Direct cross‑examination in family law matters

Incidence and context of direct cross‑examination involving self-represented litigants
Report – June 2018

1. Introduction

This report sets out findings from the Direct Cross-examination in Family Law Matters project, which was commissioned and funded by the Australian Government Attorney-General's Department. The project explores quantitative and qualitative data relevant to direct cross-examination involving self-represented litigants in family law matters, derived from court files and audio and transcripts of proceedings, collected from the Family Court of Australia (FCoA) and the Federal Circuit Court of Australia (FCCoA), together with an analysis of relevant unreported judgments of the Family Court of Western Australia (FCoWA).

The aim of this project was to develop a robust, evidence-based understanding of:

  • the extent of direct cross-examination involving self-represented litigants in family law matters that proceed to a final hearing and where family violence has been alleged or substantiated; and 

  • the factual and legal context characterising these family law matters (including the arrangements made by the courts to safeguard litigants where direct cross-examination took place) as compared to those matters where direct cross-examination involving self-represented litigants did not take place (including any alternative arrangements made where direct cross-examination was not permitted).

The focus of this research was on cases where:

  • the self-represented party undertaking the direct cross-examination was the alleged or substantiated perpetrator of the family violence and the witness was the alleged or substantiated victim; and
  • the self-represented party undertaking the direct cross-examination was the alleged or substantiated victim of the family violence and the witness was the alleged or substantiated perpetrator.

In this chapter, the research aims and research design of the Direct Cross-examination in Family Law Matters project will be outlined, together with relevant literature, legislative frameworks and case law, to provide context to the analyses in the substantive chapters of this report.

Chapter 2 will outline the demographic profile of parties and case characteristics from both the FCoA and FCCoA primary court file sample and from the FCoWA judgment sample. Chapter 3 will provide analyses relating to the extent to which the sampled cases involved direct cross-examination. It will also examine the relationship between direct cross-examination and claims made about each party (including claims made about family violence, family violence orders and criminal history). Chapter 4 will consider the extent to which risk assessments were conducted in the files included in the primary court file sample, together with the evidentiary profiles in these cases. Chapter 5 will explore the range of arrangements made to accommodate and manage direct cross-examination in the data samples, including the presence of any safeguards for either party. The discussion in Chapter 6 will provide an analysis of findings in relation to any association between the case outcomes for parenting, property or other cases and the extent of direct cross-examination. A summary of the key findings and a discussion of the conclusions arising from this research will be provided in Chapter 7.

1.1 Background

Our family law system is based on the adversarial approach to court proceedings, with cross-examination a key tenet of this approach and the means by which evidence that is relied upon by parties is tested in court (see e.g., discussion in Martin v Martin (2014) FCCA 2838 in the family law jurisdiction and more generally e.g., Browne v Dunn [1894] 6 R 67; Lee v The Queen (1998) 195 CLR 594 [32]. See also Murray, 2014; Wigmore as quoted in Bowden, Hanning, & Plater, 2014, p. 560 and Australian Law Reform Commission (ALRC), 2015, p. 237). Given that a substantial proportion of litigated family law matters proceeding to judicial determination are characterised by allegations of family violence (see e.g., 65% of parenting and parenting/financial matters in the post-reform sample of Kaspiew et al., 2015, p. 45), it is important to note that at present, there are no specific provisions in the Family Law Act 1975 (Cth) (FLA) that:

  • prohibit a self-represented, alleged perpetrator from directly cross-examining the alleged victim; or
  • provide an alternative process for a self-represented alleged victim so that they are not required to directly cross-examine an alleged perpetrator.

In July 2017, the Australian Government, Attorney-General's Department released an Exposure Draft of the Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2017, which seeks to ensure that victims of family violence are protected from being personally cross-examined by their alleged perpetrator. More specifically, the proposed sections 102NA(1) and 102NA(2) provide for the prevention of direct cross-examination involving self-represented parties where allegations of family violence have been made and:

  • either party has been convicted of or charged with an offence involving violence or threat of violence to the other party; or
  • a final family violence order applies in relation to both parties; or
  • an injunction under sections 68B or 114 of the FLA applies to both parties.

Current protective measures relevant to direct cross-examination in the Family Law Act 1975(Cth)

At present, Division 12A of the FLA requires child-related proceedings in the family law jurisdiction to be conducted following a less adversarial approach that reduces formality and accommodates greater judicial intervention in the conduct of proceedings. Following research in relation to the effect of escalating conflict in the context of the adversarial approach and its effect on children (McIntosh, 2006), Division 12A was introduced into Part VII (child-related proceedings) with a view to enshrining the Children's Cases Program pilot, placing "the control of the proceedings … in the hands of the judge, rather than the parties or their legal representatives" and involving a child-centred focus that is "geared to the needs of the child" (Harrison, 2007, ix; Murray, 2014 and see e.g., Martin v Martin (2014) FCCA 2838 [32]; Truman v Truman (2008) FamLR 614 [7]).2 Of particular relevance to this research project, Division 12A requires the court:

  • to conduct proceedings in a manner that safeguards parties to proceedings against family violence (s 69ZN(5) FLA) and "with as little formality, and legal technicality and form, as possible" (s 69ZN(7) FLA; see also s 69ZT); and
  • to "actively direct, control and manage the conduct of proceedings" (s 69ZN(4) FLA).

Division 12A also provides for the court to limit or preclude cross-examination of a witness and to admit and draw conclusions from transcripts of evidence from other proceedings (s 69ZX FLA).

Provision may also be made for proceedings to be facilitated via remote witness facilities to enable evidence to be provided from a location outside of the courtroom (s 69ZQ FLA; see also s 102C-102D FLA in relation to video link and s 27A for safe location hearings), and for findings in relation to family violence to be made "at an early stage" (s 69ZR FLA), thereby potentially avoiding the need to rely on evidence from the victim. Additional arrangements may include the ICL cross-examining the witness prior to the self-represented litigant, the placement of screens to separate the parties or case management measures including the judicial officer relaying the questions on behalf of the unrepresented litigant. The Family Law Courts Family Violence Best Practice Principles (2016) also reference these and other provisions and provides guidance in the exercise of judicial discretion in these circumstances.

