Professor Chisholm was required to ‘assess the appropriateness of the legislation, practices and procedures’ that apply in cases where family violence is an issue and to recommend improvements.
He observes that: ‘In relation to safety at court as well as other aspects of dealing with family violence issues, measures need to be in place to ensure that risk is disclosed, and understood, and that necessary actions are then taken’. For example, the Federal Magistrates’ Court (at the time) submitted that electronic means of giving evidence should be universally available to ‘balance the requirement of procedural fairness in allowing testing of the evidence when there may be a victim of violence being cross-examined by an abusive partner’ (p 161).
See especially at pp 168-169, where the author cites one submission which noted that sometimes ‘cross-examination of a victim by an unrepresented violent partner can be experienced as a continuation of the violence’.Moreover, the Family Law Section of the Law Council of Australia submitted – ‘Self-represented litigants can be at a significant disadvantage. For victims of violence to present a case and argue it, including cross-examining the perpetrator, can be very difficult. If perpetrators are unrepresented this means they may be personally cross-examining the victim. These outcomes are increasingly frequent as legal assistance is under-funded and unable to assist many litigants who cannot otherwise afford representation’ (p 169).
This document contains a general overview of the Family Court’s transition from the traditional common law adversarial trial to the less adversarial trial (LAT). It contains a history of procedural reforms to the Family Court. It discusses the differences between adversarial and inquisitorial systems, and contains detailed discussion of the operation of the LAT model.See in particular at pp 6-7, where it is noted that traditional adversarial processes such as cross-examination present particular difficulties in family disputes which are often compounded when there are family violence allegations or more subtle imbalances of power in the relationship.
See section 2.8 (p 15) which states –‘Where a matter is proceeding to a hearing, a lawyer may need to alert a client to features of cases involving a self-represented litigant. These might include…the fact that the client may find themselves being cross-examined by their former partner, when the lawyer may need to counsel them about how to react to particular lines of questioning’.
This commissioned report extensively considers the issue of litigants in person in the family law context. The report was written in the broader context of the number of self-represented litigants increasing. It contains discussion of the reasons for the increase in unrepresented litigants as well as general characteristics of unrepresented litigants.See firstly at p 9, where the report notes various concerns that in family law matters involving allegations of family violence, women were suffering a continuing form of abuse through their unrepresented former partners cross-examining them and filing endless interim applications. Note, at p 17, the report notes – ‘adequate presentation of a case includes testing the opponent’s case by cross-examination and other measures’. At p 25 – ‘In many instances a litigant may be intransigent or genuinely disgruntled and not necessarily vexatious. The judge has authority to control proceedings if the unrepresented litigant uses cross examination of the former spouse as an opportunity for harassment. However, judges have to balance concerns about harassment with the unrepresented litigant’s right to put evidence to the court, and they generally attempt to avoid any perceptions of bias’.
This evaluation of the impact of the 2006 changes to the Family law Act involved the collection of data from some 28,000 people involved or potentially involved in the family law system - including parents, grandparents, family relationship service staff, clients of family relationship services, lawyers, court professionals and judicial officers - and the analysis of administrative data and court files. Of relevance here see:
Submissions to taskforce raised the lack of legal representation and assistance as a major concern for victims, particularly where a male respondent can afford legal representation. Submissions stated that this often results in the victim withdrawing or not pursuing a legal response and can lead to a failure in protection for an aggrieved. Submissions also noted the benefits from a duty lawyer system:
Section 5 of this report presents quantitative and qualitative data on women and legal professionals’ experience of legal proceedings. In relation to legal representation, this report found that there were instances where women had to represent themselves (and thus have to cross-examine men who had been violent to them) or face the prospect of being cross-examined by their ex-partners. Women were afraid of these two scenarios (p 38). Solicitors and barristers surveyed identified two issues relating to potential abuse and intimidation that self-representation raises. First, ‘perpetrators representing themselves used cross-examination as another route to harass and undermine their ex-partners’. Second, fearful victim-survivors representing themselves may not disclose the full details of their abuse and may inhibit themselves from questioning perpetrators about their actions and motivations (p 39). The report identifies multiple ways in which the outcome of the case can be influenced where women and/or their abusive ex-partners represent themselves: