Improving evidence in protection order proceedings

18.56 Improving the availability and quality of evidence about family violence is an important aspect of promoting better outcomes for victims of family violence involved in multiple legal proceedings. As noted in Laing’s study of the experiences of victims of family violence in family court proceedings:

The Family Court relies on evidence from interventions in other parts of the domestic violence and child protection systems. If the response of other agencies was inadequate, as was frequently the case, the women did not have evidence of the violence and the Family Courts have to make difficult decisions with incomplete information.^[52]

18.57 Currently, the Family Law Act requires courts, when determining what is in the best interests of a child, to consider, among other factors, any protection order that applies to the child or a member of the child’s family, provided that the protection order is a final order, or was made after a contested hearing.^[53] In Chapter 17, the Commissions recommend an amendment to this provision to require courts, when determining the best interests of the child, to consider evidence of family violence given, or findings made, in relevant family violence protection order proceedings.^[54] The existence of a protection order made under state or territory family violence legislation will operate as a ‘red flag’ to federal family courts that there are issues of family violence that need to be considered. The court must then look at the facts of family violence, including evidence given and findings made in protection order proceedings, along with any other evidence of family violence.

18.58 The Family Law Act and Family Law Rules require parenting proceedings to be conducted as a ‘less adversarial’ trial, in which the court is to actively direct, control and manage the conduct of proceedings. Section 69ZX of the Family Law Act permits the court to give directions or make orders about the matters on which the parties are to give evidence and how evidence is to be given. The court is also permitted to ask questions of parties, witnesses and experts and seek evidence or documents.^[55] In particular, a court deciding parenting proceedings may receive into evidence the transcript of evidence in any other proceedings before a federal family court or other court or tribunal, and draw any conclusions of fact or adopt any recommendation, finding, decision or judgment of those courts or tribunals that it thinks proper.^[56]

18.59 Generally, sworn written evidence, as opposed to oral evidence, is more readily available for use in subsequent proceedings or separate family law proceedings.^[57] Affidavit evidence submitted in protection order proceedings can, for example, be tendered and utilised in other family violence or family court proceedings where appropriate.^[58]

18.60 This section considers ways in which evidence in protection order proceedings may be given in such a way that it can be more readily used where it is relevant to family law proceedings.

A flexible approach

18.61 Stakeholders in this Inquiry highlighted a number of areas in which flexibility is required in: responding to the needs of individuals affected by family violence; recognising the advantages and disadvantages of written and oral evidence; and accommodating the needs and practices of courts making protection orders.

18.62 As discussed, the dynamics of family violence are complex. The manifestations of family violence and the victim’s response to that violence will be different for each family affected by it. Court proceedings need, therefore, to be able to respond flexibly to the different circumstances of victims in order to obtain and interpret evidence of family violence.

18.63 In addition to recognising that family violence can take many forms and the ability to provide strong or corroborated evidence of family violence may be limited, rules about giving evidence need to recognise that victims of family violence may have different needs in giving evidence. For example, allowing a victim of family violence to provide written, rather than oral, evidence has a number of benefits—but may disadvantage some people, such as unrepresented parties^[59] and parties who have low literacy, have an intellectual disability or are from a CALD background.^[60]

18.64 Finally, the Commissions note that not all people seeking protection orders will be involved in later family law proceedings. The focus of protection order proceedings is the immediate protection of a person from family violence—and parties to proceedings and courts making protection orders must make that their primary concern.^[61] There is a danger in

making the process too onerous and/or time consuming when the crucial focus is immediate and/or urgent protection. The right balance between expediency and increased evidentiary value will have to be struck.^[62]

18.65 Protection order proceedings should not become a preliminary hearing or fact-finding exercise for the purposes of later family law proceedings. Rather, where evidence is given in protection order proceedings, the Commissions consider that victims of family violence should be able to present that evidence in concurrent or pending family law proceedings.

