KHQ Lawyers’ Special Counsel, Kristina Antoniades, applauds the Federal Government’s introduction of legislation into Parliament to prevent alleged perpetrators of family violence, who are self-represented, from cross-examining their ex-partners in family law proceedings, but argues that more needs to be done to protect survivors.
On 28 June 2018, the Federal Government introduced legislation into parliament to stop alleged perpetrators of family violence who are self-represented being able to cross examine their former partners in family law proceedings.
The proposed amendments finally address the re-traumatisation of victims and the ongoing cycle of abuse that survivors continue to be subjected to through the family law process.
Background
To date and in certain circumstances, self-represented litigants have had the ability to cross examine their former partners, who were victims of their violence, in court proceedings initiated pursuant to the Family Law Act 1975 (Cth).
This practice in connection with criminal law proceedings was changed many years ago.
Protecting victims of family violence
The proposed changes are the result of the implementation of one of the recommendations made at the Royal Commission into Family Violence in 2016.
The proposed changes will apply to anyone who has been convicted or charged with an offence or is subject to a family violence order. In cases where cross-examination is not automatically prohibited, but where allegations of family violence have been raised, the Court will be required to facilitate other ways of evidence being given to the Court, including via video link, from a safe room or alongside support persons.
Likewise, the proposed changes will also prohibit family violence survivors from being made to cross-examine their perpetrators when self-represented thereby eliminating the power imbalance.
Change is long overdue – and more needs to be done
These proposed changes are essential in family law proceedings. Often survivors of family violence will settle their cases, sometimes to their disadvantage and not in their children’s best interests, to avoid the re-traumatisation of being subjected to cross-examination by their perpetrator.
The proposed changes are overdue and should have followed when these same changes were made to criminal law proceedings many years ago.
Whilst the practical effect of the proposed change is that it removes direct contact between the alleged perpetrator and the survivor, the reality is that matters of power imbalance and ongoing re-traumatisation of victims of family violence are prevalent throughout family law matters when proceedings are not before the Court.
Often, alleged perpetrators use their legal representatives to continue to harass and intimidate their former partners, under the guise of negotiating a settlement or children’s arrangements. The law has not yet caught up to acknowledge or address this ongoing issue.
Whilst this proposed amendment is a welcome change, in isolation it only acts to protect survivors of family violence in the court room and bypasses their experience leading up to that time. Further changes are necessary to adopt a holistic approach to the experience of the survivor once they are able to remove themselves from the abuse.
Kristina Antoniades is an Accredited Family Law Specialist with the Law Institute of Victoria, an accredited mediator and a Family Dispute Resolution Practitioner. She has particular expertise in LGBTI family law matters, co-facilitates the Prospective Lesbian Parents Association, and hosts the JOYLaw segment on radio station JOY94.9. Kristina is the winner of the Accredited Specialist Achievement Award (Family Law) category of the Law Institute of Victoria 14th Victorian Legal Awards. Contact Kristina at kantoniades@khq.com.au