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



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ISSN 1328-8091

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BILLS DIGEST NO. 18, 2018-19 28 AUGUST 2018

Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018 Mary Anne Neilsen Law and Bills Digest Section

Contents

Purpose of the Bill ........................................................... 3

Background ..................................................................... 3

The state of family law .............................................. 3

Direct cross-examination in family law proceedings ............................................................... 4

Exposure Draft ........................................................... 5

The extent of direct cross-examination in family law proceedings: Australian Institute of Family Studies ....................................................................... 5

Committee consideration ................................................ 6

Senate Legal and Constitutional Affairs Legislation Committee ................................................ 6

Senate Standing Committee for the Scrutiny of Bills .............................................................................. 7

Policy position of non-government parties ....................... 7

Labor .......................................................................... 7

Australian Greens ...................................................... 8

Position of major interest groups..................................... 8

Law Council of Australia ............................................ 8

Dr Tracey Booth, Miranda Kaye and Dr Jane Wangmann ................................................................ 9

Australian Human Rights Commission .................... 10 New South Wales Bar Association .......................... 10

Women’s Legal Services Australia ........................... 11

National Legal Aid.................................................... 11

Date introduced: 28 June 2018

House: House of Representatives

Portfolio: Attorney-General

Commencement: Three months from the day after Royal Assent or earlier by Proclamation.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at August 2018.

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Financial implications .................................................... 11

Statement of Compatibility with Human Rights.............. 11

Parliamentary Joint Committee on Human Rights ... 11 Key issues and provisions .............................................. 11

Section 102NA: Mandatory protections for parties in certain cases .............................................. 12

Mandatory ban versus court discretion: comment ................................................................. 12

Legal representation and funding: comment ......... 13 Factors triggering the prohibition on direct cross-examination: comment ................................. 14

Section 102NB: Court ordered protections in other cases ................................................................ 15

Section 102NBC: Review of the amendments .......... 15 Concluding comments ................................................... 16

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Purpose of the Bill The purpose of the Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018 (the Bill) is to amend the Family Law Act 1975 to provide appropriate protections for victims of family violence during cross-examination in family law proceedings. 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.

Background

The state of family law It is often suggested that the family law system is in crisis, beset by a lack of resources and federal funding, with an exponentially increasing workload leading to unacceptably long delays.1 Much of the recent controversy and debate about the family law courts has focused on the courts’ handling of the complex problems of family violence.2 As various studies have indicated, families with complex needs, including those related to violence, are the predominant clients of the family law system.3 Compounding these problems is the significant number of self-represented litigants, many of whom cannot afford legal representation and are traumatised as a result of family violence and the abuse of children and find it challenging to navigate the family law system.

There are a number of major initiatives underway aimed at addressing these problems, one of the more significant being an Australian Law Reform Commission (ALRC) inquiry. The ALRC has been asked by the Turnbull Government to inquire into the state of Australia’s family law system and report to the Government in March 2019. This inquiry represents the first comprehensive review of the Act since the legislation commenced in 1976.4

Another recent and more controversial initiative is the Government’s announced intention to restructure Australia’s federal courts. This includes the establishment of a new ‘Federal Circuit and Family Court of Australia’ and a new Family Law Appeal Division in the Federal Court of Australia to commence operation from 1 January 2019.5

The Government is also progressing other legislative changes affecting family law, with the Family Law Amendment (Family Violence and Other Measures) Bill 2017 and the Family Law Amendment (Parenting Management Hearings) Bill 2017, both introduced into Parliament in December 2017.6 These Bills have received mixed reviews with a number of stakeholders arguing, amongst other things, that such complex reforms should be delayed until the ALRC inquiry is complete. Further

1. For a fuller account of the family law system see: M Neilsen Family Law Amendment (Parenting Management Hearings) Bill 2017, Bills digest, 98, 2017-18, Parliamentary Library, Canberra, 24 April 2018. 2. Family courts, in this Bills Digest, generally refer to the Family Court of Australia and the Federal Circuit Court of Australia. Family violence, the term used throughout the Bill, is defined by section 4AB of the Family Law Act to be ‘violent, threatening

or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful,’ which includes a sexual assault or other sexually abusive behaviour. 3. M Neilsen, Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011, Bills digest, 126, 2010-11, Parliamentary Library, Canberra, 25 May 2011, p. 7. 4. Australian Law Reform Commission, (ALRC), ‘Review of the family law system’, review homepage, ALRC website; G Brandis

(Attorney-General), First comprehensive review of the Family Law Act, media release, 27 September 2017. 5. C Porter, Court reforms to help families save time and costs in family law disputes, media release, 30 May 2018; C Porter, ‘Structural reform, not more judges, needed’, The Australian, 3 August 2018, p. 26. 6. Parliament of Australia, ‘Family Law Amendment (Family Violence and Other Measures) Bill 2017 homepage’, Australian

Parliament website; Parliament of Australia, ‘Family Law Amendment (Parenting Management Hearings) Bill 2017 homepage’, Australian Parliament website.