Written evidence

18.66 As noted above, the quality and degree of written evidence given in protection order proceedings varies across different courts in different states and territories. In the Consultation Paper, the Commissions sought stakeholder views about the advantages and disadvantages of providing written rather than oral evidence to a court in protection order proceedings.^[63]

18.67 Stakeholders identified a number of benefits of written evidence. A number of stakeholders noted that a key advantage for victims of family violence is that providing written, rather than oral, evidence is less intimidating, particularly where oral evidence is to be given in the presence of the person alleged to have used family violence.^[64] By giving written evidence, the applicant avoids the need to discuss personal details or re-live traumatic events in a crowded courtroom.^[65]

18.68 Another benefit is that written evidence allows applicants to present information comprehensively and in a coherent manner:

The advantage of a written report is that a victim can go through the abuse chronologically and document the details clearly to aid the Judge in his/her decision. It gives them time to sit and think and sort out their history clearly in a non threatening environment. The documenting of the history of abuse is a big eye opener for the victim when they can see the details written down and realise how much has happened. A social worker or suitably trained support person can assist them to formulate their paperwork at a pace they can handle, with minimum stress.^[66]

18.69 The Ngaanyatjarra Pitjantjatjara Yankunytjatjara Women’s Council Domestic and Family Violence Service also noted that giving written evidence may be more practical, in that many of its clients live in remote communities, making it very difficult logistically for women to attend to give evidence in the courts in the bigger towns.^[67]

18.70 However, some stakeholders noted that a requirement that parties provide written evidence can disadvantage some people, such as unrepresented parties^[68] and parties who are of low literacy, have an intellectual disability or are from a CALD background.^[69]

18.71 In the Consultation Paper, the Commissions considered several options to improve the quality of written evidence in protection order proceedings, including:

• ensuring that application forms for family violence protection orders include information about the kinds of conduct that constitute family violence;

• requiring that applications for family violence protection orders are sworn or affirmed;

• giving applicants for protection orders the opportunity of providing affidavit evidence in support of their application; and

• providing a standard form of affidavit in family violence matters.

Information provided in application forms

18.72 A person seeking a protection order under state or territory family violence legislation applies for the order by completing an application form. There is some variation in this process across jurisdictions—for example, in Victoria, a person seeking a protection order fills out an information form, and the Court Registry uses this information to lodge a formal application for an order on the person’s behalf. In some cases, the police may also apply for a protection order on behalf of a victim of family violence.

18.73 The information and degree of detail sought in the application forms vary across jurisdictions. Some application forms simply ask the applicant to set out the grounds on which he or she relies.^[70] This approach assumes that the person seeking a protection order understands the legislative definition of family violence and can frame his or her application accordingly—knowledge that a person is unlikely to have without assistance from the police or a lawyer. Other forms ask the applicant to describe the respondent’s behaviour, but give no guidance as to the kinds of behaviour that may constitute family violence and lead the court to make a protection order.^[71]

18.74 In contrast, some application forms guide the applicant step by step through the application. Some include a list of conduct that reflects the statutory definition of family violence and asks for details of recent conduct.^[72] Other application forms include the statutory definition of family violence as part of the form.^[73]

18.75 In the Consultation Paper, the Commissions proposed that court forms for applications for a protection order under state and territory family violence legislation should include information about the kinds of conduct that constitute family violence.^[74]

Submissions and consultations

18.76 Many stakeholders supported the proposal.^[75] For example, Women’s Legal Services NSW commented that including more information about the kinds of conduct that constitute family violence:

would be helpful in assisting applicants understand the types of conduct that constitute family violence, would facilitate ease of applying for a protection order and would ensure full particulars of relevant behaviour are included on applications.^[76]

18.77 Similarly, National Legal Aid considered that including information about the kinds of conduct that constitute family violence in application forms would ‘be helpful for victims who often think that it is not possible to obtain a protection order unless the abuse is physical or there is damage to property’.^[77]

18.78 Stakeholders cautioned that application forms should make it clear that the information about what constitutes family violence is only illustrative—and not an exhaustive list—as, otherwise, applicants may not include all relevant information.^[78]

18.79 Some stakeholders emphasised the need to give victims of family violence support when applying for a protection order. Domestic Violence Victoria and others commented that, while including information about types of family violence on court forms can be helpful, it is

important for an applicant to be able to access support from legal and non-legal support workers when making an application for an intervention order. An already traumatised victim of violence is often overwhelmed by the requirements of a court setting and is likely to prepare a better and clearer application with good informed support.^[79]

18.80 Similarly, Wangmann agreed with the need for measures to assist applicants to provide information, including detail about the history of family violence and not just a single incident. However, she submitted that:

At the same time it must be noted that this is a careful balance that must also acknowledge the experience of family violence is one that means that it may be difficult to provide specific detail for every incident, or provide other supportive or corroborative evidence. Any approach must be flexible enough to allow persons in need of protection to mention acts and behaviours that are not specifically mentioned but would indeed fall under the legislative scheme.^[80]

