Domestic and family violence is a serious issue. There are protections for domestic violence victims. In 2019, Section 102NA was added to the Family Law Act 1975. This section seeks to make court proceedings safer for victims of family violence. There’s confusion about this section. Do you want the section clarified? This is the article for you.
Key takeaways of 102na Family Law Act
Family violence covers a broad array of actions, including physical and verbal abuse, financial control, and social isolation.
In Queensland, victims of domestic violence are covered by a protection order from a Magistrate.
The Court can grant an injunction for the protection of a child or the child’s parent.
Section 102NA bans litigants from personally cross-examining each other if there’s an allegation of family violence.
Under a Section 102NA order, cross-examinations must be conducted by a legal representative.
The Family Violence and Cross-Examination Scheme assists parties under a cross-examination ban to afford a family lawyer.
Critics suggest that access to free legal help may encourage false accusations. There’s little to back this up.
Family Violence and the Family Law Act
The definition of family violence in the Family Law Act is broader than some may realise. Section 4AB refers to “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful.” This behaviour may include acts or threats of physical violence. This can involve assault, sexual abuse, destroying property, or harming animals. There may also be verbal abuse, such as derogatory taunts.
However, another important factor in family violence is coercive and controlling behaviours. These can manifest in different ways.
Financial control
Many victims are subjected to financial abuse by their partners. They may be forced to give up their job and lack control over purchases.
Social isolation
Perpetrators often deny victims the right to see family member or friends. They may even move residences to prevent socialising.
Protections for victims
The primary mechanism for protecting victims of domestic violence is a court order. The name of the order is different by state. Queensland victims are covered by protection orders. Police who attend a domestic violence incident may issue a police protection order. This is a temporary order until a final protection order can be sought.
All protection orders include the same mandatory conditions for the respondent:
Maintain good behaviour toward the aggrieved and do not commit further domestic violence.
Maintain good behaviour toward any other party named in the order.
Don’t expose any children named in the order to domestic violence.
Beyond these, an order can contain additional conditions, such as:
Not approaching parties in the order.
Returning property to the aggrieved.
Not attempting to contact the aggrieved.
A Magistrate will make a protection order if they’re satisfied of the following:
A relevant relationship exists between the respondent and the aggrieved. This includes people in an intimate relationship, a caring relationship, or related by blood or marriage.
The respondent committed acts of domestic violence.
It’s necessary or desirable to grant an order for the protection of the aggrieved.
Injunctions
Under section 68B, the Court can grant an injunction to protect a child’s welfare. An injunction can serve to:
Provide personal protection for the child, a party named in a parenting order, or someone with parental responsibility for the child during family law proceedings.
Restrain the respondent from entering the residence, workplace, education, or other specified area of the child or the child’s parent, as outlined in the Family Law Act 1975 and enforced through the family law system.
Section 114 allows the Court to grant an injunction in circumstances arising from a marriage. The injunction may be put in place for the following reasons:
The personal protection of the respondent’s spouse.
To restrain the respondent from remaining in the marital home, their spouse’s residence, or their spouse’s workplace.
To protect the marital relationship.
To impose conditions on the respondent in relation to their spouse’s property.
Injunctions may operate simultaneously with a protection order.
Section 102NA (personal cross-examination)
The government saw that there was a need to provide added protections to domestic violence victims in the context of a court hearing. The section relates to the personal cross-examination of the parties. Victims may have to face an abusive former partner during a hearing.
The Court can make a Section 102NA order. This order prevents an examining party from cross-examining a witness if there’s an allegation of family violence between them. This applies when the perpetrator is attempting to cross-examine the victim. It also applies when the victim is attempting to cross-examine the perpetrator.
There’s an allegation of family violence when any of the following is satisfied:
Either party has been convicted of or is charged with, an offence involving violence or a threat of family violence to the other party.
A protection order applies to both parties.
An injunction under section 68B or 114 for the personal protection of either party is directed against the other party, particularly in cases involving an offence involving violence.
Under a Section 102NA order, both of the following will apply to the cross-examination:
The examining party must not cross-examine the witness personally.
The cross-examination must be conducted by legal representation acting on behalf of the examining party in cases involving an offence involving violence.
The Court may make an order:
On its own initiative.
On the application of:
The witness party.
The examining party.
An independent children’s lawyer is appointed for a child in relation to the proceedings.
Commonwealth family violence and cross-examination scheme
Section 102NA orders have been increasing. Concessions must exist for parties who can’t afford legal representation. The Commonwealth Family Violence and Cross-Examination of Parties Scheme fulfils this need.
Legal Aid commissions, through the Commonwealth Family Violence and Cross-Examination Scheme, fund legal representation for litigants under a Section 102NA family law order. You may be required to contribute to the cost of the lawyer.
To access legal representation through the family law scheme for family violence cases, Legal Aid Queensland must receive a ban on personal cross-examination notice from the Court. If you’re listed on the notice, Legal Aid Queensland will forward you an application. In cases involving cross-violence, Legal Aid Queensland will ensure appropriate representation. Submit your application to Legal Aid Queensland once completed. Applications are accepted via email, post, or in person.
If the family law application is received within 12 weeks of the hearing, Legal Aid Queensland, under the cross-examination scheme, will confirm the funding and allocate legal representation where available. For cases involving personal cross-examination or cross-examination parties, Legal Aid Queensland ensures that the appropriate legal support is in place. If the hearing is more than 12 weeks away, Legal Aid Queensland will process the request between 6 and 12 weeks out from the court date.
Family law funding can cover standard disbursements, interpreter costs, travel, parking, accommodation, and legal representation related to the hearing, including the option for private legal representation if necessary.
Criticisms
Does Section 102NA lead to more false accusations of domestic violence? Some think parties may make allegations to access taxpayer-funded legal aid and avoid personal cross-examination. Research shows about 2-3% of complaints are false. According to Professor Bob Pease of Deakin University:
In an analysis of 850 rapes reported to Victoria Police over three years, only 2.1 per cent of reports were identified by police as false.
Unfortunately, there’s a rising distrust of female victims. As many as 4 in 10 Australians disbelieve sexual violence reports. Almost 90% of female victims stay silent. With greater protections and access to legal assistance, more victims may feel empowered to reach out, knowing they have a legal practitioner acting on their behalf to support them throughout the process.
Conclusion
Family law proceedings are especially difficult for parties dealing with domestic violence concerns. To protect victims during a court hearing, the Section 102NA amendment to the Family Law Act prevents a victim from personally facing their abuser during a cross-examination. Legal Aid Queensland plays a crucial role in supporting this process by providing access to legal representation for those who cannot afford it. Through legal aid funding, victims are ensured proper representation without the financial burden. The legal aid program also helps maintain fairness in the proceedings by making sure both parties have adequate legal support.
Cherries well exceeded my expectations doing a fantastic job of creating an affidavit and supporting me at trial.
She was able to highlight 4.5 years of 2 different court processes plus clearly explain in dot point the trauma I had been experiencing.
- Alira De Palma
If you’re facing traumatic legal concerns, contact our office today. We can discuss your situation, including options for legal aid, during a free consultation.
