2018 The Parliament of the Commonwealth of Australia HOUSE OF REPRESENTATIVES Presented and read a first time Family Law Act (Miscellaneous) Amendment Bill 2018 No. , 2018 (Attorney-General) A Bill for an Act to repeal the Family Law Act 1975, and for related purposes. Contents 1 Short title ........................................................................................... 1 2 Commencement ................................................................................. 1 3 Schedules........................................................................................... 2 Schedule 1—Amendment 3 Family Law Act 1975 3 Schedule 2—Cross Examination Amendments 5 Family Law Act 1975 5 No. , 2018 Family_Law_Act_Family_Violence_Amendment_Bill_2018_3 (1).docx i 1 A Bill for an Act to repeal the Family Law Act 2 1975, and for related purposes. 3 The Parliament of Australia enacts: 4 1 Short title 5 This Act is the Family Law Act (Miscellaneous) Amendment Act 6 2018. 7 2 Commencement 8 (1) Each provision of this Act specified in column 1 of the table commences, or 9 is taken to have commenced, in accordance with column 2 of the table. Any 10 other statement in column 2 has effect according to its terms. No. , 2018 Family_Law_Act_Family_Violence_Amendment_Bill_2018_3 1 (1).docx (2) Commencement information Column 1 Column 2 Column 3 Provisions Commencement Date/Details 1. Schedule 1 1 September 2018 1 September 2018 2. Schedule 2 1 September 2018 1 September 2018 1 Note: This table relates only to the provisions of this Act as originally 2 enacted. It will not be amended to deal with any later amendments of 3 this Act. 4 (2) Any information in column 3 of the table is not part of this Act. 5 Information may be inserted in this column, or information in it 6 may be edited, in any published version of this Act. 7 3 Schedules 8 Legislation that is specified in a Schedule to this Act is amended or 9 repealed as set out in the applicable items in the Schedule 10 concerned, and any other item in a Schedule to this Act has effect 11 according to its terms. No. , 2018 Family_Law_Act_Family_Violence_Amendment_Bill_2018_3 (1).docx 2 Schedule 1 1 Schedule 1—Miscellaneous Amendments 2 3 Family Law Act 1975 4 1 Subsection 4AB(2)(j) 5 After the subsection, add: 6 (k) abuse of process in the context of family law. 7 2 Subsection 60CG(2) 8 After the subsection, add: 9 (3) Upon an application being filed or the first instance of a matter 10 being heard, whichever occurs first: 11 a. a risk assessment must be completed using the family 12 violence risk assessment tool; and, 13 b. any matters and allegations relating to family violence must 14 be determined at the earliest practicable opportunity. 15 (4) In considering what order to make, the court must consider the 16 impact that family violence may have had on the contribution of 17 parties and may have on the future needs of parties. 18 3 Subsection 61DA 19 Repeal the subsection. 20 4 Subsection 61DB 21 Repeal the subsection. 22 5 Subsection 65D(1) 23 Omit “subject to sections 61DA (presumption of equal shared parental 24 responsibility when making parenting orders) and 65DAB (parenting 25 plans)”, substitute “subject to section 65DAB (parenting plans)”. 26 6 Subsection 65D(2) 27 Omit “subject to section 61DA (presumption of equal shared parental 28 responsibility when making parenting orders) and 65DAB (parenting 29 plans)”, substitute “subject to section 65DAB (parenting plans)”. No. , 2018 Family_Law_Act_Family_Violence_Amendment_Bill_2018_3 (1).docx 3 Schedule 1 1 2 7 Subsection 61J(a) 3 Add: 4 Note 2: To avoid doubt, children’s courts, no matter how constituted, are able to 5 make family law orders under this Act in the same circumstances that are 6 currently applicable to courts of summary jurisdiction. 7 8 Subsection 61J(b) 8 Add: 9 Note 2: To avoid doubt, children’s courts, no matter how constituted, are able to 10 make family law orders under this Act in the same circumstances that are 11 currently applicable to courts of summary jurisdiction. 12 9 Subsection 38BAA(1)(f) 13 At the end of the subsection, add: 14 (g) judgements in interim proceedings in short form. 15 10 Subsection 68T(1)(b) 16 Repeal this subsection. 17 11 Subsection 68T(1)(a) 18 At the end of the subsection, add: 19 (b) the date specified in the order; and 20 (c) any further order of the court. No. , 2018 Family_Law_Act_Family_Violence_Amendment_Bill_2018_3 (1).docx 4 Cross Examination Amendments Schedule 2 1 Schedule 2—Cross Examination Amendments 2 3 Family Law Act 1975 4 1 Subsection 69ZX(2) 5 At the end of the subsection, add: 6 (2A) If the court allows cross-examination of a particular witness who 7 is a party and section 102NA or 102NB applies to the cross- 8 examination, then the cross-examination must be conducted in 9 accordance with that section. 10 11 Note: Sections 102NA and 102NB deal with the cross-examination of a party where 12 there is an allegation of family violence. 13 2 Part XI 14 At the end of the part, add: 15 102NA Mandatory requirements in specific cases 16 17 When this section applies to cross-examination 18 19 (1) If, in proceedings under this Act: 20 a. a party (the examining party) intends to cross-examine 21 another party (the witness party); and 22 b. there is an allegation of family violence between the 23 examining party and the witness party; and 24 c. one or more of the following is satisfied: 25 i. either party has been convicted, or is charged 26 with, an offence involving violence, or a threat 27 of violence, to the other party; 28 ii. a family violence order (other than an interim 29 order) applies to both parties; 30 iii. an injunction under section 68B or 114 applies 31 to both 2 parties; 32 this section applies to the cross-examination. 