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information about these Bills and the state of family law more generally is available in the relevant Bills Digests.7

It is in the context of this complex and changing environment that the current Bill was introduced into Parliament on 28 June 2018.

Direct cross-examination in family law proceedings As the Explanatory Memorandum states, the issue of direct cross-examination of victims of family violence by their alleged perpetrators in family law matters has been an issue of community concern for several years.8 Direct cross-examination is where a party asks questions of another party or witness directly, rather than having questions asked by a legal representative. Direct cross-examination occurs particularly in cases where the parties are self-represented.

Direct 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 directly cross-examine their alleged perpetrator due to the power imbalances created by family violence.9

Courts exercising jurisdiction under the Family Law Act have a range of powers to protect vulnerable witnesses during hearings, including alleged victims of family violence. For example, they have specific powers under the Act to order that witnesses can give evidence via video-link and disallow cross-examination of witnesses in child-related proceedings.10 These powers are described in the Family Violence Best Practice Principles, published by the Family Court of Australia and the Federal Circuit Court of Australia.11

A number of inquiries and reports going back several years have considered the matter of personal cross-examination and made recommendations to ban or restrict direct cross-examination in family law matters involving allegations of family violence.

For example, the Productivity Commission recommended, in its 2014 Access to Justice Arrangements inquiry report, that the Family Law Act be amended ‘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’ (recommendation 24.2).12

Also, 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 direct cross-examination of victims by their perpetrators in family violence and family law proceedings.13

The House of Representatives Standing Committee on Social Policy and Legal Affairs 2017 Parliamentary Inquiry into a Better Family Law System to Support and Protect Those Affected by

7. M Neilsen, Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2017, Bills digest, 66, 2017-18, Parliamentary Library, Canberra, 25 January 2018; M Neilsen, Family Law Amendment (Parenting Management Hearings) Bill 2017, op. cit.

8. Explanatory Memorandum, Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018, p. 2. 9. Ibid.

10. Attorney-General’s Department (AGD), Proposed amendments to the Family Law Act 1975 (Cth) to address direct cross-examination of parties in family law proceedings involving family violence: public consultation paper, AGD, July 2017, pp. 3-4. 11. A relevant extract of the Family Violence Best Practice Principles is set out in Appendix 1 of Proposed amendments to the Family Law Act 1975, op. cit. 12. Productivity Commission, Access to justice arrangements, Inquiry report, 72, 5 September 2014, p. 69; AGD, Submission to

Senate Legal and Constitutional Affairs Legislation Committee, Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018, p. 2. 13. AGD, Submission, op. cit., p. 2.

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Family Violence (Better Family Law Inquiry) recommended that a Bill be introduced into Parliament to prohibit perpetrators of family violence from cross-examining the other party (recommendation 12).14

Despite this apparent consensus that reform is needed, the issue is complex and not amenable to a simple or quick solution. Any proposal that would impose a mandatory prohibition on direct cross-examinations in proceedings raises questions regarding procedural fairness and the right to a fair trial. These matters are discussed in greater detail in other sections of the Bills Digest.

Exposure Draft In July 2017 an Exposure Draft of the Bill was released for public consultation from 17 July 2017 to 25 August 2017.15 The Attorney-General’s Department (AGD) received 43 submissions from organisations, recognised experts, judicial officers writing in their personal capacity, and members of the public.16

Consistent with the Bill, the Exposure Draft contained a legislative ban which would prevent an unrepresented party from directly cross-examining, or being cross-examined by, another party if there is an allegation of family violence between them, and certain circumstances apply.17 Like the Bill, the Exposure Draft also provided a discretion for the court to prevent direct cross-examination in instances where the legislative ban does not apply but an allegation of family violence between parties exists.

However the Exposure Draft differed in three significant respects to the Bill:

• in cases of a mandatory ban on direct cross examination the Exposure Draft provided that an intermediary (rather than a legal representative) could conduct the cross-examination

• the Exposure Draft contained a discretion for the court to grant leave for direct cross-examination by the parties despite the ban applying, where the parties consent to this occurring and the court considers it appropriate to do so having regard to the quality of the evidence and the potential impact on the family violence victim and

• the Exposure Draft did not specify that the court must apply existing protections where the ban does not apply.

