What is family violence?
For some years there has been agitation by the legal profession and other groups to prevent perpetrators of violence who are representing themselves in court proceedings from cross-examining the other party, who has been a victim of this violence.
The definition of ‘family violence‘ in the Family Law Act includes violent, threatening or other behavior that ‘coerces or controls a member of the person’s family… or causes the family member to be fearful’. Family violence need not involve an actual assault but can include things like denying the family member financial autonomy, unreasonably withholding financial support, preventing a family member from making or keeping connections with their family, friends or culture, or unlawfully depriving the family member of their liberty.
‘Family violence’ can also include children overhearing threats of death or personal injury, seeing or hearing an assault, or cleaning up after property damage.
Change to Family Law Act
The prospect of being cross-examined in court by the perpetrator of family violence has led many victims to settle their cases on unfavorable terms, or to not even pursue their legal rights at all.
From the 11th of March 2019, the Family Law Act has changed and will come into effect six months later. Section 102NA of the Family Law Act now prevents a perpetrator from cross-examining a victim, or vice versa, where there has been a conviction for an offense involving violence, a Family Violence Order in place (for example, a protection order under state or territory DV laws), or where there are allegations of family violence and the court orders that there be no personal cross-examination.
If the court orders no-personal cross-examination then the witness can still be questioned on behalf of the other party, but those questions must be asked by a lawyer acting on their behalf. That lawyer will be financed by special federal government funding of 7 million dollars over 3 years, which will be administered by the Legal Aid commissions around the country.
There is no means test applicable to this financial assistance, however, there will be a limit on the amount paid to lawyers. That limit may mean that lawyers will be reluctant to run the case, as the government intends that they will be involved for the whole proceedings, not just the cross-examination.
Legal Aid officers are currently working out how the scheme will run, before the courts are able to start making orders preventing cross-examination by litigants where there is a history of family violence in September 2019.
For more information, speak to a family Lawyer at Farrar Gesini Dunn’s Canberra Office.