New restrictions will prevent criminally convicted perpetrators of family violence from being able to cross-examine their victims during family law proceedings
“This will remove the fear of being directly cross-examined by their perpetrator as a factor in a woman’s decision whether to settle a matter and encourage women who have experienced family violence to pursue their legal entitlements” – Federal Circuit Court of Australia
In September 2019, amendments to the Family Law Act 1975 – Section 102NA were made to offer greater protection to alleged victims of family violence facing cross-examination as part of family law proceedings.
Following the amendments, cross-examination can no longer be carried out by a person convicted of family violence related offences who represents themselves in court. Instead, a legal representative must cross-examine an alleged victim of family violence during a trial.
There has been a push for changes in family violence prevention measures and in the way in which family law courts have been managing this, says Burhan Eren, Associate and Family Law expert at Mazzeo Lawyers.
“This amendment mostly affects people who go all the way to a trial. If an ex-partner accused of family violence represents themselves at trial, they will no longer be able to compel the alleged victim to answer their questions in the witness box and attack them or make them feel uncomfortable. Because often, in cases like this where someone represents themselves, the legal aspect does not matter to them – it is more about dragging their ex-partner to trial and being able to humiliate them in an open court. It can be a final form of abuse to a former partner,” says Burhan.
“Clients who are told that they will be cross-examined in open court by their former abusive partner are distraught and terrified by the concept – even if the former partner does not do a great job at cross-examining them from a legal perspective. But that person may still be able to inflict psychological harm.
“In cases for example where a mother is pursuing full custody of a child because her ex-partner has perpetrated family violence against her and the child, she may have to go all the way to a final hearing to get an order to give her full custody. Previously, her ex-partner would have been able to cross-examine her.”
The amendments are important in light of reported increases in the number of reported family assaults. Statistics from police in WA indicate the number of such assaults has increased by 708 per cent in the past two decades.
In Victoria, police statistics show the number of recorded family incidents in 2013-2014 as 65,179. In 2017-2018 that number rose to 76,124. The Crime Statistics Agency in Victoria reports the number of family incidents in the year to 30 June 2019 was 82,620.
Burhan adds that the change has been welcomed by most of the legal profession and he says it is a step in the right direction in terms of supporting family violence victims. Many family violence advocacy and support organisations believe more needs to be done to protect victims involved in the legal process.
“Mazzeo Lawyers offers legal services in family law and many clients, particularly female clients, instruct us that they have experienced some form of abuse by their former partners, whether that be physical, emotional or financial,” says Burhan.
“This is a sensitive issue and many clients struggle to open up to their lawyers in relation to their experiences. This measure recognises problems in the Family Law Court and it should be helpful.
“The Victorian State Magistrates’ Court has already had such restrictions and it appears the Family Court in now catching up. This change was long overdue.”
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