Additional provisions in the FLA, and in both the common law and the uniform evidence legislation (see Evidence Act 1995 (Cth) s 41), also operate to inform the manner in which parties may undertake questioning in cross-examination. Section 101(1) FLA also requires the court to "forbid the asking of, or (to) excuse a witness from answering, a question that it regards as offensive, scandalous, insulting, abusive or humiliating" unless it is "essential in the interests of justice". Section 101(2) FLA similarly prohibits the examination of a witness that is regarded by the court to be "oppressive, repetitive or hectoring, or (to) excuse a witness from answering questions asked during such an examination". Section 41 of the Evidence Act also disallows "misleading", "confusing", "unduly annoying, harassing, offensive, oppressive, humiliating or repetitive" questions that are asked in "a manner or tone that is belittling, insulting or otherwise inappropriate" or has "no basis other than in stereotype".

As the discussion of literature below suggests, however, these particular provisions have been identified by some commentators as providing insufficient protection to witnesses in practice (see for e.g., Bowden et al., 2014; Cossins, 2009; Kaye, Wangmann, & Booth, 2017a; Kennedy, Easteal, & Bartels, 2012, p. 338; Women's Legal Services Australia [WLSA], 2015; Women's Legal Service Victoria [WLSV], 2015a).

This suite of current protective measures was considered by the Family Law Council in their final report on Families With Complex Needs and the Intersection of the Family Law and Child Protection Systems (2016). Measures described as "court craft", which involved the judicial officer relaying questions to witnesses or reprimanding self-represented litigants for aggressive questioning, and warning of the implications this questioning may have on findings of credit, were contrasted with the state and territory legislative provisions and, in this context, were identified as limited in their capacity to "balance the competing interests in these cases of ensuring therapeutic process, good quality evidence and procedural fairness" (p. 114). This issue of procedural fairness is considered in more detail later in this chapter.

While the measures introduced in the family law jurisdiction to address the needs of vulnerable witnesses (including these alternative arrangements for evidence to be given via remote witness facilities) have been identified as intending to address the trauma posed by direct cross-examination, calls have been made by some commentators for more fundamental changes to be made to address the underlying issues associated with allowing direct cross-examination in these circumstances (see for e.g., Bowden et al., 2014, p. 563; Kaye, Wangmann, & Booth, 2017a; WLSA, 2015).

In spite of the provisions included in Division 12A FLA, concerns have also been raised more generally about the opportunities within the family law system for "perpetrators of family violence to continue the abuse of their families … (via) delaying tactics, repeated applications and the failure to comply with court orders in order to control … and coerce them into unsafe consent agreements" (House of Representatives Standing Committee on Social Policy and Legal Affairs, 2017, p. x). More specifically, the provisions in Division 12A have been identified as being "inconsistently applied" and "ultimately inadequate in many cases", with alternative options (such as more precise use of subpoenas and uptake of alternative arrangements including permitting evidence to be given remotely) not commonly adopted (House of Representatives Standing Committee on Social Policy and Legal Affairs, 2017, Submission 60, p. 135). This is compounded by what was described as a "long-standing reluctance" on the part of the judiciary to intervene in cross-examination (see e.g., Australian Law Reform Commission and New South Wales Law Reform Commission, 2010, p. 1,336; Bowden et al., 2014, pp. 549-550 and 565-566; Cossins, 2009, p. 68; Loughman, 2016, p. 27).

This judicial reluctance has been identified as stemming from the adversarial nature of the system rather than any insufficient authority for the judiciary to exercise their discretion pursuant to these provisions (Ellison, 2001, p. 370). Of note, the final report of the House of Representatives Standing Committee on Social Policy and Legal Affairs, A Better Family Law System to Support and Protect Those Affected by Family Violence (House of Representatives Standing Committee, 2017) indicated "deep" concern that the courts had not more actively used their existing power to regulate the direct cross-examination of victims of family violence by their unrepresented perpetrators in family law proceedings (2017, p. 158).

The Council of Australian Governments' (COAG) National Summit on Reducing Violence Against Women and Their Children: Outcomes and Reflections. Connect. Act. Change (2016) has recommended the elimination of direct cross-examination in the family law system (COAG, 2017, p. 30). Consistent with this recommendation, the House of Representatives Standing Committee has recommended that the Family Law Amendment (Family Violence and Cross-examination of the Parties) Bill, 2017 (noted earlier in this section) be introduced into the Parliament for urgent consideration, to implement a prohibition against perpetrators of family violence from cross-examining the other party, and to enable consideration of the qualifications and funding arrangements for those that may be appointed to undertake such cross-examination" (Recommendation 12, p. xxxii, p. 158). In addition, having observed that families characterised by family violence who are parties to property/financial proceedings "also require protection from the potentially re-traumatising experience of being cross-examined by a perpetrator of violence", the Standing Committee also recommended that the application of s 69ZN and s 69ZX be extended to those cases (2017, p. 181. See also e.g., Legal Aid NSW, 2017).

Together with the recommendations relating to extending the protections provided for in Division 12A, the House of Representatives Standing Committee also recommended that the examples set out in the definition of family violence in s 4AB(2) of the FLAbe amended to include "abuse of process in the context of family law proceedings" (Recommendation 8, p. xxxi), and that the Australian Law Reform Commission develop proposed amendments to Part VII of the FLA, including that they consider the removal of the presumption of equal shared parental responsibility (Recommendation 19, p. xxxiii).

Protective measures in state and territory jurisdictions for matters involving domestic and family violence

The protective arrangements relating to direct cross-examination in the family law jurisdiction contrast with those arrangements relating to cross-examination in state and territory jurisdictions where restrictions have been imposed in relation to sexual offence proceedings, and in some jurisdictions where restrictions are in place for proceedings relating to family violence orders. This means that while an alleged victim may be protected from cross-examination in the state/territory system, in the family law system, cross-examination may be permitted of the same alleged victim on many of the same issues (WLSA, 2015, p. 3).

The amendments made to the sexual assault and family violence legislation vary between the states and territories and have been made largely in response to the recommendations of the Australian Law Reform Commission and NSW Law Reform Commission's (2010) final report of their Review of Legal Frameworks to Improve the Safety of Women and Their Children. These recommendations included that:

  • all state and territory family violence legislation prohibits direct cross-examination by a respondent of a person against whom the respondent is alleged to have perpetrated family violence (2010, Recommendation 18-3); and
  • all federal, state and territory legislation be amended to prevent complainants (and other vulnerable witnesses) in sexual assault matters being directly cross-examined, with a person to be appointed by the court to ask questions on the defendant's behalf (2010, Recommendation 28-5).

In most Australian jurisdictions, self-represented accused parties are not permitted to directly cross-examine the complainant in sexual assault proceedings, with provisions generally providing for a person to be appointed to undertake the cross-examination. In Victoria and Queensland, Legal Aid is the appointed body; in NSW, the court must appoint a specific person; and in Tasmania and South Australia, the right to cross-examination is forfeited if the self-represented litigant does not obtain representation.

