Bert Van Manen (Forde, Liberal Party) Share this | Link to this | Hansard source

It is indeed a pleasure to rise in this House and speak on what I think is an extraordinarily important piece of legislation, the Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018. I listened with interest to the comments from the member for Isaacs earlier. I think we all in this place can agree that a bill of this nature deserves support. The reason for that is that victims of family violence or parties involved in family law matters can presently be cross-examined by the alleged perpetrators of that violence. I think many people across our community would find great concern with this—and justifiably so.

At the October 2016 COAG National Summit on Reducing Violence Against Women and their Children, it was agreed that perpetrators of family violence should not be able to personally cross-examine their victims in any family law or family violence proceedings. In the 2017-18 federal budget, it was announced that the legislation would be progressed by the Attorney-General to implement these family law proceedings. The Senate Legal and Constitutional Affairs Legislation Committee reported its inquiry into the bill and recommended that the bill be passed, subject to details regarding funding of the bill being made public prior to the commencement of debate in the Senate.

This bill responds directly to the recommendations of the committee's report. As I reflect on the topic that we're discussing, it's important to remember in all of this that it's not about what we discuss here in this House; it's actually about the families and the children who suffer in these circumstances. Importantly, these amendments also apply equally to parenting and property proceedings, thereby ensuring the appropriate safeguards for the victims of family violence are applied in all types of family law proceedings.

The Australian Institute of Health and Welfare's report found one in six Australian women and one in 16 Australian men have experienced physical and/or sexual violence by a current or previous partner, and one in four women and one in six men have experienced emotional abuse by a current or previous partner. Sadly, the report showed those most at risk were Aboriginal and Torres Strait Islander women, young women, pregnant women, women with disabilities, women experiencing financial hardship, and women and men who experienced abuse or witnessed domestic violence as a child.

The cost to the nation of violence against women is significant on many fronts. The KPMG report into the cost of violence against women and their children in Australia stated:

Violence against women and their children is a crime and a fundamental breach of human rights. Experiencing violence has significant implications for victims, their children, families, friends, employers and co-workers. The implications of violence can include long term social, health, psychological, financial, and economic—

harm. KPMG estimated the financial cost of such violence was $22 billion per annum in 2015-16 but noted that when taking into account under-represented groups and their source data, including Aboriginal and Torres Strait Islander women, pregnant women, women with a disability, and women experiencing homelessness, an additional $4 billion may be added, taking the total financial cost to $26 billion per annum.

Family violence is not just about dollars; it is about people. It is about men, women and children—not statistics but human beings. It's not about the numbers but mothers, fathers, daughters, sons, grandparents, and the people next door, many who keep it secret and suffer in silence for weeks, months or years. It is in every community and in every electorate. The human cost to our society is both devastating and intolerable and is part of the human toll that this bill seeks to address.

We know that domestic violence and abuse can take many forms: physical, verbal, financial, emotional, sexual, stalking, spiritual and image based. Any and all of these are used against victims, often over a considerable time frame and almost always with devastating results. The reality of this terrible scourge is that, as we stand here today, thousands of Australians are being subject to the most terrible abuse by violent, vicious and uncaring partners. Thousands of children are witnessing what has become, tragically, normalised behaviour for many.

The ultimate tragedy for all of us is that there are many victims in our communities who won't make it as far as the court. These are the victims who pay the ultimate price and who die at the hands of their attackers. We all know the shameful regularity of domestic violence deaths. Week by week, the human toll increases and the shame on our society is added to.

The luckier victims—and I use that term only as a measure of degree—who reach the court system have often endured years of unimaginable physical and mental abuse. Subjugated by permanent and crippling levels of fear, they have, through circumstances or through sheer courage and force of will, been able to escape their abusers. The direct cross-examination of such victims of family violence by their alleged perpetrator can expose the victims to the possibility or even likelihood of retraumatisation and has the potential to undo even years of treatment and therapy and affect the quality and the clarity of their evidence. We hear public testimony of survivors saying their cross-examination by former partners drove them towards suicide. The often one-sided power dynamics underlying family violence can also make it difficult for victims to effectively cross-examine their alleged perpetrator. Research conducted by the Institute of Family Studies found that over two years between 2015 and 2017 direct cross-examination in final hearings occurred in 173 matters where there were allegations of family violence and one or both parties were self-represented.

