Family Law Amendment (Family Violence and Cross-Examination of Parties) Bill 2018 [2018] AUSStaCSBSD 181 (15 August 2018)

• Family Law Amendment (Family Violence and Cross-Examination of Parties) Bill 2018
• Procedural fairness 30
• Parliamentary scrutiny—no requirement to table certain documents41

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Family Law Amendment (Family Violence and Cross-Examination of Parties) Bill 2018

Purpose	This bill seeks to amend the Family Law Act 1975 to restrict personal cross-examination in family law proceedings where there are allegations of family violence between the parties.
Portfolio	Attorney-General's
Introduced	House of Representatives on 28 June 2018

Procedural fairness ^[30]

1.39 The bill seeks to insert a new Division 4 into the Family Law Act 1975 (Family Law Act), to provide that if a party to family law proceedings intends to cross-examine another party, there is an allegation of family violence between the parties, and certain circumstances are satisfied, mandatory requirements will apply. The mandatory requirements are that the parties not personally cross-examine each other, and that the cross-examination is conducted by a legal practitioner acting on behalf of the examining party.^[31]

1.40 Proposed subparagraphs 102NA(1)(c)(i)-(iv) prescribe the circumstances that must be satisfied in order for the mandatory requirements to apply. These include:

(i) either party has been convicted of, or is charged with, an offence involving violence, or a threat of violence, to the other party; or

(ii) a family violence order (other than an interim order) applies to both parties; or

(iii) 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

(iv) the court may order that the mandatory requirements apply to the cross-examination.

1.41 It appears that, in each of the circumstances in subparagraphs (i) to (iii) there must be a finding relating to family violence by a judge or prosecutorial decision-maker. However, in relation to subparagraph (iv) it appears the court would be able to make such an order on its own initiative, or on the application of the witness party, the examining party or an independent children's lawyer appointed in relation to the proceedings.^[32] The bill does not appear to place any further limits on the exercise of the court's power.

1.42 The explanatory memorandum states that the mandatory requirements are intended to prevent re-traumatisation of family violence survivors, and to ensure that power imbalances created by family violence do not compromise the integrity of the trial process—including the ability of survivors to give clear evidence.^[33] However, while the explanatory memorandum gives examples of when the court could make such an order (e.g. where there is an interim family violence order or family violence allegations raised for the first time in the proceedings),^[34] it does not explain why it is necessary or appropriate to provide the court with a broad discretion to order that the mandatory requirements apply, without setting any legislative guidance as to when the discretion should be exercised.

1.43 In this context, the committee also notes that proposed section 102NB would require the court to ensure appropriate protections for the alleged victim of family violence in circumstances where the mandatory protections do not apply, such as directing that cross-examination be conducted through an audio or video link, closing the court to the general public and allowing the victim of family violence to have support persons present with them at trial.^[35] In light of these requirements, it is unclear why it is necessary and appropriate to also provide the court with a broad power to order that the mandatory requirements apply, particularly in the absence of any statutory limitation on how that power may be exercised.

1.44 The committee appreciates the importance of protecting survivors of family violence from re-traumatisation, and of preserving the integrity of family law proceedings. However, the committee has concerns that an order that the mandatory requirements apply could potentially require a party to family law proceedings to argue their case without the opportunity to cross-examine a significant witness—including in circumstances where an individual is unable to obtain the services of a legal practitioner or receive representation from legal aid.

1.45 With regard to the availability of legal aid for parties to procedings contemplated by proposed Division 4, the explanatory memorandum states that 'it is intended that a party would obtain their own legal representation where possible, and that legal aid would be available where a party is unable to obtain private representation'.^[36] The explanatory memorandum further states that:

a party who wishes to conduct cross-examination would be at liberty to obtain the assistance of a legal practitioner to act on his or her behalf. It is intended that the court would allow a party adequate time to obtain legal representation, and that legal aid would be available where a party is unable to obtain private representation.
The Australian Government is consulting with National Legal Aid to determine the process by which parties would obtain legal aid representation.^[37]