In Victoria, Queensland, Western Australia, South Australia, Northern Territory and the Australian Capital Territory, legislation also prevents the direct cross-examination in proceedings for family violence orders. For example, the Family Violence Protection Act 2008 (Vic.) stipulates special rules for the cross-examination of "protected witnesses" whereby the court must order Victoria Legal Aid to offer the respondent legal representation where they have not obtained their own legal representation and they have been given reasonable opportunity to do so (s 71). Where a respondent refuses representation and is not otherwise permitted to cross-examine the protected witness, restrictions are placed on the evidence that the respondent can give. Victoria Legal Aid is also required to provide legal representation to applicants in these cases where the respondent is prohibited from undertaking cross-examination and the police have not made the application.

The Productivity Commission (2014) in its Inquiry report on Access to Justice Arrangements recommended that the FLA be amended to be consistent with state and territory family violence legislation with regards to cross-examination (Recommendation 24.2). Consistent with this recommendation, the Report of the Vulnerable Witnesses and Children Working Group (Vulnerable Witnesses and Children Working Group, 2015) recommended considering the adoption of the protective measures from the criminal justice system before "rush(ing) forward to reinvent the wheel" (p. 2).

Of note, however, is Victoria Legal Aid's (2015) advice to the Victorian Royal Commission into Family Violence in 2013-14 that the protective measures were not widely invoked, with only 308 applicants and 192 adult respondents provided with court-ordered representation for cross-examination (p. 198). More generally, the provisions vary significantly between jurisdictions and in the absence of both evaluative and comparative research, it cannot be assumed that these approaches can be successfully transplanted between jurisdictions (Kaye, Wangmann, & Booth, 2017a).

Prevalence of direct cross-examination

At present, there is limited Australian empirical research regarding the prevalence of direct cross-examination involving self-represented litigants in family law proceedings. At the time of this research project, the Australian family law courts did not routinely collect data on the prevalence of direct cross-examination in matters where family violence had been alleged or substantiated.

The WLSA 2015/16 study surveying 338 women survivors of domestic and family violence provides some insight into prevalence, although the precise period during which their experiences of direct cross-examination occurred is unclear. The study identified that a majority of participants reported experiencing violence and 43% reported that they were directly cross-examined by the perpetrator in their family law proceedings, with a substantial proportion of these reporting that they felt "frightened, unsafe, re-traumatised and intimidate(d)" (2017a, p. 27 and 2017b, p.3). Descriptions of the physical symptoms and of systems abuse in this process were also provided. Of the 22% of matters that settled before reaching a final judicial determination, more than one-half (57%) reported that their fear of direct cross-examination was a factor in their decision to settle, and a further 42% identified "other reasons" including fear of cross-examination (see also WLSA, 2017b, p. 3). Additionally, 11% reported having to directly cross-examine their perpetrator (WLSA, 2017a, p. 28).

More recently, the findings of the House of Representatives Standing Committee's Parliamentary Inquiry Questionnaire provide some insight into prevalence (House of Representatives Standing Committee on Social Policy and Legal Affairs, 2017, p. 362). Of the 5,490 (77% female; 22% male) participants in the questionnaire,3 under half (= 2,215) provided a response to the question: "Were you subjected to cross-examination at court?" (p. 362). Of these participants, 46% reported that they had been cross-examined (= 1,018) and 54% reported that they had not been cross-examined (n = 1,197). A minority of participants responded in the affirmative to the question of whether they had been directly cross-examined by a person accused of perpetrating family violence against them or a family member (18%; = 381), with most reporting in the negative (80%; = 1,761).

Again, a minority of participants answered in the affirmative when responding to the question of whether they were required to directly cross-examine a person accused of perpetrating family violence against them or a family member (13%; = 266), while 87% reported in the negative (= 1,858). When asked about their level of satisfaction with the handling of the process of cross-examination by the court, the majority of participants responding to this question reported that they were not satisfied (72%; = 952), and 27% (= 357) reported that they were satisfied. It is unclear, however, which proportion of these respondents were referring to direct cross-examination and which proportion were referring to cross-examination conducted by a legal professional.

In the United Kingdom, the absence of routinely collected administrative data regarding direct cross-examination has led the UK Ministry of Justice (Analytical Services) to undertake a study to collect both quantitative and qualitative data to examine the question of prevalence. The quantitative component involved the analysis of data relating to actual or potential cross-examination of vulnerable4 or intimidated witnesses by litigants in person accused of "domestic abuse" between March and May 2015, from all courts in England and Wales that heard private family law matters. In 34 of the 124 hearings in this period, direct or indirect cross-examination took place (Corbett & Summerfield, 2017).

Research and literature relating to the trauma associated with direct cross-examination

The trauma that may be experienced by a victim as a result of direct cross-examination by an alleged/substantiated perpetrator has been widely acknowledged (e.g., Bowden et al., 2014; Cossins, 2009; Douglas, 2017; Fitch and Easteal, 2017; Kaye, Wangmann, & Booth, 2017a; Family Law Council, 2016; Kaspiew et al., 2017; Kennedy, Easteal, & Bartels, 2012; Loughman, 2016; Royal Commission into Family Violence, 2016; Women's Legal Services Australia, 2015; Women's Legal Service Victoria, 2015a; Women's Legal Service Victoria, 2015b). Some research and commentary observe that the process of direct cross-examination by a perpetrator or a victim may be as traumatic as the initial abuse (e.g., Cossins, 2009, p. 68; see also House of Representatives Standing Committee on Social Policy and Legal Affairs, 2017).

In its final report, the Family Law Council (2016) noted the concerns of stakeholders arising from the substantial numbers of self-represented litigants in family law matters involving alleged or substantiated forms of family violence, including the facilitation of direct cross-examination in these circumstances. (p. 114). The Council referred to the "abundant evidence that for women and children who have been assaulted or psychologically abused, direct cross-examination … can result in them being re-traumatised" (p. 114). This may, in turn, be identified as undermining procedural fairness in cases involving direct cross-examination - a concept that, as noted above, is a principal tenet of our adversarial legal system that may be broadly understood as the "fair procedure for decision-making."5

It is reflected in the common law duty to accord procedural fairness to a person when a decision is being made that affects them (Australian Law Reform Commission, 2015, pp. 19 and 391; and see e.g., Dietrich v The Queen (1992) 177 CLR 292; Minister for Immigration and Border Protection WZARAH [2015] HCA 40). As observed by the Australian Law Reform Commission (2015) Traditional Rights and Freedoms: Encroachment by Commonwealth laws, there has been movement towards inferring procedural fairness as a constitutional right on the basis of the judicial power in Chapter III of the Australian Constitution (p. 33).6 This concept of procedural fairness will be considered in greater detail later in this chapter.

