initially appear that clause 102NA(1)(c)(ii) is more likely to be satisfied in family law proceedings; civil protection orders are more widely sought by victims of family violence (compared to FLA injunctions and criminal proceedings). Recent research by Kaspiew and colleagues found that approximately one-quarter of family law cases in the post reform sample in their study included information about a current or previous family violence order that applied in relation to a child or other family member. Over half of these were interim orders, just over a quarter were final orders, and in 21.5% it was not possible to determine the nature of the order.[86] The number of interim orders is a significant factor to consider in determining the extent to which the mandatory provision proposed in the Exposure Draft Bill will be protective as it excludes interim orders from triggering the mandatory prohibitions,[87] and appears to only relate to current family violence orders.[88] Therefore, fewer victims may satisfy the clause than might be anticipated.
Clause 102NA(1)(c)(iii) relates to injunctions available under the FLA to protect the welfare of the child under s68B or for injunctions in relation to matrimonial cause proceedings or de facto financial cause proceedings under s114. Section 114 injunctions may be sought for purposes other than personal protection. Indeed, family violence protection mechanisms in s68B and s114 of the Family Law Act are “underutilised”[89] because the protection provided does not equal that provided by State family violence orders.
In contrast to the model in the Exposure Draft Bill, WLSA have suggested that direct cross-examination be prohibited in any case where there family violence is listed as a factor in the Notice of Risk (Form 4) or where it is alleged through the course of the proceedings.[90] We are also concerned that the three matters set out in clause 102NA are too restrictive and will in practice afford little protection to victims of family violence from direct cross-examination.
(b) Discretionary approach for some cases (the bulk of cases)
The Exposure Draft Bill provides for the court to limit or prevent direct cross-examination on a discretionary basis for other family violence cases that do not meet the higher threshold that is proposed for the mandatory provision.
As noted above, the court already, at least in child-related proceedings, has the discretion to limit or prevent personal cross-examination.[91] The court has had this power available since 2006. It would, however, appear that the application of these provisions is highly variable; Victoria Legal Aid has commented that ‘the use of these provisions is unpredictable, inconsistent and dependent on discretion of the individual judge’.[92] A UK study collected information from all courts that hear private law cases in England and Wales between March and May 2015 to estimate the prevalence of cases involving direct cross-examination of vulnerable witnesses by an alleged perpetrator and also interviewed 21 family law judges about how they managed such cases.[93] The judicial interviews noted variability in judicial practice when faced with discretionary provisions in relation to direct cross-examination:[94] Judges who had experienced previous inappropriate behaviour from unrepresented parties were reluctant to allow direct cross-examination by alleged perpetrators of abuse. In contrast:
Some judges expressed a desire to allow direct cross-examination of the vulnerable witness by the [unrepresented party] wherever possible. This was partly due to a perceived ‘right’ of the [unrepresented party] to cross-examine if they wish, and partly due to a reluctance from the judiciary to fulfil that role themselves.[95]
Many judges had a perceived threshold of ‘low level abuse’[96] below which they would allow cross-examination or felt confident in handling the cross-examination of a vulnerable witness themselves.[97] However, this assumes that outsiders to the relationship can understand the dynamics of a violent relationship. Even an experienced judge with a good understanding of family violence may not be aware that the proposed cross-examination is an extension of the abuse: a seemingly innocuous line of questioning could well have a much more sinister meaning for the victim due to previous abuse patterns. Emma Fitch and Patricia Easteal’s research into vexatious litigants in family law included an interview with ‘Eleanor’ who recounted her story of escaping domestic violence and a vexatious ex-partner. A quote from that interview highlights how a seemingly standard personal cross-examination may be highly traumatic to the particular woman:
As I stood there the flashbacks of him raping me, of violently kicking me with his steel capped boots, him screaming at me that he could not stand the smell of me. This was all I could hear. His questions to all around would have seemed standard or very mildly intrusive, but for me standing there being forced to answer him each time he spoke to me, was soul wrenching.
I ran from the room, hyperventilating consumed in trauma. I could not breathe, I could not think, I could only feel him all around me. His voice in my head, his hands around my throat his complete hatred of me. I was saturated in him. Again ... and the Judge allowed it to happen.[98]
Recent work by Heather Douglas on coercive control and legal systems abuse is of relevance here.[99] Douglas questions the current capacity of legal professionals to understand the nature of coercive control. In particular, Douglas argues that legal professionals fail to ‘censure and regulate legal systems abuse’; that is, the use of the legal system by the perpetrator to further his abuse of the victim.[100] Legal systems abuse includes bringing unmeritorious or vexatious applications, avoiding service of summons, calling her family and friends as witnesses, using delaying tactics, and direct cross-examination.[101] As a result Douglas suggests that judicial officers and other legal professionals will make ‘more appropriate decisions when they understand [domestic and family violence] ...is manifested in a pattern of coercive control’ and that legal systems abuse is a continued manifestation of this control.[102]
In the context of the Exposure Draft Bill then, it would therefore appear to be problematic to leave the vast bulk of cases to the discretion of an individual judge, given that only a small number of cases will fall within the mandatory provisions as currently drafted.
