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April 8th, 2013 
Peter Nolan
Updated
The former head of the Family Court says women are being put through distress and justice is not being delivered because of cuts to legal aid.
Retired chief justice Alastair Nicholson says men accused of physically or sexually abusing their partners are able to directly cross-examine their victim in court due to a lack of legal representation.
He says the situation is widespread, unacceptable and is affecting the rights of women and children.
Legal aid groups say it is so traumatising that some women are too frightened to leave their abusive partners and go through the Family Court system.
Eleanor, whose real name cannot be used for legal reasons, was ordered to take the stand under cross-examination from her former partner – who had allegedly raped her – after he had refused legal counsel.
At that point I could have easily have just have thrown myself in front of the first bus. I could not believe that he had been allowed to do this to me.
“I was standing outside in the foyer and I was shaking from head to toe and I couldn’t breathe properly, I was hyperventilating,” she said.
“At that point I could have easily just thrown myself in front of the first bus. I could not believe that he had been allowed to do this to me.”
There is a loophole in the Family Court which means victims of domestic and sexual violence can be questioned by their alleged attacker.
Eleanor had an intervention order against her former partner, who was required to keep at least 20 metres from her.
But, in the Family Court, he was allowed to get a lot closer and she was required to answer his questions.
“The Government actually says they are against violence,” Eleanor said.
“And yet today, they allow this to happen to women on a weekly basis. How can we say that we’re a country that’s against domestic violence if we then allow the perpetrator to continue to abuse their victim?”
‘Profound effects’
Mr Nicholson says the situation is unacceptable.
“Not everyone realises the degree of fear that’s engendered in cross-examining them in court and in effect putting them through the ringer,” he said.
“I think the effects on them are profound and it just shouldn’t happen.”
Mr Nicholson says an increasing number of people appearing in the Family Court do not have a lawyer because of cuts to legal aid.
Not everyone realises the degree of fear that’s engendered in cross examining them in court, and in effect putting them through the ringer. I think the effects on them are profound and it just shouldn’t happen.
“[It’s been] a gradual process but it started when it became extremely difficult to get aid in property cases, and then it started to extend into children’s cases. And now, as I see it, it seems to have got worse still,” he said.
Federal Attorney-General Mark Dreyfus concedes it can be traumatic for victims of domestic and sexual violence to be cross-examined by their former partner, but he says it does not happen often.
“Only about 5 per cent of cases actually go through to full hearing. And of that 5 per cent, only a very, very small minority produce the kind of situation we’re talking about here,” he said.
Mr Nicholson disagrees, saying the problem is far reaching and he “[does not] think there’s a full appreciation of how often it happens”.
Mr Dreyfus argues the Commonwealth is putting its share into legal aid but some states are not.
New guidelines
In Victoria, new guidelines have been introduced that mean if one party in a Family Court case does not have a lawyer, then the other party is not eligible for legal aid help either.
Pasanna Mutha from the Victorian Women’s Legal Service says it makes difficult cases worse.
“There are going to be two unrepresented parties at trial trying to argue their case in court, so it’s less than an ideal situation,” she said.
Mr Nicholson says the guidelines are absurd and illogical.
“In many of these cases [we’re] talking about the future of children,” he said.
The Australian Lawyers Alliance believes the new guidelines will lead to more protracted cases because people do not know the rules of the court.
Spokesman Greg Barns says legal aid should stick to its core tasks, such as family law, rather than going beyond its mandate.
“So these are again a case of short-term cuts when we should be looking at the broader picture about legal aid,” he said.
Mr Nicholson says Family Court judges do have the power to intervene in unrepresented cases if they believe the cross-examination has got out of hand.
However, those options are voluntary and are not always put into place. Alternatives, such as using video links, are also available.
Eleanor says there must be changes so women are able to leave abusive partners.
She says the collision of criminal and family law creates a lot of trauma and confusion.
“It’s not like there’s books in the library that actually say how to co-parent with the man who raped you,” she said.
“You have to navigate your way through so much. And so, therefore, to be on the stand and be in a situation where he’s given complete and utter power, again, and you are mandated to answer his questions, is an empty and horrible feeling and experience to go through.”
Topics:
family-law,
law-crime-and-justice,
domestic-violence,
courts-and-trials,
sexual-offences,
australia
First posted
Source Article from http://www.abc.net.au/news/2013-04-08/cuts-to-legal-aid-see-accused-rapists-cross-examining-victims/4616784
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