AGD states that changes in the Bill in relation to these three points were made in response to stakeholder feedback.18

The extent of direct cross-examination in family law proceedings: Australian Institute of Family Studies In the month preceding the release of the Exposure Draft Bill, AGD also engaged the Australian Institute of Family Studies (AIFS) to work with the family courts to determine the prevalence of direct cross-examination in family law proceedings involving allegations of family violence.19

14. House of Representatives Standing Committee on Social Policy and Legal Affiars, A better family law system to support and protect those affected by family violence, House of Representatives, Canberra, December 2017, p. 158; AGD, Submission, op. cit., p. 2.

15. AGD, Exposure draft-Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2017, AGD website. 16. Ibid; AGD, Submission op. cit., p. 4. 17. Exposure Draft—Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2017. 18. AGD, Submission, op. cit., pp. 4-5. 19. R Carson, L Qu, J De Maio and D Roopani, Direct cross-examination in family law matters, Australian Institute of Family

Studies, 28 June 2018.

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The AIFS research found that up to 227 matters involving allegations of family violence and at least one self-represented party proceeded to final hearing in the Family Court of Australia or the Federal Circuit Court of Australia over two years (between 2015 and 2017). Direct cross-examination may have occurred in up to 173 of those 227 matters.20

The AIFS report, published on 28 June 2018, the day the Bill was introduced into Parliament, was used to inform further stakeholder consultations and support the policy development of the Bill.21

While the Attorney-General has referred to the ‘very small number of cases’ that the AIFS study has revealed,22 a number of stakeholders have questioned this assumption and suggest that this data may not present a full picture. For example, Women’s Legal Service Australia (WLSA) states that the data does not consider the possibly large but unknown number of cases which settled due to the threat of cross-examination, or the victims who chose not to engage with the family law system at all for fear of further harm.23 While acknowledging the findings of the AIFS report are useful, WLSA argues the findings should not be used to inform the anticipated volume of court users whose circumstances may trigger the protections in the Bill. WLSA considers that once the protections in the Bill are in place the number of women and victim-survivors of family violence who proceed to trial will significantly increase and will be greater than that flagged in the AIFS report.24

WLSA argues that it is therefore important:

[… that] appropriate funding and steps need to be in place so that the additional protections which the Bill seeks to provide to women and victim-survivors of family violence can be properly and safely implemented to all those eligible for such protections. 25

Committee consideration

Senate Legal and Constitutional Affairs Legislation Committee The Bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report by 13 August 2018. Details of the inquiry are at the Committee homepage.

The Committee, in its report, was unanimous in recommending that details regarding the funding of the measures contained in the Bill be made public prior to the commencement of debate on the Bill in the Senate. Subject to this recommendation being implemented, the Committee recommended that the Bill be passed.26

A selection of views expressed in submissions to the Senate inquiry is provided throughout the Bills Digest.

20. Quoted in: AGD, Submission, op. cit., p. 3. 21. Ibid. 22. C Porter (Attorney-General), Doorstop: Introduction of the Defence Amendment (Call Out of the Australian Defence Force) Bill 2018, media release, 28 June 2018.

23. Women’s Legal Service Australia (WLSA), Submission to Senate Legal and Constitutional Affairs Legislation Committee, Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018, 10 July 2018, p. 4. 24. Ibid. 25. Ibid. 26. Senate Legal and Constitutional Affairs Legislation Committee, Family Law Amendment (Family Violence and Cross-

examination of Prties) Bill 2018 [Provisions], The Senate, Canberra, August 2018, p. vii.

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Senate Standing Committee for the Scrutiny of Bills The Senate Scrutiny of Bills Committee (Scrutiny Committee) raised a number of questions with the Bill.27 The first relates to proposed paragraph 102NA(1)(c)(iv) which allows the court a broad discretion to order that direct cross-examination is prohibited in cases where there are allegations of family violence. The Committee requests the Attorney-General’s advice as to why such a discretion should apply and also asks whether an amendment would be appropriate setting out legislative guidance as to when the discretion should be exercised.28

The Scrutiny Committee also has questions regarding Legal Aid. It observes:

… there does not appear to be anything on the face of the bill which would require that legal aid be made available to persons to whom the mandatory requirements apply. Further, while the explanatory memorandum states that arrangements would be provided for in the court rules and/or practice directions to facilitate legal representation and to minimise delays, it is not apparent that these arrangements would be directed at ensuring access to legal aid. In this regard, the committee notes that reports have found that retaining a private lawyer can be prohibitively costly, while legal aid means tests are often set at a level that allows only the poorest Australians to be eligible, leaving many individuals unable to afford private legal representation but nevertheless ineligible for legal aid.

