The Law and You: An update on cross-examination by ex-partners

Posted on 9 July, 2018

As reported in HerCanberra last year, hundreds of survivors of family violence and abuse from ex-partners have been cross-examined in Court by former partners.

For some, this has been traumatising.

On 28 June 2018, the Attorney-General, The Hon Christian Porter MP, announced that legislation has been introduced into the Parliament to change this. These reforms have been a long time coming. In his press release, the Attorney-General concluded: ‘There is no question that directly facing a perpetrator or alleged perpetrator of family violence compounds the trauma of that violence and can also impact on the ability of a victim to give clear evidence in legal proceedings.’

This column explores these important proposed reforms which have been introduced into the Parliament.

Can any alleged perpetrator of domestic violence cross-examine?

Yes. Alleged perpetrators of domestic violence who are self-represented have always been allowed to cross-examine their victims in the Family Court. Fearing the trauma involved, some victims have withdrawn their case, too afraid to give evidence in Court.

WHAT ARE THE IMPLICATIONS FOR VICTIMS?

For victims, this experience can be traumatising. Last year in a New South Wales case, for example, a domestic violence survivor stated that the alleged perpetrator cross-examining 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.’

Also, many victims have not come forward for fear of facing their former partners in Court. 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?

The Attorney-General’s press release confirms that ‘The Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018 will prohibit direct cross-examination in specific and serious circumstances to protect victims. This includes where there have been convictions or charges or when final family violence orders are in place between the parties.’

The changes propose that an alleged attacker 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 them.

Courts will also have discretion to prohibit direct cross-examination where family violence is alleged. If a Court doesn’t exercise that discretion, it will be mandatory for it to apply other protections, such as the use of video links or screens in the court room.

The victim will also be able to ask the Court to consider if cross-examination by the ex-partner would adversely affect their ability to testify or psychologically harm and traumatise the victim, again. If direct cross-examination is prohibited, cross‑examination will be conducted by a legal representative. Both parties can obtain their own legal representation or have access to representation through legal aid if that’s not possible. The Attorney-General has said that ‘… the Government is working closely with National Legal Aid regarding implementation of the Bill.’

What will the court-appointed legal representative do?

On behalf of the alleged perpetrator, a Court-appointed legal representative will cross-examine the victim. This is a positive step towards protecting victims and encouraging them to come forward with reliable evidence.

The Attorney-General hopes the new laws ‘will provide confidence to victims that they will be protected during cross-examination’.

If you have questions about the proposed new laws or want to better understand what the changes might mean for you, call Watts McCray to speak to one of our experienced Accredited Family Law Specialists.

Debra Parker

This expert column was prepared by Debra Parker, Accredited Specialist Family Lawyer, Watts McCray Lawyers in Canberra.