More recently, the final report of the Parliamentary Inquiry by the House of Representatives Standing Committee on Social Policy and Law Reform (2017) indicated that most participants in the inquiry "overwhelmingly supported" addressing the issue of direct cross-examination by perpetrators of family violence in family law matters (p. 158, and see list at footnote 256). Some submissions to this Committee characterised direct cross-examination by a perpetrator as an abuse of process (2017, p. 67), and a means by which perpetrators may continue to traumatise their victims (see also Coy, Perks, Scott, & Tweedale, 2012).

The Domestic and Family Violence and Parenting: Mixed Method Insights into Impact and Support Needs: Final Report (Kaspiew et al., 2017) prepared by AIFS and colleagues similarly identified that the experience of direct cross-examination can be an abuse of process (see also e.g., Loughman, 2016). This mixed methods, multi-disciplinary study included a qualitative study with 50 women who had experienced domestic and family violence and had engaged services from the domestic and family violence (DFV), child protection or family law systems. More than half of the participating women described their involvement with multiple agencies and legal frameworks, with their former partners using the various aspects of these systems to perpetuate the dynamics of fear, coercion and control, in particular by extending the family's engagement with the family law system (p. 180).

This potential for systems abuse has been widely acknowledged (see also Coy et al., 2012; Douglas, 2017; Family Law Council, 2016; Fitch, & Easteal, 2017; Kaye, Wangmann, & Booth, 2017a; Women's Legal Service Australia, 2015; Women's Legal Service Victoria, 2015). The adversarial nature of the Australian family law system and the principles of procedural fairness were identified in this study as "support(ing) abusive dynamics in an environment where many professionals have insufficient expertise in family violence to recognise the misuse of their services, systems and processes" (Kaspiew et al., 2017, p. 181) (see next section of this report). The tactics nominated by the participants in this context included the use of cross-examination by self-represented perpetrators, with the trauma experienced by women in these circumstances described as deriving from:

The stress of facing an uncertain court outcome in the context of their own and their children's trauma, the necessity of repeating their stories, to have their evidence tested in court, to come face-to-face with the perpetrator during court processes, and, in some cases, to be cross-examined by the perpetrator where they were self-represented. In some cases, this occurred in the context of processes, including litigation, that were deliberately being used abusively. (2017, p. 178)

Of particular relevance to this discussion was the finding that more than half (n = 29) of the sample in this study reported experiencing post-separation systems abuse by their ex-partner, including via repeated litigation and mediation, and via cross-examination about rape during their family law proceedings (Kaspiew et al., 2017, p. 148). One case study that is illustrative of the trauma that may be experienced in direct cross-examination involved a participant who reported that she had been raped by her former partner, who had also physically abused their child during contact. The litigation in this participant's case took place over eight years and was initially precipitated when the father did not return the child at the cessation of contact. The mother is described by the authors as experiencing the court process as "an extension of the ex-partner's abuse, including by being cross-examined by her ex-partner as a litigant in person over days about sexual matters of no relevance to the proceedings" (2017, p. 182).

Similar observations were also made in the Royal Commission into Family Violence (2016) in Victoria with the Commission relaying the experience of a victim of family violence whose ex-husband had chosen to represent himself and to cross-examine her. On the account provided to the Commission, the wife reported that she "was exhausted and suffering from extreme anxiety and negotiated for custody on the second day of the trial" in the context of the husband stating in court that he was "prepared to negotiate for custody of the children, if my wife drops the rape charges" (p. 197).

The WLSA (2015) research surveying survivors of domestic and family violence (2015), noted earlier, also provided insights into the experience of being directly cross-examined in family law matters. Responses included reports of feeling that the court did not adequately intervene and feeling let down by a system that was effectively "complicit in the abuse". Some women described their fear; being "frozen"; not being able to speak very well and not being able to look at their former partner. The WLSA research also identified direct cross-examination as a means of asking "ostensibly valid questions but which can be deliberately loaded with hidden and sinister meaning or threats" (2015, p. 3). Insight from the WLSA research was also provided into the potential trauma associated with having to directly cross-examine an alleged perpetrator, describing the intimidation and fear experienced in these circumstances (2017a, p. 28). Fitch and Easteal's (2017) recent research in relation to vexatious litigation, primarily based on surveys with practitioners, also provides insight relevant to this discussion, with one participant stating that the "most harmful and unstoppable conduct" can take place during direct cross-examination (p. 107).

In addition to the issues associated with the subject matter to be covered in cross-examination and the experience of being cross-examined, the reports of both the House of Representatives Standing Committee and the Australian and New South Wales Law Reform Commissions identified (as noted above) the prospect of direct cross-examination as a factor leading parties to elect not to contest proceedings and to agree to consent orders that may not accord with the safety and best interests of the children (VLA Submission 60 to the Parliamentary Inquiry, 2017, p. 134; Kaye, Wangmann, & Booth, 2017b; Loughman, 2016; WLSA, 2015, p. 3. See also more generally ALRC and NSWLRC, 2010, p. 1,116; Coy et al., 2012).

Concerns about the potential for direct cross-examination in the context of family violence to give rise to poor quality and/or incomplete evidence have also been raised by both the Family Law Council (2016, p. 5 and p.113) and by the Australian and New South Wales Law Reform Commissions (2010) where it was identified that these dynamics are such that they "may significantly inhibit the ability of a victim, or another witness, to provide truthful and complete evidence in protection order proceedings" (p. 863) (see also Chisholm, 2009, p. 168; Kaye, Wangmann, & Booth, 2017a; Loughman, 2016; WLSA, 2015, p 3). Similarly, based on both quantitative and qualitative data, Coy and colleagues (2012) identified barriers to victims giving their best evidence about histories of abuse, and that difficulties experienced with cross-examining their perpetrators may mean that they are unable to ask sufficiently probing questions or to adequately challenge responses.

Procedural fairness - a dynamic concept?

As noted earlier, the testing of evidence by cross-examination is widely identified as a right of the alleged perpetrator (e.g., Cossins, 2009, pp. 68 and 71; Ellison, 2001) and as a central tenet of our adversarial system that is directed at achieving procedural fairness (see e.g., Lee v The Queen (1998) 195 CLR 594 [32]; and more specifically Browne v Dunn [1894] 6 R 67; Australian Law Reform Commission, 2015, p. 237; Murray, 2014 and Wigmore as quoted in Bowden et al., 2014, p. 560). As the discussion earlier in this chapter foreshadowed, this right is not an inviolable, absolute right given the protective provisions in Division 12A FLA, and as illustrated in the amendments made in relation to cross-examination in sexual assault and family violence proceedings (Australian Law Reform Commission, 2015; Cossins, 2009; and see examples in case law including Spigelman CJ in R v TA (2003) NSWLR 444).

