Improving evidence in protection order proceedings

Written evidence

Information provided in application forms

A person seeking a protection order under state or territory family violence legislation may apply for an order by completing an application form. The information and degree of detail sought in the application forms varies across jurisdictions. Some application forms simply ask the applicant to set out the grounds that he or she relies on. 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.

The Commissions consider that application forms should include an illustrative list of the kinds of conduct that constitute family violence. 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 family violence which are currently less visible, such psychological or emotional abuse. This is particularly important to assist victims of family violence who are making an application for a protection order without the assistance of lawyers or the police.

Affidavit evidence in protection order proceedings

In some jurisdictions, the application form completed by a person seeking a protection order must be sworn or made on oath. 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 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’. In other jurisdictions, there is no requirement that an application be supported by an affidavit.

One reason for not requiring an application to be accompanied by an affidavit is to make the application process more user-friendly and accessible, particularly to applicants without legal representation or police assistance. However, the fact that an application is unsworn can affect the evidentiary value of the matters set out in the application. This is not an issue where there is a court hearing, because the courts will critically assess the information provided in the application form, and confirm the content of the written application. However, if a protection order is made by consent, the evidentiary value of the matters set out in an unsworn application form is reduced—particularly in pending or concurrent family law proceedings.

The Commissions are interested in hearing whether there is value in the approach taken in the Victorian and Tasmanian family violence acts, which require that the information form (in Victoria) and application form (in Tasmania) be made on oath or sworn.

An alternative approach is that taken in the Western Australian family violence legislation, which gives the applicant for a protection order the option of providing affidavit evidence in support. This would give an applicant who is currently involved in family law proceedings, or who anticipates such proceedings, the opportunity to provide stronger evidence in support of a protection order that may be relied on in later family law proceedings.

The Commissions are interested in hearing about other mechanisms that would facilitate the use of evidence given in protection order proceedings in pending, concurrent or subsequent family law proceedings where family violence is alleged. In particular, the Commissions are interested in whether it would be desirable to have a standard form of affidavit that could be used in protection order proceedings under state and territory family violence legislation.

Oral evidence

Closed or open court proceedings

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, but also includes provisions that allow or require the court to be closed in certain circumstances. In contrast, the Domestic and Family Violence Protection Act 1989 (Qld) states that a court hearing an application for a protection order ‘is not to be open to the public’ but notes that the court ‘may open the proceedings or part of the proceedings to the public or specified persons’.

Where open court proceedings inhibit victims of family violence or other witnesses from giving evidence, inadequate or incomplete evidence may be adduced. This may have repercussions not only for the victim and the case in issue, but also broader flow-on effects where family violence is alleged in pending, concurrent or subsequent family law proceedings involving the victim.

On the other hand, conducting protection order 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 makes more visible the reality of family violence in our community.

There is some variation in the provisions in state and territory family violence legislation regarding the power to close the court. However, the Commissions note that, while the grounds to close the court vary, judicial officers hearing protection order proceedings in most states and territories have a discretion to open or close courts in certain circumstances. The Commissions are interested in hearing how effective the different approaches of each jurisdiction are in protecting vulnerable applicants and witnesses in protection order proceedings, and, in particular, how the requirement under the Queensland legislation that, generally, protection order proceedings be heard in closed court, works in practice.

Cross-examination by a person who has allegedly used violence

Many parties to protection order proceedings represent themselves, including persons seeking protection and persons alleged to have used violence. This is often due to difficulties in obtaining legal representation. Unless legislation provides otherwise, a self-represented party will have a right to cross-examine witnesses. This can be problematic where a person alleged to have used violence is self-represented and cross-examines the person seeking protection.

The Victorian Law Reform Commission (VLRC) recommended that a person against whom allegations of violence have been made should not be able to personally 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.^[3] This recommendation was implemented in s 70 of the Family Violence Protection Act 2008 (Vic). Under the Victorian family violence legislation, a court must adjourn proceedings to provide the party with a reasonable opportunity to obtain legal representation for the purpose of cross-examination. 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.^[4]

In the Commissions’ preliminary view, 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. This is consistent with the Commissions’ proposal in the context of sexual assault.^[5] For the reasons set out in that chapter, the Commissions further propose that any person conducting such cross-examination should be a legal practitioner. The Victorian family violence legislation provides an instructive model for how such a requirement could be implemented in practice.