Amendments made to the Family Law Act in 2019 now provide protection to victims of family violence who are cross-examined as part of family law proceedings. Since 10 September 2019, personal cross-examination is banned in family law proceedings in certain circumstances where allegations of family violence have been raised.
This was of particular significance because:
- The high numbers of cases involving family violence in the family courts;
- The inability of many victims to obtain legal aid for legal representation in family law, despite the issue being a legal aid priority; and
- The high number of court users who have mental health concerns.
Why it matters
For women who are victims of family violence, who have been raped, assaulted or psychologically abused by their ex-partner, appearing unrepresented in a family law trial is a frightening prospect. The experience of direct-cross-examination by an abusive ex-partner:
- can result in re-traumatisation of the victim;
- can compromise the quality of evidence given to the court; which can affect the court’s ability to make safe and effective orders;
- provides 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;
- can be a disincentive for victims to proceed to trial;
- can pressure some victims into consent agreements that may be unsafe or unworkable, to avoid the trial experience;
It is therefore essential for specific protections to be introduced to protect vulnerable witnesses against re-traumatisation.