Domestic Violence In The Family Law Act

16 Apr / by: l@nder$olicitor$ / 0 comments / tags : ,,,,,,

Recent Amendments have been made to Domestic Violence in the Family Law Act. These Amendments seek to protect victims of Domestic Violence.

On 10 September 2019 new laws will have effect, which will prohibit self-represented litigants, who have been found to be perpetrators of domestic violence, from being able to cross-examine the other party.

Please contact us on 0432 375 294 and find out how we might be able to assist you.

Family Law Act

This recent amendment to the Family Law Act will require that person to engage a solicitor to perform the cross-examination. Where possible, a legal representative is to conduct the cross-examination, and it is intended that legal aid would be available where a party is unable to obtain private representation.

Currently a party who was violent or abusive towards their former partner can cross-examine their former partner during family law proceedings. This would often lead many victims of abuse to feel under pressure to settle their proceedings on terms that may have been bad for them because of fear, or being forced to respond to questions from their violent ex-partner for hours at length.  Many commentators of are of the view that this could aggravate the abuse and lead the victim to being put in a situation of being re-traumatised.  This may affect their ability to give evidence.

The amendments have attempted to strike a balance between protecting vulnerable family violence victims, and also protecting innocent parties from being unfairly disadvantaged in a procedural sense when unfounded allegations are made against them.

The ‘specific circumstances’ are as follows:

  • Where either party has been convicted of, or is charged with, an offence involving violence, or a threat of violence, to the other party
  • Where a family violence order (other than an interim order) applies to both parties
  • Where an injunction for the personal protection of either party is directed against the other party, or
  • Where the court makes an order that the mandatory requirements apply to the cross-examination

Only one of these circumstances must be satisfied for the ban to apply.

Other Protections

The Act also requires the court to use other protections for victims where allegations of family violence are made but the specific circumstances do not apply. The ‘other protections’ refers to the range of existing protections available to the court under the Family Law Act 1975, the Evidence Act 1995, and the courts general power to control proceedings.

 

These protections are laid out in the Family Violence Best Practice Principles, and may include the following:

 

  • direct or allow a person to give testimony and/or appear by video or audio link
  • change the venue of a hearing to a safer location
  • require that an alleged perpetrator be shielded from view while the victim is giving evidence
  • allow the victim to have a support person near them while giving evidence
  • close the court to the public or exclude specific persons from the courtroom
  • refuse permission to continue cross-examination (with forewarning)

 

The court may make an order to prevent personal cross-examination on its own initiative, or on the application of a party to the proceedings (i.e. the examining party, the witness party, or an independent children’s lawyer).

This restriction also applies the other way, such that it restricts a victim of abuse from directly cross-examining the perpetrator.

Domestic Violence In The Family Law Act

It is important to consider these new laws when deciding whether to challenge an application for a domestic violence order. It is common for Respondents of domestic violence applications to consent to an order to avoid a trial and the potential for a finding of fact being made against them, however doing so will have repercussions if they find themselves in a family law dispute.

Andrew Lander

Lander Solicitors Queensland

12 April 2019

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Andrew Lander is the principal solicitor of Lander Solicitors Queensland. With over 15 years experience in family law and domestic violence law Andrew bring a wealth of experience having represented thousands of clients in both the Family Law Courts and Domestic Violence Courts.

 

Please contact us on 0432 375 294 and find out how we might be able to assist you.