It can be a distressing experience for the victims of family violence to cross-examine, or be cross-examined by, their violent former partner in family law proceedings. The Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2017 purports to address this concern by allowing self-represented litigants to ask and respond to questions from a third party appointed by the court.
Why is the draft Bill considered necessary?
The Commonwealth Government is concerned that the current regime, which permits cross examination of a victim of family violence by their alleged perpetrator, potentially exposes the victim to further trauma and distress.
During the National Summit held by the Council of Australian Governments in October 2016, a roundtable on family violence discussed this issue. Participants agreed that perpetrators of family violence should not be permitted to directly cross-examine their victims in family law or family violence proceedings.
An initiative from the discussion was to introduce a court-appointed third party to take on the role of cross-examiner.
In which cases would a person be appointed?
Unless the court grants leave, it is mandatory for the court to appoint the third party in cases where:
- there is an allegation of family violence between a witness and the party who wishes to cross examine them;
- the party who wishes to cross-examine the witness is not represented by a lawyer; and
- one or more of the following conditions are satisfied:
(a) either party has been convicted, or is charged with, an offence involving violence or a threat of violence, to the other party; or
(b) a family violence order (but not an interim order) applies to both parties; or
(c) an injunction under sections 68B or 114 of the Family Law Act 1975 (Cth) applies.
What is the role of the court-appointed person?
Their role is solely to act as an intermediary and to ask questions during cross-examination.
They are not a legal representative for either party nor are they to provide legal advice.
Who can be a court-appointed person?
The draft Bill does not provide any guidance about who might take on the role, for example, whether this could be a relative of the witness, or perhaps an independent third party such as a social worker.
Presumably, the court would prefer to appoint a person:
- independent to the parties to the proceedings; and
- with some experience in such high conflict and traumatic cases e.g. a social worker.
When will the draft Bill become law?
The draft Bill is currently in the consultation stage.
There is opposition from the Family Law Section of the Law Council of Australia to the court-appointed person being a non-lawyer. It is submitted by the Law Council, among other matters, that a lawyer should be appointed for the whole trial for an unrepresented alleged perpetrator (and the victim if they are unrepresented).
While this submission reflects ideal approach, it will require further funding from the Commonwealth to be feasible.
It will be interesting to see if the Government proposes any significant amendments to the draft Bill as a result of the consultation process.