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Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018

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2016 - 2017 - 2018

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

Family law amendment (family violence and cross-examination of parties) bill 2018

 

 

EXPLANATORY MEMORANDUM

 

 

 

(Circulated by authority of the

Attorney-General, the Honourable Christian Porter MP)

 

                                                                                                        



 

family law amendment (family violence and cross-examination of parties) BILL 2018

General Outline

1.                 The Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018 (the Bill) would ensure that appropriate protections for victims of family violence are in place during cross-examination in all family law proceedings.

2.                 In particular, the Bill would prohibit personal cross-examination in certain circumstances, and require that cross-examination be conducted by a legal representative. Where personal cross-examination is not prohibited, the court would be required to apply other appropriate protections for the victim of family violence.

3.                 It is intended that a party would obtain their own legal representation where possible, and that legal aid would be available where a party is unable to obtain private representation.

4.                 The issue of personal cross-examination of victims by their alleged perpetrators in family law matters is an issue of community concern. Personal cross-examination is where a party asks questions of another party or witness directly, rather than having questions asked by a legal representative. Personal cross-examination by an alleged perpetrator can expose victims of family violence to re-traumatisation and can affect their ability to give clear evidence. It can also be problematic for victims to personally cross-examine their alleged perpetrator due to the power imbalances created by family violence.

5.                 At the Council of Australian Governments National Summit on Reducing Violence against Women and their Children in October 2016, it was agreed that a ban should be placed on the personal cross-examination of victims by their perpetrators in family violence and family law proceedings. In the 2017-18 Budget, the Australian Government announced that legislation would be progressed by the Attorney-General, to implement this ban.

6.                 It is important that any ban balances the need to protect family violence victims from being re-traumatised during their court hearings, with the need for procedural fairness for parties.

7.                 An Exposure Draft of the Family Law Amendment (Family Violence and Cross-examination of Parties) Bill was released on 17 July 2017, with consultation closing on 25 August 2017. The Attorney-General’s Department received 43 submissions in response to the Exposure Draft.

8.                 Key feedback from the majority of stakeholders on the Exposure Draft was that, where cross-examination is prohibited, it should only be conducted by a legal representative. This is to ensure procedural fairness. The measures in the Bill respond to this feedback.

9.                 Some stakeholders submitted that the ban on personal cross-examination should apply in all matters where there are allegations of family violence, not just in certain circumstances. The measures in the Bill respond to this feedback by making it compulsory for the court to apply other appropriate protections for victims of family violence when personal cross-examination is not prohibited.

10.             The Bill also responds to recommendations in the House of Representatives Standing Committee on Social Policy and Legal Affairs report on A better family law system to support and protect those affected by family violence , released on 7 December 2017. In the report the Committee recommends:

·          ‘the Attorney-General introduces the Family Law Amendment (Family Violence and Cross-examination of the Parties) Bill 2017 into the Parliament for its urgent consideration such that perpetrators of family violence will be prohibited from cross-examining the other party including in relation to the qualifications and funding of those appointed to undertake such cross-examination’ (recommendation 12), and

·          ‘that the Family Law Act 1975 (Cth) be amended to extend sections 69ZN and 69ZX, which requires the Court to conduct proceedings in a way which safeguards the parties against family violence in parenting matters, to apply in property division matters’ (recommendation 18).

11.             The Bill would implement recommendation 12. Consistent with recommendation 18, the Bill would also create a requirement for protections to be put in place for victims of family violence in all family law proceedings, including property matters.

12.             Given the important role that cross-examination plays in testing evidence, and the aim of the amendments to reduce potential trauma to victims of family violence in family law proceedings, the Australian Government proposes to review the operation of the proposed amendments. The Bill therefore provides that a review must commence as soon as possible after the second anniversary of the legislation commencing.

FINANCIAL IMPACT

13.             There are no direct financial implications from implementing the measures in the Bill. The Australian Government is working with National Legal Aid to determine the impacts that are expected to result from the measures in the Bill and ensure that adequate funding is available.

 

 



STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Family Law Amendment (Family Violence and Cross-Examination of Parties) Bill 2018

1.                 This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of the Bill

2.                 The Bill would make amendments to the Family Law Act 1975 to ensure that appropriate protections for victims of family violence are in place during cross-examination in all family law proceedings involving allegations of family violence.

3.                 In particular, the Bill would amend the Family Law Act to:

·          Prohibit personal cross-examination where there is an allegation of family violence between parties and any of the following applies:

o    either party has been convicted of, or is charged with, an offence involving violence, or a threat of violence, to the other party,

o    a family violence order (other than an interim order) applies to both parties,

o    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,

o    the court makes an order that personal cross-examination is prohibited.

·          Provide that, if personal cross-examination is prohibited, cross-examination must be conducted by a legal representative.

·          Provide that, if there is an allegation of family violence but personal cross-examination is not prohibited, the court must apply other appropriate protections.

4.                 The Bill anticipates a process through which the court would make a request or direction that the party engage a lawyer - either privately or through legal aid - for the purposes of cross-examination.

Human rights implications

5.                 The Bill engages the following human rights:

·          Eradication of discrimination against women: Articles 2 and 3 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).

·          The right to a fair hearing: Article 14(1) of the International Covenant on Civil and Political Rights (ICCPR)

·          Best interests of the child: Article 3(1) of the Convention on the Rights of the Child (CROC).

·          Protection of children on dissolution of a marriage, and generally: Articles 23(4) and 24(1) of the International Covenant on Civil and Political Rights (ICCPR), and Article 3(2) of the CROC.

Eradication of discrimination against women: Articles 2 and 3 of the CEDAW

6.                 The CEDAW provides for key principles of equality which cover many aspects of women’s lives, including political participation, health, education, employment, marriage, family relations and equality before the law. In particular:

·          Article 2 provides that parties agree to pursue the elimination of discrimination against women, including by introducing new laws or policies, changing existing discriminatory laws and providing sanctions for discrimination where appropriate.

·          Article 3 requires parties to take appropriate measures to ensure women’s full development and advancement, so that they can enjoy human rights and fundamental freedoms on the same basis as men.

7.                 Discrimination against women includes gender-based violence - that is, violence that is directed against a woman because she is a woman, or that affects women disproportionately. Although family violence is perpetrated by both men and women, and against both men and women, and the Family Law Act is accordingly gender-neutral, the majority of those who experience family violence are women. The measures in this Bill seek to better protect victims of family violence, and will therefore in turn address the impacts on women of gender-based violence.

8.                 Personal cross-examination by an alleged perpetrator can expose victims of family violence to re-traumatisation and can affect their ability to give clear evidence. It can also be difficult and/or traumatic for victims of family violence to personally cross-examine their alleged perpetrator, which can affect their ability to test evidence adverse to their case. When these issues arise in family law proceedings, they disproportionately affect women because the majority of victims of family violence are women.

9.                 The Bill provides for appropriate protections for victims to be in place for cross-examination in all family law proceedings involving allegations of family violence. Personal cross-examination would be prohibited in certain circumstances, and would instead be conducted by a legal representative. Where personal cross-examination is not prohibited, the court would be required to apply other appropriate protections for the victim of family violence (such as video link or screens).

10.             This new law supports the elimination of discrimination against women by ensuring women’s full participation in family law proceedings, supporting their full development and advancement on the same basis as men.

The right to a fair hearing: Article 14(1) of the International Covenant on Civil and Political Rights (ICCPR)

11.             Article 14(1) of the ICCPR provides, amongst other things, the right to a fair hearing. This right entails that all persons are equal before courts and in the determination of a person’s rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. Article 14(1) is designed to ensure that all parties to the proceedings in question are treated without discrimination.

12.             What constitutes a fair hearing requires recognition of the interests of all parties in a civil proceeding.  The procedures followed in a hearing should respect the principle of ‘equality of arms’, which requires that all parties to a proceeding must have a reasonable opportunity of presenting their case under conditions that do not disadvantage them as against other parties to the proceedings.  