18.81 In addition, Wangmann noted the importance of providing applicants for protection orders with support when completing application forms.^[81]

18.82 Legal Aid NSW and the Women’s Domestic Violence Court Advocacy Service submitted that including information about the kinds of conduct that constitute family violence in application forms was unnecessary and could cause confusion.^[82] Another stakeholder noted that there is a benefit to keeping the forms ‘simple so that individuals, particularly from non-English speaking backgrounds, are not overwhelmed by pages of words’. The stakeholder considered that an accompanying information booklet could be provided rather than including further detail in application forms.^[83]

Commissions’ views

18.83 One way in which the quality of evidence supporting allegations of family violence can be improved is to improve the information provided in application forms. To this end, the Commissions consider that application forms should include an illustrative list of the kinds of conduct that constitute family violence.

18.84 This will help make victims aware of the full range of conduct that may constitute family violence and prompt them to provide evidence of the types of family violence they have suffered. It would also assist applicants to identify certain types of behaviour as family violence, such as sexual assault or psychological or emotional abuse. Information of this kind is particularly important for victims who are making an application for a protection order without the assistance of lawyers or the police.

18.85 Application forms in different jurisdictions take varying approaches. For example, some forms set out a list of conduct that the applicant can tick if relevant; others set out the definition of violence before asking the applicant to provide details of incidents of family violence. The Commissions do not suggest that it is necessary for all forms to be identical, but recommend that all application forms provide some guidance to applicants about the kinds of conduct that constitute family violence.

Affidavit evidence in protection order proceedings

18.86 Protection order proceedings heard in state and territory courts differ in how evidence of family violence is given, with differing emphases on written and oral evidence. Courts may seek sworn evidence from the victim—such as oral testimony when making an interim protection order ex parte, or both oral and written evidence when making a final protection order—and other evidence of family violence, for example, through police reports or medical records.

18.87 In some jurisdictions, the application form completed by a person seeking a protection order must be sworn or affirmed. For example, s 43 of the Family Violence Protection Act 2008 (Vic) requires that an application for a protection order made by a police officer must be made on oath or certified by the police officer, while an application made by a person other than a police officer must be ‘made on oath or by affidavit’. To this end, the final paragraph of the information form to be completed by a person seeking a protection order is headed ‘Affidavit’ and, by signing, the applicant swears or affirms that ‘the contents of my application are true and correct to the best of my knowledge’.^[84] Application forms in Queensland and Tasmania take a similar approach.^[85]

18.88 The Restraining Orders Act 1997 (WA) takes a different approach and gives the applicant the option of providing evidence by affidavit in support of the application where orders are sought ex parte.^[86] There is a pro-forma affidavit, which asks the applicant to describe the incident, injuries suffered, and how the behaviour of the respondent made the applicant feel. The affidavit also seeks information about orders and proceedings in other courts, and sets out the orders sought.

18.89 Similarly, in the Northern Territory, the application form includes a note, recommending that the applicant file a statutory declaration setting out the facts and circumstances which establish a domestic relationship, the basis for the application and future expectations.^[87]

18.90 In other jurisdictions, there is no requirement that an application be supported by an affidavit. For example, in NSW, South Australia and the ACT, the court has discretion to accept affidavit evidence in certain circumstances, generally where the applicant is not able to give oral evidence to the court during a hearing.^[88]

18.91 In the Consultation Paper, the Commissions asked whether it would be beneficial for state and territory family violence legislation to:

• require that applications for protection orders be sworn or affirmed; or

• give applicants for protection orders the opportunity of providing affidavit evidence in support of their application.^[89]

18.92 The Commissions also asked whether a standard form of affidavit would be of assistance to victims of family violence.^[90]

Submissions and consultations

Applications to be sworn or affirmed

18.93 A number of stakeholders were in support of applications being sworn or affirmed.^[91] The Peninsula Community Legal Centre observed that ‘this is not an onerous burden for an applicant and ensures that the importance of the application and the resulting order, if made, is respected’.^[92]

18.94 The Local Court NSW also supported the requirement that applications be sworn or affirmed and stated that:

The removal of this requirement from the current application procedure has created uncertainty as to how ex parte orders should be made and the evidentiary value that can be attached to unsworn or non-affirmed statements in ex parte proceedings.^[93]

