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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.
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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.
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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)
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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.
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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.
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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.
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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
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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)).
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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.
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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.
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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
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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]
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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.
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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.
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