(c) A person appointed by the court
Both proposed provisions require the cross-examination be conducted on behalf of the self-represented person by a ‘person appointed by the court’. Whilst we appreciate that the Attorney-General’s Department has, in its consultation process, asked a specific question about who this person should be, we suggest that this question is precisely why further investigation needs to be undertaken into whether this approach is the best one for family law proceedings, or whether an entirely different approach may be better (for example, some commentators have suggested the need for a ‘counsel assisting’ role instead).[103]
As is discussed in detail in the next section, reforms have been made limiting or preventing direct personal cross-examination by an alleged perpetrator of family violence in a range of family violence related proceedings in many Australian jurisdictions. The models adopted in these jurisdictions vary widely and one of the key areas in which they differ is in terms of who is the person designated to undertake the cross-examination on behalf of the alleged perpetrator. In some jurisdictions it is specified that the respective Legal Aid service[104] will be appointed to conduct the cross-examination, in other jurisdictions who the person appointed will be is left vague.[105] It is this latter approach that is currently proposed in the Exposure Draft Bill. In the various state and territory approaches it is not necessarily required that the person appointed be legally qualified (the exception is in those jurisdictions that rely on legal aid to conduct the cross-examination).
WLSA in their submission to the Better Family Law Inquiry argued that the person appointed should be legally trained (or an ‘appropriately trained advocate’) and be funded by legal aid ‘to act as a “mouthpiece” through which the alleged family violence perpetrator could ask questions of the affected family member in cross-examination’.[106] In both instances the person should be protected from legal liability.
The assumption of this role by a legally trained person, however, is not necessarily a simple or easily defined task. As Victoria Legal Aid pointed out in their submission to the Better Family Law Inquiry, taking on the role of cross-examination only is complex and raises a number of difficulties in practice:
More generally, joining a proceeding at trial stage is a very difficult task for a lawyer. In the considerably shorter and legally simpler Victorian family violence intervention order jurisdiction, lawyers allocated to a self-represented party for the purposes of cross-examination only, routinely conduct the entire contested hearing as it is difficult to prepare for and conduct only the cross-examination portion in a legally competent manner. This would, however, be a much larger task in family law proceedings, or alternatively lawyers would risk conducting a significantly under-prepared cross-examination or even full conduct of a trial, if they are not well across all the materials filed in the proceedings at interim stages.[107]
The comments made by VLA are important as they arguably have the most extensive experience in performing this role, being required by legislation to conduct the cross- examination on behalf of perpetrators of violence in criminal (sexual violence and family violence more generally) and civil protection order proceedings. The distinct differences inherent in family law proceedings are important in the development of any protections in this area and are discussed in more detail below.
VLA also raise a wider concern about creating a role for an alternative person to ask the questions on behalf of the litigant where that alternative person ‘does little more than act as a mouthpiece for the litigant’.[108] While this will reduce some of the trauma of direct questioning by the perpetrator ‘the perpetrator still frames the questions and it is difficult for a lawyer [or other person] in that role to determine whether the questions are necessary for the proceeding or are asked as a form of abuse’.[109] This is important as it highlights the fact that the trauma associated with direct personal cross-examination by a perpetrator of violence is not confined to who asks the questions, but is also centrally concerned with who gets to formulate the questions; the role of framing questions still provides the perpetrator with a site to further their abuse and intimidation of the victim. This raises important issues for the judicial officer and their capacity to be able to identify whether any of the questions that are sought to be asked fall foul of existing protections in the FLA and Evidence Act.[110] As Douglas argues, the lack of understanding of family violence as coercive control may impede judicial officers and other legal professional’s ability to be able to identify whether any questions are asked as a mechanism to continue the perpetrator’s control over, and intimidation of, the victim.[111]
2. Overarching concerns
(a) Can we just transpose a model from another legal arena to Family Law?
The model set out in the Exposure Draft Bill replicates similar models that operate in the state and territories in relation to sexual assault and family violence related criminal proceedings, and in some jurisdictions in relation to civil protection order proceedings.
Every Australian jurisdiction has introduced reforms which prevent personal cross-examination by a self-represented defendant in sexual offence proceedings.[112] Some jurisdictions have extended these reforms to family violence related criminal proceedings more generally,[113] and to civil protection order proceedings.[114] However, the nature and extent of these reforms vary considerably, for example in terms of whether the prohibition is mandatory or discretionary,[115] who is appointed to conduct the cross-examination (discussed above),[116] whether that person must be legally qualified,[117] and whether the legislation sets out a process for the unrepresented defendant to seek legal assistance before appointing someone to undertake the cross examination.[118] Nor are the protections in these areas consistently applied within a single jurisdiction for all areas of law that a victim of family violence might encounter. For example, in NSW the protection from personal cross examination is mandatory in sexual offence proceedings,[119] but there is no comparable protection provided for victims in family violence criminal proceedings or civil protection order proceedings unless the victim otherwise is able to take advantage of the more general vulnerable witness provisions.[120] In only one jurisdiction has legislative consideration been given to the issues that face unrepresented victims in civil protection order proceedings, where the victim is required to personally cross- examine the alleged perpetrator.[121]
Little, if anything, is known about how these protective measures operate in their respective jurisdictions, nor whether any model or approach is preferable over any other. A key concern, then, is the absence of any evaluative or comparative research on how the different jurisdictional models that limit personal cross-examination by a self-represented defendant in civil protection order or criminal proceedings play out in practice. An overview of the provisions and the variation between jurisdictions gives rise to important questions: Does it matter whether the provisions are mandatory or discretionary? Does it matter whether the person appointed to conduct the cross-examination is legally trained? How should the person be funded? Do these differences impact on the experience of the victim giving evidence and the quality of her evidence? This evidence base is critical in assessing whether the reforms in civil and criminal proceedings have been effective.