29

The Committee therefore asks the Attorney-General’s advice as to:

 the circumstances in which legal aid would be available to parties to family law proceedings involving allegations of family violence; and

 whether, in the circumstances that a person is subject to the prohibition on personal cross-examination or to other restrictions on their ability to present their own case, legal aid will be made more readily available. 30

Policy position of non-government parties

Labor Labor supports the Bill, while also noting that the Government has been ‘incredibly slow to act on calls for reform’.31 The relevant Shadow Ministers, in their media release on the Bill, also raised questions regarding resources and funding for this initiative. They point to the already over-stretched legal-aid lawyers who without extra funding will be unable to take on the extra workload created by the Bill. They state:

Mr Porter needs to explain how he expects Legal Aid to meet this extra demand without any extra funding, and should detail the consultation he has had with the sector on this issue.

It is incredibly important that this overdue change is given the resources necessary for it to work. Domestic violence victims can wait no longer. 32

27. Senate Scrutiny of Bills Committee, Scrutiny digest, 8, 2018, The Senate, 15 August 2018, pp. 14-17. 28. Ibid., p. 16. 29. Ibid. 30. Ibid. 31. M Dreyfus (Shadow Attorney-General), T Plibersek (Shadow Minister for Education and Training) and T Butler (Shadow

Assistant Minister for Preventing Family Violence), Cross-examination: where is the funding, media release, 28 June 2018. 32. Ibid.

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Australian Greens The Greens state that the Bill is ‘a step in the right direction to lessen the trauma of survivors of abuse as they go through the court process’.33

However, while welcoming the Bill, Greens’ justice spokesperson Senator McKim also says ‘there is so much more that can [be] done to support survivors of family violence’.34

Position of major interest groups The Senate Committee inquiring into the Bill received 33 submissions from a range of different stakeholders including the courts, the legal profession, human rights advocates, women’s legal services, academics and various advocates of children’s and women’s rights.35

Generally submitters support the idea of protecting family violence victims from being re-traumatised during court hearings, however many, particularly members of the legal profession, question the provisions that impose mandatory exclusion from direct cross-examination and remove court discretion. They argue that these provisions raise serious questions of procedural fairness. Another recurring concern in submissions relates to funding issues and the financing of Legal Aid. Some suggest that enforcing legal representation without appropriate funding of Legal Aid may disadvantage the most vulnerable litigants, the ones whom the Bill is in fact aiming to protect.

A selection of submitters’ views are set out here and the Keys issues and provisions section below provides further views on the specific provisions.

Law Council of Australia The Law Council observes that proceedings involving direct cross-examination between perpetrators and victims at trial, whilst raising significant concerns, are of limited number in the family law system.36 Also, as the submission notes, there are already significant legislative tools to protect victims from improper exposure:

Where such issues do arise there are significant tools available to trial judges in the Evidence Act 1995 (Cth) to properly protect victims from improper and unnecessary exposure to perpetrators and are common to many courts. Further, Division 12A of the Family Law Act provides explicit powers to a trial judge in parenting proceedings to directly control the issues permitted to be pursued in proceedings and the mode by which this is to occur, including in respect of cross-examination. Division 12A also permits a court to make any necessary preliminary determination, including as to whether there has in fact been family violence between an alleged perpetrator and victim and the consequences of the same, including in terms of the proper conduct of the proceedings subsequently.

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The Law Council also explains that the right to cross-examine the other party is an essential part of any adversarial system of justice and for that reason it has concerns about removal of that right:

Proceedings under the Family Law Act are essentially adversarial in nature. While Division 12A provides for greater powers, some of an inquisitorial nature, in parenting proceedings, such proceedings along with financial proceedings remain fundamentally adversarial in nature. Fundamental to any adversarial

33. N McKim, Family violence cross-examination changes, media release, 28 June 2018. 34. Ibid. 35. Senate Legal and Constitutional Affairs Legislation Committee, Submissions to the inquiry into the Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018, The Senate, Canberra, 2018.

36. Law Council of Australia, Submission to Senate Legal and Constitutional Affairs Legislation Committee, Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018, 16 July 2018, p. 6. 37. Ibid., pp. 6-7.

