Women’s Legal Services Australia Welcomes Cross-Examination Bill But Says Funding and Reforms to Better Identify and Respond to Family Violence Are Needed if Reforms are to Work

Women’s Legal Services Australia (WLSA) congratulates the Turnbull Government for introducing long overdue legislation to ban the direct cross-examination of family violence victim-survivors by their abusers in the family court system.

These reforms are an important step towards making the family law system more trauma informed and bringing it into line with measures already available to protect women who have experienced violence in the family violence jurisdictions in some states.

However, WLSA is concerned about what implementation of the reforms will look like in practice. These changes can only make a real difference with proper funding to ensure that both the victim and the perpetrator have a legal representative to act on their behalf and conduct the cross-examination properly for them.

Sarah Bright, National Policy Coordinator for WLSA said “the bill prevents a party directly cross-examining the other in cases where there has been family violence. It applies to both victims and perpetrators. Cross-examination can still take place but must be conducted by a legal representative acting on behalf of that party. This reform is strongly welcomed”

“As you could imagine, the act of personal cross-examination by a perpetrator of violence of their victim, causes significant harm, re-traumatises victims, and can produce questionable and unreliable evidence.”

“If implemented well, this is a win for family violence victims. WLSA, along with other services and survivors have been campaigning for these changes for many years,”

“The success of the new bill is predicated on adequate funding for legal services, to ensure that both the victim and the perpetrator can have a legal representative to act on their behalf, and the ability of the courts to identify and respond in a trauma informed way to family violence in any given case.”

Angela Lynch, CEO of Women’s Legal Service Queensland and spokesperson for WLSA stated issues of the bill’s implementation require clarification: “We need to ask will there be funding for community legal centres or legal aid to represent perpetrators? It’s unclear what will happen if these individuals aren’t able to gain legal representation as the wording precludes personal cross-examination. It could result in the “haves” and “have nots”.

“Many people are not eligible for legal aid, can’t afford, or choose not to have a lawyer. We need to think through what happens in these circumstances. This is a serious access to justice issue that needs to be properly addressed.”

“The bill relies heavily on judicial discretion. For the reforms to improve safety for victims, we also need to ensure that the judiciary can use the discretion they have been granted under the bill to properly identify domestic violence victims to protect them from being directly cross examined by their perpetrator and to conduct the proceedings in a trauma informed way.

WLSA has identified a number of reforms in its submission to the ALRC review into family law to improve the early identification of family violence in the system”.

Read our full media release here

WLSA Cautions for DV Victims’ Safety in Family Court Overhaul

Women’s Legal Services Australia (WLSA) cautiously welcomes some aspect of the planned amalgamation of the Family Court and Federal Circuit Court and attempts to reduce court waiting times, but fears decreased specialisation may lead to unsafe outcomes for domestic and family violence (DFV) victims and for children.

Federal Attorney-General, Christian Porter today announced the Family Court of Australia and Federal Circuit Courts will be combined into a new court to be known as the Federal Circuit and Family Court of Australia (FCFCA) from 1January 2019 in an effort to cut substantial waiting times.

WLSA spokesperson Angela Lynch says the organisation cautiously welcomes part of the proposal.

“WLSA welcomes the rationalisation of rules between the two courts. For our clients, the current system is complicated, confusing and expensive with two sets of rules leading to inconsistent outcomes. We’re supportive of moves to rectify this.”

However, Ms Lynch says WLSA has fears the approach may dilute specialisation of the family court needed to safely deal with its high volume of domestic and family violence matters as the proposed changes will potentially see more Judges without family law expertise hearing family court matters.

“The numbers are huge. We know at least 50 per cent of Family Court matters involve domestic violence and child abuse,” Ms Lynch said.

“At a time when other jurisdictions across Australia are recognising the magnitude of domestic violence in the community and are responding with specialised services such as the Gold Coast DV specialist court it’s an interesting choice to say the least to move away from a specialised legal response.”