Even if we had such an evidence base informing us which model is working most effectively in a jurisdiction, it should not be assumed that we can just transpose that model to the Family law jurisdiction. There are distinct jurisdictional differences presented by family law that means that legislative reform is not necessarily straightforward. In family law proceedings the parties are ‘parties’ not just ‘witnesses’ as is the case for victims in criminal proceedings. Parties in family law proceedings are participants in the entire trial process. The Family Law Courts have sought to draw attention to these differences in their recent submissions to various inquiries. For example, in their submission to the Victorian Royal Commission, the Family Law Courts noted that there are
...significant difference[s] between criminal and family law proceedings, even where the subject matter, violence, is the same. For example, in a criminal trial, while violence may be the sole factual and legal issue for determination, often the alleged victim is but one of the witnesses in the case. In the family law context, the victim is a party to the proceedings and the issue of family violence is only one of the issues to be determined although it may permeate the whole of the factual matrix of the case.[122]
The FCA expanded on these differences in its more recent submission to the Better Family Law Inquiry drawing attention to the breadth of legal issues that may be raised in an individual case, and the wide array of factual issues that may need to be determined:
... a case may involve a trial about parenting issues as well as property issues with allegations of violence, mental health issues, substance abuse and claims about new partners of both parents, as well as contested facts in their property dispute. The capacity to challenge evidence where it is contested is a fundamental part of our legal system and integral to the capacity of the judge to make findings where evidence is in dispute. Evidentiary rules provide for less weight to be given to evidence where it cannot be tested. Policy and legislative change is a matter for government but care must be taken to ensure that any change does not involve unintended consequences that disadvantage those who it seeks to protect. [123]
Similarly, Legal Aid NSW in its submission to the same inquiry noted that, in family law proceedings, ‘cross examination can include questions about a wide range of issues and events over the lengthy period of a relationship and beyond’.[124] It is uncertain whether the current Bill would prohibit direct cross-examination for all the victim’s evidence, or just in relation to issues of violence. Not only may family law proceedings involve multiple and complex issues, combining issues concerning children and property, they can also be lengthy, extending over several days or weeks.
(b) Consideration of other options
The distinctive nature of family law proceedings arguably challenges us to consider whether different approaches are required to assist victims in the family law system. In addition, it is important to recognise that the problems that flow from the absence of legal representation in family law proceedings are not necessarily confined to the conduct of cross examination, but may permeate the proceedings. For example, other difficulties associated with self-represented perpetrators include delays, potential frivolous claims, inappropriate questioning of other witnesses, use of court proceedings to control or intimidate a victim, and adverse outcomes.[125] These types of issues are increasingly being highlighted in work on legal systems abuse.[126] This requires a more comprehensive response.
As noted above, the Family Law Council, in an earlier report which addressed, amongst other matters, the issue of direct personal cross-examination, recommended a different approach; piloting a counsel assisting model in cases where one or both parties is self-represented and issues of family violence or other safety concerns for a child have been identified. Both Legal Aid NSW and VLA supported this recommendation in their respective submissions to the Better Family Law Inquiry.[127] VLA recommends the government invest in a pilot of that model in several family law court locations.[128] Legal aid commissions could be well placed to administer a Counsel Assisting scheme such as this, including either through engaging and training well qualified lawyers to discharge the duties, or establishing a panel of private practitioners.
Importantly the FLC also emphasised the need for further research in the area of representation and its absence in family law proceedings. It is here where the FLC emphasises growing concern about the ‘potential for the family law system to be misused by a person who wishes to maintain a campaign of harassment against their former partner’.[129] In this context the FLC recommended research ‘that would support an understanding of the extent, experience and dynamics of self-representation in family law matters involving families with complex needs, including matters where there are family violence and mental health issues’.[130]
Any change that is implemented to assist in reducing the trauma associated with direct-personal cross-examination needs to be carefully evaluated and monitored. The Family Court of Australia makes this point in its submission to the Better Family Law Inquiry noting that ‘care must be taken to ensure that any change does not involve unintended consequences that disadvantage those who it seeks to protect. Any intended change might best be implemented by piloting a proposal to ascertain what is workable and effective’.[131] In addition, any proposed changes would need to consider how they would interact with the role of the ICL, given the extent to which ICLs are relied on in cases where the parties are without legal representation.[132]
Conclusion
The fact that the Federal Government is taking steps to address this important area of concern is to be welcomed. The misuse of the legal system by perpetrators of family violence is being increasingly recognised as a method of abuse that may be used where the methods of abuse previously employed by an abuser may no longer be available.[133] Direct personal cross-examination may represent a powerful tool for legal systems abuse for some perpetrators. Victims of family violence report that they experience this as a continuation of the perpetrator’s abuse and find it particularly traumatic.
The prohibition of direct cross-examination in family law proceedings is a complex problem that is not amenable to a simple or single solution. The current models available in the state and territory jurisdictions apply to different types of legal proceedings that have as their central focus the incident(s) of violence. Family law proceedings may focus on violence and be centrally concerned with it in many cases. However even in cases where violence is not the central issue it may permeate all of the parenting and property proceedings. Research is required about the best way to address this problem within this legal domain. This includes the consideration of other alternative models. The Family Court’s caution that we need to ensure that any change does not ‘involve unintended consequences that disadvantage those who it seeks to protect’[134] is an important one. Bandaging over the complex problem of the absence of legal representation for victims and perpetrators in family law proceedings with a simplistic approach may not ensure the extent of protection that victims require in this jurisdiction. In the meantime, we call for a greater recognition of legal systems abuse,[135] and for judges to consistently use the measures currently already available to them to protect victims from traumatic cross-examination.
* Senior Lecturer, Faculty of Law, University of Technology Sydney.
‡ Senior Lecturer, Faculty of Law, University of Technology Sydney.
† Associate Professor, Faculty of Law, University of
Technology Sydney.
Thanks to Professor Jenni Millbank for her advice and to
the anonymous reviewers for their helpful comments. Thanks to Alison Whitaker
and Althea Gibson for their valuable research assistance. Miranda and Jane are
both members of the Law Health Justice area of Research
Excellence at UTS.
1 This article uses the term ‘family violence’ as this is the term used in the Australian family law system. There are, however, a variety of terms used including domestic violence, domestic and family violence and intimate partner violence.
[2] Attorney-General’s Department, ‘Proposed Amendments to the Family Law Act 1975 (Cth) to Address Direct Cross-Examination of Parties in Family Law Proceedings Involving Violence’ (Public Consultation Paper, July 2017); Family Law Amendment (Family Violence and Cross-Examination of Parties) Bill 2017 (Cth) (Exposure Draft).
[3] For a discussion of the similar issues raised in criminal trials, see Phoebe Bowden, Terese Henning and David Plater, ‘Balancing Fairness to Victims, Society and Defendants in the Cross-Examination of Vulnerable Witnesses: An Impossible Triangulation?’ [2014] MelbULawRw 1; (2014) 37 Melbourne University Law Review 539.
[4] See, eg, Louise Ellison, ‘The Mosaic Art: Cross-examination and the Vulnerable Witness’ (2001) 21 Legal Studies 353; Jessica Kennedy, Patricia Easteal and Lorana Bartels, ‘How Protected Is She? “Fairness” and the Rape Victim Witness in Australia’ (2012) 35 Women’s Studies International Forum 334, 335; Annie Cossins, ‘Cross-Examination in Child Sexual Assault Trials: Evidentiary Safeguard or an Opportunity to Confuse?’ [2009] MelbULawRw 3; (2009) 33 Melbourne University Law Review 68; and Bowden et al, above n 3.
[5] The terminology used in this area varies; a party without representation may be referred to as ‘unrepresented’, ‘self-represented’, or as a ‘litigant-in-person’ and various variations of these terms. These terms tend to be used interchangeably, although some commentators seek to draw a distinction between people who choose to not have legal representation, and those who have not been able to obtain legal representation as a result of costs: Elizabeth Richardson, Tania Sourdin and Nerida Wallace, ‘Self-Represented Litigants: Literature Review’ (Australian Centre for Court and Justice System Innovation, 2012), [1.4].
[6] Attorney-General’s Department, above n 2.
[7] Australian Institute of Family Studies, Direct Cross-Examination in Family Law Matters <https://aifs.gov.au/projects/direct-cross-examination-family-law-matters>.
[8] Joe Harman, ‘The Prevalence of Allegations of Family Violence in Proceedings before the Federal Circuit Court of Australia’ (2017) 7 Family Law Review 3.
[9] Ibid 7.
[10] Ibid 17.
[11] Family Court of Australia, 'Annual Report 2015–16' (2016) 55, 77.
[12] Ibid 56. It should be noted that the FCA 'revised its counting rule' for figures (from the 2014–2015 Annual Report onwards) to exclude 'cases that did not have a first court event (i.e. withdrew or discontinued before appearing at court)': Ibid 55. This means that levels of self-representation now reported in the annual reports may be lower than they might have been in earlier reports and are not directly comparable to those earlier figures.
[13] Ibid 55–56. In appeal proceedings the rate of self-representation is higher and has been steadily increasing over time, however, cross-examination does not take place in these cases. The FCA stated that ‘[i]n 2015–16, the proportion of unrepresented appellants increased to 44 per cent from 39 per cent in 2014–15’: 77.
[14] Rae Kaspiew et al, Court Outcomes Project (Australian Institute of Family Studies, October 2015).
[15]The FCoA and FCCA court files were sampled from three registries: Melbourne, Sydney and Brisbane: Ibid 34.
[16] That is ‘matters initiated after 1 July 2009 and finalised by 1 July 2010’: Ibid 8.
[17] That is ‘matters initiated after 1 July 2012 and finalised by 30 November 2014’: Ibid.
[18] Ibid 36.
[19] See Bridgette Toy-Cronin, ‘I Ain’t No Fool: Deciding to Litigate in Person in the Civil Courts’ [2016] New Zealand Law Review 723; Tania Sourdin and Nerida Wallace, 'The Dilemmas Posed by Self-Represented Litigants—the Dark Side' (Access to Justice Paper 32, Australian Centre for Justice System Innovation, 2014) 4–5.
[20] John Dewar, Barry Smith and
Cate Banks, ‘Litigants in Person in the Family Court of Australia: A
Report to the Family Court
of Australia’ (Research Report No 20,
2000), 1. See also John Faulks, ‘Self-Represented
Litigants: Tackling the Challenge' (Paper presented at the Managing People in
Court
Conference, National Judicial College of Australia and the Australian
National University, February 2013) [12].
[21] Dewar, Smith and Banks, above n 20, 1. See also Faulks, above n 20, [12].
[22] Dewar, Smith and Banks, above n 20, 33.
[23] Rosemary Hunter, Jeff Giddings and April Chrzanowski, ‘Legal Aid and Self-Representation in the Family Court of Australia’ (Socio-Legal Research Centre, Griffith University, May 2003) 18.
[24] Ibid 33–34.
[25] Heather Douglas, ‘Legal Systems Abuse and Coercive Control’ [2017] Criminology & Criminal Justice 1, 3; Janet Loughman, ‘Protecting Vulnerable Witnesses in Family Law’ [2016] 19 Law Society of NSW Journal 26, 27 See also Rae Kaspiew et al, ‘Domestic and Family Violence and Parenting: Mixed-Method Insights into Impact and Support Needs: Final Report’ (Report, ANROWS, 2017), 154.
[26] Family Court of Australia, above n 11, 57.
[27] Kaspiew et al (2015), above n 14, 42.
[28] Ibid 45, Table 3.13.
[29] Ibid.
[30] Loughman, above n 25; Domestic Violence NSW, Submission No 40 to the House of Representatives Standing Committee on Social Policy and Legal Affairs, Parliamentary Inquiry into a Better Family Law System to Support and Protect Those Affected by Family Violence, May 2017, 13–14. See also an anonymous submission to the Victorian Royal Commission into Family Violence which details a hearing before the FCCA in which both parties ended up being unrepresented. The woman describes how she was cross-examined by her former husband on one day, which she describes as ‘possibly the most traumatic day that I have ever been through’. She returns to court the next day ‘exhausted and suffering from extreme anxiety and negotiated for custody ...’: Victoria, Royal Commission into Family Violence, Report and Recommendations (2016) vol iv, 197 .
[31]See Kaspiew et al, (2015) above n 14, 46–50 and, in particular, Table 3.14 at 48; Harman, above n 8; Family Law Council, 'Family Law Council Report to the Attorney-General on Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems' (Final Report (Terms 3, 4 & 5), June 2016).
[32] See for example Loughman, above n 25; Jane Lee, ‘Call to Stop Abusers Cross-Examining their Victims in the Family Court’ The Sydney Morning Herald (27 October 2015); Stephanie Peatling, ‘”Women are being Traumatised”: Rosie Batty Call to End Cross-Examination by “Abusers’’, The Sydney Morning Herald (25 October 2016); Emma Younger, ‘Victorian MP Pushing to End Family Court Cross-Examinations by Abusive Ex-Partners’ ABC News (online), 19 October 2015 <http://www.abc.net.au/news/2015-10-19/push-end-family-court-cross-examination-by-abusive-ex-partners/6864958> .
[33] We thank one of the
reviewers for drawing attention to this potential outcome. Additional research
is required in this area to see
whether this outcome takes place in practice and
whether judicial officers have made comments regarding the demeanour and
behaviour
of the alleged perpetrator when they are representing themselves in
court.
[34] Loughman, above n 25,
26.
[35] There is no precise data
made on the extent to which victims of family violence agree to unsafe consent
orders. However data from
a number of recent AIFS research studies suggest
concern in this area. For example, see John De Maio et al, Survey of recently
Separated Parents: A Study of Parents who Separated prior to the Implementation
of the Family Law Amendment (Family
Violence and Other Matters) Act 2011
(AIFS, 2012), 66 which reported that 53% of parents who disclosed family
violence reported that this ‘very much’ or ‘somewhat’
influenced their resulting parenting arrangements, whereas 27% reported that
their disclosure did not influence the parenting arrangement
‘at
all’; and in Rae Kaspiew et al, Responding to Family Violence: A Survey
of Family Law Practices and Experiences (Report, Australian Institute of
Family Studies, 2015) 158–159 reported that among parents who had
experienced physical violence,
only 41% reported that 'the court granted orders
that protected their safety and/or their children’s safety' (this would
include
orders made by consent and following litigation).
[36] Rosemary Hunter, ‘Narratives of Domestic Violence’ [2006] SydLawRw 31; (2006) 28 Sydney Law Review 733, 773.
[38] Ibid 26.
[39] This is supported by specialist Domestic and Family Violence practitioners’ responses to an informal online survey undertaken by Domestic Violence NSW for the purposes of writing their submission to the Better Family Law Inquiry. Domestic Violence NSW, above n 30, 13.
[40] Family Court of Australia and Federal Circuit Court of Australia, ‘Family Violence Best Practice Principles’ (Edition 4, December 2016) 16–17.
[41] Family Law Act 1975 (Cth) s 69ZX(2)(i). This provision preventing or limiting cross-examination was inserted into the Act in 2006.
