Graham Perrett (Moreton, Australian Labor Party) Share this | Hansard source

I rise to speak on the Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018. I welcome this bill, but I say up-front that I have concerns about the funding, as outlined by the Senate committee. It is past overdue that the Abbott-Turnbull-Morrison government legislate to protect victims of family violence from being directly cross-examined by the very person that actually inflicted the violence. Stakeholders, including victims and survivors of family violence, have been calling for this legislation for years. Labor did extensive work on a policy solution to this problem before the 2016 election. As the shadow Attorney-General's shadow parliamentary secretary, I ensured that we consulted with many stakeholders around Australia. We listened to what those stakeholders said and we came up with a policy that would work. It would protect victims of family violence from being retraumatised by their abusers in the courts. And it would work because it was funded. Labor took to the 2016 election a commitment to legislate this measure, accompanied by funding of $43.2 million. I announced this measure in Annerley, with the member Griffiths, at the Women's Legal Service, a service in Moreton that services the state.

In November 2016, the Leader of the Opposition announced Labor's renewed commitment to pursue this reform. While I congratulate the Morrison government for finally bringing our policy to the parliament, unless it has funding it will be useless. I say that again: unless there is funding it will be useless. Unrepresented litigants have been a constant feature of the Family Court and Federal Circuit Court for many years and they're becoming more prevalent. When they're unrepresented, it is slower for the bench to walk through with the litigants the processes they will deal with. The government's failure to adequately resource legal aid funding has certainly contributed to the rise in unrepresented litigants. There is a large cohort of individuals who are not eligible for legal aid under the current eligibility criteria but also are unable to afford a private lawyer. This cohort has no choice but to appear unrepresented if they find themselves in a family law dispute.

During a family law trial, the evidence is tested by cross-examining each party and any witnesses called. When a party is unrepresented, the cross-examination necessarily will be done by the party themselves. When there is an allegation of family violence perpetrated by one party on the other, the trial will become an extension of that abuse by allowing a perpetrator of family violence to actually cross-examine their victim. A submission by Women's Legal Services Australia to the Family Law Council in 2015 explained that this experience can often retraumatise the victim and compromise the quality of evidence given to the court, which can affect the court's ability to make safe and effective orders. It can allow the perpetrator to use court proceedings to exercise control and dominance over the victim. It can allow perpetrators to ask ostensibly valid questions but which can deliberately and strategically be loaded with hidden and sinister meaning or threats to the victims. It can provide an avenue for the perpetrator to ask the victim directly about incidents of violence and abuse as this is relevant to determining the best interests of the child. It becomes systems abuse—that is, the legal system is participating in the abuse, complicit in further perpetuating harm. It would be a disincentive for victims to proceed to trial and it can pressure some victims into consent agreements that may be unsafe or unworkable to avoid the trial experience.

Women's Legal Services Australia conducted a survey in 2015 on the experiences of women survivors of family violence who had been personally cross-examined by their abusers in the family law courts. They had 115 women respond to their survey. Of those 115 women, three women reported that they were so traumatised by the experience of being personally cross-examined by their abuser that they were suicidal. The remaining respondents to the survey expressed their experiences in terms of anxiety, depression and ongoing distress. Some women were so distraught at the prospect of being directly cross-examined by their abuser that they were physically ill before entering the court. One woman reported being violently ill on the side of the road on the way to court, making her late for the court date. They then had to be vacated, drawing out her traumatic experience even further. Some of the respondents to the survey settled their disputes before the trial. Forty-five per cent of those women reported that the prospect of being personally cross-examined by their abuser was a significant factor in their decision to settle—nearly half.

It is important to bear in mind that the purpose of all of these court proceedings is to decide what is in the best interests of the children. It is important that the person making the decision has reliable evidence before them—evidence that has been properly tested. In our adversarial legal system, it is important that both parties are able to test the evidence that is before the court by way of cross-examination. As a lawyer I can never support the simplistic notion of just banning cross-examination whenever there is any allegation of family violence, but this bill imposes a ban on direct cross-examination of both victim and perpetrator in family law hearings in certain circumstances where there is an allegation of family violence. The ban will be enlivened when there is an allegation of family violence between the two parties and either party has been convicted of or charged with an offence involving violence or threat of violence to the other party or a family violence order applies to both parties or an injunction for the personal protection of either party is directed against the other party. If none of those conditions exist, the court will still have its own discretion to order that the ban applies. Where the ban has been ordered, the parties will be directed to obtain legal representation either privately or, if eligible, through Legal Aid. It is crucial to this measure that the parties are able to access legal representation. As I've said previously, there are many people who are not eligible for legal aid who also cannot afford to engage a private lawyer. The Senate Legal and Constitutional Affairs Legislation Committee received submissions about this bill. Rape and Domestic Violence Services Australia gave evidence at the hearing. They described this cohort of people as being the missing middle—ineligible for Legal Aid but not able to afford a lawyer.