18.95 Women’s Legal Services NSW noted that applications in NSW are currently unsworn and many magistrates will not make ex parte or interim orders without sworn oral evidence from the victim. It submitted that sworn applications may reduce the need for victims to retell their story in the witness box in preliminary proceedings.^[94]

18.96 The Law Council considered that applications that are sworn or affirmed mean that the information in the application is of greater evidentiary value:

In the event that information contained in applications for family violence orders from state proceedings is to be used in family law proceedings then it can only be of value if sworn or affirmed. The requirement … that information must be on oath or sworn, allows such information to be used as evidence of the truth of the allegations in family law proceedings. If such information is only in unsworn form then it has less evidentiary value, more as evidence of any prior inconsistent statement by the applicant, rather than potential positive evidence of the matters alleged.^[95]

18.97 The Women’s Legal Service Victoria, while supporting the principle of improving the evidentiary value of application form information, cautioned against ‘making the process too onerous and/or time consuming when the crucial focus is immediate and/or urgent protection’ and stated that the ‘right balance between expediency and increased evidentiary value will have to be struck’.^[96]

18.98 A number of stakeholders did not support a requirement that applications for protection orders be sworn or affirmed.^[97] Legal Aid NSW and the Law Society NSW submitted that:

People should be able to apply for a protection order as inexpensively as possible. If the application needs to be sworn, self-represented applicants who have an application cobbled together by a registrar, or police applicants where the application is rushed, may be significantly disadvantaged.^[98]

Opportunity to provide affidavit evidence

18.99 A number of stakeholders preferred that applicants be given an opportunity to provide affidavit evidence if they wished, rather than be required to swear or affirm applications.^[99] The Women’s Domestic Violence Court Advocacy Service Network submitted that affidavits ‘provide applicants with a means to outline the issues in dispute, provide a historical outline of the violence they have experienced, and assist in providing clarity where applications have been poorly drafted’. The Network stated that, given women are often required to ‘give a statement when in a highly emotive state at the scene of the incident, the provision of further affidavit evidence at a later date provides the victim with the opportunity to provide further and more accurate information’.^[100]

18.100 A confidential submission noted that applications in the Northern Territory are accompanied by an affidavit or statutory declaration and that this approach seems to be working well, with registry staff support.^[101]

18.101 The Magistrates’ Court and Children’s Court of Victoria stated that views are divided as to whether or not the applicant should be given the opportunity to provide additional affidavit evidence in support of the application:

Some say that there should be an opportunity for an affidavit at the preliminary stage partly because this could be used to support family law proceedings. Others suggest that use of affidavits early in proceedings without prior legal advice can create difficulties for both parties and perhaps polarize parties. However, this is more relevant in family law rather than family violence related issues. Those with this view consider their use should be limited to later stages of the proceeding with specific directions from a magistrate as to the issues which should be addressed in the affidavit.^[102]

18.102 The Queensland Law Society expressed a similar view, noting that, in Queensland, there is nothing to prevent applicants executing affidavits in support of their applications and that if the application is contested and the parties are legally represented, judicial officers will often direct affidavits to be filed prior to a final hearing.^[103] However, concern was expressed that requiring affidavit evidence at the commencement of proceedings could deny access to justice and increase the administrative burden on police.^[104]

18.103 The Aboriginal Family Violence Prevention and Legal Service Victoria expressed concerns about the implications of providing written evidence in protection order proceedings where family law proceedings are pending:

There may … be difficulties where an affidavit is prepared for family violence proceedings in urgent circumstances and in accordance with a pro forma—and where a subsequent and more time considered family law affidavit contains different information. This may lead to adverse conclusions about a victim’s credibility. It may not be wise to use an affidavit in protection order proceedings if subsequent family law proceedings are likely. It may also be preferable not to put details on an affidavit in the Family Court prior to the [protection] order hearing so as not to expose the applicant to cross examination about that material.^[105]

18.104 A number of stakeholders supported providing applicants the opportunity to present affidavit evidence in support of their application, but emphasised the need for legal and non-legal support.^[106] For example, the National Abuse Free Contact Campaign submitted that:

This is a time when women are at their most vulnerable and often traumatized by their experiences of violence and abuse. Providing support will only aid in them being able to provide clear evidence to the court, thus allowing a just response to their experiences of violence.^[107]

18.105 Women’s Legal Service Victoria submitted that providing affidavit evidence may be too time consuming, especially where there are language barriers and other issues such as mental health or substance abuse.^[108] Women’s Legal Services NSW highlighted the legal costs involved in providing affidavit evidence, and noted that providing such evidence does not remove the need to give oral evidence and be cross-examined at hearing.^[109]