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system of justice and the right of a party to a fair trial is the right to cross-examine the other party and the witnesses she or he may rely upon. 38

Apart from these broader concerns, the Law Council has serious reservations about several aspects of the Bill including:

• the lack of clarity regarding the proposed model for participation of a lawyer to perform the cross-examination. The Law Council would like to know if a legally aided lawyer will only be appointed to perform the cross-examination, or will they be appointed to act for the party for the entire hearing. The Law Council also notes that the Bill does not provide a solution to the situation where a litigant may attempt to delay proceedings deliberately by refusing to co-operate with the cross-examining lawyer acting on his or her behalf

• the failure by government to confirm that extra funding will be provided to Legal Aid Commissions to enable them to perform this vital role of cross-examination

• the lack of clarity regarding the guidelines that will be applied by Legal Aid Commissions to people who cannot afford a private lawyer to act for them and who seek the appointment of a legally aided lawyer and

• the uncertainty about what is to occur if a party cannot afford a private lawyer and is not eligible for Legal Aid. The Law Council is particularly concerned that situations may arise where the perpetrator is legally represented, but the victim of family violence is unable to secure legal representation.39

Dr Tracey Booth, Miranda Kaye and Dr Jane Wangmann Academics from the University of Technology Sydney, Dr Tracey Booth, Miranda Kaye and Dr Jane Wangmann, agree that reform preventing or limiting direct personal cross-examination in family law proceedings is required. While they consider the current Bill is an improvement on the Exposure Draft they continue to have several concerns with the Bill.40

They believe that there should be discretion to grant leave for direct cross-examination, although this should be used sparingly. They also argue that removing all discretion, as the Bill does, removes women’s autonomy. They point to state family violence legislative models that do allow a discretion, although also noting that comparisons between state jurisdictions and the very different federal family law jurisdiction can be problematic.41 In a separate article they state:

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.

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They note that the family courts have sought to draw attention to these differences in their recent submissions to various inquiries and they quote the Family Court of Australia who, in the Better

38. Ibid., p. 7. 39. Ibid., p. 6. 40. T Booth, M Kaye and J Wangmann, Submission to Senate Legal and Constitutional Affairs Legislation Committee, Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018, p. 2.

41. Ibid. Further information about state and territory models that operate in relation to sexual assault and family violence related criminal proceedings can be found in M Kaye, J Wangmann and T Booth, ‘Preventing personal cross-examination of parties in family law proceedings involving family violence’, Australian Journal of Family Law, 31(2), December 2017, pp. 94-117. In this article the authors note that the nature and extent of these reforms vary considerably and they make the interesting point that little is known about how these protective measures operate in their respective jurisdictions, nor whether any model or approach is preferable over any other. They also point out that even if there were an evidence base informing which model is working most effectively in a jurisdiction, it should not be assumed that it is possible to transpose that model to the family law jurisdiction.

42. Kaye, Wangmann and Booth, ‘Preventing personal cross-examination’, op. cit., p. 114.

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Family Law Inquiry, drew 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.

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As Booth, Kaye and Wangmann also note, many self-represented litigants who are victims of family violence are unable to afford legal representation and are not entitled to Legal Aid. In those circumstances it would be unfair to require these victims to pay for costly legal representation or lose the right to cross-examine the perpetrator of the abuse. Like many other submitters, they also argue that Legal Aid funding should be increased to allow Legal Aid to take on representation of self-represented litigants in such cases.44

Australian Human Rights Commission The Australian Human Rights Commission (AHRC) emphasises the need to ensure that legislative reforms do not commence until availability of Legal Aid for these matters is guaranteed, to ensure that unrepresented parties to whom the provisions in this Bill apply are not disadvantaged in putting their case before the court.45

New South Wales Bar Association The New South Wales Bar Association does not believe that the Bill achieves the right balance between the aim of protecting family violence victims from being re-traumatised during their court hearings with the need for procedural fairness for parties.46

The Bar Association believes there should be no automatic ban on cross-examination in any circumstances as an automatic ban may prejudice both the interests of victims and alleged perpetrators, while constraining the court’s ability to properly determine necessary issues including a finding that family violence has occurred.47

In the Bar Association’s view, the Bill may result in the unintended consequences of shifting the impact on victims of family violence and the associated resource burden to state-based court system.48

It also argues that the passage of the Bill should be postponed until the full impact of the Government’s planned restructure of the courts is known and the ALRC inquiry been completed.49

43. Ibid. The Family Court’s full submission can be found at: Standing Committee Social Policy and Legal Affairs, Parliamentary Inquiry into a Better Family Law System to Support and Protect Those Affected by Family Violence, Submissions. 44. Kaye, Wangmann and Booth, Submission, op. cit., pp. 2-3. 45. Australian Human Rights Commission (AHRC), Submission to Senate Legal and Constitutional Affairs Legislation Committee,

Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018, 17 July 2018, p. 2. 46. New South Wales Bar Association, Submission to Senate Legal and Constitutional Affairs Legislation Committee, Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018, July 2018, p. 4. 47. Ibid. 48. Ibid., p. 6. 49. Ibid.