33 34 Note 1: This section applies both in the case where the examining 35 party is the alleged perpetrator of the family violence and the 36 witness party is the alleged victim, and in the case where the No. , 2018 Family_Law_Act_Family_Violence_Amendment_Bill_2018_3 (1).docx 5 Cross Examination Amendments Schedule 2 1 examining party is the alleged victim and the witness party is the 2 alleged perpetrator. 3 4 Note 2: To avoid doubt, a reference to a party in this section 5 includes a reference to a person who is a party because of the 6 operation of a provision of this Act (for example, sections 92 and 7 92A, which are about intervening parties). This section only applies 8 to an intervening party if the intervening party is involved in the 9 allegation of family violence, whether as the alleged perpetrator or 10 as the alleged victim. 11 12 Where examining party does not have legal representation 13 14 (2) If the examining party is not represented by a legal practitioner, 15 then: 16 a. the examining party must not cross-examine the 17 witness party personally; and 18 b. any questions that the examining party would like to 19 ask the witness party in cross-examination must instead 20 be asked by a person appointed by the court; 21 unless the court grants leave. 22 23 Note: Despite paragraph (2)(b), there are other laws that apply to 24 protect the witness party (for example, section 101 requires the 25 court to forbid the asking of offensive questions and section 41 of 26 the Evidence Act 1995 requires the court to disallow certain 27 questions, such as misleading questions). 28 29 (3) The court must not grant leave under subsection (2) unless: 30 a. both parties consent to the cross-examination by the 31 examining party of the witness party personally; and 32 b. the court has considered whether the cross-examination 33 will adversely affect the ability of: 34 i. the witness party to testify under the cross- 35 examination; and 36 ii. the examining party to conduct the cross- 37 examination; and 38 c. the court has considered whether the cross-examination 39 will 2 have a harmful impact on the party who is the 40 alleged victim 3 of the family violence. 41 42 Where examining party has legal representation 43 No. , 2018 Family_Law_Act_Family_Violence_Amendment_Bill_2018_3 (1).docx 6 Cross Examination Amendments Schedule 2 1 (4) If the examining party is represented by a legal practitioner, 2 then: 3 a. the examining party must not cross-examine the 4 witness party personally; and 5 b. the cross-examination must be conducted by the 6 examining party’s legal practitioner. 7 102NB Mandatory requirements in specific cases 8 9 When this section applies to cross-examination 10 11 (1) If, in proceedings under this Act: 12 a. a party (the examining party) intends to cross-examine 13 another party (the witness party); and 14 b. there is an allegation of family violence between the 16 15 examining party and the witness party; and 16 c. section 102NA does not apply to the cross- 17 examination; 18 then: 19 d. the court may, if it thinks it appropriate to do so, make 20 an order that the cross-examination must be conducted 21 in accordance with this section; and 22 e. if the court makes such an order, then this section 23 applies to the cross-examination. 24 25 Note 1: This section applies both in the case where the examining 26 party is the alleged perpetrator of the family violence and the 27 witness party is the alleged victim, and in the case where the 28 examining party is the alleged victim and the witness party is the 29 alleged perpetrator. 30 31 Note 2: To avoid doubt, a reference to a party in this section 32 includes a reference to a person who is a party because of the 33 operation of a provision of this Act (for example, sections 92 and 34 92A, which are about intervening parties). This section only applies 35 to an intervening party if the intervening party is involved in the 36 allegation of family violence, whether as the alleged perpetrator or 37 as the alleged victim. 38 39 Where examining party does not have legal representation 40 41 (2) If the examining party is not represented by a legal practitioner, 42 then: No. , 2018 Family_Law_Act_Family_Violence_Amendment_Bill_2018_3 (1).docx 7 Cross Examination Amendments Schedule 2 1 a. the examining party must not cross-examine the 2 witness party personally; and 3 b. any questions that the examining party would like to 4 ask the witness party in cross-examination must instead 5 be asked by a person appointed by the court. 6 7 Note: Despite paragraph (2)(b), there are other laws that apply to 8 protect the witness party (for example, section 101 requires the 9 court to forbid the asking of offensive questions and section 41 of 10 the Evidence Act 1995 requires the court to disallow certain 11 questions, such as misleading questions). Where examining party 12 13 Where examining party has legal representation 14 15 (3) If the examining party is represented by a legal practitioner, 16 then: 17 a. the examining party must not cross-examine the 18 witness party personally; and 19 b. the cross-examination must be conducted by the 20 examining party’s legal practitioner 21 22 Court order 23 24 (4) The court may make an order under paragraph (1)(d): 25 a. on its own initiative; or 26 b. on the application of the examining party or the witness 27 party. 28 29 102NB Mandatory requirements in specific cases 30 31 The Minister must cause a review of the operation of this Division to be 32 commenced as soon as possible after: 33 a. the second anniversary of the commencement of this section; or 34 b. if, before the second anniversary, the regulations prescribe a 35 day that is after the second anniversary—that day. No. , 2018 Family_Law_Act_Family_Violence_Amendment_Bill_2018_3 (1).docx 8 Cross Examination Amendments Schedule 2 1 3 Application of amendments 2 The amendments made by this Schedule apply to cross-examinations 3 occurring after the commencement of this Schedule in proceedings 4 instituted before or after that commencement. 5 No. , 2018 Family_Law_Act_Family_Violence_Amendment_Bill_2018_3 (1).docx 9