Standard form of affidavit

18.106 Some stakeholders considered that a standard form of affidavit could be of assistance to victims of family violence.^[110] The Magistrates’ Court and Children’s Court of Victoria noted that ‘using the same or consistently worded forms in all state and federal spheres would assist in harmonising the legislative frameworks and most importantly the understanding of the parties’.^[111]

18.107 Other stakeholders submitted that a standard form of affidavit for family violence applicants would not be appropriate.^[112]

Family violence comes in many ways, shapes and forms, and to provide victims with a ‘tick-a-box’ affidavit may send them a message that if their situation does not fall neatly into the options provided, then they have not experienced family violence as defined by the legislation and the form they are required to fill out. Victims need to be able to tell their own story how they see fit.^[113]

18.108 Similarly, the Law Council noted that the ‘danger of a standard form affidavit although potentially user‐friendly, is that it by definition standardizes cases’. In this context, ‘no two family violence cases are the same and the evidence required in support of any application ought not be treated in that way’.^[114]

18.109 The Law Council suggested that affidavit forms could instead include a brief explanation of what constitutes the conduct which may be complained of under the legislation, which may assist applicants in completing the affidavit to support their application.^[115]

Commissions’ views

18.110 An aspiration of this Inquiry is to improve the quality of evidence relating to family violence in protection order proceedings. Improving evidence of family violence not only benefits victims in obtaining a protection order, but also maximises the potential for the use of such evidence in federal family courts, in the event of family law proceedings.

18.111 Requiring applicants to swear or affirm their written evidence is likely to cause them to reflect more fully on the accuracy and veracity of their statements, particularly because there are offences for making false statements. The act of swearing or affirming a written statement is analogous to giving oral testimony in court—which is required to be sworn or affirmed. Swearing or affirming written evidence is a key way to improve the quality of evidence before state and territory courts, and its consequent usefulness in any related federal family court proceedings. For example, if a protection order is made by consent, the value of supporting evidence is reduced when it is unsworn or unaffirmed—particularly in pending or concurrent family law proceedings.^[116]

18.112 Sworn or affirmed written evidence also provides state and territory courts with an account of the facts on which an application for a protection order is based, and may facilitate the making of ex parte and interim orders. Written evidence generally has a number of advantages over oral evidence, as it allows applicants to present information about family violence clearly; and may be less intimidating for victims than giving oral evidence. Further, respondents may be more likely to consent to protection orders where the basis of the application is set out in writing, as discussed below.

18.113 However, application forms for protection orders generally seek a range of information—not all of which is directed to establishing the basis for the application. For example, application forms, to varying degrees, seek information about the existence of orders in other jurisdictions—including parenting orders and children’s court orders—and relevant pending or current proceedings. They may also require an applicant to indicate which conditions are sought in the protection order. Therefore, it is unnecessary and undesirable to require applicants to swear or affirm the entire application form.

18.114 It is unnecessary because, to the extent that the information sought in application forms is irrelevant to the factual basis for the application, it does little to improve the evidence of family violence. In addition, to the extent that the application forms seek information that is not solely within the knowledge of the applicant—for example, the existence of orders or proceedings—there may be other mechanisms available to the court to obtain this information.^[117] It is undesirable because it may cause applicants—for example, due to a lack of understanding of the legal system—to give incorrect or incomplete information about the existence of orders or proceedings in other jurisdictions, exposing them to penalties for making false statements.

18.115 However, the Commissions consider that it is important that applicants swear or affirm the facts and circumstances that form the basis of their application for a protection order for the reasons set out above—principally improving the quality of evidence in protection order proceedings. Applicants are uniquely situated to give evidence about their personal experiences and the fear that has led them to seek a protection order. The Commissions, therefore, recommend that application forms should require that persons seeking protection swear or affirm a statement incorporated in, or attached to, the application form. However, the Commissions do not consider that it is necessary for this procedural requirement to be placed in state and territory family violence legislation. The Commissions consider that there should be some flexibility for courts to accept applications which do not comply with procedural requirements—especially when the person seeking protection is vulnerable.

