Date: 
Friday 25 August 2017
Area of Work: 

Committees submitted to

Attorney-General's Department

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25 August 2017

Public consultation: Family violence cross-examination amendments
Family Violence Taskforce
Attorney-General's Department
3-5 National Circuit
BARTON ACT 2600

By email.

Dear Family Violence Taskforce

Exposure draft – Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2017

Thank you for the opportunity to provide a written submission to the Public Consultation Paper: Proposed amendments to the Family Law Act 1975 (Cth) to address direct cross-examination of parties in family law proceedings involving family violence, and the Exposure draft – Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2017 (the Exposure Draft Bill).

The Commission does not provide direct comments on each of the consultation questions in the Public Consultation Paper or the provisions of the Exposure Draft Bill. Rather, the Commission provides relevant information in support of the stated aims of the proposed reforms, and also notes potential issues of human rights compliance that should be considered as part of any Statement of Compatibility of the Bill.

The Commission is broadly supportive of the intended effect of the proposed amendments to the Family Law Act 1975 (Cth): to prevent direct cross-examination by unrepresented parties in family law proceedings, in matters involving family violence. These reforms aim to ensure that victims of family and domestic violence are not re-traumatised in giving their evidence to the court.

The Commission recognises the significant social and economic impact of family and domestic violence on the Australian community, and the disproportionate impact that this has on women and children.[1] The Commission notes that direct cross-examination of parties involving family violence risks reinforcing the power dynamic that typifies family and domestic violence, and consequently risks affecting the probity of evidence put before the Court, where power and control is asserted over the victim during proceedings.

The proposed reforms promote greater access to justice by empowering victims of family and domestic violence to participate in the family law process, which is a critical pathway to achieving gender equality.[2] This is consistent with the United Nations Convention on the Elimination of All Forms of Discrimination against Women, which requires state parties to take appropriate measures to eliminate discrimination against women, including gender-based violence.

The Commission also acknowledges that children are witnesses, bystanders and direct victims of violence in the home. As a party to the Convention on the Rights of the Child, Australia must take all appropriate measures to protect children from all forms of physical or mental violence, injury or abuse. It must also take all appropriate measures to promote the physical and psychological recovery of a child victim of abuse, in an environment that fosters the health, self-respect and dignity of the child.

The policy intent of the proposed reforms is also consistent with recommendations made by the United Nations Committee on the Rights of the Child, which has called on governments to provide comprehensive and integrated protective measures to address violence against children, including measures for prevention, identification, reporting, referral, investigation, treatment, follow-up, and judicial involvement.[3]

In 2015 the National Children’s Commissioner included a chapter in the Children’s Rights Report 2015, which contained the findings of a major investigation on the impact of family and domestic violence on children (Chapter 4). A copy of the report is provided with this submission. The Taskforce is referred in particular to the findings and recommendations set out at pp 144–150.

The Commission has also made a number of submissions that include recommendations relating to violence against women and children in Australia, which may be relevant to the present consultation. The following submissions are attached, for information:

The Commission acknowledges that, if the Exposure Draft Bill proceeds to a Bill before the Parliament, a Statement of Compatibility will be required, which must contain an assessment of the Bill’s compatibility with the rights and freedoms recognised in the seven core international human rights treaties which Australia has ratified.

The Commission suggests that some of the preliminary human rights issues that should be considered as part of this process are:

  • the protection of vulnerable witnesses and their capacity to give effective evidence balanced against the right of another party to test evidence adduced by all relevant witnesses;
  • the need to take into account the views of the women and children, and the importance of the role of independent children’s lawyers;
  • procedural fairness and potential limitations on the unrepresented party’s ability to effectively examine the witness; and
  • the particular requirements and role of the court-appointed person (for example, consideration could be given to requirements similar to those found in Part 8, Local Court Practice Note No. 2 of 2012 (NSW) for Domestic and Personal Violence Proceedings).[4]

The Commission would be pleased to meet with you to discuss any issues regarding the Bill’s compatibility with human rights. Please do not hesitate to contact my office on (02) 9284 9614 should you have any questions.

Sincerely

Emeritus Professor Rosalind Croucher AM

President

 


[1] See: https://anrows.org.au/publications/fast-facts-0/violence-against-women-key-statistics%20 (viewed 9 August 2017).

[2] Committee on the Elimination of Discrimination against Women, General Recommendation No. 33 – women’s access to justice, CEDAW/C/GC/33 (2015). At: http://www.ohchr.org/EN/HRBodies/ CEDAW/Pages/Recommendations.aspx (viewed 15 August 2017).

[3] Committee on the Rights of the Child, General Comment No 13: The right of the child to freedom from all forms of violence, 56th sess, UN Doc CRC/C/GC/13 (18 April 2011) [45–57].
[4] Accessed at: http://www.localcourt.justice.nsw.gov.au/publications/practice-notes.