Guidelines for judicial officers in relation to procedural fairness with respect to self-represented litigants in the Australian family law context were developed initially in Johnson v Johnson (1997) FLC 92-764, with revisions by the Full Court of the FCoA in Re F: Litigants in person guidelines (2001) FLC 93-072. These guidelines include recommendations that:

  • A judicial officer should ensure as far as is possible that procedural fairness is afforded to all parties whether represented or appearing in person in order to ensure a fair trial.
  • A judicial officer should inform the litigant in person of the manner in which the trial is to proceed, the order of calling witnesses and the right which he or she has to cross-examine the witnesses.
  • A judicial officer may provide general advice to a litigant in person that he or she has the right to object to inadmissible evidence, and to enquire whether he or she so objects. A judicial officer is not obliged to provide this advice on each occasion that particular questions or documents arise.
  • If a question is asked, or evidence is sought to be tendered in respect of which the litigant in person has a possible claim of privilege, the judicial officer is to inform the litigant of his or her rights.
  • Where the interests of justice and the circumstances of the case require it, a judicial officer may:
    • draw attention to the law applied by the court in determining issues before it;
    • question witnesses;

    • identify applications or submissions which ought to be put to the court;

    • suggest procedural steps that may be taken by a party; and
    • clarify the particulars of the orders sought by a litigant in person or the bases for such orders.


See also more recent applications in Redmond & Redmond and Ors (2013) FLC 93-557 and Herold & Herold (2015) FLC 93-628.

Subsequent Australian case law has also considered the applicability of these guidelines in the context of the less adversarial approach required by Division 12A FLA (detailed earlier) in the case management of Part VII FLA matters (child-related proceedings). In Sheen v Paulo [2007] FamCA 1175, Boland J noted that the Re F guidelines were not binding principles of law and further that "the guidelines must now be considered in light of the introduction of Division 12A". In Farmer v Rogers [2010] FamCAFC 253, the Full Court of the FCoA affirmed that trial judges have certain responsibilities in relation to how a hearing is conducted when one or more parties are unrepresented, namely, to adopt the guidelines of Johnson v Johnson and Re F: Litigants in person guidelines. However, the Full Court noted that the nature of parenting litigation made it different to civil litigation and that in certain circumstances, "the rules of natural justice are qualified" so as to not frustrate the purpose of parenting proceedings [para 221]. The Full Court affirmed Boland J's position in Sheen v Paulo that the Re F guidelines may need to be reviewed in light of the extensive case management powers for judicial officers in child-related proceedings under Division 12A, but that Division 12A did not reduce the obligation on judicial officers to afford procedural fairness to each party (see also Truman v Truman (2008) FamLR 614).

Appeal cases involving grounds of appeal relating to the denial of procedural fairness in the context of cross-examination at trial, in particular, include Cameron v Walker [2010] FamCAFC 168. In this case, the trial was not found to have miscarried on account of the trial judge's decision not to permit the mother to be cross-examined remotely rather than in the presence of the father, whom she alleged had subjected her to sustained violence throughout the relationship. (See also Wilde v Wilde (No. 2) [2007] FamCA 880 where cross-examination was not permitted; C v C [1998] 1 FLR 154 where it was held that cross-examination had been inappropriately curtailed; Caballes & Tallant (2014) FLC 93-596 where it was held that the judicial officer had not explained to the litigant the process to be followed and Doherty & Doherty [2014] FamCAFC 20 where there was a failure to provide the litigant notice of the right to cross-examine witnesses).

Historically, Australian case law has viewed cross-examination as a "powerful and valuable weapon for the purpose of testing the veracity of a witness' evidence and the accuracy and completeness of their story" (Bowden, 2014, p. 551). It has also been identified as having an important role in testing evidence in family law proceedings in order to inform decision-making in line with the paramount consideration - the best interests of the child (s 60CA FLA). However, as noted in the previous section of this report, concerns have been raised that "for vulnerable witnesses, traditional cross-examination may not expose unreliability so much as produce it" (Bowden et al., 2014, p. 560. See also Australian Law Reform Commission and New South Wales Law Reform Commission, 2010; Coy et al., 2012; Cossins, 2009; Family Law Council, 2016; Roberts & Hunter, 2012, p. 20). Doubts about the "capacity of the skilful cross-examiner to expose the dishonest, mistaken or unreliable witness, and to uncover inconsistency and inaccuracy in oral testimony" (Cossins, 2009, p. 70; see also Ellison, 2001), may be regarded as being compounded in circumstances where the cross-examiner is an untrained self-represented litigant, particularly where the relationship between the parties is characterised by family violence.

Although made in the context of a discussion relating to criminal proceedings, Bowden and colleagues (2014) observed that a potential source of judicial reluctance to intervene in the conduct of cross-examination, discussed earlier in this chapter, may derive from a "fear of jeopardising the defendant's right to a fair trial and because they are conscious of the risks of an appeal" (Bowden et al., 2014, p., 550; see also Loughman, 2016, p. 27). Bowden and colleagues (2014) further observed that limitations arising from the discretionary nature of judicial intervention to accommodate the interests of the witness were curtailed by the adversarial system.

However, as noted above, Division 12A FLA and the legislative amendments relevant to cross-examination at state and territory level suggest that procedural fairness is not a "fixed and immutable" concept and this is reflected in the jurisprudence of the High Court. In Assistant Commissioner Michael James Condon v Pompano Pty Ltd (2013) 252 CLR 38 [177], the High Court identified fairness as an "essentially practical" concept that is intended to "avoid practical injustice" (Re Minister for Immigration and Multicultural Affairs: Ex parte Lam (2003) 214 CLR 1 [37]) and that what was fair, "very often depended on the circumstances of the particular case, and that notions of fairness are inevitably bound up with prevailing values" (Dietrich v The Queen (1992) 177 CLR 292, p. 364; see also e.g., Jago v The District Court of NSW (1989) 168 CLR 23 [5]). While Kennedy and colleagues (2012) have argued that the principle of the fair trial is still conceptualised in terms of the rights of the alleged perpetrator, and that this is influential in the exercise of judicial discretion in decision-making (p. 340), the High Court's stated position is consistent with a notion of fairness that "may vary with changing social values and circumstances - it is inextricably bound up with prevailing social values" (Cossins, 2009, p. 71; see also Australian Law Reform Commission, 2015, p. 222) and is a "constantly evolving concept" (Bowden et al., 2014, p. 559).