“If we have Judges without the specialised knowledge and training in the complex dynamics of domestic violence and experience in family law, we will see an increase in unsafe and unfair outcomes for victims of domestic violence and their children.”

“We should be increasing judge specialisation not reducing it,”

Ms Lynch said WLSA awaits further detail on the planned changes but says there are also fears that ultimately the decision may result in less resources for family law as the new court may have to compete with the federal court for funding.

“We would like to see more detail. At present there are a lot of questions. It’s not yet clear to us how a rationalisation, without investment in resources will increase capacity.”

Read our full media release here

Read a Guardian interview with our National Coordinating Committee member, Angela Lynch, CEO Women’s Legal Service QLD, about these reforms here

Read the Government’s announcement here

ALRC Review of the Family Law System

Women’s Legal Services Australia (WLSA) has made a submission in response to the Australian Law Reform Commission’s Review of the Family Law System Issues Paper.  In this submission, we advocate to prioritise safety, to improve accessibility and to recognise diversity.  We call for better recognition that harm perpetrated against the adult victim-survivor is also harm perpetrated against the child. We also call for better recognition that coercive and controlling behaviour can continue and escalate post separation.

WLSA’s submission highlights the importance of the family law system being family violence, child abuse and trauma informed; culturally competent; and disability aware.  We also highlight the challenges in regional, rural and remote areas and call for equity of access to legal and support services in RRR areas.

We highlight the importance of implementing the 2014 Productivity Commission recommendation to increase legal assistance funding in civil law, including family law, by an additional $200 million a year and the need for additional resourcing of the family law system, including family dispute resolution, specialist social support services, contact services, family consultants and judicial officers.

Read the WLSA submission to the ALRC here.

Senate inquiry into Parent Management Hearings

Women’s Legal Services Australia (WLSA) has made a submission to the Senate Legal and Constitutional Affairs Committee in response to the Family Law Amendment (Parenting Management Hearings) Bill 2017.  This Bill was introduced into the Senate on 6 December 2017 and was referred to the Senate Committee for inquiry and report. The Committee released its report on 26 March 2018. You can read the Committee’s report here.

The proposed Parent Management Hearings (PMH) model is a large shift away from any current approach in Australia for resolving family law disputes.  Innovative practice, new ideas and a culture of continuous improvement should be encouraged in any court system.  However, when the outcomes of untried and untested processes can have enormous ramifications on the safety of women and children, such as the introduction of PMH, we advocate any new model should be based on research and evidence and informed at every step by domestic violence experts.  WLSA recommends the PMH model be referred to the Australian Law Reform Commission which is currently undertaking a comprehensive review into the family law system.

Parent Management Hearings (PMH) have been described as “a fast, informal, non-adversarial dispute resolution mechanism” to resolve less complex parenting matters.

The Bill proposes that PMHs will be determined by a multi-disciplinary Panel made up of legal and non-legal experts and is designed for unrepresented parties. The Bill proposes Panel members will have the power to fully displace the parental responsibility of one parent.

We note that matters in which family violence and some forms of child abuse are alleged are not automatically excluded from the PMH forum.  It is our experience that such matters are generally complex.

While noting the PMH model does consider the issue of family violence, WLSA raises a number of concerns, including:

  • The Explanatory Memorandum says there will be a comprehensive risk assessment. The Practice Directions relating to this are yet to be developed and it is not clear if risk assessment will be ongoing.  Given risk in family violence is dynamic, ongoing risk assessment by suitably qualified professionals is important.
  • The Principal Panel member is the only Panel member required to have expertise in matters relating to family violence. However, the Principal Panel member is not required to sit on each panel.
  • All Panel Members and staff conducting risk assessments should be culturally competent with respect to working with Aboriginal and Torres Strait Islander families, culturally and linguistically diverse families and LGBTIQ+ families as well as disability aware and have ongoing training in cultural competency; disability awareness; family violence, child abuse and trauma informed practice; and working with vulnerable clients.
  • Legal representation will only be allowed by leave of the Panel. While family violence and power imbalances are relevant factors in granting leave, no funding has been allocated for legal representation. This means that those who are granted leave may not practically be able to arrange representation.
  • The Panel has the power to require the production of information and documents. It is not clear what procedures will be required to be followed, for example, regarding objections to providing such information and documents. There is a need for the development of guidelines about the use of sensitive records.

