Cathy McGowan (Indi, Independent) Share this | Link to this | Hansard source

I move:

That this House:

(1) notes that:

(a) inconsistencies exist between federal and state court procedures in relation to the direct cross examination of a victim by an accused person;

(b) specific state laws are in place to prevent an accused person from directly cross examining their victim in sexual offence cases and, in some states, family violence protection order cases—in such cases, an accused person must have legal representation to cross examine the victim;

(c) in family law cases nationally, there are no legislative protections to prevent an alleged perpetrator of violence who is unrepresented, from directly cross examining their victim; and

(d) intimate partner violence is the top risk factor for death, disability and illness in women aged 15 to 44—the added fear and trauma of cross examination by an alleged or known perpetrator of violence is a continuation of violence; and

(2) calls on the Government to amend family law legislation to ensure that in situations of family violence, an unrepresented litigant alleged or known to have perpetrated violence is unable to directly cross-examine the victim.

There are three issues I will speak about to day. The first is that victims of family violence, when giving evidence in the Family Court, must be protected from direct cross-examination by the alleged perpetrator. The second is the devastating impact on victims such cross-examination can have. Thirdly, I call on the Attorney-General to act swiftly in this matter and to amend the Family Law Act to protect these victims.

Many victims are living in fear in their own homes. Imagine a victim of such violence, having finally got out of such a situation and having got the children out as well, then being exposed to further violence from their abuser in the Family Court system. The approach is inconsistent between state and federal jurisdictions in this regard. For example, a victim may be protected from cross-examination in Victoria when applying for a protection order but not be protected in the federal Family Law courts in Victoria in relation to essentially the same issues. This is the situation that faced Eleanor, a woman who was put in the terrible situation of being directly cross-examined by her partner in court. She said:

I am someone who has had direct experience when escaping a perpetrator of violence, then having to deal with the complexity of the system in keeping my children and myself safe from my abuser … My perpetrator was a self-litigant and was allowed to directly cross-examine me in our family law hearing.

Eleanor, sadly, is not alone.

The Women's Legal Service Australia and many other support groups have long been advocating for vulnerable witness protection to be included in the Family Law Act. In June this year, the Women's Legal Service Victoria made a submission to the Royal Commission into Family Violence. It recommended the federal government amend the Family Law Act to include legislative protections for vulnerable witnesses from direct cross-examination by a perpetrator of family violence. The concerns from these advocacy groups have largely been dismissed due to a belief this anomaly affected only a small group of people.

The Women's Legal Service Australia commissioned a survey to catalogue the experience of women—survivors and victims of domestic violence—being personally cross-examined by their abusers in Family Court proceedings. The survey was distributed nationally through their networks and social media in September this year and has provided some valuable insights into the issue of personal cross-examination. As of today, they have received 270 responses. The survey remains open until 31 December and I encourage people to contact their state women's legal service if they would like to contribute.

I will quote from the draft survey report. Victims have been saying: 'It felt like he was given a stick to beat me while everybody watched'; 'I was absolutely paralysed, fearful with anger'; 'I could not talk at all'; 'overwhelmed by feelings of fear, stress and anxiety'; 'the whole process was incredibly disempowering and exhausting'; 'it destroyed me'; 'I was physically ill on the side of the road on the way to the court'. Here we have traumatised and broken victims of family violence being exposed to violence all over again. COAG has made domestic violence a national priority. Governments are acting. I commend the Prime Minister for his recent announcement of a $100 million package of measures to provide a safety net for women and children at high risk of experiencing domestic violence.

While the funding is welcome, there is a simple and powerful action the government can take now. The government can legislate to protect victims when giving evidence in the Family Court. When he made this announcement, the Prime Minister stated:

Women and children in Australia have the right to feel safe and live without fear of violence.

I agree. All victims have this right. Today I call on the government to move on this issue, to take immediate and urgent action to ensure that the Family Law Act includes specific protection for vulnerable witnesses, to stop direct cross-examination by a perpetrator or alleged perpetrator.

Finally, I would like to say thank you to Eleanor for her courage in sharing her story. And I take her call with pride to this House. Thank you.

Jane Prentice (Ryan, Liberal Party) Share this | Link to this | Hansard source

Thank you, Member for Indi. And I thank you for your proposal. Is there a seconder for the motion?

Pat Conroy (Charlton, Australian Labor Party) Share this | Link to this | Hansard source

I second the motion.

Jane Prentice (Ryan, Liberal Party) Share this | Link to this | Hansard source

Thank you, Member for Charlton. I call the member for Dobell.

Karen McNamara (Dobell, Liberal Party) Share this | Link to this | Hansard source

I thank the member for Indi for bringing this motion to the House. My support for the victims of domestic violence is well-documented both in this House and in my local community on the Central Coast. Many within this place and within my community would know that I am a strong advocate for the need for the government and the legal system to have policies and procedures in place that are responsive to the needs of the victim.

It is horrifying to acknowledge that intimate partner violence is the top risk factor for death, disability and illness in women aged 15 to 44. This blight on our community can and must be acted upon, and it must cease immediately. There is nothing more confronting for a victim than having to interact with the perpetrator in a formal court room setting. In my opinion, this is a continuation of an abusive relationship.

The strength and courage found by victims when they leave an abusive relationship is incomprehensible. As much support as possible needs to be provided to ensure the move they have made and the follow-on outcomes are not made any more traumatic. For an abuser to have the opportunity to cross-examine their victim in a formal court setting is unacceptable. This is why Commonwealth state and territory governments worked with the community to develop the 12-year National Plan to Reduce Violence against Women and their Children. The plan includes within its vision that Australian women and their children are able to live free from violence in safe communities, and that a significant and sustained reduction in violence against women and their children is actioned.

The Second Action Plan of the National Plan to Reduce Violence against Women and their Children was launched on Friday 27 June. One of the main outcomes of the plan was to drive continuous improvement in systems across the Commonwealth and the state and territory governments through reviewing domestic and family violence related policies. Within the plan are actions to improve information sharing across court processes. Commonwealth state and territory governments are continuing to explore and implement methods to improve collaboration and information sharing between court processes to achieve the best outcomes possible for victims.

The plan also involves initiatives that concentrate on the impact of victim-focused court practice reforms. I strongly support the call within this motion to amend family law legislation to ensure that in a situation of family violence an unrepresented litigant alleged or known to have perpetrated violence is legally prohibited from directly cross-examining a victim.

Improving the efficiency and the relevance of the justice system in response to domestic violence is an important aspect of the new reforms that form part of the national plan. I acknowledge the efforts of the states and territories in recognising that this is a problematic area, and solutions are being implemented to combat this issue.

With state modifications, complemented by Commonwealth government changes, it will soon be evident the issue of intimidation and confrontation in court rooms as a result of the cross-examination of a witness by a perpetrator has been taken seriously and remedied. Key initiatives such as specialist court responses, services and projects will help complement and support victims as they go through this difficult time. I am particularly supportive of the need for specialist services for child witnesses. The support of child witnesses in court proceedings is paramount, and it is pleasing to see that priority 3, action 16 of the plan specifically reiterates building support for children who have experienced, witnessed or been exposed to violence.

National priority 4 of the plan specifically addresses improving perpetrator interventions. This section reiterates that systems, including police, justice, corrections and community services, need to work together to increase the effectiveness of perpetrator interventions. It is important that this applies to all victims in the courtroom setting as well. Preventing and reducing violence against women and children requires strong legislation that is efficiently administered and holds perpetrators to account. We cannot provide an accused person with the opportunity to examine a victim in a court case. The implementation of strong legislation is a means of preventing this from occurring.

Violence against women and children can be defined in many different ways, with each state and territory having their own definition under their respective legislation. I am proud to be part of a government which takes the eradication of violence against women, children and in some cases men seriously. This is demonstrated in the recent announcements of over $100 million to fight the issue of domestic violence. As part of this announcement I will be campaigning to have a legal assistant service provider allocated to the Central Coast in the coming year. I commend everyone who is fighting against domestic and family violence.

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

I rise to speak on the motion put by the member for Indi and commend her for her interest and initiative in this area. Domestic violence is an enormous problem in this country and around the world. In Australia this year we have seen at least one woman dies every week at the hands of a current or former partner. We have seen some particularly troubling scenes in Queensland. One woman in three experiences physical violence. One woman in five experiences sexual violence. And men are not immune from experiencing this horrible scourge. Be they heterosexual or GLBTIQ, nobody is invulnerable, not even—it is horrible to say—the young students from FCJ College at Benalla who are here hearing the motion of the member for Indi debated.

A Family Law Council report released in August identifies data suggesting that over 60 per cent of parents experience preseparation violence and almost 20 per cent of parents report that they are concerned for the safety of themselves or their children as a result of ongoing contact with the other parent.

This year I have spoken to many family lawyers, community legal centres and litigants from Cairns to Perth, Adelaide, Sydney, Melbourne and Brisbane. I am constantly told of the ability of perpetrators of domestic and family violence to continue the abuse through the legal process. This can take many forms, including using delaying tactics; not providing disclosure as required by the court; not turning up at court as required; not cooperating with any attempts at settlement, forcing both parties into the court process, a process which is intimidating for anyone but even more so for someone who is fleeing family violence; and attempting to use the process of cross-examination as another weapon to inflict pain, as detailed in the motion of the member for Indi.

Cross-examination is and has always been a part of the court process in contested trials, and this obviously can be a very traumatic part of obtaining judicial guidance. I do note that cross-examination is not part of the process for interim hearings, when matters first come before the courts and decisions need to be made on a temporary basis until the trial can be heard—that is, when the facts are tested by the judiciary. In those hearings the evidence is by way of affidavits from each party and is not tested through cross-examination. I do note, thankfully, that most matters do not actually go on to a trial. If matters have not been resolved by the time a court can hear the trial then it will be heard by a judge in a contested hearing and all the evidence will be tested through cross-examination. The time frame in between the interim hearing stage and a trial is getting longer and longer, with the Chief Justice of the Family Court, Diana Bryant, stating in an interview on ABC Radio last week that it is now likely to be 12 months delay—a year of stasis. A year can be an eternity for a child and even for parents.