[42] Family Law Act 1975 (Cth) s 69ZN(5); Principle 3. This provision was inserted in 2006.
[43] Family Law Act 1975 (Cth) s 102C. This provision was inserted in 2003.
[44] Family Law Act 1975 (Cth) s 101. This provision was amended in 1991 to add reference to abuse and insulting questions and to add subsection (2) which provides for examination to be forbidden in certain circumstances.
[45] Evidence Act 1995 (Cth) s 41.
[46] In 2009 Richard Chisholm noted that ‘not all judicial officers are familiar with this document, and it does not seem to be as influential as it was obviously intended to be’: Richard Chisholm, ‘Family Courts Violence Review’ (Attorney-General’s Department, 2009) 173; see Rec. 4.8 which was designed to address this lack of knowledge. However, that was some time ago and was only in reference to the first edition of the BPP. It has now been through a number of iterations and the promotion of the BPP has been much enhanced since that time.
[47] See Loughman, above n 25; Kaspiew et al (2017), above n 25.
[48] Kaspiew et al (2017), above n 25, 182.
[49] Family Law Council, above n 31, 114.
[50] An example of this can be found in the judgment of Benjamin J in Stanley & Stanley [2016] FamCA 1130 (14 December 2016). See, in particular, [95]–[96]. .
[51] Harman found that an ICL was appointed in 92.59% of cases in the study sample where there were allegations of family violence and at least one party was self-represented: Harman, above n 8, 18. This also appears to be a quite long-standing practice with Rosemary Hunter and colleagues noting its existence in research conducted in the early 2000s: Hunter et al, above n 23, 4.
[52] Victoria Legal Aid, Submission No 60 to the House of Representatives Standing Committee on Social Policy and Legal Affairs, Parliamentary Inquiry into a Better Family Law System to Support and Protect Those Affected by Family Violence, May 2017, 18.
[53] Loughman, above n 25, 26. See also Royal Commission into Family Violence, above n 30.
[54] Women’s Legal Services Australia, Submission No 6 to the House of Representatives Standing Committee on Social Policy and Legal Affairs, Parliamentary Inquiry into a Better Family Law System to Support and Protect Those Affected by Family Violence, 27 April 2017.
[55] Parliament of Australia, Terms of Reference, <http://www.aph.gov.au/fvlawreform> .
[56] Family Law Council, above n 31, 5.
[57] Ibid 134, Rec 8.
[58] Ibid 67.
[59] Ibid.
[60] Ibid 155, Rec 19(2).
[61] Ibid 155, Rec 19(1). See also Douglas, above n 25.
[62] Productivity Commission, ‘Access to Justice Arrangements’ (Inquiry Report 72, 5 September 2014).
[63] Ibid 69, Rec 24.2.
[64] Chisholm, above n 46, 168–9.
[65] Ibid 168. See similar comments in Productivity Commission, above n 62, 856.
[66] Chisholm, above n 46, 171, Rec 4.5.
[67] Senate Finance and Public Administration References Committee, Parliament of Australia, Domestic Violence in Australia ( 2015) 117, 123. See particularly [9.22]–[9.23].
[68] Royal Commission into Family Violence, above n 30, vol iv, 197–198.
[69] Ibid 214.
[70] In addition to the four inquiries mentioned in the main text, there has also been the Australian Law Reform Commission and NSW Law Reform Commission, Family Violence: A National Legal Response (Report No 114, Australian Law Reform Commission, 2010); Family Law Council, Improving Responses to Family Violence in the Family Law System: An Advice on the Intersection of Family violence and Family Law issues (Report, December 2009). Further, a number of general family violence inquiries have also in part addressed the family law system: see Senate Finance and Public Administration References Committee, above n 67 no 67 (particularly ch 9); Royal Commission into Family Violence, above n 30, 181–225; and the Special Taskforce on Domestic and Family Violence in Queensland, Not Now, Not Ever: Putting an End to Domestic and Family in Queensland (Report, 2015).
[71] Patrick Parkinson, Submission No 64 to the House of Representatives Standing Committee on Social Policy and Legal Affairs, Parliamentary Inquiry into a Better Family Law System to Support and Protect Those Affected by Family Violence, May 2017, 1.
[72] Ibid 3.
[73] Council of Australian Governments, ‘ Reducing Violence against Women and Their Children: Outcomes and Reflections’ (COAG 2016 National Summit, 27 October 2016), 29.
[74] Reg Graycar, ‘Law Reform by Frozen Chook: Family Law Reform for the New Millenium?’ [2000] MelbULawRw 29; (2000) 24 Melbourne University Law Review 737, 746. In other words this is not a situation of reform being a response to anecdote rather than a clear need to address a particular problem— a common situation for family law reform: See Jenni Millbank, ‘From Alice and Evelyn to Isabella: Exploring the Narratives and Norms of “New” Surrogacy in Australia’ (2012) 21 Griffith Law Review 101, 103; Helen Rhoades, ‘Children’s Needs and “Gender Wars”: The Paradox of Parenting Law Reform’ (2010) 24 Australian Journal of Family Law 160; Kay Cook and Kristin Natalier, ‘Gender and Evidence in Family Law Reform: A Case Study of Quantification and Anecdote in Framing and Legitimising the “Problems” with Child Support in Australia’ (2016) 24 Feminist Legal Studies 147.
