Shayne Neumann (Blair, Australian Labor Party, Shadow Minister for Immigration and Border Protection) Share this | Hansard source

In a 14 April 2016 submission in relation to domestic violence and gender equality to the Senate Finance and Public Administration References Committee, the Law Society of New South Wales made the point that they supported the views expressed in the National Plan to Reduce Violence against Women and their Children 2010-2022, and that gender inequality has a profound impact on violence against women and children. However, the Law Society noted that the national plan recognises that family violence is a broad term that refers to violence between family members as well as violence between intimate partners. It involves the same sorts of behaviours as described for domestic violence. Domestic and family violence takes many forms. It's not just physical and sexual assault; it can be financial domination, familial isolation, emotional and psychological abuse and even religious persecution.

Before entering parliament in 2007, I had a long and extensive career as a family lawyer and as an accredited family law specialist. During that time I witnessed the distress that comes from a witness who is cross-examined by the perpetrator of violence against them. I've witnessed firsthand the power imbalance and the risk of retrauma. There's a very good reason why effective and competent legal representation is vital to just outcomes in property settlement, parenting and other issues in both complex and even simple cases. The situation for those who are cross-examined by the perpetrators of violence against them can be humiliating, traumatising and even terrifying.

The Family Law Amendment (Family Violence and Cross-Examination of Parties) Bill 2018 seeks to provide appropriate protections for victims of family violence during cross-examination in all family law proceedings. Specifically, the bill seeks to prohibit personal cross-examination in certain circumstances and seeks to necessitate cross-examination by legal representatives, not perpetrators. This is a good reason for why we should be funding legal aid even more. It's why I'm calling on the government—and the member for Isaacs, the shadow Attorney-General, is calling on the government—to put up the money to assist legal aid and to make sure this power imbalance between men and women, and particularly between the victims of domestic violence and the perpetrators, can be addressed.

We've got shocking delays in the Federal Circuit Court and the Family Court. The recent PwC report said that the median time for trials in the Family Court had blown out from 11.5 months five years ago to 17 months now. In the Federal Circuit Court, it has gone from 10.8 months to 15.2 months. These things can wait up to three years, in my experience and observation. For those people who have to wait for their cases to be heard, it is simply another form of trauma. It really is possible to argue that this is a form of institutional abuse that people are going through. They have to wait to settle their affairs financially and wait to make sure their children are settled and the best interests of those children are decided by a court with the best evidence from social workers as well as psychological evidence.

Judicial officers currently have general but extensive powers in relation to asking witnesses questions. In spite of all of this, there's no specific prohibition on one party directly cross-examining another party, particularly if family violence allegations exist. The defunding by this government of legal aid and the lack of support for the Family Court system and the Federal Circuit Court system has resulted in not just delays but more and more people being self-represented in litigation before the Federal Circuit Court and the Family Court. The Australian Institute of Family Studies reported that the majority of cases, 72 per cent, involved direct cross-examination. Thirty three per cent involved fathers cross-examining mothers, and only 28 per cent of cases involved mothers cross-examining fathers. In 11 per cent of cases, both parents cross-examined each other.

Direct cross-examination by perpetrators is very common. I've witnessed, firsthand, the impact, the terrified attitude and the experience that people have had when they're in a court proceeding and they're facing someone who has been physically and sexually violent towards them and who is asking them questions and interrogating them. Even the best and most prudent judicial officer has trouble protecting the witness from the trauma that they're experiencing.

Cross-examination exposes witnesses, I think, to significant risk of retraumatisation. It substantially impacts their capacity to prosecute their cases. I found that, after a client has been through that, it's very difficult to actually get detailed instructions from them. They feel like they want to settle the case—often to their detriment and the detriment of their children. They want the matter over, and that often results in people not getting the just outcomes they need in terms of property, child support and parenting orders. It's not always in the best interests of children. There are safeguards that can be used, including remote witness facilities; screens; judicial intervention, such as rephrasing questions—that's why we need our judges and magistrates to be well trained in this issue and be very sensitive to the issue—and monitoring of direct cross-examination proceedings.

A Women's Legal Services Australia 2015-16 study surveyed 338 women survivors of domestic and family violence. The study cited that 43 per cent were directly cross-examined by the perpetrator in family law proceedings. A substantial number reported feeling frightened, unsafe, retraumatised and intimidated. Overwhelmingly, most cases never get to final hearings. Indeed, it's quite uncommon for cross-examination to take place at an interim hearing. You need leave of the court, and judges rarely allow it to happen. Of all the cases where proceedings are instituted, only a very small number ever get to a final hearing. Most cases have settled and, of those cases where proceedings are instituted, no more than five per cent ever get to a final hearing—that's a historical figure that is accepted within the profession.

Settlement, under certain circumstances, is often done by a witness who is party to the proceedings, and it's often quite unfavourable. They are often really keen to get the whole matter resolved. State and territory courts have already made changes to prevent direct cross-examination of a witness by a perpetrator. In most Australian jurisdictions self-representative accused parties are not permitted to directly cross-examine a complainant in sexual assault proceedings. In Queensland—my home state—in Victoria, in Western Australia, in South Australia, in the Northern Territory and in the ACT, legislation also prevents direct cross-examination in proceedings, for example, where apprehended violence orders are being sought.