No-one wants to see a victim of family violence being cross-examined by the perpetrator of that violence. The prospect of that happening is much more likely now than it was some time ago. Self-represented litigants are increasing in number in our courts. The increased number of self-represented litigants is overwhelmingly due to the decrease in funding for access to justice.

The Attorney-General, Senator Brandis, has shown complete contempt for access to justice by ripping $15 million from legal aid commissions in last year's budget. That cut followed $43 million of cuts in late 2013 to legal aid, to community legal centres—which are already incredibly lean organisations—to Aboriginal and Torres Strait Islander legal services and, worst of all, to family violence prevention legal centres. It is vitally important that victims of family violence be represented in their family law hearings. With cuts to legal aid and legal assistance services, this is increasingly unlikely to be the case.

Apart from the immense protection that representation provides in court both legally and emotionally, representation aids the court process by ensuring that only relevant issues are aired in court and only relevant questions are put to witnesses. Court time is very, very valuable. Waiting times are increasing not only due to the huge number of matters being listed in courts but also due to the Attorney-General failing to replace retiring judges. There are six vacancies in the Federal Circuit Court and one in the Brisbane Family Court. The Attorney-General took 560 days to replace a judge in the Sydney registry of the Family Court, and I know that there are also delays in Newcastle. The Chief Justice said last week that the courts will never make up the time from the delay in replacing retiring judges.

With court time so precious, making the court process more efficient by providing representation for litigants would assist not only those litigants but also our entire family law system. Women who have experienced family violence should not be left to negotiate the family law system alone.

Sharon Claydon (Newcastle, Australian Labor Party) Share this | Link to this | Hansard source

I spoke earlier today on some of the implications of having a judicial system that is not adequately resourced and staffed. In my electorate of Newcastle, that is having a profound impact at the moment. We simply are not having judicial replacements appointed in a timely manner, leaving women and children in particular—but everybody who is seeking to get parenting disputes settled—in an unsatisfactory and unacceptable state of limbo. I thank the member for Indi for bringing this important motion before the House today and acknowledge her strong advocacy for victims of crime and, in particular, victims of family violence.

There is a 12-year National Plan to Reduce Violence Against Women and their Children in Australia. It was launched in 2010 under the former Labor government, and it brings together the efforts of governments across the nation to make a real and sustained reduction in the levels of violence against women. It was the first plan of its kind to coordinate across jurisdictions and to focus on the prevention of violence. While there is progress being made—and I certainly welcome the government's commitment to continuing that national plan—there are indeed many areas where so much more work has to be done.

I acknowledge the Prime Minister's recent commitment to the Women's Safety Package to help try to stop some violence. Again I put on record that this is a welcome first step but it is just a first step. As the motion before us brings to light, there are some glaring inconsistencies that currently exist across legal jurisdictions, and the accessibility of legal aid and representation in court proceedings is emerging as a very strong issue. Victims, advocacy groups and even the former Chief Justice of the Family Court are on the record describing the situation as being unacceptable and in need of remedy.

At the inquest into her son's death the 2015 Australian of the Year, Rosie Batty, said that she suffered vicarious trauma caused by dealing with the court system over several years to negotiate custody arrangements with her former partner. Every time she went to court, she would experience heightened levels of anxiety. She talked about feeling desperate, alone and afraid in trying to deal with her violent ex-partner. She represented herself in court because, in her words, 'the system is too expensive'. The Chief Justice of the Family Court of Australia, the Hon. Diana Bryant, I note, in fact refers to this phenomenon of self-representation as 'unrepresentation', noting that, from her perspective, that accurately describes the status of those people acting without legal assistance.

I also draw the House's attention to an ABC news report that was featured on the PM program back in 2013 and that looked specifically at this issue that the member for Indi is bringing to our attention today: the cross-examination of victims by the perpetrators of violence. In that report, a victim described what she experienced when faced with the prospect of being cross-examined by her former partner, who allegedly raped her, when he refused to have a lawyer. She said:

I was standing outside in the foyer and I was shaking from head to toe and I couldn't breathe properly, I was hyperventilating. At that point I could have easily … just … thrown myself in front of the first bus. I could not believe that he had been allowed to do this to me.

Former Chief Justice of the Family Court Alastair Nicholson said the situation is unacceptable. His words were:

Not everyone realises the degree of fear that's engendered in cross examining them in court, and in affect putting them through the ringer. I think the effects on them are profound and it just shouldn't happen.

In closing: it is clear that people at perhaps their most vulnerable times should expect more from our justice system. It is unacceptable that victims of family violence can be, even perhaps unwittingly, retraumatised by a process that in effect seeks justice and redress for those victims. I commend the motion before the House.

Debate adjourned.

Sitting suspended from 13:12 to 16:00