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Two steps forward one step back for victims of Family Violence

Sep 4, 2018

Carr & Co

Ben King and Nicholas Coveney
By Ben King and Nicholas Coveney

The government has recently proposed a number of changes which affect victims of family violence. These changes are as follows:

  1. victims of family violence being protected from being cross examined by the perpetrators;
  2. abusive parents accessing their children’s My Health Records without the consent or knowledge of the other parent; and
  3. proposed 10 days of paid leave for victims of family violence.

Protecting victims from cross examination

A few weeks ago, Federal Attorney General Christian Porter introduced a Bill which prevents perpetrators from cross-examining their victims if they have convictions, charges or a final family violence order against them. Where only allegations exist, the decision is left to the presiding judicial officer. This restriction would not apply to perpetrators who are legally represented when cross examination is conducted by their lawyer.

The concern with victims of serious family violence having to directly cross-examine or be cross-examined by perpetrators of violence during family law proceeding is that it may:

  1. compound the trauma of violence;
  2. impact upon their ability to give clear evidence;
  3. discourage them from continuing litigation; and/or
  4. lead to unsafe parenting consent orders.

Between 2015 and 2017 there were 173 family law matters where one or both parties were self represented and there was cross examination regarding serious allegations of family violence.

It is however important to note that the presiding judicial officer already has the power to:

  1. direct or allow a person to given evidence via video or audio link; and
  2. protect witnesses from being asked or having to answer questions that the court regards as offensive, scandalous, insulting, abusive or humiliating, unless satisfied it is essential in the interests of justice.

My Health Record

My Health Record is a new initiative being introduced by the government. Under the new system all of your medical records will automatically be uploaded to an online portal unless you opt out before 15 October 2018. For many this system has benefits but you should be made aware that a loophole currently exists where a parent who does not have custody of a child can create a health record account without the other party’s consent or knowledge.

A perpetrator of family violence will then be able to obtain information through My Health and find out which medical practitioners and pharmacies the child has attended, presumably with the other parent. This may of course narrow down where a victim of family violence is living, something they may not want their ex partner to know.

You can contact the Australian Digital Health Agency and request a child’s personal identification number to be suspended immediately to prevent this from occurring. Whether this Agency will be able to deal with these requests particularly in circumstances where parties have equal shared parental responsibility remains to be seen. As the My Health system has not yet been rolled out this is very much a space worth paying attention to and of course, be the subject of subpoena being issued to in the not to distant future.

Paid leave for victims of family violence

The proposal to provide paid leave to victims of family violence is currently just that, proposed.

The proposal being made by Opposition Leader, Bill Shorten has some hurdles to meet. Namely, Labor must with the next Federal Election and any proposed bill passed through parliament.

Whilst the change may be a little while off in Australia, there is growing support in our region for this change as last week New Zealand week became the first country to introduce this scheme of paid leave for victims of family violence. In New Zealand victims of family violence are now entitled to 10 days of paid leave.