1.46 However, there does not appear to be anything on the face of the bill which would require that legal aid be made available to persons to whom the mandatory requirements apply. Further, while the explanatory memorandum states that arrangements would be provided for in the court rules and/or practice directions to facilitate legal representation and to minimise delays,^[38] it is not apparent that these arrangements would be directed at ensuring access to legal aid. In this regard, the committee notes that reports have found that retaining a private lawyer can be prohibitively costly, while legal aid means tests are often set at a level that allows only the poorest Australians to be eligible, leaving many individuals unable to afford private legal representation but nevertheless ineligible for legal aid.^[39]

1.47 The committee requests the the Attorney-General's advice as to:

• why it is considered necessary and appropriate to provide the court with a broad discretion to order that the mandatory requirements apply,^[40] and the appropriateness of amending the bill to provide some legislative guidance as to when the discretion should be exercised;

• the circumstances in which legal aid would be available to parties to family law proceedings involving allegations of family violence; and

• whether, in the circumstances that a person is subject to the prohibition on personal cross-examination or to other restrictions on their ability to present their own case, legal aid will be made more readily available.

Parliamentary scrutiny—no requirement to table certain documents^[41]

1.48 Proposed section 102NC seeks to require the minister to cause a review of the operation of proposed Division 4 to be commenced as soon as possible after the second anniversary of the commencement of that section, or such other day after the second anniversary that is prescribed by regulations. The explanatory memorandum states that the review is intended to ensure the amendments are operating as intended to reduce potential trauma to victims of family violence, while also maintaining procedural fairness for all parties.^[42]

1.49 However, the bill does not appear to require that documents associated with the review (for example, terms of reference or a final report) be tabled in Parliament. The bill also does not appear to require that documents associated with the review be made available online.

1.50 Tabling documents in Parliament is important to parliamentary scrutiny, as it alerts parliamentarians to the existence of the documents and provides opportunities for debate that are not available where documents are not made public or are only published online. Making documents associated with review processes available online promotes transparency and accountability. Consequently, where a bill does not require documents associated with a significant legislative review to be tabled in Parliament or published online, the committee would expect an appropriate justification to be included in the explanatory memorandum.

1.51 In this instance, the explanatory memorandum only states that the Attorney-General's Department will review the amendments internally, in consultation with the family law courts, National Legal Aid and other relevant stakeholders.^[43]

1.52 Noting that there may be impacts on parliamentary scrutiny where documents associated with a significant review are not made available to the Parliament, the committee requests the Attorney-General's advice as to:

• why it is not proposed to require documents associated with the review of proposed Division 4, conducted pursuant to proposed section 102NC, be tabled in Parliament; and

• whether the documents associated with the review of proposed Division 4 will be made available online.

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[30] Schedule 1 , item 1, proposed subparagraph 102NA(1)(c)(iv). The committee draws senators' attention to this provision pursuant to Senate Standing Order 24(1)(a)(i) and (iii).

[31] Proposed subsection 102NA(2).

[32] See proposed subsection 102NA(3).

[33] Explanatory memorandum, p. 2.

[34] Explanatory memorandum, p. 11.

[35] Explanatory memorandum, pp. 13-14

[36] Explanatory memorandum, p. 2

[37] Explanatory memorandum, p. 12.

[38] Explanatory memorandum, p. 12.

[39] See e.g. Attorney-General’s Department, Strategic Framework for Access to Justice in the Federal Civil Justice System, 2009, p. 52 and the Senate Legal and Constitutional Affairs Legislation Committee, Family Law Amendment (Family Violence and Cross-Examination) Bill 2018, August 2018, pp. 8-15 which noted submissions highlighting concerns regarding procedural fairness and the availability of legal representation for parties to whom the mandatory requirements apply.

[40] See proposed subparagraph 102NA(1)(c)(iv).

[41] Schedule 1, item 1, proposed section 102NC. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(v).

[42] Explanatory memorandum, p. 15.

[43] Explanatory memorandum, p. 15.