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Women’s Legal Services Australia Women’s Legal Services Australia (WLSA), while supportive of the Bill, argues that the protections offered by this Bill can only make a real difference with:

• proper funding to ensure that both the victim and the perpetrator have a legal representative to act on their behalf and conduct the cross-examination properly for them and

• further reform to improve the understanding of the family law courts and all professionals within the system of the dynamics of family violence and trauma informed and trauma based responses.50

National Legal Aid National Legal Aid supports the intention of the Bill but considers that its effective implementation will require the establishment of a scheme for appropriate legal representation of the parties and a special Commonwealth fund or funding source dedicated to support the scheme.51

Financial implications The Explanatory Memorandum states that there are no direct financial implications from implementing the measures in the Bill.52 It also states that the 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’.53

Despite this statement, a number of stakeholders have questioned the financial implications, arguing that it is unclear how Legal Aid will be supported to meet the new demands created by the Bill without further funding and investment by the Commonwealth.54

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.55

Parliamentary Joint Committee on Human Rights The Parliamentary Joint Committee on Human Rights has reported that it considers the Bill does not raise human rights concerns.56

Key issues and provisions Part XI of the Family Law Act contains provisions relating to procedure and evidence. Item 1 of Schedule 1 to the Bill inserts into Part XI new Division 4 entitled ‘Cross-examination of parties where allegations of family violence’. It contains proposed sections 102NA, 102NB and 102NC.

50. WSLA, Submission, op. cit., p. 3. 51. National Legal Aid, Submission to Senate Legal and Constitutional Affairs Legislation Committee, Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018, 19 July 2018, p. 4. 52. Explanatory Memorandum, Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018, p. 3. 53. Ibid. 54. For example, New South Wales Bar Association, Submission, op. cit., p. 18. 55. The Statement of Compatibility with Human Rights can be found at pages 4-7 of the Explanatory Memorandum to the Bill. 56. Parliamentary Joint Committee on Human Rights, Human rights scrutiny report, 7, 14 August 2018, p. 90.

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Section 102NA: Mandatory protections for parties in certain cases Proposed section 102NA sets out the conditions for when a ban on direct-cross examination will apply in family law proceedings. It provides that, if in proceedings, a party intends to cross-examine another party and there is an allegation of family violence57 between these parties and certain circumstances are satisfied, then:

• the parties must not personally cross-examine each other and

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

The particular circumstances that must be satisfied for cross-examination to be prohibited are set out in proposed paragraph 102NA(1)(c) and are any of the following:

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

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

• an injunction under section 68B or section 114 of the Act for the personal protection of either party is directed against the other party.

The court also has the discretion to order that personal cross-examination is prohibited (proposed subparagraph 102NA(1)(c)(iv)). The court may do so on its own initiative, or on the application of the witness party, the examining party or an independent children’s lawyer appointed for a child in relation to the proceedings (proposed subsection 102NA(3)).

If the ban applies, the alleged perpetrator will be prohibited from directly cross-examining the victim, and the victim will also be prohibited from directly cross-examining the alleged perpetrator.58 Where direct cross-examination is prohibited, both parties will be required to conduct cross-examination through legal representatives. A note confirms that the section does not limit other provisions in the Act that apply to protect the witness party.

Mandatory ban versus court discretion: comment The Government’s rationale for imposing a mandatory ban on direct cross-examination in certain circumstances is to provide certainty for victims.59 The AGD submission to the Senate inquiry also suggests that some stakeholders, in their responses to the Exposure Draft, had argued that allowing the court to grant leave for direct cross-examination would create the potential for perpetrators to pressure victims to provide consent to cross-examining.60

However, as noted above, a number of submitters to the Senate inquiry into the Bill expressed strong concern that the Bill removes court discretion and imposes a mandatory prohibition on direct cross-examination in certain circumstances. The NSW Bar Association and others argue that removing court discretion may have a negative impact on victims of family violence. As WSLA argues:

Processes and systems which are imposed mandatorily on victim-survivors, risk becoming another means by which that victim-survivor is being controlled instead of being a means by which that person is

57. ‘Family violence’ is defined in existing section 4AB of the Act to be ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful,’ which includes a sexual assault or other sexually abusive behaviour.

