: Safety in family law

Safety in family law

Janet Loughman

In each Australian state and territory, there are legal protections in many civil and criminal proceedings to prevent self-represented litigants cross-examining former partners where there is a history of violence, including sexual violence. These protections recognise the traumatic impact of cross-examination of vulnerable witnesses by perpetrators of violence.

There are no equivalent provisions in the family law jurisdiction. The Family Law Act contains no protection against direct cross examination by perpetrators or any specific protections for vulnerability in general, for example for witnesses with disability.

Cross-examination by an alleged abuser has a devastating impact when experienced, and can also lead to some choosing to settle their family law matters on less than satisfactory terms to avoid being cross-examined by, or having to cross-examine, a violent ex-partner.

In 2015, 330 women responded to a WLSA survey of survivors of domestic and family violence to gather evidence about the extent and impact of the experience of being directly cross-examined in family law courts. High levels of violence were reported, and included 64 per cent of women reporting sexual violence.

Thirty nine per cent of matters settled before judgment and 45 per cent of these respondents said that the prospective fear of personal cross-examination by their abuser was a significant factor in their decision to settle. Survey respondents commented that they did not believe the court adequately intervened to protect them and many felt the system had let them down and was complicit in the abuse.

In total, 144 respondents made comments about the effect the cross examination had on them.

On 14 October 2015, Independent MP Cathy McGowan, introduced a private members motion calling on the government to amend family law legislation to ensure in that in situations of family violence, an unrepresented litigant alleged or known to have perpetrated violence is unable to directly cross-examine the victim. The motion noted that intimate partner violence is the top risk factor for death, disability and illness in women aged 15 to 44 years — the added fear and trauma of cross examination by an alleged or known perpetrator of violence is a continuation of the violence.

For further information on what changes need to be made to the family law system to ensure Safety in Family Law, see the Women’s Legal Services Australia website — www.wlsa.org.au.

JANET LOUGHMAN is principal solicitor with the Women’s Legal Service NSW.

(2016) 41(1) AltLJ 65
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