A 2016 report by the Family Law Council noted that direct cross-examination can perpetuate and perpetrate the abuse of victims of family violence and lead to incomplete and poor-quality evidence. At the October 2016 COAG National Summit on Reducing Violence against Women and their Children it was agreed that a ban should be placed on direct cross-examination of victims by perpetrators in family violence and family law proceedings. Labor agrees with that position, and we have for quite some time. We've been calling for an end to the practice and we're pleased the government has finally caught up. We've been arguing for it for at least two years. There are other ways to test evidence. We believe the family law courts should be required to consider measures to protect victims and survivors of family violence.

Protective measures, as I've said before, can take place. It can happen because the courts are experienced in this. For example, in conciliation conferences and mediations, it's very rare for someone who is a victim of domestic and family violence to be put in the same room as the alleged perpetrator. Often they're shuttled and taken places with lawyers involved, if they're represented, or by the mediator or the registrar of a court to settle issues, so that limits the risk of trauma.

The Council of Single Mothers and their Children highlighted that the 'courts would require additional resources to implement the protections proposed by the bill and that 'increased use of video and audio technology, separate safe places for parties to enter and wait in courts and alternate venues' would be required under the proposed changes. That's important. It's extremely important, because these are usually public areas and people go in and there are waiting rooms and, unless there is good security, people can feel tremendous trauma if the perpetrators of the domestic and family violence are actually close by, in proximity, and only separated, for example, by a wall or a door. The Law Council went on to state that the bill was:

… likely to prompt parties who have experienced family violence, who may previously have avoided court action for fear of direct cross-examination, to proceed with their cases. This could subsequently cause further delays to court listings and add to the workload of the family courts.

And, as I have outlined, the workload of the family courts has increased and waiting times have blown out.

Labor has committed to provide $43 million to Legal Aid to facilitate a ban on direct cross-examination of survivors of family violence by perpetrators. The Morrison government need to step up. They've junked plenty of policies in the last two weeks. This is another one they should junk and change. I'm asking for a change in their perspective in relation to this. How about telling the legal community how they'll be funded before they seek to implement these changes? How about they put up the $43 million and match Labor's commitment? Those opposite haven't made public any provision of funds to legal aid to assist in the implementation of these changes. I note that the explanatory memorandum states that 'there are no direct financial implications from implementing the measures' contained in this bill. Quite clearly there's no money put up.

The question the Attorney-General must now answer is how payment will be ensured for those who are not eligible for legal aid. I call on them to make a difference, and that's why I'm supporting the shadow Attorney-General's amendment. The financial burden of legal representation could force parties to consent to parenting arrangements which are unsafe and unjust and negatively impact on victims. Labor listened to stakeholders and we listened to legal aid commissions throughout the country, and they told us that this change could not be made based on current levels of funding. That's why Labor made the commitment that I outlined before. The funding will cover all unrepresented litigants, both victims and perpetrators. This means that if a party does not qualify for legal aid and cannot afford a lawyer, they will be provided funding through this appropriation by Labor.

Despite Labor's commitment, the government is refusing to come to the table and provide the bipartisan support of legal aid that it seeks to pass this bill through the chamber. If the government doesn't plan to announce additional funding further down the track, why has the Attorney-General not provided a figure yet? While Labor has committed $43 million to boost Legal Aid to carry out these changes, the Attorney-General simply refuses to announce if any money will be forthcoming. The government needs to give certainty to funding before it expects this bill to pass through the parliament. The government has made no allowances for litigants who are directed to obtain legal representation but do not qualify for legal aid and cannot afford a private lawyer.

The government's stance in this instance is that cross-examination simply cannot go ahead. Cross-examination is a necessity in some proceedings. Without cross-examination, often the evidence can't be tested and a court is left to determine a dispute without a proper and fulsome testing of evidence. The evidence should be put to the test. In short, where there is a dispute of fact but no cross-examination, the court often can't make a finding one way or the other. National Legal Aid gave evidence at a hearing of the Senate Legal and Constitutional Affairs Legislation Committee. They stated that it is it is very difficult for the service to respond to the proposed legislation without details of additional funding. In situations where Legal Aid are unable to fulfil requests for representation, and the ban of cross-examination applies to both perpetrators and victims, a denial of due process could occur, leaving courts unable to test the facts and unable to make findings, and that could lead to further delays and injustice.

Labor supports this important reform in principle, but the government needs to come to the table and provide Legal Aid with the funds it needs to allow the scheme to operate. Labor is committed to an Australia that is free from domestic and family violence, to a legal aid system that is fair, just and appropriately funded and to a court system that provides justice for all. We've listened to stakeholders and we've supported reform, and I hope the government will do the same. I await the Attorney-General's announcement on funding towards this significant transformation to the family law system.

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