18.116 The Commissions acknowledge that requiring applicants to swear or affirm their statements supporting their application for protection orders may increase legal costs and disadvantage unrepresented and vulnerable parties. However, the Commissions consider that these concerns are addressed, in part, by other recommendations made in this Report, including: the provision of culturally appropriate victim support services, and enhanced support for victims in high risk and vulnerable groups;^[118] and the establishment of specialist family violence courts,^[119] which include victim support—both legal and non-legal.^[120]

18.117 Where a police officer makes an application on behalf of a victim of family violence, the Commissions consider that the application form should require the police officer to certify the form—although the victim should retain the option of providing a sworn or affirmed statement. Police certification may have particular relevance where the victim is a child, young person, vulnerable or otherwise unable to comply with the requirement.

Oral evidence

18.118 Giving oral evidence of personal details and traumatic events of family violence can be intimidating for victims, particularly in the presence of the person alleged to have used family violence or in a public courtroom. There are concerns that such fears about giving evidence mean that victims of family violence may not seek protection orders.

18.119 For example, the Central Australian Aboriginal Family Legal Unit submitted that the Northern Territory requirements for protection order applicants to give oral evidence are ‘the most significant factor preventing applicants from proceeding to hearing in contested applications, despite the need for safety to be prioritised’.^[121]

18.120 Written evidence may obviate the need for a hearing as, once the respondent has been provided with details of the complaint and supporting statements or affidavits, this can result in consent orders, saving precious court time. Further, the same material may be relied on in other proceedings, if necessary.

18.121 However, there are also some advantages in giving oral evidence, including that it may be quicker and easier for applicants than making a written statement or affidavit.^[122] State and territory courts have also adopted a number of strategies to improve the experience of victims of family violence in protection order proceedings in view of the potential for intimidation in the face-to-face context noted above. These include the use of closed courts; closed circuit television (CCTV) and other technologies; and prohibitions on cross-examination by the respondent. This section briefly considers the desirability of adopting any of these strategies more broadly.^[123]

Closed or open court proceedings

18.122 Principles of open justice generally require that court proceedings should be open to the public. Accordingly, most family violence legislation contains an express or implied presumption that protection order proceedings will be held in open court. However, legislation in most jurisdictions permits or requires the court to be closed in certain circumstances, which differ across Australian jurisdictions.^[124] For example, in protection order proceedings:

• in NSW, where a child is a person seeking protection or is a witness, the court must be closed unless the court directs otherwise;^[125]

• in Victoria, the court may be closed, or certain people excluded, if the court considers it necessary to do so to prevent an affected family member, protected person or witness from being caused undue distress or embarrassment;^[126]

• in Western Australia, the court must be closed if the applicant wants the first hearing of the application to be held in the absence of the respondent;^[127]

• in the ACT, the court can order that proceedings be closed if it is in the public interest or the interests of justice to do so;^[128] and

• in the Northern Territory, the court must be closed if the only person seeking protection is a child, or when a vulnerable witness gives evidence, unless the court directs otherwise.^[129]

18.123 In Queensland, in contrast, legislation provides that a court hearing an application for a protection order ‘is not to be open to the public’; but ‘may open the proceedings or part of the proceedings to the public or specified persons’.^[130]

18.124 In its review of family violence laws, the VLRC observed that protection order proceedings in closed court may ‘significantly reduce the stress of having unidentified people hearing intimate details about the parties’ family circumstances’.^[131] On the other hand, it is important to ensure that ‘courts do not reinforce the view that family violence is a private matter’ and that ‘the system is open to public scrutiny’.^[132] The VLRC recommended that a magistrate should have discretion to order that the court be closed for protection order proceedings, and for criminal prosecutions involving acts of family violence.^[133]

Using CCTV in giving evidence

18.125 Some jurisdictions provide ‘alternative’ or ‘special’ arrangements for the giving of evidence by defined categories of witness. These regimes provide a range of measures dealing with the giving of contemporaneous evidence by closed circuit television (CCTV) or video-links or the use of screening to restrict contact between parties.^[134]

18.126 As discussed in Chapter 19, such measures are most commonly used in relation to the evidence of child witnesses or complainants in sexual assault proceedings. However, in some jurisdictions, such vulnerable witness protections extend to applicants in protection order proceedings.