13.             The purpose of the Bill is to protect victims of family violence from the trauma of being cross-examined personally by perpetrators and promote their access to justice. Personal cross-examination potentially exposes victims to re-traumatisation and can affect their ability to give clear evidence. It can also be problematic for victims to cross-examine their alleged perpetrator personally. Therefore, prohibiting personal cross-examination in family law proceedings where there are allegations of family violence promotes victims’ right to a fair hearing.

14.             Importantly, where personal cross-examination is prohibited, both parties would be required to conduct cross-examination through a legal representative. Therefore, neither party would be disadvantaged and both parties would be provided with reasonable opportunity to present their case.

15.             An unrepresented party who is unwilling to obtain the services of a legal practitioner or accept representation from legal aid, would still be entitled to present his or her case through, for example, his or her own evidence in chief or by personally questioning (including cross-examining) other witnesses. Furthermore, in deciding what orders to make for the purpose of resolving the proceedings, the court would, as part of its ordinary judicial function, be required to form its own view based on the totality of the evidence before it. In particular, the court would not be required to accept as true the evidence provided by the party who was unable to be cross-examined because of the operation of the Bill. A party unable, for this reason, to be cross-examined may be unconvincing (to the court) for other reasons or his or her evidence in chief might have been contradicted by other evidence adduced by the unrepresented party in the proceedings. There would also be some scope for the court itself to ask questions of a witness who was unable to be cross-examined. For these reasons, an unrepresented party who is unwilling to retain legal representation would still be able to present their case and receive a fair hearing.

16.             The Bill is compatible with the right to a fair hearing. In particular, it promotes victims’ right to a fair hearing.

Best interests of the child and the protection of children on dissolution of a marriage, and generally: Articles 3(1) and 3(2) of the CROC and Articles 23(4) and 24(1) of the ICCPR

17.             The CROC recognises that children are entitled to special care and assistance, and that they should grow up in an atmosphere of happiness, love and understanding. In particular:

·          Article 3(1) of the CROC provides that in all actions concerning children, including by courts, the best interests of the child shall be a primary consideration.

·          Article 3(2) of the CROC provides that parties will take appropriate measures to ensure that children have the protection and care necessary for their well-being.

18.             The ICCPR provides for fundamental civil and political rights which derive from the inherent dignity of each person, and makes special provision for children. In particular:

·          Article 23(4) requires parties to take appropriate steps to ensure provision is made for the protection of children on the dissolution of a marriage.

·          Article 24(1) provides for protection for all children, without discrimination, by virtue of their status as minors.

19.             When a court is making a parenting order under the Family Law Act, it is required to regard the best interests of the child as the paramount consideration.

20.             The quality of evidence available to the court impacts on its ability to determine what parenting arrangement will be in a child’s best interests.

21.             Being personally cross-examined by an alleged perpetrator can affect a victim’s ability to give clear evidence. Being required to personally cross-examine their alleged perpetrator can also affect a victim’s ability to test or challenge evidence that is adverse to their case.

22.             Victims of family violence may also be persuaded to settle their matter, agreeing to a child spending time or living with an alleged perpetrator of family violence, due to fear of being cross-examined personally by the alleged perpetrators. This can place children at increased risk of harm.

23.             The Bill provides for protections for victims to be in place for cross-examination in all family law proceedings involving allegations of family violence. Personal cross-examination would be prohibited in certain circumstances, and would instead be conducted by a legal representative. Where personal cross-examination is not prohibited, the court would be required to apply other appropriate protections for the victim of family violence.

24.             These protections support the provision of reliable evidence to the court, strengthening the court’s ability to protect children and make decisions in their best interests.

Conclusion

 

25.             The Bill is compatible with human rights because it promotes the protection of human rights.



NOTES ON CLAUSES

Preliminary

Clause 1 - Short title

1.                    This clause provides for the short title of the Act to be the Family Law Amendment (Family Violence and Cross-examination of Parties) Act 2018 .