The less adversarial trial principles enshrined in Division 12A FLA and the qualified right to cross-examination in the family violence and criminal jurisdictions provide an example of this dynamism by accounting for the interests of alleged victims and the community, as well as the alleged perpetrator's right to procedural fairness. They seek to accommodate the interests of all parties to the proceedings, including via the protection of witnesses against the experience of further trauma and shaped by the public interest, specifically community confidence in the proper administration of justice (Bowden, et al., 2014, p. 558; Cossins, 2009, pp. 70-71). This approach has been referred to in the UK commentary as the "triangulation of interests" whereby fairness accounts for the interests of the parties, their families and the public (Bowden et al., 2014, p. 559 referencing Lord Steyn, Attorney General's Reference (No. 3 of 1999); Vulnerable Witnesses and Children Working Group, 2015, pp. 17-18).

Reflecting this "triangulation of interests", the Australian and New South Wales Law Reform Commissions have drawn a clear distinction between the right to test evidence and "any perceived right to conduct cross-examination in any manner or format" (2010, p. 1,118). The Commissions' recommendations were directed at "ensuring fairness - both to victims of family violence and to those who have used it" (2010, p. 63; see also Roberts & Hunter, 2012). Limits to cross-examination; for example, those introduced in sexual assault matters, were not the subject of criticism in submissions to the Australian Law Reform Commissions in their 2015 inquiry into encroachment on traditional rights and freedoms by Commonwealth laws, and indeed submissions sought the extension of their application to family law matters (Australian Law Reform Commission, 2015, p. 240). Potential measures in the family law context such as those involving the appointment of a third party to undertake cross-examination (see for e.g., Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2017; Ellison, 2002, pp. 364-365) and the counsel-assisting model proposed by the Family Law Council, 2016, p. 134), may also be considered to reflect this dynamism and triangulation of interests. Murray's (2014) recent analysis The Remaking of the Courts: Less Adversarial Practice and the Constitutional Role of the Judiciary observes the "rise in initiatives … (as) positioned towards the inquisitorial end of the judicial spectrum and which involve the judge more actively in the conduct of cases", and that these less adversarial approaches "have at their core the recognition that traditional adversarialism is not necessarily the ideal in all cases" (p. 22). This evolution is identified by Murray as reflecting the constant change of institutions shaped by their environment and as reflecting neo-institutionalism, noting, however, that while dynamic, courts are nevertheless constrained by their constitutional limitations (2014, pp. 43-44). Courts of family law jurisdiction are no exception to these constraints and Murray observes that while the constitutional framework can accommodate reforms such as Division 12A FLA, clarification of the uncertainty as to "how far the Constitution allows judges to 'manage cases' is required" (pp. 135-136).

1.2 Methodology

So far in this report we have outlined the research aims and relevant legislative frameworks, jurisprudential and research literature and noted the policy developments informing this study. In this next section, the focus will turn to the research design employed to implement this study.

This project focused on collecting and analysing data relevant to cases involving direct cross-examination in matters involving a self-represented litigant where the matter was characterised by alleged or substantiated family violence, with an emphasis on comparing the nature and features of these family law cases with those cases included in the sample where direct cross-examination did not take place.

The data include information sourced from relevant court files drawn from all registries of the Family Court of Australia (FCoA) and Federal Circuit Court of Australia (FCCoA), together with audio and transcripts of proceedings. Additionally, access to unreported judgments of the Family Court of Western Australia (FCoWA) was also provided.

Sampling strategy

The sampling strategy employed for the Direct Cross-examination in Family Law Matters project was to sample all FCoA and FCCoA matters in all case categories finalised in the 2015/16 financial year and the 2016/17 financial year that involved:

  • one or more self-represented litigants;
  • allegations of (or substantiated) family violence; and
  • that had progressed through to a final hearing and the hearing had commenced with the matter finalised either by consent during the proceedings or by judicial determination.

The AIFS research team provided these requirements to senior court staff at the FCoA and FCCoA who then liaised with the court data technician/s to extract a sample from the court CaseTrack database according to the criteria stated above.

From this sample, the research team perused the court files (and audio or transcript of proceedings where available) to identify the matters where a self-represented party was involved in direct cross-examination during the final hearing. This enabled the data to be analysed by whether the party conducting the direct cross-examination or the party being directly cross-examined was an alleged perpetrator of family violence, an alleged victim of family violence or both.

Cases were deemed to be out of scope where a file had been incorrectly identified as involving a self-represented litigant at the final hearing stage (or where the matter had progressed through to the final hearing stage but the final hearing had not commenced (= 15). There were a small proportion of files that were not available for the data collectors to access during the data collection period (n = 4).

In addition, the project sample included all judgments of the FCoWA involving direct cross-examination in all case categories in the 2015/16 financial year and the 2016/17 financial year that involved:

  • one or more self-represented litigants;
  • allegations of (or substantiated) family violence; and
  • that had progressed through to a final hearing and the hearing had commenced with the matter finalised either by consent during the proceedings or by judicial determination.

The AIFS research team provided these requirements to senior court staff at the FCoWA who then provided the research team with a list of judgments meeting the criteria stated above.

For the main court file data sample, the appointed court data technician extracted 1,198 family law court files in the two financial years of 2015/16 and 2016/17 from the FCoA and FCCoA applying the criteria nominated above to a search of court file records in CaseTrack. Concurrent with the processes employed by the court staff to identify the relevant sample of in-scope files, a small number of cases nominated by court staff were used by the research team for pilot testing the data collection instrument (n = 12). The research team received advice from court staff that a closer examination of a small number of selected cases on this list of extracted court files suggested that substantial numbers were in fact out of scope for various reasons (e.g., the case did not proceed to a hearing or the CaseTrack data was incomplete). A designated member of court staff was therefore appointed to examine additional CaseTrack data fields for the files identified as in scope and 104 cases were identified as clearly in scope. These cases comprised the main data collection.

Given that the initial CaseTrack selection process could not clearly identify all in-scope files or out-of-scope files without a further review of the initial court file extraction against the CaseTrack notes (as the extraction process cast the net more widely than required), the project team requested that court staff review all cases identified in the initial court file extraction again. It was through this process that an additional 138 court files were identified as having high likelihood of being in scope. It is on this basis that a total of 254 court files were ultimately identified as largely meeting the research team's selection criteria. This larger sample of 254 court files included the 104 court files that comprised the main data collection and the 12 cases provided to the research team for pilot testing.