18.127 For example, in Victoria, a court may direct that ‘alternative arrangements be made for a proceeding in respect of a family violence intervention order’ by, for example, permitting the use of CCTV; using screens to remove the respondent from a party’s or witness’ direct line of vision; and permitting the presence of a person providing emotional support while a party or witness gives evidence.^[135]

18.128 In New South Wales, alternative arrangements for complainants giving evidence in sexual offence proceedings apply (with any necessary modifications) to the giving of evidence in apprehended violence order proceedings,^[136] but only if the ‘defendant in the proceedings is a person who is charged with a prescribed sexual offence’ and ‘the protected person is the alleged victim of the offence’.^[137]

Cross-examination by a person who has allegedly used violence

18.129 Many parties to protection order proceedings represent themselves, including persons seeking protection and persons alleged to have used violence. Unless legislation provides otherwise, a person who is not represented by legal counsel may have a right to cross-examine witnesses. This can be problematic where the respondent is unrepresented and cross-examines the person seeking protection. As noted in a submission to the VLRC in its review of family violence laws in Victoria in 2006:

I have experienced [personal cross-examination by the respondent] firsthand, and can say that to be cross-examined by the respondent and to have to cross-examine the respondent myself, is not a position I would wish on anyone. I was unprepared, overwhelmed and scared of the prospect of having to look at this man, little less have to talk to him and ask/answer questions.^[138]

18.130 The VLRC recommended that a person against whom allegations of violence have been made should not be able to cross-examine the person seeking protection, any family members of the parties, or any other person the court declares to be a ‘protected witness’ in protection order proceedings.^[139] This recommendation was implemented in the Family Violence Protection Act 2008 (Vic).^[140]

18.131 There are also restrictions, in family violence legislation in Western Australia, South Australia and the Northern Territory, on personal cross-examination by those alleged to have used violence.^[141] In these jurisdictions, the unrepresented party may submit his or her questions to the court, which the court or an authorised person will then ask the witness. Under the Victorian legislation, a court must adjourn proceedings to provide the party with a reasonable opportunity to obtain legal representation for the purpose of cross-examination.^[142] If he or she does not obtain legal representation after being given a reasonable opportunity to do so, the court must order Victoria Legal Aid to offer legal representation for that purpose. Victoria Legal Aid is required to comply with this order.^[143]

Submissions and consultations

18.132 In the Consultation Paper, the Commissions asked whether the provisions in state and territory family violence legislation that allow the court to hear protection order proceedings in closed court are effective in protecting vulnerable applicants and witnesses.^[144]

18.133 The Commissions also proposed that state and territory family violence legislation should prohibit a person who has allegedly used family violence from personally cross-examining, in protection order proceedings, a person against whom he or she has allegedly used family violence. The proposal stated that any person conducting such cross-examination should be a legal practitioner representing the interests of the person who has allegedly used family violence.^[145]

Open or closed court?

18.134 A number of stakeholders considered that current provisions that allow courts to hear protection order proceedings in closed courts were effective.^[146] The Magistrates’ Court and the Children’s Court of Victoria considered that the decision about whether a court should be closed should be at the discretion of the judicial officer. Open courts were said to be important in protection order proceedings:

Open courts enable other parties to see and understand the nature of the proceedings and how the procedure works before they have to give evidence or participate in the proceedings in other ways. Open courts also facilitate community education about family violence and court processes.^[147]

18.135 Some stakeholders expressed the view that provisions allowing closed courts were not always effective in protecting vulnerable applicants and witnesses. For example, victims may still be subject to aggressive cross-examination or verbal abuse in the court room by legal counsel and the respondent.^[148] The Department of Premier and Cabinet (Tas) stated that, while Tasmanian legislation allows for closed courts in family violence matters, the judiciary are reluctant to use the provisions in many cases.^[149]

18.136 National Legal Aid commented that the Queensland requirement that protection order proceedings generally be held in closed court is appropriate and works well.^[150] The Queensland Law Society agreed that this provision has proved effective, but noted that the administration of it varies from court to court. The Queensland Law Society stated that it would not be appropriate to exclude support workers from the court.^[151] However, Women’s Legal Service Queensland observed that current practice does allow for a court assistance or other support person to be present.^[152]

18.137 Women’s Legal Services Australia noted as a general observation, that variations between state and territories, and within particular jurisdictions, make it difficult to gauge the effectiveness of the strategies that have been put in place for vulnerable applicants and witnesses:

In particular in rural and remote areas it is highly questionable as to whether victims of family violence are able to obtain the protections provided to vulnerable applicants and witnesses. For example, in the APY lands applications for protection orders are often heard in open court and sometimes the victim is only sitting two or three spaces away from the defendant.^[153]