Clause 2 - Commencement

2.                    This clause provides for the commencement of each provision in the Bill, as set out in the table. 

3.                    Item 1 of the table provides that the whole of the Act will commence on a day to be fixed by Proclamation. It also provides that if the provisions do not commence by Proclamation within a period of three months beginning on the day the Act receives Royal Assent, then the provisions will commence on the day after the end of the three month period.

4.                    This maximum three month delay is required to allow the family law courts time to make any necessary rules of court and/or practice directions, to enable the amendments to be implemented.

Clause 3 - Schedules

5.                    This is a formal clause that enables each Act specified in a Schedule to the Bill to be amended in accordance with the items set out in the relevant Schedule.

 

Schedule 1 - Amendments

Item 1 - At the end of Part XI

6.                    Item 1 would introduce new ‘Division 4-Cross-examination of parties where allegations of family violence’ into Part XI of the Family Law Act. Part XI of the Family Law Act contains provisions relating to procedure and evidence.

7.                    New Division 4 would contain new sections 102NA, 102NB, and 102NC. New sections 102NA, 102NB, and 102NC would apply to all proceedings under the Family Law Act.

New section 102NA - Mandatory protections for parties in certain circumstances

8.                    New section 102NA would provide that if, in proceedings under the Family Law Act, a party intends to cross-examine another party, there is an allegation of family violence between the parties, and certain circumstances are satisfied, mandatory requirements would apply to that cross-examination. The mandatory requirements are that:

·          the parties must not personally cross-examine each other, and

·          the cross-examination must be conducted by a legal representative acting on behalf of the examining party.

9.                    New section 102NA would apply both in the case where the examining party is the alleged perpetrator of the family violence and the witness party is the alleged victim, and in the case where the examining party is the alleged victim and the witness party is the alleged perpetrator. This means that an alleged perpetrator would be prohibited from personally cross-examining the victim, and the victim would also be prohibited from personally cross-examining the alleged perpetrator. Both the alleged perpetrator and the victim would be required to conduct cross-examination through a legal representative.

10.                New section 102NA would not limit other laws that apply to protect witnesses. For example, the requirement in existing section 101 of the Family Law Act that the court forbid the asking of offensive questions would continue to apply when the mandatory requirements for cross-examination apply.

11.                New section 102NA would apply to all parties to proceedings where there is an allegation of family violence between those parties and one or more of the circumstances are satisfied. This includes intervening parties, but only if the intervening party is involved in the allegation of family violence, whether as the alleged perpetrator or as the alleged victim.

When the mandatory requirements apply - new subsection 102NA(1)

12.                New subsection 102NA(1) would set out the three conditions for when the mandatory requirements, set out in new subsection 102NA(2), apply to cross-examination in family law proceedings.

13.                The first condition is that a party (the examining party) intends to cross-examine another party (the witness party) (new paragraph 102NA(1)(a)). This means that if a party does not intend to cross-examine another party, there are no mandatory requirements that apply to cross-examination, because cross-examination will not occur.

14.                The second condition is that there is an allegation of family violence between those two parties (new paragraph 102NA(1)(b)). It is intended for this to capture all allegations of family violence made at any stage of the proceedings. Family violence is defined in existing section 4AB of the Family Law Act.

15.                 The third condition is that any of the following circumstances, set out in new paragraph 102NA(1)(c), apply:

·          either party has been convicted of, or is charged with, an offence involving violence, or a threat of violence, to the other party (new subparagraph 102NA(1)(c)(i))

·          a family violence order (other than an interim order) applies to both parties (new subparagraph 102NA(1)(c)(ii))

·          an injunction under section 68B or 114 for the personal protection of either party is directed against the other party (new subparagraph 102NA(1)(c)(iii)), or

·          the court makes an order that the mandatory requirements apply to the cross-examination (new subparagraph 102NA(1)(c)(iv)).

