SUBMISSION

Attorney-General’s Department: Review of the ban on direct cross-examination under the Family Law Act 1975 (Cth)

This submission was provided to the review of the ban on direct cross-examination under the Family Law Act 1975 (Cth) and the associated Family Violence and Cross-Examination of Parties Scheme.

The Australian government passed amendments to the Family Law Act 1975 (Cth) (“the Act”) in late 2018 that banned direct cross-examination in certain circumstances in family law matters involving family violence. The amendments were accompanied by the Family Violence and Cross-Examination of Parties Scheme (“the Scheme”), which ensures that legal aid commissions can provide representation where the ban applies. The government was required to review the operating of the legislative provisions as soon as possible after the second anniversary of their commencement.

ANROWS’s submission outlines support for the Scheme and the review and draws on findings from the ANROWS report “No straight lines”: Self-represented litigants in family law proceedings involving allegations about family violence. ANROWS’s submission identifies:

• the need for legislative provisions to be utilised with a domestic and family violence (DFV) informed lens where victim’s and survivor’s safety needs are central to decision-making
• the need for consistency in judicial decisions on the discretionary application of the Scheme
• the need for clarity on whether funding under the Scheme covers full representation or is limited to cross-examination
• the need for means testing to reduce systems abuse and the cost of the Scheme
• the potential unintended consequences of the Scheme
• the variation in the use of allowable judicial adjustments and interventions for those who fall outside of the Scheme
• the existence of contrasting views on the ability of litigants to meet the threshold for the mandatory application of the Scheme.

The submission makes the following recommendations:

• Recommendation 1: Provide greater clarity and encouragement for judges to use the full suite of available judicial interventions and adjustments irrespective of whether litigants are eligible for the Scheme.
• Recommendation 2: Provide judges with DFV professional development and support to help ensure procedural fairness and evidence-based, safety-focused decision-making relating to the discretionary application of the Scheme and the use of interventions and adjustments.
• Recommendation 3: Set out in Section 102NA of the Act that the safety of victims and survivors must be the guiding consideration in the exercise of judicial discretion.
• Recommendation 4: While retaining the mandatory nature of the Scheme and balancing procedural fairness, consider whether limited judicial discretion could apply to enhance agency in situations where direct cross-examination of the perpetrator is requested by victims and survivors.
• Recommendation 5: Remove the onus on the self-represented litigant to apply for representation on the Scheme when mandatory or discretionary orders are in place.
• Recommendation 6: Ensure that geographic location does not impact the availability of alternative means of giving testimony or other safety measures.
• Recommendation 7: Provide certainty of funding so that judges are not influenced by numbers when making orders related to the discretionary application of the Scheme.
• Recommendation 8: Apply a carefully designed means test for representation under the Scheme and include recoupment of costs for those with income over the usual threshold.
• Recommendation 9: Consider alternative eligibility criteria for the Scheme if adequate funding cannot be obtained.

 

 

Suggested citation

Australia’s National Research Organisation for Women’s Safety. (2021). Re: Review of the ban on cross-examination under the Family Law Act 1975 (Cth) [Submission]. ANROWS.