The recent Private Members Bills introduced by Federal Independent Member for Indi, Catherine McGowin to stop alleged or proven perpetrators of family violence directly cross-examining their victims should be supported and applauded.
In my view, there is rarely any good that comes from spouses cross-examining their former spouse at a trial in the Family Court.
Unrepresented litigants don’t have legal training or legal knowledge and have no idea about how to cross-examine appropriately and correctly. They often use the opportunity to cross-examine as a stage to showcase emotions including anger.
In my view, it is inappropriate in all circumstances for a spouse to cross-examine another spouse. What good can come of it? If one doesn’t know the purpose or understand the legal complexities of cross-examination then how can one use it for any benefit? The argument is even more compelling where there is alleged or actual violence that has occurred. The fact that we have a system that allows the perpetrator of violence to inflict more violence by verbal harassment when questioning an ex-spouse is deplorable.
Judges can only do so much in restricting cross-examination but often there are things such as the tone of the voice, eye contract, staring and other non-verbal forms of intimidation that can have a significant impact on a victim of violence.
In the majority of cases that come before the Family Court, self-represented litigants cross-examining their former spouse can only do harm and not good to their own case and prospects. The taking of evidence in writing (by affidavits) and the receipt of other expert evidence in writing (by affidavit) and allowing each party to make submissions about their case should be sufficient in majority of cases where self-represented litigants come before the Court.
In financial matters, the government should consider amending the Family Law Act 1975 (Cth) so as to provide Judges with the power to Order private Arbitration on the papers for small and non-complex financial matters that are clogging up the system. A lot of these mattes also include self-represented litigants who because of the small size of the matrimonial estate can’t afford lawyers. The power to Order private Arbitration allows the hearing to take place quickly and cheaply and Orders can be made directing the type of arbitration that can take place. This can include Orders restricting any cross-examination of the parties and have the arbitration determined on the papers by an experienced arbitrator.
There are many aspects of our legal system that continue to require improvement and the Private Members Bill introduced by Ms McGowin should be supported.