58. Note 1 to proposed subsection 102NA(2). 59. C Porter, ‘Second reading speech: Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018’, House of Representatives Debates, (proof), 28 June 2018, p. 13. 60. AGD, Submission, op. cit., p. 4.

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able to move forward with their recovery. WLSA members very strongly consider that the Bill should be amended so that victim-survivors of family violence who are eligible for the prohibition of direct cross-examination ultimately have the ability to choose (and can make the final decision) as to whether that prohibition should apply.

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Legal representation and funding: comment As already noted, proposed subsection 102NA(2) provides that when the ban on direct cross-examination applies, cross-examination must be conducted by a legal representative.

The question of how this legal representation will work has been the subject of some concern in submissions to the Senate inquiry into the Bill.

The AGD submission to the Senate inquiry provides the following explanation of how legal representation is to be managed:

Parties will be able to engage their own legal representation. Where a party is unable to obtain private legal representation, parties will be able to seek representation through legal aid commissions.

Parties may be required to contribute to the costs of their representation where they can afford to do so. A party who chooses not to utilise legal representation, would effectively be foregoing their opportunity to cross-examine the other party - the matter would proceed nonetheless.

In March 2018, the department formed a Steering Committee with representatives from National Legal Aid and the family law courts, to ensure the necessary processes and procedures to successfully implement the measures are developed prior to their commencement. This work includes determining the processes and procedures that will best facilitate legal representation when the ban is in place.

[…]

The Government is working with National Legal Aid to determine the impacts of the Bill, and ensure adequate funding is available to ensure the Bill is effectively implemented. This work is currently underway and includes consideration of issues such as contributions from those that can afford to pay and ensuring the measure cannot be exploited.

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A number of submitters are concerned about the role of Legal Aid, arguing that unless additional Commonwealth funds are provided, the Bill will have a significant financial impact on the capacities of Legal Aid Commissions to fund other aspects of family law disputes.63

There appears to be mixed messages from the Government with the Explanatory Memorandum to the Bill stating there will be no financial implications and at the same time stating that it is working with National Legal Aid ‘to ensure adequate funding is available’.64 National Legal Aid itself has recommended that a special Commonwealth fund or funding source needs to be established.65

Some submitters have also suggested that the compulsory legal representation will place unfair pressure on victims, particularly those who are not entitled to Legal Aid but unable to afford privately funded legal representation. As the Australian Bar Association states:

61. WLSA, Submission, op. cit., pp. 7-8. 62. AGD, Submission, op. cit., p. 7. 63. For example: Law Council of Australia, Submission, op. cit., p. 9. 64. Explanatory Memorandum, Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018, p. 3. 65. See above at p. 10 of the Bills Digest.

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A single person (without children) will be refused a grant of Legal Aid if their gross annual income is at or above $52,520. Accordingly, it ought not be assumed “possible” for a person in receipt of a gross annual income over that amount, to retain private legal representation.

[…] the ABA considers it of critical importance that adequate funding be allocated to permit the existing thresholds for grants of Legal Aid (in proceedings where the mandatory protections are to apply) be relaxed, so as to ensure procedural fairness to litigants. 66

There have also been questions about the role that the legal representative would play in proceedings. AGD states that it is expected that legal representation provided through Legal Aid Commissions will apply to the final hearing, where cross-examination is most likely to take place.67

However, several submitters including the Law Council and the various Bar Associations query this. The Law Council considers it necessary for a legal practitioner appointed as a result of this Bill to be appointed for the entirety of the hearing in which the cross-examination is expected to occur. It argues that this is necessary so that a legal practitioner would have access to all of the evidence before the Court in order to effectively cross-examine a witness:

Cross-examination is a dynamic and at times, organic process. Limiting or restricting the process of cross-examination, as proposed in the amendments, will severely undermine the utility of the process and may ultimately render a judgment unreliable and subject to appeal. 68

Factors triggering the prohibition on direct cross-examination: comment Party convicted of or charged with an offence of violence or threat of violence to the other person

In relation to this trigger, the Explanatory Memorandum emphasises that a mere charge relating to violence is not to carry implications of guilt, ‘but merely recognises that a family violence charge between those parties infers a power imbalance that requires a certain level of protection for those parties’.69

