Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download Current HansardDownload Current Hansard    View Or Save XMLView/Save XML

Previous Fragment    Next Fragment
Monday, 10 September 2018
Page: 84


Mr FALINSKI (Mackellar) (17:34): It is bewildering that in a free, liberal country such as Australia, many families are entrapped by violence in their own homes. It is disheartening to see the cornerstone of our society, the family, defaced and tarnished with unjustified sadism. Just last year we saw 72,000 women, 34,000 children and 9,000 men seek homelessness services due to domestic violence. Even more alarming, however, is the fact that one in six women and one in 16 men have experienced physical or sexual violence by a current or previous partner. When you begin to account for emotional abuse and violence against children, the figures only appear to loom closer and more threatening than ever.

Aisha Mirza said:

It is not the bruises on the body that hurt. It is the wounds of the heart and the scars on the mind.

This bill will ensure that victims of domestic violence do not have to relive their trauma. These measures will ensure that appropriate protections are in place for victims of family violence during cross-examination in all family law proceedings. The direct cross-examination of a victim of family violence by their alleged perpetrator can expose the victim to retraumatisation and affect their ability to give evidence. Some victims of family violence also cite the fear of being cross-examined directly by their alleged perpetrator as a significant factor in deciding to settle the matter, often on terms they consider unfavourable. This can place victims and children at risk of harm.

A constituent of mine was in this very same predicament. Her case was before the Federal Circuit Court in Sydney, where my constituent was the victim of serious domestic violence. Her ex-husband was in fact serving a prison sentence after being found guilty of attempted murder. The ex-husband was self-represented and without a lawyer. Under the current law he was able to cross-examine my constituent, the victim. As you can imagine, she was extremely reluctant to proceed with the financial and property matter which was before the court because she was terrified of being cross-examined by her ex-husband, who had been convicted of attempting to kill her. The judge was forced to try to confirm with the ex-husband prior to the trial if he wanted to cross-examine the victim of his abuse. This left my constituent faced with the prospect of being cross-examined by a person who had tried to kill her, or lose the property. She would rather withdraw from the property proceedings than be cross-examined. The judge was at pains to outline that he would ensure that the husband could not get carried away with cross-examination. However, the court was unable to prevent the husband from cross-examination because he was entitled to so-called due process and to test the wife's evidence under cross-examination.

I'm pleased to say that these new laws will prevent this scenario from occurring again and will give victims the certainty that they can have their cases heard before the court without fear of being traumatised or having to face the perpetrator. These measures will amend the Family Law Act to prohibit direct cross-examination where there is an allegation of family violence between the parties to the proceeding and either party has been convicted of or is charged with an offence involving violence or a threat of violence to the other party; or a family violence order other than an interim order applies to both parties; or an injunction under section 68B or 114 of the Family Law Act for the personal protection of either party is directed against the other party. This automatic ban provides certainty for victims covered by these circumstances that they will not be directly cross-examined by their abuser.

Where the circumstances do not apply, the court has discretion to make an order that direct cross-examination is prohibited. For example, the court could make an order prohibiting direct cross-examination where an interim family violence order applies to both parties or where allegations of family violence are raised for the first time in a family law proceeding. Where direct cross-examination is prohibited, the amendments require that the cross-examination be conducted by a legal representative. In circumstances where direct cross-examination is not prohibited, the amendments require that the court apply other appropriate protections, such as giving evidence by video link or using screens so the alleged perpetrator cannot be seen. These measure apply to both parties. Where the prohibition applies, separate legal representatives must undertake the cross-examination on behalf of the victim as well as the alleged perpetrator. This ensures that the victim is given appropriate protection and support both when cross-examining the alleged perpetrator and when being cross-examined by the alleged perpetrator.

Cross-examination by a violent partner or former partner will often be the catalyst for victims to re-experience their trauma. Victims again have to re-engage with support services such as counsellors, domestic violence workers and some mental health support workers. This also includes children's counsellors because, let's not forget, many children experience vicarious trauma when they know that their parent, who is the victim of domestic violence, has to go to court. Again, this is a tragic and often all-too-real occurrence. A young child in my electorate would engage regularly with a psychiatrist because they knew that their mum had to keep going back to Family Court to try and prevent their father, who threatened to burn down the family home with them inside, from having any time with his children. If we can prevent these cross-examinations from abusers occurring, then we can ensure that the trauma does not continue and that victims can seek appropriate services. They will then not be reliant on government support services every time they have to attend court. They can simply focus on their future.

Matters in the family law courts will not be impacted by the provisions in this bill for nine months. This includes a maximum three-month commencement delay to ensure that the family law courts can put appropriate procedural mechanisms in place to support the implementation of these measures. The amendments will then apply to cross-examinations that occur six months after commencement to ensure that parties have adequate time to obtain legal representation, and prevent any unnecessary delays to their court proceedings. These measures will improve the justice system's ability to support vulnerable witnesses by requiring the use of appropriate protection in all family law proceedings that involve allegations of family violence. There are some avenues which need to be explored to fund this legislation. However, the government is working with National Legal Aid to assess the resourcing impacts for legal aid commissions to provide legal representation where the ban applies and to ensure that adequate funding is available.

In New South Wales we have seen rates of domestic violence decrease. There are, however, some pockets of our community where it has surged. We must continue, as a government, to tackle that scourge. This bill is a welcome step towards supporting victims of domestic violence. It is welcomed by the community, support services and legal professionals. The New South Wales government is also supporting victims of domestic violence, most recently announcing a raft of reforms to extend lengths of ADVOs from 12 months to two years, a new strangulation offence with a maximum sentence of five years and, in the most severe cases, indefinite ADVOs. I'd like to take one moment from this debate to acknowledge family law specialists Robert Tricca & Associates and Brett McGrath from the New South Wales Law Society for their advice and work in representing victims of domestic violence.

This legislation will have a positive effect that will spread throughout the mechanisms that we have and the legal system in our community by reducing stress on victims and, in doing so, allowing those people to get on with their lives and ensure that they can get back on their feet, rather than continuing to mire them in legal processes that so many in the legal profession think that their clients want and, indeed, need. It will also help children. It will also alleviate the pressure on already strained domestic and family violence support services by helping people get back on their feet and get out of the system, and not help them continue to dwell in it. I think that the Attorney-General deserves great credit for this bill that he has brought to the House. I commend this bill to the House.