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Review of direct cross-examination ban - Family Law Act 1975

Closing date

In late 2018, the Australian Government passed amendments to the Family Law Act 1975 (Cth) (the Act) to protect victims of family violence by banning direct cross-examination in certain circumstances in family law matters involving family violence. These include situations where there are convictions, charges or final family violence orders in place between the parties.

The ban aims to prevent the re-traumatisation of victims of family violence through direct cross-examination. The ban also seeks to ensure that victims are not deterred from participating in legal proceedings, recognising that women escaping family violence may settle family law disputes for less than they are entitled to, or agree to unsafe outcomes, to avoid being directly cross-examined by their ex-partner in court.

Where the ban applies, the parties involved cannot personally cross-examine each other, and cross-examination must be conducted by a legal representative. To ensure procedural fairness for all parties, the government established the Family Violence and Cross-Examination of Parties Scheme (the Scheme). The Scheme ensures that legal aid commissions can provide legal representation to parties where the ban applies. All state and territory legal aid commissions administer the Scheme on behalf of the Australian Government.

Review of the provisions

Under section 102NC of the Act, the government is required to review the operation of the legislative provisions, as soon as possible after the second anniversary of their commencement. The provisions commenced on 10 March 2019.

Mr Robert Cornall AO and Ms Kerrie-Anne Luscombe have been appointed to conduct the review, and will report to government by August 2021.

Terms of reference

The review will examine and, if necessary, make recommendations for reform in relation to:

  • the operation of the legislative provisions (sections 102NA and 102NB of the Act)
  • the design and operation of the Scheme
  • a sustainable and efficient funding model for the Scheme.

Context

Mr Robert Cornall AO, Reviewer, and Ms Kerrie-Anne Luscombe, Assistant Reviewer have been appointed to conduct a review into the operation of sections 102NA and 102NB of the Family Law Act 1975 (Cth) (the Act) which implement the government’s commitment to banning the direct cross-examination of victims of family violence in family law matters. These measures are intended to prevent the re-traumatisation of victims of family violence, maintain procedural fairness for all parties and ensure that victims do not settle their matter and enter into unsafe arrangements because of a fear of direct cross-examination. The ban commenced in March 2019 for matters from September 2019 onwards.

The review will also consider improvements to the design and operation of the Family Violence and Cross-Examination of Parties Scheme (the Scheme), and propose a future framework for managing demand and funding allocations under the Scheme. The Scheme provides representation to parties subject to the ban on direct cross-examination for the hearing in which cross-examination is to occur, including the necessary preparatory work for that hearing.

Terms of reference

The review will examine and, if necessary, make recommendations for reform in relation to the following matters:

1. Operation of legislative provisions

  1. Effectiveness and adequacy of the legislative provisions in achieving the following outcomes:
    1. preventing re-traumatisation of victims of family violence in family law proceedings
    2. encouraging victims of family violence to pursue consent orders in their best interests or pursue matters to trial without fear of direct confrontation with their perpetrator
    3. encouraging expeditious resolution of family law matters, where this is not a result of settling early to avoid confrontation with a perpetrator
    4. ensuring procedural fairness and the quality of evidence adduced in final hearings.
  2. Any unintended consequences of the legislative provisions, whether positive or negative, including abuse of the provisions to cause delay, to cause further distress to victims or to receive funded legal representation.
  3. Clarity of the legislative provisions and consistency of their application across Australian family courts, including:
    1. circumstances in which the discretionary ban is applied
    2. the extent to which alternative protections are considered and applied
    3. any other matters in which amendment to the provisions, or further direction on their application, should be considered to better achieve the objectives of the legislation.

2. The design and operation of the Scheme

  1. The scope and timing of legal representation provided under the Scheme, including any jurisdictional variations and their impact on client outcomes and costs.
  2. Eligibility for assistance under the Scheme, including:
    1. impact of legal aid commission’s policies on choice of legal representation under the Scheme and change of lawyer requests
    2. whether further eligibility criteria should be applied to more effectively target expenditure, the impact of any recommended changes on the overall objectives on the Scheme and legislation, and the cost implications for legal aid commissions.
  3. The future approach to cost recovery under the Scheme, including:
    1. client contributions
    2. the use of cost order provisions (section 117)
    3. any other alternatives.
  4. Communication between litigants, courts, and legal aid commissions on the application of the ban and processes for applying for representation under the Scheme.
  5. Identification of best practice generally for managing the Scheme across legal aid commissions.

3. A sustainable and efficient funding model for the Scheme, including consideration of:

  1. current and future drivers of demand for funding under the Scheme, including:
    1. the impact of differing state and territory personal protection/domestic violence order regimes
    2. changes to court case management procedures
    3. the impact of COVID-19 on future demand levels for the Scheme
    4. any other state, territory or Commonwealth legislative changes that may influence demand for the Scheme
  2. any emerging per matter cost differential between legal aid commissions, and how this should be addressed in a future funding model
  3. appropriate grant structures for managing a demand-driven Scheme
  4. any other options to achieve value for money through the Scheme, mitigate the risk that it exceeds the available appropriation and ensure that funding within the appropriation is appropriately targeted
  5. the cost implications of any recommendations made under this Terms of Reference.

Timing and outcomes

In accordance with section 102NC of the Act, the review will commence as soon as possible after the second anniversary of the commencement of the provisions (i.e. after 10 March 2021). The reviewers will provide a final report by August 2021.

Consultation and submissions

The reviewers are seeking submissions on the terms of reference from interested stakeholders.

To make a submission, please email your submission to cross-examination@ag.gov.au by 28 May 2021. Submissions should specify:

  • a key contact, including name, position, phone number and email address
  • which Terms of Reference are addressed by the submission
  • whether the submission is confidential.

Submissions to the review will not be published in the first instance, but submissions or extracts from submissions may be used in future publications by the department unless the submitter indicates the submission is confidential.

Organisations and individuals participating in the review may be contacted by the reviewers seeking further information or clarification on their submissions.