The Law Council however contends that this provision conflates a charge with a presumption of guilt and therefore recommends the reference to ‘or is charged with’ be deleted. The Law Council notes that a court will have discretion to order the ban if deemed appropriate and may take into account the fact that a party has been charged with a family violence offence.70

A family violence order (other than an interim order) applies to both parties

The Explanatory Memorandum justifies the exclusion of an interim family violence order as a trigger for mandatory ban on direct cross-examination arguing that these can 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 family law matter.71

However the AHRC is concerned that excluding interim family violence orders is not consistent with the overall aims of the Bill. As the Commission notes, interim family violence orders are still issued based on an assessment of risk made either by police or a court, to provide immediate

66. Australian Bar Association, Submission to Senate Legal and Constitutional Affairs Legislation Committee, Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018, July 2018, pp. 3-4. 67. AGD, Submission, op. cit., p. 7. 68. Law Council of Australia, Submission, op. cit., p. 8. 69. Explanatory Memorandum, Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018, p. 10. 70. Law Council of Australia, Submission, op. cit., p. 11. 71. Explanatory Memorandum, Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018, p. 10.

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protection to a person. To maintain consistency with relevant definitions in the broader Act and the overall aims of the Bill, the Commission supports the inclusion of interim family violence orders in this section.72

WLSA also considers that subparagraph 102NA(1)(c)(ii) should be amended to include interim family violence orders as well as final orders:

While interim orders are usually acquired without a state or territory court making findings of fact, it is also possible for final orders to be made without requiring findings of fact (e.g. settling on a without admission or consent basis). Interim orders are also often based on an assessment of risk made by either the police or a court. Interim orders can also last for 1- 2 years before final orders are made.

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Section 102NB: Court ordered protections in other cases Proposed section 102NB deals with the situation when the ban on cross-examination as set out in section 102NA is not applied. It provides that in situations where:

• a party intends to cross-examine another party personally and

• there is an allegation of family violence and

• the ban on cross-examination as set out in section 102NA does not apply, then

the court must ensure that there are appropriate protections for the party who is the alleged victim of family violence.

Note 1 to this provision explains that the protections could include directing or allowing the cross-examination be conducted by video or audio link.

Note 2 confirms that this section does not limit other laws that apply to protect the witness party.

In relation to this provision, several submitters emphasised the need to ensure that courts are adequately resourced to deal with the potential increase in demand for the use of alternative protections provided in the Bill.74

Academics Booth, Kaye and Wangmann welcome the introduction of section 102NB, while noting that such provisions already exist, although they are rarely used. They suggest that section 102NB be amended to make it clear that special arrangements are available even where a legal representative undertakes the cross-examination. Indeed they suggest that section 102NB should be a free standing provision that should be considered in all family law proceedings and not linked to the issue of direct cross-examination.75

Section 102NBC: Review of the amendments Proposed section 102NC requires that a review of the amendments be commenced as soon as possible after the second anniversary of the legislation commencing, although that two-year review period may be extended by Regulation.

The Explanatory Memorandum states that AGD will review the amendments internally, in consultation with the family law courts, National Legal Aid and other relevant stakeholders.

72. AHRC, Submission, op. cit., p. 3. 73. WLSA, Submission, op. cit., p. 8. 74. AHRC, Submission, op. cit., p. 3. 75. Booth, Kaye and Wangmann, Submission, op. cit., p. 3. National Legal Aid makes a similar recommendation: National Legal

Aid, Submission, op. cit., p. 5.

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Concluding comments There appears to be broad support for the intent of the Bill to ‘ensure that appropriate protections for victims of family violence are in place during cross-examination in family law proceedings’. However, as has been observed, the issue is complex and not amenable to a simple or quick solution. Many submissions to the Senate inquiry into the Bill suggest there are concerns with the Bill.

Generally, submitters support the idea of protecting family violence victims from being re-traumatised during court hearings however many, particularly members of the legal profession, question the provisions that impose mandatory exclusion from direct cross-examination and remove court discretion. They argue that these provisions raise serious questions concerning procedural fairness, the right to a fair trial and access to justice. Another recurring theme in submissions relates to funding and concerns that the obligatory requirement for legal representation will place strain on the already limited resources of Legal Aid, and on those litigants unable to access Legal Aid or afford private representation.

A further question that Parliament might consider is whether the Bill should progress just months before the ALRC family law inquiry is to be completed and at a time when the federal courts are soon to be restructured.

The difficult and changing environment of family law may complicate the impact of this Bill and, as has been observed, care must be taken to ensure that any change does not involve unintended consequences that disadvantage those whom the Bill seeks to protect.

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