This bill seeks to amend the Family Law Act to prohibit the personal cross-examination where there is an allegation of family violence between parties and any of the following applies: either party has been convicted of or is charged with an offence involving violence or a threat of violence to the other party; a family violence order other than an interim order applies to both parties; an injunction under section 68B or 114 of the Family Law Act for the personal protection of either party is directed against the other party; or the court makes an order that personal cross-examination is prohibited. The bill provides that if personal cross-examination is prohibited, cross-examination must be conducted by a legal representative, and it provides that if there is an allegation of family violence but personal cross-examination is not prohibited, the court must apply other appropriate protections.

This bill anticipates a process through which the court would make a request or direction that the party engage a lawyer, either privately or through legal aid, for the purposes of cross-examination. These arrangements will be provided for in the rules of the court and/or practice directions as necessary. The bill is balanced and affords equal protections to both parties in a proceeding. However, there should be no doubt that it sends a strong signal to the community that the rights of victims matter, and that this government understands that victims of crime, often overlooked, deserve the type of protections that in too many jurisdictions these days seem only to be afforded to criminals.

We should not pretend that this legislative change alone will bring an end to family violence. That is a fight that is going to be fought on many fronts across our society for time to come. The bill before us is intended to be and needs to be a step forward to provide these protections to the victims. I hope this bill will, at least to some degree, ease the burden of fear of those many people who are currently facing the devastating situation of being victims of family violence and who, until now, have had their victimisation exacerbated by the very system that seeks to protection them. I hope it allows them the comfort of knowing that they will not be compelled to face the alleged perpetrator of the violence and abuse that has consumed them and become, often, the most significant, terrifying and destructive episode in their life. I'm proud of the fact that this bill has been brought before the House and of the bipartisan commitment that the member for Isaacs outlined earlier. We seek in this bill to provide the rights and protections to victims of family violence that are so desperately needed.

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

Mr Tony Burke (Watson, Australian Labor Party, Manager of Opposition Business (House)) Share this | Link to this | Hansard source

I move:

That so much of the standing orders be suspended as would prevent the Manager of Opposition Business from moving the following motion immediately—That the House:

(1) notes:

(a) the bill currently before the House is urgent and should be given precedence over all other items, other than question time and this motion, for the remainder of the day;

(b) at 11.23 am today the Minister for Home Affairs made a statement to the House in which he said, "On 26 March 2018, the shadow minister for immigration asked me a question, asserting I had granted a visa for a person to be employed by me and my wife as a nanny";

(c) however, on 26 March the actual question asked by the shadow minister for immigration, the member for Blair, made no reference to whether the minister had granted a visa to a person to be employed by him and his wife as a nanny. Instead it read: "I refer to concerns raised in the media today relating to the minister's use of his ministerial discretion to grant a tourist visa to an au pair. Was his decision based on departmental advice? If not, what prompted the minister to intervene? And will the minister undertake to provide the opposition with a department briefing at the earliest opportunity so that the facts can be made clear?";

(d) today the Minister for Home Affairs also stated, "On 27 March, the member for Melbourne, after a short preamble, asked me, 'Can you categorically rule out any personal connection or any other relationship between you and the intended employer of either of the au pairs?'";

(e) however, once again the Minister for Home Affairs changed the words of the question to make it look like he had not misled the parliament; and

(f) the question the member for Melbourne actually asked read: 'I note your recent statements in relation to your personal intervention to prevent deportation of two foreign intended au pairs. Can you categorically rule out any personal connection or any other relationship between you and the intended employer of either of the au pairs?"

(2) therefore resolves to provide an opportunity for the minister to act in accordance with the Ministerial Standards to explain why he provided the House with false information in his statement today when he next attends the House.

This resolution does two things. First of all, it declares the bill before the House as urgent. It would have the effect of suspending 90-second statements so that dealing with this motion now takes away no time from an important bill. But the second thing it does is deal immediately with the fact that the minister stood up today, allegedly to make it clear that he had not misled the parliament and, in making that speech, misled the parliament twice—twice—and not simply on matters of detail but on misquoting the Hansard. They have a history of wanting to change the Hansard.

Christopher Pyne (Sturt, Liberal Party, Leader of the House) Share this | Link to this | Hansard source

I seek your guidance, Mr Deputy Speaker, on whether you believe that this suspension of standing orders is in order at this time of the day, given that we're in the middle of a debate on the family violence legislation.

