On Monday 17 July 2017, Attorney-General George Brandis released draft amendments to the Family Law Act 1975 (Cth) in relation to family violence. The amendments seek to prevent alleged perpetrators of family violence from cross examining their alleged victims in Court. Alleged family violence perpetrators are already prevented from cross examining their alleged victim in Intervention Order proceedings in Victoria, however, there are currently no federal laws preventing such cross examination in the Family Court or the Federal Circuit Court.
Frequently, in family law cases, litigants are self-represented in Court and often cross examine their alleged victims during cross examination. The Attorney-General’s Department stated that being cross examined by one’s alleged perpetrator “potentially exposes victims to re-traumatisation and can affect their ability to give clear evidence.”
The proposed amendments would provide for a court appointed representative to ask questions to the alleged victim in the witness stand on behalf of the alleged perpetrator.
Under the proposed new amendments, if an alleged perpetrator is self-represented then cross examination questions must be put to the witness by a person appointed by the Court unless the Court grants leave otherwise. The Court must not grant leave otherwise unless:
- Both parties consent to the cross examination by the examining party of the witness personally; and
- The Court has considered whether the cross examination will adversely affect the ability of the witness to testify under the cross examination and the examining party to conduct the cross-examination; and
- The Court has considered whether the cross examination will have a harmful impact on the party who is the alleged victim of the family violence.
The draft amendments appear to have bipartisan support at this stage although members of the opposition state that the new measures do not go far enough. Terri Butler has stated that alleged perpetrators should be required to be legally represented so that a person with ethical obligations, duties as an officer of the court, and requirements to act professionally stands between the alleged abuser and the alleged victim.