New laws were introduced on 11 March 2019, changing court procedure in matters involving an element of domestic violence where one party is self-represented. These new laws will have effect from 10 September 2019.
Previously, a litigant who was violent or abusive towards their former partner could cross-examine their former partner during family law proceedings. This would invariably lead many victims of abuse to settle their proceedings on unfavourable terms purely out of fear, or being put in a position where they are asked questions for hours at length from the very person who was violent towards them, which could arguably amount to abuse itself.
This recent amendment to the Family Law Act prohibits the perpetrator from cross-examining the victim, and requires that person to engage a solicitor to perform the cross-examination.
The amendments have attempted to strike a balance between protecting vulnerable family violence victims, and also protecting innocent parties from being unfairly disadvantaged in a procedural sense when unfounded allegations are made against them.
There must be more than just an allegation of abuse, and for this restriction to apply:
- Either party must have been charged with, or convicted of, an offence involving violence (or a threat of violence) to the other person; or
- A domestic violence order must apply to both parties (this must be a final order not a temporary order); or
- The Family Court or Federal Circuit Court has made a personal protection restraint against one party in favour of the other; or
- The court otherwise directs this restriction to apply.
If none of the above 4 factors apply, the court is required to ensure there are protections in place for the alleged victim of domestic violence, which could see for instance the cross-examination being conducted by video or audio link.
Interestingly, this restriction also applies the other way, such that it restricts a victim of abuse from directly cross-examining the perpetrator. Perhaps in most instances the victim would be unwilling or unable to do so, however this restriction could prove disastrous for an abuse victim who is unable to afford a solicitor, which would see them being unable to challenge the evidence of their former partner. The statistics show victims of abuse are usually in a more vulnerable financial position than perpetrators, which would see this restriction disadvantage victims more than perpetrators.
In some instances Legal Aid will assist with providing representation, however not all parties qualify for a grant of aid.
It is important to consider these new laws when deciding whether to challenge an application for a domestic violence order. It is common for Respondents of domestic violence applications to consent to an order to avoid a trial and the potential for a finding of fact being made against them, however doing so will have repercussions if they find themselves in a family law dispute.
| Jacinta Norris
Ph: +61 7 3009 6555