An opposition member: It didn't worry you last week.

What do you mean? That's not really a relevant objection.

Kevin Hogan (Page, National Party) Share this | Link to this | Hansard source

The members opposite will be quiet, please.

Christopher Pyne (Sturt, Liberal Party, Leader of the House) Share this | Link to this | Hansard source

If the Manager of Opposition Business wants to move a motion at some stage later today and move a suspension of standing orders, that's another thing. But we are in the midst of a debate and there are rules around what can be done in the midst of a debate. We're not between two items of business.

Kevin Hogan (Page, National Party) Share this | Link to this | Hansard source

I do take the point and, as the Manager of Opposition Business would know, the suspension has to be relevant to the current debate. I am yet to be convinced of that. I am happy for you to finish but at this stage I would say, 'Probably not'. But I'm happy for you to finish.

Mr Tony Burke (Watson, Australian Labor Party, Manager of Opposition Business (House)) Share this | Link to this | Hansard source

If I can make it clear again, the first paragraph of this motion deals explicitly with the bill that is in front of the House. It has the House declaring that for the rest of today, other than question time, we will deal with only two issues. The first is this bill. The second is the remainder of the motion. It is not possible to have a resolution of this nature without reference to the particular bill, but we are making a decision as a House as to what the issues will be for the remainder of the day. One of them would be, quite specifically, about the bill that is currently before the House. The other would be about the extraordinary moment we had in the House earlier today, where the Minister for Home Affairs made a statement on indulgence, allegedly to clean up having misled the House and in doing so misled the House twice.

Kevin Hogan (Page, National Party) Share this | Link to this | Hansard source

I call the Leader of the House.

Christopher Pyne (Sturt, Liberal Party, Leader of the House) Share this | Link to this | Hansard source

Thank you. The point is that this would be a very significant precedent if an opposition, or for that matter a government, could move a motion in which a bill that was currently under debate—in this case, the Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018—could simply be mentioned and that would somehow make the motion relevant to the bill that was under consideration. There has never been a time when a suspension of standing orders has been allowed to interrupt a substantive debate in the House just because the first item mentions the bill that is being debated. If this precedent is allowed to stand, anytime the opposition or the government wants to move a suspension of standing orders, they will simply have to name the bill in the first item and somehow that will be enough to make it relevant to the bill. The matters that are being canvassed by the Manager of Opposition Business to do with the Minister for Home Affairs may well be legitimate matters to be canvassed but they should not be canvassed during the debate on this bill. It would be a very significant precedent if that were allowed to happen.

Mr Tony Burke (Watson, Australian Labor Party, Manager of Opposition Business (House)) Share this | Link to this | Hansard source

To the point of order, if I may?

Kevin Hogan (Page, National Party) Share this | Link to this | Hansard source

Yes, Manager of Opposition Business.

Mr Tony Burke (Watson, Australian Labor Party, Manager of Opposition Business (House)) Share this | Link to this | Hansard source

To the point of order, this is a procedural motion seeking to identify the issues we will deal with for the rest of the day. It's not simply a passing reference to the bill, as the Leader of the House has just described. This says that, for the rest of the day, all other items would be suspended, including 90-second statements, other than this bill and one statement to the parliament from the Minister for Home Affairs. It is impossible for the House to resolve that without explaining what the two issues would be. It cannot be determined by 'which one involves more words in the motion'. It has to be determined by the action the House is taking. The House in this motion is taking a very clear action that it will give precedence today to the bill that is currently before us and the fact that we need to deal with the Minister for Home Affairs having misled the parliament again twice this morning.

Kevin Hogan (Page, National Party) Share this | Link to this | Hansard source

I have listened to the arguments of the Manager of Opposition Business and the Leader of the House, and I do not believe—and I have conferred with the Clerk—that this is relevant to the business being debated. The Manager of Opposition Business can certainly bring this up at a later time.

Russell Broadbent (McMillan, Liberal Party) Share this | Link to this | Hansard source

I rise to speak on the Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018. If you listened closely to the member for Moreton's address to the parliament—previous to this interruption—the member for Moreton, as a lawyer, made it very clear that this isn't as simple as we would like to think it is and that there are areas around funding that need to be addressed which the opposition have said that they are prepared to address if they are in government.