[75] Family Law Amendment (Family Violence and Cross-Examination of Parties) Bill 2017 (Cth) (Exposure Draft), cl 102NB (2)(b).
[76] Royal Commission into Family Violence, above n 30, vol iv, 197.
[77] Women’s Legal Services Australia, above n 54, 28.
[78] Ibid.
[79] An analysis of the ABS
Personal Safety Survey revealed that ‘less than one third of male and
female victims contacted the police
after their most recent incident of physical
violence’: Peta Cox, ‘Violence Against Women in Australia:
Additional Analysis
of the Australian Bureau of Statistics’ Personal
Safety Survey, 2012’ (Report, ANROWS, 2015) 39. See also Silke Meyer,
‘Seeking Help for Intimate Partner Violence: Victims’ Experiences
When Approaching the Criminal Justice System for IPV-Related
Support and
Protection in an Australian Jurisdiction’ (2011) 6 Feminist
Criminology 268, 276; Emma Birdsey and Lucy Snowball, ‘Reporting
Violence to Police: A Survey of Victims Attending Domestic Violence
Services’
(Issue Paper No 91, NSW Bureau of Crime Statistics and Research,
2013).
[80] See Robin Fitzgerald and Timothy Graham, ‘Assessing the Risk of Domestic Violence Recidivism’ (Contemporary Issues in Crime and Justice No 189, NSW Bureau of Crime Statistics and Research, May 2016), 10. See discussion of reasons for not prosecuting family violence criminal offences in Australian Law Reform Commission and New South Wales Law Reform Commission, above n 70, [8.54]-[8.69]. In the UK context, see Marianne Hester, ‘Making it Through the Criminal Justice System: Attrition and Domestic Violence’ (2006) 5 Social Policy and Society 79.
[81] Heather Douglas, ‘The Criminal Law's Response to Domestic Violence: What's Going On?’ [2008] SydLawRw 22; (2008) 30 Sydney Law Review 439. It is well established that sexual assault is one of the most—if not the most–difficult offences to successfully prosecute; sexual violence offences are underreported and conviction rates are low even if the case proceeds to trial: Australian Bureau of Statistics, 'Sexual Assault in Australia: A Statistical Overview' (Report Cat No 4523.0, 2004); Kathleen Daly and Brigette Bouhours, ‘Rape and Attrition in the Legal Process: A Comparative Analysis of Five Countries’(2010) 39 Crime and Justice 565; Bianca Fileborn, ‘Sexual Assault Laws in Australia’ (Resource Sheet, Australian Centre for the Study of Sexual Assault, February 2011).
[82] Family Law Act 1975 (Cth) s 4AB.
[83] See, eg, Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13.
[84] Criminal Code 1899 (Qld) s 320A. See the discussion in Heather Douglas, ‘Do We Need a Specific Domestic Violence Offence? [2015] MelbULawRw 26; (2015) 39 Melbourne University Law Review 434, 452–454 where Douglas explains that the Queensland offence extends beyond physical forms of torture.
[85] Family Violence Act 2004 (Tas) ss 8–9. It has been noted that these offences may be difficult to prove, have a number of limitations, and that it is ‘not clear how often’ they have been used with very few reported cases: Douglas, supra no 84, 457.
[86] Kaspiew et al (2015), above n 14, 52–4, Table 3.19.
[87] This contrasts with changes made in 2011 to s 60CC(3) of the Family Law Act 1975 (Cth) requiring the court to consider all family violence orders, including interim orders, when determining the best interests of the child.
[88] The draft provision refers to ‘a family violence order... [that] applies to both parties’: Family Law Amendment (Family Violence and Cross-Examination of Parties) Bill 2017 (Cth) (Exposure Draft) cl 102NA(1)(c)(ii). Emphasis added.
[89] Australian Law Reform Commission and NSW Law Reform Commission, above n 70, [3.50].
[90] Women’s Legal Services Australia, above n 54, Rec 12.
[91] Family Law Act 1975 (Cth) s 69ZN.
[92] Victoria Legal Aid, above n 52, 19.
[93] Currently in England and Wales in private family law proceedings, self-represented litigants are able to cross-examine other parties in the case so the situation is not dissimilar to Australian family law proceedings. A Bill was introduced in 2017 in England and Wales which would, inter alia, have prohibited direct cross-examination in family proceedings. However, the Bill lapsed when the parliamentary election was called in April 2017. See Prisons and Courts Bill 2017 (England & Wales) cl 47. It is, as yet, uncertain whether that Bill will be re-introduced.
[94] Natalie Elizabeth Corbett and Amy Summerfield, ‘Alleged Perpetrators of Abuse as Litigants in Person in Private Family Law: The Cross-Examination of Vulnerable and Intimidated Witnesses’ (Ministry of Justice Analytical Series, Ministry of Justice, 2017) 15–28.
[95] Ibid 15.
[96] Ibid 35.
[97] Ibid 36. This appears to echo the findings of Kaspiew in relation to the level of ‘disqualifying violence’ required for women and their legal advisors to argue against contact in contested children’s cases: Rae Kaspiew, ‘Violence in Contested Children’s Cases: An Empirical Exploration’ (2005) 19 Australian Journal of Family Law 112.