PMHs are proposed as a pilot in two sites – Parramatta and a second site yet to be confirmed.

On 27 September 2017, the former Commonwealth Attorney-General, Senator the Hon George Brandis QC, commissioned the Australian Law Reform Commission (ALRC) to undertake the most comprehensive review of the family law system in Australia that has ever been undertaken.  The ALRC is currently accepting submissions in response to their Issues Paper by 7 May. In our view, it makes sense that the PMH be delayed and its implementation be specifically considered by the ALRC in their review before piloting such an untested model.

Our submission was endorsed by a number of sexual and domestic violence and women’s peak bodies and services.

You can read our submission here.

WLSA appeared before the Committee to give evidence.  You can access  the transcript here.


Federal Government legislation putting the safety of women and children experiencing family violence at risk

Women’s Legal Services Australia (WLSA) calls on the Federal Attorney-General to prioritise the safety of women and kids affected by domestic violence in proposed reforms to the family law system.

The Federal Attorney-General today introduced in the Senate legislation aimed at significantly reforming the family law system. Under these proposed reforms, self-represented parents in Parramatta and one other location will be able to have their parenting disputes resolved through a pilot tribunal program known as “parenting management hearings”.

Parents will need special permission to have a lawyer represent them at a hearing, and the hearings will deal with complex matters involving family violence and child abuse. Decisions made at the hearings are binding on parents.

WLSA has concerns regarding how the planned changes may impact women and their children affected by domestic violence. WLSA Representative and CEO of Women’s Legal Service Queensland, Angela Lynch says:

“We know at least 50% of matters that go before the family court involve domestic violence. In these cases there is an unequal power balance. When facing her abuser in this context a woman faces a disadvantage”

“A fundamental way that victims can be protected is by having lawyers advocating for them in hearings instead of having to deal directly with their abuser.”

Ms Lynch acknowledges that with lengthy Family Court of Australia waiting periods, alternative ways of responding to these issues must be explored.

“We need to reform the family court system by putting the safety of women at the forefront of any reforms. We can see the bill goes some way to respond to the risks faced by women and children experiencing violence but also creates barriers to a fundamental protection – legal representation.”

You can read our media release in response to the announcement here

You can read the Government’s announcement here

An end to direct questioning by abusive partners in family law proceedings

Women’s Legal Services Australia (WLSA) welcomes the Australian Government’s announcement that it will be introducing legislation to amend the Family Law Act 1975 to prohibit the direct cross-examination of victims of violence in family law proceedings.

Being directly questioned in court by an abusive ex-partner is not only traumatising it also affects the victim’s ability to give evidence.  This can prevent important information being made available to the court to protect children from violence in family law proceedings. Ending the cross-examination by violent ex-partners is a practical and important step to empower victims to give evidence without fear.

WLSA looks forwards to further detail being provided about the implementation of these critically important amendments, including in relation to how the reforms will be funded.  Proper funding to implement these amendments will be essential to success.

The Government has also announced additional funding for Community Legal Centres, Aboriginal and Torres Strait Islander Legal Services and the family law court system. WLSA welcomes greater investment in these areas, particularly additional funding for appropriately skilled family consultants in family law matters and for additional domestic units to deliver integrated specialist legal and social support to survivors of family violence. We look forward to hearing more detail in relation to these announcements.

The Government also announced a comprehensive review into the Family Law Act 1975, to be conducted by the Australian Law Reform Commission. WLSA is interested in learning more details about the proposed review and urges genuine consultation with the sector, in particular those organisations working on the front line with survivors of family violence, from the outset. The voices of women and children affected by violence must be strongly represented in the review process.

You can read our media release in response to the announcement here

You can read the Australian Government’s announcement here