Either party has been convicted of, or is charged with, an offence involving violence, or a threat of violence, to the other party - new subparagraph 102NA(1)(c)(i)

16.                Where there is an allegation of family violence, the mandatory requirements for cross-examination would apply if one party has been convicted of an offence involving violence against the other party, or is currently charged with such an offence.

17.                In circumstances where a party has been found guilty of an offence of violence against the other party, another court has made a finding of fact that violence occurred. Where a party is currently charged with an offence of violence against the other party, the police have determined that there is sufficient evidence to charge that party with an offence. In both instances, it is appropriate that the mandatory requirements apply so that the victim is protected from being personally cross-examined by the alleged perpetrator, or from having to personally cross-examine the alleged perpetrator. The automatic ban on cross-examination in matters where a party has been charged, but not convicted, does not presume the guilt of that party to the charge against them. It merely recognises that a family violence charge between those parties infers a power imbalance that requires a certain level of protection for those parties.

18.                Procedural fairness for both parties would be ensured, as both parties may still conduct cross-examination through a legal representative.

A family violence order (other than an interim order) applies to both parties - new subparagraph 102NA(1)(c)(ii)

19.                Where there is an allegation of family violence, the mandatory requirements for cross-examination would apply if a family violence order (other than an interim family violence order) currently applies to both parties.

20.                Where a final family violence order currently applies between parties, there is a final court order in existence that requires a party to be protected from family violence. It is therefore appropriate that the mandatory requirements apply so that the victim is protected from being personally cross-examined by the alleged perpetrator, or from having to personally cross-examine the alleged perpetrator.

21.                Procedural fairness for both parties would be ensured, as both parties may still conduct cross-examination through a legal representative.

22.                 ‘Family violence order’ is defined in existing section 4 of the Family Law Act to mean ‘an order (including an interim order), made under a prescribed law of a State or Territory to protect a person from family violence.’ The State and Territory laws are prescribed in Schedule 8 to the Family Law Regulations 1984 . New subparagraph 102NA(1)(c)(ii) differs from the definition of ‘family violence order’ in existing section 4 of the Family Law Act, because it explicitly excludes interim family violence orders.

23.                Interim family violence orders have been excluded because they may be made ex parte and/or without a hearing. This leaves open the potential for a party to obtain an interim family violence order shortly before or during a family law trial, for the purpose of delaying or frustrating the trial.

24.                Where an interim family violence order applies to both parties, a victim of family violence would be able to apply to the court for the mandatory requirements to apply. The court would also be able to make such an order on its own initiative (see new subparagraph 102NA(1)(c)(iv) and new subsection 102NA(3)).

An injunction under section 68B or 114 for the personal protection of either party is directed against the other party - new subparagraph 102NA(1)(c)(iii)

25.                Where there is an allegation of family violence, the mandatory requirements for cross-examination would apply if an injunction under existing sections 68B or 114 for the personal protection of either party is directed against the other party.

26.                Where a family law injunction for personal protection currently applies between parties, the court has determined that a party is in need of protection from the other party. It is therefore appropriate that the mandatory requirements apply so that the victim is protected from being personally cross-examined by the alleged perpetrator, or from having to personally cross-examine the alleged perpetrator.

27.                Procedural fairness for both parties would be ensured, as both parties may still conduct cross-examination through a legal representative.

The court makes an order that the mandatory requirements apply to the cross-examination -new subparagraph 102NA(1)(c)(iv)

28.                If there is an allegation of family violence, but none of the circumstances set out in new subparagraphs 102NA(1)(c)(i) to (iii) apply, the court would nevertheless be able to make an order that the mandatory requirements apply to the cross-examination. For example, the court could make an order under this subparagraph 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.  

Mandatory requirements for cross-examination - new subsection 102NA(2)

29.                Subsection 102NA(2) sets out the requirements that would apply to cross-examination where the conditions of subsection 102NA(1) are satisfied.

