Family Law Amendment: The Cross Examination of Parties
I rise to speak on the Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018.
The ongoing cross-examination of domestic abuse survivors by their perpetrators is a shameful practice and it has gone on for far too long.
It has forced victims to settle with underwhelming outcomes in order to avoid being questioned by their perpetrator.
We know that victims who are cross-examined by their abusers are less likely to reveal the full extent of their abuse, and courts are less likely to find out the truth.
This is an incentive for perpetrators to cross examine their victims. And we need to remove that incentive.
This bill imposes an outright ban on direct cross-examination of both victim and perpetrator in family law hearings, where there is evidence of or allegations of family violence.
Labor supports this bill. We have done so for at least two years. We understand the importance of it, so much so we took it to the 2016 election. It’s a relief to see the Turnbull Government finally join us in this commitment.
There is one major difference between Labor’s plan and this bill.
The Turnbull Government has failed to guarantee additional funding for Legal Aid or set aside funding in this year’s budget.
National Legal Aid has stated it is very difficult for the service to respond to this proposed legislation without additional funding.
Passing this legislation without a guarantee of additional funding could create a crisis situation in the family law system. Legal Aid will not have the appropriate resources to fulfil requests for representation when made by a judge. This means the ban on cross-examination automatically applies to both perpetrators and victims.
This could result in a denial of due process, with courts being unable to test facts, and thereby being unable to make findings.
This is the outright denial of justice.
The Government says it is conducting ongoing discussions with Legal Aid, which include the topic of funding.
At a Senate committee hearing this year, National Legal Aid said those discussions were at an early stage and were not conclusive.
The Attorney General has also sent mixed messages about funding for this legislation.
In June this year, he told the Australian there would be no extra legal aid funding as a result of the legislative change, and those prevented from cross-examining their ex-partner would only be able to access legal aid if they met its usual rules for qualifying.
This means where the ban on cross-examination applies, parties will be directed to obtain legal representation, either privately or through Legal Aid but only if they are eligible.
If a party cannot obtain or refuses to obtain legal representation, no cross-examination can take place.
In the Government’s plan, no one wins.
The accused may lose their right to a fair trial and the affected person may be forced to wait years for the outcome of their case.
That is why Labor’s plan committed additional funding to support this change.
In the lead-up to the 2016 election, and again on White Ribbon Day in November that year, Bill Shorten announced Labor would commit $43 million to Legal Aid to facilitate a ban on direct cross-examination of survivors of family violence by their perpetrators.
This $43 million would be a separate, stand-alone fund operating outside of ordinary Legal Aid eligibility and is designed to cover all who are unrepresented. For example, if a party does not qualify for Legal Aid but cannot afford a lawyer, they will be provided for through this fund. This includes both victims and perpetrators.
Without additional funding, the right to a fair trial may be at risk. If the accused isn’t eligible for Legal Aid, the Government simply says the cross-examination cannot go ahead. This is not good enough.
National Legal Aid told the Legal and Constitutional Affairs committee that it is increasingly difficult for the service to respond to this proposed legislation without additional funding.
Without a guarantee of additional funding, passing this legislation could create a crisis situation in the family law system.
Canberra feels this sting.
In its annual report, the ACT Law Society reported it donated over $1 million in funding to legal aid and community legal centres in the ACT and its pro bono work program helped more than 1000 Canberrans seeking legal advice in areas of property and tenancy, family law, employment and wills.
This is at the same time the Government cut $30 million to legal aid funding across Australia.
Through pressure from Labor, National Legal Aid and community legal centres, the Government restored funding in 2017 announcing “an additional $39 million” to the legal aid sector.
But this was a restoration of funding. The only new funding was $8.4 million over a three year period. The Government stated the full amount – the $39 million – was intended to prioritise front line family law and family violence services.
But in a sector that is already struggling to meet the needs of the community, taking funding away and rebadging it for something else doesn’t really help anyone.
It doesn’t fix the underlying problem – it doesn’t make all the other legal issues people need assistance with go away. It just forces community legal centres to reprioritise their caseloads in favour of one area over the other.
This is the sting on Canberra’s law system right now – even before this bill comes into effect.
This bill has the potential to flood the Legal Aid with both victims and those accused, yet the Turnbull Government is failing to compensate for that.
A recent study by the Australian Institute of Family Studies found there were 173 cases of direct cross-examination of family violence survivors over the course of two years. Organisations including the Women’s Legal Service Australia say this figure does not represent the full extent of the issue because it fails to include cases that settled before a hearing, in order to avoid the prospect of direct cross-examination.
According to an Australian Institute of Health and Welfare Study, women are at far greater risk of family violence than men.
On average one woman is killed every week by a current or former partner. One in three women has experienced physical and/or sexual violence perpetrated by someone known to them. One in five women over the age of 18 has been stalked in their lifetime. Domestic violence is the principal cause of homelessness for women and their children.
This compares to one in 16 men.
We have heard from so many women who say either that they settled for imperfect outcomes to avoid cross-examination by their perpetrators, or went through the experience and suffered horrible consequences.
Women are likely to be the major beneficiaries of this policy. That make this a women’s issue.
Domestic violence is one of Australia's most pressing issues and the numbers that prove it are alarming. For every woman who comes forward, there are so many who won't have their story heard. They suffer in silence.
A recent report published by the Women's Centre for Health Matters found that here in the ACT most women experiencing domestic violence are staying in their homes post crisis and not accessing the crisis system. This means that they're not accessing homelessness services and do not have access to the support systems available to others.
Many of these women are middle-income earners and are employed full time. They are not able to access financial assistance and support because they don't qualify for hardship provisions or loans. So it's not just a case of women being afraid to leave; in these circumstances they can't leave, because there's nowhere for them to go.
Without additional funding to Legal Aid, we are providing another road block for women in this situation. They may not be eligible for legal aid and unable to afford private legal representation. This gives them another reason to stay in already dire situations.
We already know how this Government feels about women. You don’t need to look further than their front bench to figure it out.
Women make up for 51 percent of the population yet representation of women on the other side is about 20 per cent in the lower house and 32 per cent in the upper house. This is outrageous. It’s shameful in 2018.
Tackling family violence is a priority for Labor - in Government or in Opposition. We are extremely proud of the work we have done, but there is always more work to do.
Labor supports the substance of this bill. That’s why we have been calling for it to happen for two years now. We committed to this important change ahead of the 2016 election, and re-committed in November 2016 on White Ribbon Day.
That commitment included $43 million for Legal Aid, in order to facilitate the representation of unrepresented litigants. We made that funding commitment because we listened to stakeholders who told us that this change could not be made on current funding levels.
Labor will welcome any form of announcement from the Government to commit to additional funding to support this bill.
We encourage you – we ask you – invest in Legal Aid. Fund this legislation.