The often sensitive and emotion-charged nature of family law parenting proceedings means that the Australian judicial system must adapt the ordinarily strict rules of evidence and cross-examination to more appropriately deal with the complex circumstances that may arise in a family law situation. Section 102NA of the Family Law Act (Cth) (‘FLA’) presents a recent example of how the legislature has chosen to navigate the sensitive issue of family violence in the context of parenting and property cases.
The Operation and Intention of s102NA
Pursuant to s102NA of the FLA, direct cross-examination is prohibited in certain circumstances involving alleged or established family violence. Since the introduction of this provision in March 2019, the section has been utilised in more than 250 cases across Australia.
You can find s 102NA of the FLA here.
As can be seen, s102NA provides that a party who is alleged to have perpetrated family violence against the witness party will not be permitted to personally cross-examine them. Instead, the cross-examination must be conducted by a legal representative, rather than the party personally.
Procedural Fairness v Protection of Family Violence Victims
The courts and Law Council of Australia have long witnessed the significant practical challenges posed when perpetrators of family violence are permitted to personally cross-examine their ex-partner. To completely prohibit the perpetrating parties from cross-examination (or to excuse the victim parties) would be procedurally unfair, but to enable cross-examination exposes the witness to potential emotional distress and re-traumatisation. As such, s102NA was introduced in an attempt to balance procedural fairness with the need to protect victims of family violence.
Publicly Funded Legal Representatives
It was quickly recognised that the implementation of s102NA had the potential to disadvantage unrepresented parties that were affected by the ban – were they to simply carry the handicap of not being able to conduct cross-examination and therefore be limited in their ability to test the evidence of the other party if an allegation of family violence was made against them?
In response to this criticism, the Government established a scheme called ‘The Family Violence and Cross-Examination of Parties Scheme’ (‘the Scheme’). Where a party is banned from cross-examining another due to the operation of s102NA and does not have the means to hire a lawyer, they will be eligible for a Legal Aid lawyer funded through the Scheme.
Some within the legal profession have argued that the Scheme unjustly benefits perpetrators of family violence by providing them with free, professional legal representation. By providing perpetrators of family violence with publicly funded legal representation, their case to the Court may be far better presented than if they had remained self-represented.
Further, the legal practitioners engaged under the Scheme are presented with the difficult task of representing a client for a very specific and limited task. Conducting cross-examination requires a range of skills and detailed preparation and so to require practitioners with no background to the case to competently conduct cross-examination is a huge ask. Some practitioners have commented on the fact that their role under s102NA is “unclear and confusing”, with others noting procedural challenges associated with being engaged for only a discrete section of a matter. As also recommended by Relationships Australia, more consultation is needed for legal representatives engaged for the purposes of s102NA so that they can competently represent parties and obtain clarity on their role on the matter.
The need for Reform
There is certainly a need to uphold procedural fairness while also protecting victims of family violence from re-traumatisation. Section 102NA is the first of many steps in the right direction, but it needs to continue to be adjusted so that:
- Victims are properly protected,
- Offenders are not unduly disadvantaged, and
- Practitioners are properly informed
If you are unsure whether s102NA applies to your case or for more information about how to seek a direction under s102NA, feel free to call us on (02) 9688 6023 to see how we can help.
This is not legal advice.