30.                The first requirement, set out in paragraph 102NA(2)(a), is that the examining party must not cross-examine the witness party personally. This means that, when the conditions are met, the alleged perpetrator would be prohibited from personally cross-examining the victim, and the victim would also be prohibited from personally cross-examining the alleged perpetrator.

31.                Personal cross-examination by an alleged perpetrator can expose victims of family violence to re-traumatisation and can affect their ability to give clear evidence. It can also be difficult and/or traumatic for victims of family violence to personally cross-examine their alleged perpetrator, which can affect their ability to test evidence adverse to their case.

32.                The second requirement, set out in paragraph 102NA(2)(b), is that the cross-examination must be conducted by a legal practitioner acting on behalf of the examining party.

33.                This means that, where personal cross-examination is prohibited, both parties would be required to conduct cross-examination through legal representatives. Because the requirement applies to both parties, neither party would be disadvantaged and both parties would be provided with reasonable opportunity to present their case.

34.                These amendments anticipate a process in which the court, before a final hearing, would make a request or direction that a party engage a lawyer. It is expected that a party would seek private legal representation, where possible. If they cannot obtain private legal representation, they could subsequently seek representation through legal aid. It is intended that these arrangements would be provided for in the court rules and/or practice directions as necessary, to ensure that the courts are able to determine the internal processes and procedures that will best facilitate legal representation and minimise delays for the courts. It is intended that the three month delay for commencement would allow the courts time to make any necessary rules of court and/or practice directions.

35.                The amendments would not produce any procedural unfairness or practical injustice, as a party who wishes to conduct a cross-examination would be at liberty to obtain the assistance of a legal practitioner to act on his or her behalf. It is intended that the court would allow a party adequate time to obtain legal representation, and that legal aid would be available where a party is unable to obtain private representation.

36.                The Australian Government is consulting with National Legal Aid to determine the process by which parties would obtain legal aid representation.

37.                It is intended that, where a party refuses to engage a lawyer or accept representation from legal aid, they would be prohibited from conducting a cross-examination. The consequences of such a refusal would essentially be a matter of choice for the party as to how he or she wishes to conduct his or her own case.

38.                Note 1, after new subsection 102NA(2), aims to assist readers by highlighting that the requirement to conduct cross-examination through a legal representative applies to both the alleged perpetrator and to the alleged victim.

39.                Note 2, after new subsection 102NA(2), clarifies that new section 102NA does not limit other laws that apply to protect the witness party.

40.                Note 3, after new subsection 102NA(2), highlights that new section 102NA also applies to an intervening party, but only if that intervening party is involved in the allegation of family violence as the alleged perpetrator or the alleged victim.

When the court may make an order under subparagraph 102NA(1)(c)(iv) - new subsection 102NA(3)

41.                New subsection 102NA(3) would provide that the court may make an order under new subparagraph 102NA(1)(c)(iv) that the mandatory requirements apply to the cross-examination:

·          on its own initiative (new paragraph 102NA(3)(a)), or

·          on the application of

o    the witness party (new subparagraph 102NA(3)(b)(i)), or

o    the examining party (new subparagraph 102NA(3)(b)(ii)), or

o    an independent children’s lawyer if one has been appointed (new subparagraph 102NA(3)(b)(iii)).

42.                When exercising its discretion to make an order that the mandatory requirements apply to the cross-examination, it is intended that the court would have regard to the need to ensure protection from family violence (existing paragraph 43(1)(ca)) and that the mandatory requirements are intended to operate for the benefit of the victim of the family violence.

New section 102NB - Court-ordered protections in other cases

43.                New section 102NB would provide that if, in proceedings under the Family Law Act:

·          a party intends to cross-examine another party personally (new paragraph 102NB(a)), and

·          there is an allegation of family violence between the parties (new paragraph 102NB(b)), and

·           new section 102NA does not apply to prevent the party from personally cross-examining the other party (new paragraph 102NB(c))

then the court must ensure that during cross-examination there are appropriate protections for the party who is the alleged victim of the family violence.