[98] Emma Fitch and Patricia Easteal, ‘Vexatious Litigation in Family Law and Coercive Control: Ways to Improve Legal Remedies and Better Protect the Victims’ [2017] 7 Family Law Review 103, 108.
[100] Ibid 12.
[101] See discussion of the different ‘manifestations’ of legal systems abuse: ibid 3-4.
[102] Ibid 11.
[103] Family Law Council, above n 31; Victoria Legal Aid, above n 52.
[104] See, eg, Family Violence Protection Act 2008 (Vic) s 71 and Evidence Act 1977 (Qld) s 21O.
[105] See Criminal Procedure Act 1986 (NSW) s 294A(2) which simply refers to ‘a person appointed by the court’.
[106] Women’s Legal Services Australia, above n 54, 10.
[107] Victoria Legal Aid, above n 52, 20.
[108] Ibid.
[109] Ibid.
[111] Douglas, above n 25, 13.
[112] Evidence (Children and Special Witnesses) Act 2001 (Tas) s 8A; Crimes Act 1914 (Cth) ss 15YF–15YG; Criminal Procedure Act 1986 (NSW) s 294A; Criminal Procedure Act 2009 (Vic) ss 356–358; Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 38D; Evidence Act 1929 (SA) s 13B; and Evidence Act 1977 (Qld) ss 21O–21R.
[113] Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 38D; Criminal Procedure Act 2009 (Vic) s 356; Evidence Act 1977 (Qld) s 21O; and Evidence (Children and Special Witnesses) Act 2001 (Tas) s 8A; Evidence Act 1929 (SA) s 13B. See also Evidence Act 1906 (WA) s 25A which, whilst it does not prevent personal cross-examination in these cases, does specify the use of mechanisms to assist victims (eg, the use of screens and video link) when the unrepresented defendant seeks to personally cross-examine the victim.
[114] Family Violence Protection Act 2008 (Vic) s 70; Restraining Orders Act 1977 (WA) s 44C; Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 29(4); Domestic and Family Violence Act (NT) s 114; Family Violence Act 2016 (ACT) s 63; and the Domestic and Family Violence Protection Act 2012 (Qld) s 151.
[115] For example, the prohibition on personal cross-examination is mandatory in the ACT in civil protection proceedings (see Family Violence Act 2016 (ACT) s 63) but is discretionary in Queensland, Victoria, South Australia, Northern Territory and Western Australia (see, eg, Family Violence Protection Act 2008 (Vic) s 70).
[116] For example some jurisdictions specify that the person to conduct the cross-examination on behalf of the unrepresented person is from the respective Legal Aid Commission (see Family Violence Protection Act 2008 (Vic) s 71), in other jurisdictions the person to be appointed is not specified (see Criminal Procedure Act 1986 (NSW) s 294A(2) which simply refers to ‘a person appointed by the court’).
[117] For example, under the NSW provision in sexual offence proceedings the legislation simply refers to ‘a person appointed by the court’, whilst there is a special provision to protect that person if they are an ‘Australian lawyer’ being a lawyer is not a requirement to being appointed to conduct this cross-examination on behalf of the accused person: Criminal Procedure Act 1986 (NSW) ss 294A(2), (9).
[118] For example, in Victoria the legislation sets out steps, including adjournments, to encourage the unrepresented person to seek legal representation prior to requesting Victorian Legal Aid to undertake the cross-examination on behalf of the person: in relation to sexual offence proceedings: see Criminal Procedure Act 2009 (Vic) s 357.
[119] Criminal Procedure Act 1986 (NSW) s 294A.
[120] Criminal Procedure Act 1986 (NSW) ss 306M, 306ZL.
[121] Family Violence Protection Act 2008 (Vic) s 72.
[122] Family Court of Australia and Federal Circuit Court of Australia, Submission to the Victorian Royal Commission into Family Violence 6 August 2015, [44].
[123] Family Court of Australia, Submission No 44 to the House of Representatives Standing Committee on Social Policy and Legal Affairs, Parliamentary Inquiry into a Better Family Law System to Support and Protect Those Affected by Family Violence, 3 May 2017, [25].
[124] Legal Aid NSW, Submission No 90 to the House of Representatives Standing Committee on Social Policy and Legal Affairs, Parliamentary Inquiry into a Better Family Law System to Support and Protect Those Affected by Family Violence, June 2017, 20.
[125] Amanda George and Bridget Harris, ‘Landscapes of Violence: Women Surviving Family Violence in Regional and Rural Victoria’ (Centre for Rural and Regional Law and Justice, 2014) 84.
[126] Douglas, above n 25 ; Kaspiew et al (2017), above n 25, 154-157.
[127] Victoria Legal Aid, above n 52; Legal Aid NSW, above n 124.
[128] Victoria Legal Aid, above n 52, 22.
[129] Family Law Council, above n 31, 11.
[130] Ibid.
[131] Family Court of Australia, above n 123 [25]. .
[132] Harman, above n 8. In particular, thought would have to be given to how any counsel assisting model might interact with that of the ICL given that the role of the ICL has previously been compared to that of a counsel assisting a court or royal commission by the Family Court in Bennett and Bennett (1991) FLC 92–191.
[134] Family Court of Australia, above n 123, [25].
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