But I want to talk about the process of how we in this parliament get to an issue around personal cross-examination of victims by their alleged perpetrators in family law matters. It doesn't just pop into the parliament; it doesn't just arrive here as a bill. Clearly, there a number of people in our community who have experienced firsthand and observed the trauma of those people who have their perpetrator in a family law case examine them directly. The member for Moreton went through in detail the consequences of that for an individual, usually women, and the retraumatisation of what had happened within that family household. And groups and committees have raised this in law reform groups. What I am saying is that we don't make a change to the common law in Australia without due diligence and consideration. We go through a lot of hoops and do a lot of checks to get to a point where we want to make a change to what happens in a courtroom or a family court. We don't do it by chance.

It is simple to understand that a woman in a courtroom being cross-examined by the person who actually perpetrated the act on her must be something that would traumatise the strongest of women—that they are going to have to relive the situation. We don't know what the innuendo or the background of a question from the perpetrator might be. We wouldn't have a clue. But she would know. She would know exactly what is being put to her. She would know exactly the trauma she is facing. She would know how she and her children felt at the time. Then she has to live through it again, but this time in front of an audience—this time in front of a whole lot of people who are going to report on the perpetrator's question and her response. The member for Moreton talked about women vomiting on the way to court and women settling out of court just to avoid cross-examination. I don't think you can ever come to the point of knowing and understanding unless you have been inside the person's head, which we haven't been. For those of us like me who haven't been through this process—a process which thousands of families have gone through—I don't think you can ever understand the trauma and the invasion.

The community has brought this forward to the parliament of Australia through the channels that were necessary. Eventually, the Attorney-General is asked to put something together that we can put into law that will protect those people being cross-examined, at the same time adhering to the point of law where it is right that someone can be cross-examined, only with issues about by whom and at what time and in a timely manner. If we do that, we'll have achieved a lot, because the threat of direct cross-examination is being removed by this legislation. It didn't just come to the House. It went to the Senate Legal and Constitutional Affairs Committee on 13 August 2018, and in its inquiry the committee recommended that the bill be passed subject to details regarding funding of the bill being made public prior to the commencement of debate in the Senate.

For the broader community to understand, and for me to understand, there are issues around how you will fund people who can't get legal aid to get a lawyer to cross-examine on their behalf, but who are not in a financial position to hire a lawyer themselves to cross-examine on their behalf. I don't think it's unreasonable to find a way that they be funded through legal aid with a variation to the criteria that are currently in place for people to gain access to legal aid. If we have to go that far in this country in regard to another issue around family violence, then we have to do it. This bill achieves the aim but doesn't specifically say how it will be carried out. It puts in the framework for the courts. It puts in the ability of the courts to make decisions about how the court will act in these cases and what recommendations it will make. So the basis and determination of the bill is correct. The community has decided that it's not good enough for a perpetrator to be able to cross-examine the victim, the person that's been hurt.

So I put to the parliament today that we need to support this bill. There needs to be reasonable consideration of where the bill will go into the future, and there needs to be monitoring in the courts, by the courts, of the outcome of this legislation. We don't just put it through the parliament and set and forget. There needs to be reporting back to say whether the legislation has worked. Will somebody review this legislation in the future so that women, in particular, do not face this cross-examination, and so that the court system is working more effectively and efficiently and more fairly on behalf of those who have suffered the consequences of family violence? If we can do that, we'll have achieved a lot. We'll have achieved something that hundreds and hundreds of people have desired that the parliament do. We can do it in a bipartisan manner. The only disappointment I have with the member for Moreton is that he had to bring the politics of the day into an issue that's going to last in people's lives for years and years to come. We're doing something now that will make a difference to women in Australia for years to come, in the full knowledge that they will be protected by the courts.

The flow-on of that, of course, is that they are protected by the Parliament of Australia, because this parliament is deciding on your behalf. This parliament is making a decision on behalf of the women of Australia in the Family Court who have experienced family violence. We're recognising that, and we're also saying: 'Oh, by the way, we have a responsibility too. We have a responsibility on behalf of our broader community.'

With those few words, I support this legislation. I expect that the opposition will support this legislation. I know that the crossbenchers will support the legislation. There will be some criticism along the way, but I hope that, in the genuineness of the spirit that is behind this legislation, it will be supported unanimously by this parliament.