44.                It is intended for new paragraph 102NB(b) to capture all allegations of family violence made at any stage of the proceedings. Family violence is defined in existing section 4AB of the Family Law Act.

45.                The requirement to apply appropriate protections where new section 102NA does not apply would ensure that victims of family violence are appropriately protected in all family law proceedings. This includes property proceedings.

46.                ‘Protections’ in new section 102NB refers to the range of existing protections available to the court under the Family Law Act, the Evidence Act 1995 , and the court’s general power to control proceedings. These protections include, but are not limited to:

·          In property and child-related proceedings:

o    directing or allowing a person to give testimony and/or appear by video or audio link (for example from another location or in the same court facility) [Sections 102C-102D Family Law Act]

o    disallowing questions asked in a manner or tone that is inappropriate or that has no basis other than a stereotype [Section 41 Evidence Act]

o    disallowing misleading or confusing questions [Section 41 Evidence Act]

o    changing the venue of a hearing to a safer location [Section 27A Family Law Act, Section 52 Federal Circuit Court of Australia Act 1999 , Rule 11.17 Family Law Rules 2004 , Rule 8.01 Federal Circuit Court Rules 2001 ]

o    requiring that an alleged perpetrator be shielded from view while the victim is giving evidence [general power to control proceedings]

o    allowing the victim to have a support person near them while giving evidence [general power to control proceedings]

o    closing the court to the public or excluding specific persons from the courtroom [general power to control proceedings], and

o    with forewarning, determining the proceedings be concluded without further input from a party [general power to control proceedings].

·          In child-related proceedings:

o    giving directions or making orders about how particular evidence is to be given [Paragraph 69ZX(1)(c) Family Law Act], and

o    receiving into evidence the transcript of evidence in any other proceedings before the court or another court or tribunal, and drawing from that transcript any conclusions of fact that it thinks proper, and adopting any of the recommendations, findings, decisions or judgment of those bodies [Subsection 69ZX(3) Family Law Act].

47.                Note 1, under new section 102NB, aims to assist the reader by providing the example that the court may consider it appropriate to give a direction that cross-examination be conducted by video or audio link.

48.                Note 2, under new section 102NB, highlights that new section 102NB would not limit other laws that apply to protect witnesses. For example, the requirement in existing section 101 of the Family Law Act that requires the court to forbid the asking of offensive questions would continue to apply.

New section 102NC - Review of this Division

49.                New section 102NC would provide that a review of the amendments must be commenced as soon as possible after the second anniversary of the legislation commencing (new paragraph 102NC(a)). New section 102NC would also provide that, before the second anniversary, the review period may be altered by regulation (new paragraph 102NC(b)). The review period may need to be altered if more time is required to meaningfully evaluate the changes.

50.                The intention of a review would be to ensure that the amendments are operating as intended to reduce potential trauma to victims of family violence, while also maintaining procedural fairness for all parties.

51.                The Attorney-General’s Department will review the amendments internally, in consultation with the family law courts, National Legal Aid and other relevant stakeholders.

Item 2 - Application

52.                 Item 2 provides that the amendments would apply to cross-examinations that occur six months after the commencement of the amendments, in proceedings instituted before or after that commencement.

53.                Assuming the maximum three month commencement period in Clause 2, the amendments would apply to cross-examinations that occur nine months after Royal Assent. Alternatively, should the Bill be proclaimed to commence earlier than three months after Royal Assent, the amendments would apply to cross-examinations that occur six months after that commencement.

54.                This would ensure that there is adequate time to facilitate legal representation for matters already on foot. It would also ensure that delays are minimised for matters that are already listed for final hearing.

55.                Application of the amendments to cross-examinations in proceedings instituted before commencement is necessary to ensure that victims of family violence are appropriately protected. Parties will not be disadvantaged by the amendments, as the requirement for cross-examination to be conducted by legal representatives will ensure procedural fairness for both the alleged victim and the alleged perpetrator.