The Law and You: Domestic violence cross-examination

Posted on 15 August, 2017

In Family and Domestic Violence Courts across Australia, hundreds of women who have survived domestic violence have been directly cross-examined by violent ex-partners, adding a further layer of anxiety to their already high stress levels.

New changes to the law proposed by the Australian Government mean that victims of domestic violence will no longer have to answer to their alleged attackers under cross-examination in Court. These reforms have been the subject of much discussion recently, on the news and at the 2016 Council of Australian Governments’ National Summit on reducing violence against women and their children.

This column explores these important proposed reforms.

Can any alleged perpetrator of domestic violence cross examine?

Alleged perpetrators of domestic violence who are self-represented have always been allowed to directly question their victims in Court during cross-examination. The victims have had to come face-to-face with the ex-partner who allegedly abused them to be directly questioned and interrogated. Fearing the intimidation and trauma involved, some victims have chosen not to proceed and withdrawn from their case, too afraid to give certain evidence in court.

Recently in a New South Wales case, a domestic violence survivor stated that the alleged perpetrator conducting the cross-examination was “trying to silence us so we didn’t tell our story … We were terrified of this man … The experience was like reliving a nightmare.”

Many victims have not been coming forward for fear of having to face their former partners in Court and suffer more emotional abuse. The Attorney-General’s Department has reported that being cross-examined by their alleged attacker “potentially exposes victims to re-traumatisation and can affect their ability to give clear evidence.” It may even force victims to give inaccurate evidence or remain silent.

What are the proposed changes to the law?

According to the changes in the law proposed by the Attorney-General’s Department, an alleged attacker who has been convicted or charged with a violent offence won’t be able to cross-examine the victim unless the Court grants leave. The Court can only do so if both parties consent, which gives the victim the opportunity to refuse. The Court will also consider whether cross-examination by the ex-partner would adversely affect the victim’s ability to testify or psychologically harm and traumatise the victim.

According to Attorney-General George Brandis, “To maintain procedural fairness, the Court will be able to appoint a person to act as an intermediary to ask questions in cross-examination on behalf of a party.”

What will the court intermediary do?

On behalf of the accused, a Court-appointed intermediary must be made available to question the victim under cross-examination. This is a positive step toward protecting victims of domestic violence and encouraging them to come forward, especially vulnerable people and victims of domestic violence.

According to a representative from Women’s Legal Services Australia, “Ending the cross-examination by violent ex-partners is a practical and important step that the government is taking to empower victims to give evidence without fear.”

If you have any questions about this new proposed law, or want to better understand what it means for you as a victim of domestic violence, call Watts McCray to speak to one of our experienced family law lawyers.

This expert column was prepared by Debra Parker, Watts McCray Lawyers Canberra.

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