During the main data collection, the research team collected data from 85 of the 104 court files. As noted earlier, 15 court files (14% of the sample) were out of scope and there were four court files where the physical file could not be retrieved. Combined with the data collected during the pilot-test phase, the research team collected data from 97 cases, with 70 cases (or 72%) involving direct cross-examination with at least one party who was self-represented and who was either directly cross-examined or conducted direct cross-examination. In order to better understand the nature of the remaining 138 court files and in order to ascertain the extent to which the data collected were representative of all the court files identified as largely in scope, the research team decided to draw a further sample from the remaining 138 court files and to manually examine the physical files to ascertain whether they were actually in scope and, if so, whether any direct cross-examination took place. This process would provide a more accurate picture of how common direct cross-examination was among the court files from which we were unable to collect data.

Due to the time required to retrieve files and for them to be delivered to the Melbourne registry, the research team randomly selected a sample of 30 from the remaining 138 court files. Of the 30 court files, five court files were identified as being out of scope (or 17% of the 30 cases) and two court files did not have sufficient information in the file to determine whether they were in scope. Of the remaining 23 court files, 17 files (74% of 23 cases, or 57% of the 30 cases) involved direct cross-examination and there were six court files where no direct cross-examination took place. It is important to note that the proportions of cases that fell out of scope were similar between the random sample of 30 cases and the sample of the 104 cases drawn for this project (17% vs 14%), and the extent to which direct cross-examination took place among the 23 court files from the random sample was similar to that among the sample from which complete data was collected (74% vs 72%). This assessment indicated that this supplementary sample mirrored the study sample in terms of the extent to which files were in scope and involved direct cross-examination.

These similarities mean that the findings made in relation to the study sample may be regarded as representative of overall in-scope cases. If we approximate the in-scope cases and the occurrence of direct cross-examination from the 30 cases to the remaining files from which the random sample was drawn, this suggests that among 138 court files, 90-130 cases would be in-scope and 52-103 cases may have involved direct cross-examination.7 When considered as a whole, of 254 court files identified by the courts' CaseTrack system, approximately 187-227 cases would be in scope and 122-173 cases across the two courts over two financial years may have involved direct cross-examination. The prevalence of direct cross-examination as emerging from the main data sample is considered in detail in Chapter 3.

Data collection

As noted above, the aim of this research was to collect data providing insight into:

  • the extent of direct cross-examination involving self-represented litigants in family law matters proceeding to a final hearing where family violence has been alleged or substantiated; and 

  • the factual and legal context characterising these family law matters where direct cross-examination took place as compared to those matters where direct cross-examination involving self-represented litigants did not take place.

In family law matters where direct cross-examination took place, data collection from the relevant court files and audio/transcripts of proceedings was aimed at providing an understanding of any specific safeguards implemented by the court to protect the alleged victim of family violence.

In family law matters where direct cross-examination did not take place, data collection from the relevant court files and audio/transcripts of proceedings was aimed at providing an understanding of the reasons for that outcome, and of any alternative arrangements that might have been made.

To this end, a project-specific data collection instrument was developed using Microsoft Excel and adapted from the data collection instruments applied in the Court Files component of the Court Outcomes Project that formed part of the Evaluation of the 2012 Family Violence Amendments.8 This data collection tool was refined prior to the commencement of data collection with support from both senior management and judicial associate staff at the FCCoA to facilitate access to examples of court files and audio of proceedings and answer queries to assist in the finalisation of the data collection tool.

Data collection for this study from the court and audio files was undertaken between October 2017 and January 2018. Two law graduates and a senior year law student were appointed to collect data from the files and audio recordings working under the supervision of senior AIFS staff members of the Family Law and Family Violence Team. Recruitment of the data collectors followed a thorough interview and careful vetting process, and only those with appropriate academic records and experience were employed. As AIFS employees, the data collectors were bound by the same confidentiality and security requirements as members of the AIFS Family Law and Family Violence Team.

Following intensive data collection training the researchers were equipped to understand the material in the court file and to understand the data collection instrument and the coding frame. Guided by the data collection instrument (outlined below) and assisted via ongoing supervision, the data collectors read sampled case files and listened to audio/read transcripts of proceedings and recorded the incidence and (where relevant) details of key data items outlined in the data collection instrument.

Data collected from the audio/transcripts of proceedings and court files, in consultation with relevant judicial associates where required, related to the following broad categories:

  • basic demographic data of applicants and respondents - age, gender, occupation, region and citizenship; date of cohabitation, marriage, separation and divorce; information on whether the parties were legally represented during the proceedings;
  • basic demographic data relating to children - age, gender, their relationship to the applicant and respondent and their living arrangements;
  • the nature of the proceedings - orders sought by the applicant/respondent for parenting and property/financial matters;
  • the factual issues in the case, including allegations concerning family violence and child safety;
  • any available information regarding whether one or both self-represented litigants participated in direct cross-examination;
  • any available details of any arrangements for, and any conduct of, direct cross-examination and any available details of arrangements made as an alternative to direct cross-examination;
  • relevant details from Notices of Risk relating to alleged/substantiated family violence;
  • information regarding whether an independent children's lawyer (ICL) had been appointed;
  • any other available information to substantiate allegations of family violence including details of any Family Violence Orders (FVOs) in place; and
  • details of any pending or finalised criminal investigations.

Limited demographic, direct cross-examination and outcome data were also collected from 39 unreported judgments from the FCoWA. However, as information was collected through the analysis of judgments rather than directly from FCoWA Court files, it is not possible to ascertain conclusively whether direct cross-examination may have been undertaken in all or some of these cases where this was not mentioned in the judgment. Accordingly, these cases were analysed separately from the main data analysis but they do provide insight into the FCoWA experience.

Ethical considerations

The Human Research Ethics Committees of AIFS, the FCoA and the FCCoA provided ethical clearance of the Direct Cross-examination in Family Law Matters project, including all aspects of the methodology and data collection protocols. Access to identifiable court records (including files, transcripts and audio of proceedings) from the FCoA and FCCoA occurred only on site at the Commonwealth Law Courts, Melbourne, under supervision of relevant court staff. All AIFS staff who accessed court records were bound by strict confidentiality agreements and complied with Police Checks and Working with Children Checks.

