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Protection for Domestic Violence Survivors in Family Law

In an effort to restrict self-represented litigants from cross examining their victims of domestic violence, the Federal Government is set to introduce new legislation to abolish the existing practice. The Government is concerned that the current regime which permits cross examination of a victim of family violence by their alleged offender, exposes the victim to additional trauma and provides a powerful tool for harassment for perpetrators.

In family law proceedings there are no express protections for victims. The absence of specific legislation to prevent this from taking place and protect victim’s stands in contrast to the protective measures implemented in criminal and civil jurisdiction. In the criminal jurisdiction, self-represented litigants are no longer able to cross examine their victim in a sexual violence or in a rape matter. Unfortunately, the situation persists within the Family Court. Attorney General Christian Porter cited a desire to avoid further trauma to victims and called for cross examination to be conducted by an independent counsel.

The call for change to protect victims from being personally cross-examined is not new. In 2015, Women’s Legal Services Australia (WLSA) conducted a survey to advocate for terminating the existing practice. They found that 45 percent of respondents who were personally cross examined stated that the fear of personal cross examination by the perpetrator had been a significant factor in their decision to settle. Angela Lynch from WLSA noted that the current system enables perpetrators to use the court system to abuse their victim.

The Australian Law Reform Commission is due to review the family law system and report to the Government by March 2019.

By Nicholes Family Lawyers


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