National Legal Aid told the committee that without appropriate funding and resourcing for the proposed measures the bill's provisions could disempower many self-represented litigants who may be unable to access Legal Aid or afford private representation. The committee was told by the Attorney-General's Department that there were ongoing discussions with National Legal Aid about resources for this measure which would be resolved prior to the consideration of the bill in parliament. Well, here we are, in parliament, debating this bill and still we have no confirmation that there will be any funding to ensure that the measures are workable. It was touched on by the member for Forde, but there's still no money on the table, despite what the committee said. I hope that the government is not just making hollow promises to victims of family violence. I hope that preventing the retraumatisation of victims of family violence is considered a serious issue that they will actually properly fund.

Submitters to the Senate committee were also critical that the bill appears to only mandate that a legal practitioner can conduct the cross-examination. The representatives of the law bodies who appeared before the committee expressed concern that legal representatives who were parachuted in to do the cross-examination would not be able to properly conduct the cross-examination as they would not fully understand such cases, which are often complicated.

The Australian Bar Association was also concerned that limited representation for cross-examination alone would be a breach of its professional rules. It also queried whether a barrister's professional indemnity insurance would be available for such a limited period of representation. It not only makes more sense to provide representation for the whole trial but it actually provides better outcomes.

Mr Kearney, who appeared on behalf of the New South Wales Bar Association at the Senate committee hearing, stressed that it was particularly in cases involving allegations of family violence that a court must be in a position to properly determine whether violence had occurred and how the victim and children are to be protected. A lawyer has a duty to their client but also they have an ongoing duty to the court—that is, to justice and to the greater legal system. A lawyer who is properly prepared will be able to advance their client's case efficiently. They will be able to cross-examine the other party to test the evidence and to ensure that the evidence provided by their own client is coherent and relevant. Providing full representation will save the court time, provide better evidence to the court and give the parties the optimum chance of settling their dispute before the trial. Labor's policy considered all of these issues. It provided for full representation to both parties for the duration of their trial. Legal representation would be provided by Legal Aid but the parties would not be required to fit within the regular eligibility requirements. The ban on direct cross-examination contained in this bill is triggered only when a party has been convicted or charged with a violent offence to the other party or whether there was a family violence order applying to both parties or an injunction for the personal protection of one party from the other. There was criticism from Women's Legal Services Australia in their submission to the Senate committee that interim family violence orders were not a trigger for the ban. Interim orders can be in place for one to two years before a final order is made.

I note that the Senate Legal and Constitutional Affairs Legislation Committee has a majority of Liberal members. This committee conducted an inquiry into this bill by receiving submissions from stakeholders, holding a public hearing and producing a report. The committee notes in its report that the funding of the bill's proposed measures were a consistent theme throughout evidence provided to the committee.

The Liberal-dominated committee also concluded:

The committee believes there should be a commitment to additional funding for Legal Aid before the bill is put to a vote in the Senate, including the amount, timeline for distribution and method of distribution; and in any additional funding for Legal Aid that is announced, the government make clear the eligibility of litigants who do not meet regular eligibility requirements but could not otherwise afford a private lawyer.

… … …

The committee recommends that details regarding the funding of the measures contained in the bill be made public prior to the commencement of debate on the bill in the Senate.

And that

… the bill be passed, subject to Recommendation 1.

It is quite extraordinary that a committee with a majority of Liberal members would make such recommendations about legislation put before the parliament by the Liberal coalition government. At least this government enthusiastically embraces their TheMuppet Show routine. What is sad is that it is vulnerable victims of family violence who will suffer if this hapless government does not come up with proper funding for this crucial measure. Victims of family violence deserve to have protections in place so that they are not retraumatised through the court system. Children of families who have experienced family violence deserve to have decisions made about their welfare that are considered and based on evidence that has been properly tested and is timely. None of this can occur without proper funding.

The record of the Abbott-Turnbull-Morrison government, the ATM government, in managing our important family law system has been horrendous. Looking at the measure contained in this bill alone, it has taken too long for the government to act. Labor committed to a policy to protect victims of family violence from direct cross-examination more than two years ago, and that policy was accompanied by proper funding that provided full representation for both parties. Looking more widely at the family law system, this government has not replaced judges in a timely manner. Retiring judges have taken more than a year to be replaced, which causes backlogs that have never recovered. The previous chief justice called for more resources 2½ years ago. That plea fell on deaf ears—it was only $20 million for family consultants and registrars to help to manage cases.

Now, when the family law system is in crisis, what does the government do? They haven't given the courts the resources they've been crying out for. They have announced a radical reform that will effectively abolish the specialist Family Court of Australia—the court that has the most expertise in complex family law cases, including family violence, mental health issues and drug and alcohol abuse. Have they canvassed this radical proposal with stakeholders? Have they gone out to legal practitioners, judges or the families that use the family law system? No. Instead, they've gone ahead without consulting any of the groups. This arrogant, out-of-touch government does not consider it necessary to ask the very people who use the system daily if their radical idea will work before they try to implement it. It is dangerous to recklessly tinker with a family law system that decides the future of vulnerable children and their families—families who are already under stress and at breaking point. I hope, for the sake of the victims of family violence and the children using the family law system, that this government considers the measures in this bill to be sufficiently important to allocate proper funding. As I said before, if funding is not attached to this legislation it will be useless.

See this speech in context