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

It certainly gives me some pleasure to stand in the House of Representatives today to speak at least to the substance of the Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018. There have been some terrific contributions to the debate so far. But I also stand here to support very strongly the amendment moved by the member for Isaacs, Labor's shadow Attorney-General, which seeks to ensure that there will be adequate funding available for legal aid in Australia, which is of course the essential part of being able to implement this legislation.

I listened carefully to the words that the member for McMillan spoke before me, and certainly there is longstanding support for the prohibition of cross-examination of victims of family violence by perpetrators of violence. I say that there is some longstanding bipartisan support. I should correct that and say that Labor has, for two years now, been calling for this very bill to come before the House, and it is terrific that the government is now on board in trying to provide a legislative framework to ensure that the ongoing practice of cross-examination of domestic abuse survivors by their perpetrators is put to a halt—that there will be a stop to this utterly shameful practice that has been going on in our legal system for far too long now.

But I don't think anybody in this House should kid themselves about the level of concern that remains outside this parliament about the fact that we have courts that are already feeling so stretched by the under-resourcing of our family courts in Australia now. We know that increasingly the Federal Circuit Court is hearing family law matters, which comprise some 80 per cent of its case load nowadays, but the Family Court of Australia—coupled with the Federal Circuit Court, of course—is carrying the brunt of family law matters in Australia. Both of those courts have expressed, through their former Chief Judge and Chief Justices, grave concerns about the lack of adequate resourcing of our Commonwealth courts in Australia.

I concur wholeheartedly. It remains a matter of great concern to me that we really still haven't faced up to that very obvious shortcoming in our legal system—that is, if we want those courts to work as they should, they need adequate staff, resources and tools to do so. This piece of legislation goes some way towards providing some tools for judges to be able to insist that unrepresented litigants have legal representatives. That is not unreasonable. Indeed, it's something that I think most people in this House would suggest is a good thing. But, in order to get to that point, we've got to ensure adequate resourcing, as I said. Indeed, we heard from speakers previously that, in the most recent inquiry of the Senate Legal and Constitutional Affairs Legislation Committee into this legislation, even the government's own senators stood in unison with Labor senators in calling for a guarantee of additional funding for legal aid before this bill passes this parliament.

We don't have that guarantee here today as we debate this in the House of Representatives, so all of the Labor speakers on this side of the House will be putting the government on notice about this glaring omission from the legislation to date. Indeed, we have called for this additional funding to be guaranteed. There have been no such assurances provided as yet; hence the amendment put by the member for Isaacs earlier on in this debate. It is most regretful that both the former Prime Minister and, clearly, it would seem, the current Prime Minister, along with the Attorney-General, have so far chosen to ignore the fact that, without funding, you cannot implement this legislation in the manner in which it is intended.

As Deputy Chair of the House of Representatives Standing Committee on Social Policy and Legal Affairs, I spent much of last year taking evidence from men and women across Australia with regards to the family law system and how it might better support and, indeed, protect those affected by family violence. We made a number of recommendations that would go some way towards providing an accessible, equitable and responsive family law system which better prioritises the safety of those affected by family violence.

I'm very pleased to say that one of the very strong recommendations from that committee was about ensuring that perpetrators of violence were then not able to retraumatise their victims by fronting up to court and insisting on being the person to directly cross-examine their former partners. We heard some very, very troubling evidence as to the impacts of the current laws, which allow self-represented perpetrators to cross-examine victims during court proceedings. Indeed, the evidence that was brought before our committee from both the survivors of family violence and all of the legal practitioners who work in this area was so overwhelming that it's of no surprise to anybody in the House that that committee, back in December last year, asked for the government to bring forward this legislation much sooner rather than later to ensure that we provide a more adequate level of safety for what is predominantly—overwhelmingly—women who are in this situation of having violent partners going on to cross-examine them in family law matters.

As I said, I am delighted that this bill comes before the House. It is deeply regretful that there is not adequate funding attached to this. I am absolutely clear that this is just one of many pieces of reform that is necessary in order to provide better protection for women and victims of family violence in our family law system. I draw the House's attention to the tragic fact that the register of women killed by violent acts this year alone now stands at 46. We are at week 36 of this year, and 46 Australian women are now dead as a result of violence perpetrated against them.

Kevin Hogan (Page, National Party) Share this | Link to this | Hansard source

The debate is interrupted in accordance with standing order 43 and may be resumed at a later hour.