18.138 In relation to the use of CCTV and other alternative arrangements for the giving of evidence, a number of stakeholders suggested that provisions applying to sexual offence proceedings should be extended to cover protection order proceedings.^[154] For example, Women’s Legal Service Victoria stated that:

The operation of a closed or open court and victims being able to remain in a remote room for the duration of their time in court is of great assistance to clients who are very relieved such a service exists, especially where they are in grave fear of the offender.^[155]

Restrictions on cross-examination

18.139 A number of stakeholders supported the Commissions’ proposal to prohibit personal cross-examination in protection order proceedings by a person who has allegedly used family violence.^[156] Stakeholders expressed concern about the possible use of court processes to harass victims of family violence,^[157] and submitted that some victims would rather not go through with getting a protection order, than be cross-examined in this way, in what may amount to ‘another form of psychological abuse inflicted on the victim by the perpetrator’.^[158]

18.140 It was observed that, while ‘the questioning of vulnerable witnesses by unrepresented accused in sexual offence trials is widely recognised as unacceptable’, applications for protection orders are ‘no different in the relevant dynamics, and, may in fact involve sexual offences, making such court processes a direct comparison’.^[159]

18.141 A number of stakeholders were concerned about the implications for the provision of legal aid of the Commissions’ proposal that only a legal representative be permitted to cross-examine the applicant;^[160] or suggested that legal representation should not be mandatory.^[161] Others supported the Victorian model, under which legal aid must be provided.^[162]

Commissions’ views

18.142 In considering judicial discretion to close courts during protection order proceedings the overarching principle of open justice needs to be balanced against the purposes of the protection order regime—providing safety and protection for victims of family violence.

18.143 Where open court proceedings inhibit a victim of family violence or another witness from giving evidence, inadequate or incomplete evidence may be adduced, with repercussions for the victim, the particular proceedings and flow-on effects for related family law proceedings.

18.144 On the other hand, conducting proceedings in open court ensures that the system is open to public scrutiny, may reinforce the obligation on all witnesses to tell the truth and ensures family violence does not remain relegated to the private realm.

18.145 There is some variation in the provisions in state and territory family violence legislation regarding the power to close the court. While the grounds vary, judicial officers hearing protection order proceedings in most states and territories have a discretion to close courts. In Queensland, the starting point is that the court will be closed, unless the court orders otherwise.

18.146 The Commissions consider the Queensland approach, on its face, as more protective of the interests of applicants in protection order proceedings and likely to lead to more hearings in closed court. However, there is currently insufficient information to compare how state and territory procedures operate in practice. In any case, there are good reasons why some protection order proceedings should be conducted in open court. Given that stakeholders have stated that existing provisions appear to be operating satisfactorily, the Commissions make no recommendation for reform.

18.147 There are good arguments, however, for extending ‘alternative’ or ‘special’ arrangements for the giving of evidence by vulnerable witnesses to witnesses who are victims of family violence, including in protection order proceedings. For example, stakeholders suggested that the relevant provisions of the Criminal Procedure Act 1986 (NSW)^[163] should be amended so that victims of family violence are afforded the same protection as victims of sexual assault when giving evidence in court.^[164]

18.148 The Standing Committee of Attorneys-General (SCAG) is examining vulnerable witness protections through the SCAG National Working Group on Evidence. The Working Group is expected to consider aspects of ‘alternative’ or ‘special’ arrangements for the giving of evidence.^[165] The Terms of Reference instruct the ALRC, in undertaking this inquiry, to be ‘careful not to duplicate … the work being undertaken through SCAG on the harmonisation of uniform evidence laws, in particular the development of model … vulnerable witness protections’. The Commissions suggest that this aspect of vulnerable witness protection should be considered by the Working Group.

18.149 The Commissions recognise concerns about allowing a person who has allegedly used family violence to personally cross-examine a victim of that violence. This provides an opportunity for a person to misuse legal proceedings and exert power and control over the victim of his or her family violence. Considering the nature and dynamics of family violence, this may significantly inhibit the ability of a victim, or another witness, to provide truthful and complete evidence in protection order proceedings.

18.150 State and territory family violence legislation should prohibit a person, who has allegedly used family violence, from personally cross-examining a person against whom he or she is alleged to have used family violence. Rather, if cross-examination is allowed, an unrepresented respondent should be permitted to examine the applicant through a person appointed by the court to ask questions on behalf of the respondent. This is consistent with the Commissions’ recommendations about cross-examination by unrepresented defendants in sexual assault proceedings.^[166]