Access to court records was granted by the FCoA and the FCCoA pursuant to rule 24.13 of the Family Law Rules 2004 and rule 2.08 of the Federal Circuit Court Rules 2001 respectively. Court records are maintained for legal purposes and are public documents subject to certain restrictions, specifically the prohibition of publishing information on parties to, or children subject to, litigation under s 121 of the FLA. In these circumstances, separate consent was not sought from families whose files, transcripts or audio of proceedings were selected as it would have been impracticable to obtain consent from all individual parties to proceedings in each court record included in the sample and given that strict safeguards were in place to protect confidentiality (see further below). Previous research studies have been based on data from court records, including most recently the Court Files Study component of the AIFS Evaluation of the 2012 Family Violence Amendments (Kaspiew et al., 2015) and the initial Court Files Study that formed part of the AIFS Evaluation of the 2006 Family law Reforms (Kaspiew et al., 2009). Earlier AIFS research based on court records also includes the Allegations of Family Violence and Child Abuse in Family Law Children's Proceedings (Moloney et al., 2007).

The availability of rigorous research on family law proceedings is also of significant public interest as it supports government, community and professional understanding of the operation of the FLA and the family law court system. It is also consistent with the underlying principle of open justice that is a cornerstone of the Australian legal system. The research team established arrangements to protect the privacy and confidentiality of parties whose court records were accessed as part of this research project. All information collected from the court records was de-identified at first reading by substituting court identification numbers with an artificial research number generated for each case, with an identification key developed for this substitution process. This approach assisted in respecting the privacy of families whose court records were reviewed while also enabling follow-up review of a file where any queries arose in the course of analysis. In addition, members of the research team were instructed not to access any court records if the names of any of the parties were known to them through professional or personal association. Privacy and confidentiality were also emphasised in data collector training, the data collection manual and in supervision discussions throughout the fieldwork period.

In relation to the Western Australian sample, access to identifiable judgments of the FCoWA was provided only to specified AIFS research staff via the PLEAS Online (Family Court) service. Access to this database was by engagement with relevant judicial officers of the FCoWA and following agreement with the terms and conditions required by the Government of Western Australia Department of Justice upon completion of the requisite schedules (including a confidentiality agreement) and their submission to the Law Library of Western Australia. Once again, all AIFS staff who accessed court judgments via PLEAS were bound by strict confidentiality agreements and complied with Police Checks and Working with Children Checks.

The data collection for this project involved subject matter of a sensitive nature. Family law proceedings are recognised as particularly sensitive matters because they deal with relationship breakdown and disputes that come before the courts, often involving particularly difficult issues such as family violence, child abuse, substance addiction and mental illness. In these circumstances, researchers employed to conduct data collection were provided with opportunities to de-brief with a supervisor and counselled to access support through the AIFS Employee Assistance Program if required.

The AIFS Ethics Committee, together with the FCoA and FCCOA committees, considered each of these issues and determined that the procedures outlined above were sufficient to mitigate any potential ethical issues arising in the context of this research.

Data verification and preparation for analysis

From the time of the delivery of the first batch of data from the court files, a number of processes were employed to prepare the data for analysis. The data collection records were backed up on the AIFS server each week of the data collection period with both completed and semi-completed files included in this process. Semi-completed files required either the collection of further data from the court file or data from the audio recordings of proceedings. Data from the audio recordings enabled data collectors to determine whether direct cross-examination took place when this could not be determined from perusing the documents contained on the court file and, if so, how that direct cross-examination was conducted.

Various cross-checking procedures were developed by the research team and then set in place to detect inconsistent data or implausible (e.g., a party being listed as both legal represented and as having conducted direct cross-examination) and missing data (e.g., unclear or no information from the court file vs data collector failing to enter response in a data field). These procedures enabled the research team to detect data errors faster as more of the collected data were delivered. For the efficiency of retrieving audio files and data entry, the data entry from audio files was conducted at the final stage of data collection. Inconsistent or suspected data errors were reconciled or corrected by cross-checking with relevant notes from the data collectors. Sometimes this data verification required the data collectors to clarify data entered by referencing the court files, which was facilitated by the courts agreeing to retain the files until the end of the data verification process.

As noted earlier, comprehensive data were collected from 97 in-scope cases, which formed the basis of the detailed data analyses. The analyses concerning subgroups are therefore based on smaller numbers, which increases the possibility of error in the analyses. It is also worth noting that some court locations are not represented in the in-scope sample. For these reasons, no attempt was made to test statistical significance in the analysis with comparison of subgroups.

1.3 Structure of this report

In this chapter, the research aims and research design of the Direct Cross-examination in Family Law Matters project were outlined, together with relevant literature, legislative frameworks and case law, providing context to the analyses in the substantive chapters of this report.

Chapter 2 provides an overview of the demographic profile of parties and case characteristics from both the FCoA and FCCoA primary court file sample and from the FCoWA judgment sample. Chapter 3 provides analyses relating to the extent to which the sampled cases involved direct cross-examination and examines the relationship between direct cross-examination and claims made about each party (including claims made about family violence, family violence orders and criminal history). Chapter 4 considers the extent to which risk assessments were conducted in the files included in the primary court file sample, together with the evidentiary profiles in these cases. In particular, the discussion examines the extent to which allegations of family violence may have been substantiated and considers those findings according to whether direct cross-examination took place. Chapter 5 explores the range of arrangements made to accommodate and manage direct cross-examination in the data samples, including the presence of any specific safeguards for either party. The discussion in Chapter 6 provides an analysis of findings in relation to any association between the case outcomes for parenting, property or other cases and the extent of direct cross-examination. A summary of the key findings and a discussion of the conclusions arising from this research are provided in Chapter 7.

2 This Division was introduced into the FLA with the passage of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) following the Children's Cases Program Pilot. See further Harrison, 2007; Hunter, 2006; McIntosh, 2006; McIntosh, Wells, Smyth, & Long, 2008.

3 The questionnaire was open for completion between March and September 2017.

4 Witnesses under 17 years of age, suffering from a mental disorder, impaired intelligence and social functioning or with a physical disability or disorder were defined as vulnerable witnesses (Corbett & Summerfield, 2017).

5 More specifically, procedural fairness is traditionally regarded as comprised of the fair hearing rule and the rule against bias (see e.g., Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

6 See e.g., Dietrich v The Queen (1992) 177 CLR 292; Polyukhovich v Commonwealth (1991) 172 CLR 501 and Leeth v Commonwealth (1992) 174 CLR 455 as referred to in Australian Law Reform Commission (2015) p. 33 and Williams, and Hume (2013) p. 375.

7 The approximations are derived from the 95% confidence interval of the 30 cases for proportion of cases in scope and proportion of cases involving direct cross-examination.

8 Note that the Court Files Project instrument was adapted from the instrument employed for the Court Files component of the Legislation and Court Project that formed part of the AIFS Evaluation of the 2006 Family Law Reforms (Kaspiew et al., 2009).