Linda Burney (Barton, Australian Labor Party, Shadow Minister for Preventing Family Violence) Share this | Hansard source

I rise to speak on this important bill, the Family Law Amendment (Family Violence and Cross-Examination of Parties) Bill 2018, and the important reforms. The direct cross-examination of domestic abuse survivors by their abusers is a truly shameful practice. Labor has heard from so many women who have been forced to go through this trauma. They are forced to endure intimidation and continued psychological abuse from their abusers in the courtroom. They are forced to relive their trauma and abuse. We have heard about women who have chosen to settle for imperfect outcomes just to avoid the intimidation and trauma of direct cross-examination. When we look back, we'll wonder how we let this practice go on for so long. It was, of course, Labor who called for an end to this practice two years ago—a commitment we made at the 2016 election and recommitted to on White Ribbon Day that year.

While it goes without saying, it's important to note, in light of some comments on social media, that this is not about preventing the cross-examination of victims of domestic and family violence; this is simply about the direct cross-examination by perpetrators of family violence of people who have experienced family violence. Parties to the family law dispute involving domestic violence will still be able to undertake cross-examination of each other through their respective legal representatives. To that end and to fully realise the intent of this important change, we need to ensure that parties to court matters involving family and domestic violence have the necessary legal representation so they can avoid the need to directly cross-examine each other. That is often very difficult given the financial circumstances of many of the people we are talking about. It is for this reason that Labor has committed $43 million for legal aid in order to facilitate the representation of otherwise unrepresented litigants. The government, by contrast, as a member for Lindsay articulated, is refusing to make the same commitment for additional funding to legal aid. Without any explanation as to how legal aid will take on the additional workload that this reform will necessarily bring about, this particular issue will undo the good intentions of this bill.

The way this bill will function is by placing an automatic ban where, first, there is an allegation of family violence between the two parties; second, if either party has been convicted of or charged with an offence involving violence or threat of violence or if one of the parties is subject to a violence or protection order by the other. Alternatively, a court can make orders banning direct cross-examination. If there is an allegation of family violence and personal cross-examination is not prohibited, the court must ensure that there are appropriate protections in place for the party who is the alleged victim of family violence. For example, the court could be required to provide alternative protections for the victims such as a video link or screens during cross-examination. When a ban has been imposed, parties will be required to obtain legal representation, either privately or through legal aid, should they be eligible.

We know that many women and children who have experienced domestic or family violence will be retraumatised and will relive the abuse when they are directly cross-examined by the perpetrator of that abuse. According to the Family Law Council, this practice risks perpetuating the abuse in the courtroom and can lead to incomplete or poor-quality evidence to the court. Matters involving unrepresented litigants are significantly less likely to contain the kind of evidence needed to determine matters involving child safety concerns. The council expressed concern about the capacity of self-represented litigants to stick to the relevant issues in the dispute. The council also acknowledged that the adversarial nature of litigation is not necessarily the most effective way of resolving family law disputes, especially where the litigants are self-represented.

One respondent from the ACT to the House inquiry on family law stated:

It was extremely traumatic being cross-examined by my [ex-partner]. Even having him sit in the courtroom while I was questioned earlier on in the process was enough to make me feel uncomfortable and intimidated—he was laughing and smiling and making comments as I spoke and staring at me the entire time.

Another respondent, from Victoria, said:

The cross-examination process makes the victim feels like they are partly to blame, it re-traumatises the victim and brings up unnecessary history to shame and rattle the victim.

Even Victoria Legal Aid said:

… the mere possibility that direct cross-examination could occur can … cause victims of violence to agree to unsafe consent orders—

or to abandon proceedings altogether, which, of course, is the tragedy. It is for these reasons that many jurisdictions have enacted vulnerable witness protection measures, which prevent direct cross-examination in certain circumstances.

We also note that judicial officers do have some discretion in managing these types of proceedings. However, we know that, according to the Australian Institute of Family Studies, direct cross-examination in circumstances of family violence occurred in 173 matters between 2015 and 2017. It is clear that something must be done to prevent this unnecessary and detrimental practice, and this bill does it.

Of course, prohibiting direct cross-examination in these circumstances necessarily means that parties will require legal representation to continue proceedings. We also know that legal representation can be expensive, if one is not eligible for legal aid. Labor is concerned, as many stakeholders have expressed concerns, about ensuring that all litigants in these circumstances have access to legal representation. Labor is concerned about the gap in access to legal representation between those who are eligible for legal aid and those who can afford private legal representation. We feel that some individuals will fall through the cracks between those who do not qualify and those who cannot afford legal representation. The Productivity Commission's 2014 report quantified this gap in finding that more than 14 per cent of people live in poverty, yet only eight per cent will be eligible for legal aid.

With these bans, we would also be increasing the workload and dependence on legal representation in these type of litigated proceedings. As such, it is clear—and Labor has said this—that additional funding must be available. It is necessary to ensure that people do not miss out on the opportunity to have witness testimony cross-examined. This call has been made by National Legal Aid, and the Australian Bar Association has expressed similar concerns. The consequences of a party not being able to afford representation are dire. These people would essentially be denied the opportunity to cross-examine a witness, a key and often crucial legal right to test the credibility of a witness and their evidence in the resolution of litigated proceedings.

According to the Australian Bar Association:

A Court is left in the unenviable position of determining a dispute without a proper and fulsome testing of the evidence.

The ABA states:

The suggestion in the Explanatory Memorandum that an unrepresented party would be able to receive a fair hearing on the basis that there "would also be some scope for the court itself to ask questions of a witness who was unable to be cross-examined" ignores the likelihood of procedural fairness complaints arising from the intrusion or intervention of a trial judge in adversarial proceedings.

For those who can afford legal representation, it can still present a significant financial burden. Rape and Domestic Violence Services Australia told the Senate inquiry that the significant financial hardship that private representation presents could force parties to consent to parenting arrangements which may be unsafe or unjust for the victims of family violence and/or their children. Instead of parties being coerced into consent arrangements out of fear of facing direct cross-examination, we will have parties entering into consent arrangements as a result of financial coercion.

It is absolutely imperative that the government attach some money to these changes. If not, things will grind to a halt and people will absolutely fall through the cracks. As the Leader and the Deputy Leader of the Opposition have said in their letter to the government regarding the issue of funding: 'The message, even from your own government's senators, is crystal clear. Without the necessary money, the reform is just an empty shell; an expression of good intentions with no practical effect.' I ask the government to give serious consideration to the question of funding, if we want to fully realise the intentions of this bill.

See this speech in context