No Justice Family Court Australia Reabusing Domestic Violence Survivors

In 2012, approximately 5000 women in Victoria used the services of the Salvation Army Domestic Violence Outreach Services. Of those 5000 women it is estimated that most of the services were for women and children escaping violence. After two years, 350 of those service users were randomly selected to see where they are now.

All of the group were immediately homeless upon leaving the family home environment. Some left without their children, and in 29 per cent of the cases do not have access to their children anymore. The perpetrator of the Family Violence, or government agencies have become the caregivers. In total that is 152 children without their mother in their lives. What generation of children will we have in the future?

A further 68 percent of the group now share “Parental responsibly” with their perpetrator, and “Shared Care”. Which means they get to face their perpetrator on a regular basis, and their children get to spend time with the person who they watched inflict violence on their mother. The biggest concern of this group was the undue pressure placed on them by Lawyers and the Family Court to share care with their perpetrator or otherwise be seen as an alienating parent.

Their legal support ranged from Legal Aid to Privately engaged Solicitors, to self-representation.

Family Violence Royal Commission Recommendation

1. Violence of any type needs to be recognised and should become a specialised legal area. Education and understanding is the key.

When you speak to lawyers, they will inform you, that usually you will become specialised in one area, and basically stick to it throughout their career. Yet I have had the privilege of seeing Family Court Barristers who “cut their teeth” so to speak in Criminal Law, and only went into Family Law recently. Their performances in court remind me of something of a circus that should have stayed at the Supreme Court.

Again and again I have seen Family Violence victims treated with disrespect by not only the legal profession, but also by Judges. Justice Thornton who was one of the first female Magistrates in Melbourne cut her teeth in the days of armed robbers, corrupt police, and women were sparse, not only on the bench. She went onto a successful career at the Country Court, and the Full Bench of The County Court before being made a Family Court Judge.

But to survive that sort of atmosphere of tough crimes, and horrendous acts, it would toughen anyones heart. I am not suggesting Justice Thornton is in any way bias, it his her criminal law past that has become part of her mannerisms.

So when you are in her courtroom one can close their eyes and be reminded of the late 1970’s and the old Melbourne Bluestone Magistrates Court. This is not the type of atmosphere anyone who has suffered family violence should be subjected to.

2. Legal assistance is a right not a privilege.

Legal Aid, now that is another circus altogether. Firstly you need to be fortunate enough to even qualify for legal aid, (which in the 350 women less than 60 did, basically less than ten percent.) The reason being is they had assets. That is correct. Even if you dont live in the family home, or have no access to your ex partners superannuation, or their bank accounts, these are deemed assets so you do not qualify for legal aid. Time and time again family violence victims are turned away from legal aid.

If you are fortunate to even get legal aid, each time a victim of Family violence attends court, they get a different lawyer. So they repeat most or some of their story (yet again) and hope and pray for the best.

Had these women been found at sea and been acknowledged as a refugee, they would gain more free legal assistance than women from family violence.

Then there are the family violence victims who sign over their potential assests in order to get legal assistance. Yes, your equity in your family home, and anything else you own can be hocked so to speak to assist you with legal assistance. That is only until the legal fees come close to the value of your assests, then you no longer qualify for any further assistance, and you are on your own.

Self represented family violence victims up against a party with representation is possibly the worst case scenario I have had to watch in Family Court. Usually the Judge becomes agitated  because time is being wasted, but also the unfairness and pressure placed on someone in this situation is so difficult to watch. Hence they sign up to shared care with their perpetrator, the quickest and easiest solution to get out of the court cycle.

What happened to the other 3 percent of the follow-up study? Well it is actually 10 women. In six cases the father has had no contact or walked away from the ex partner  (five did not have children and one was pregnant at the time which was stillborn), and the other four have partners incarcerated. No, only one was incarcerated for violence. The other three are in prison for other offences.

If you would like to read more about womens experiences with the family court and family violence a detailed report by Dr Lesley Laing called NO WAY TO LIVE should be read.

“No way to live”

Women’s experiences of negotiating the family law system in the context of domestic violence Dr Lesley Laing, Faculty of Education and Social Work, University of Sydney. June 2010

FAMILY COURT OF AUSTRALIA RE ABUSING FAMILY VIOLENCE VICTIMS

The Honorable Chief Justice Diana Bryant I believe is attempting to support victims of Family Violence through the Family Court system. The Family Violence Best Practice Principles approved and supported by the Family Court of Australia is to be commended. You can view this at the link below

http://www.familylawcourts.gov.au/wps/wcm/connect/FLC/Home/Publications/Family+Law+Courts+publications/fv_best_practice_for_flc

However the Chief Justice Diana Bryant has a long way to go before these principles are actually adhered to by all members of the Family Court, including Judges and staff.

I have been researching family violence in the Family Court system for approximately four years. I have been privy to some situations whereby as a bystander I have held concerns for the unethical behaviour of Judges and staff of the Family Court system.

I have attended over 700 sitting days in different Family Court rooms listening to, watching, and talking with people associated with proceedings regarding family law and more importantly family violence. This includes lawyers, barristers, court staff, security staff, victims, court support network staff, and other members of the public at family court proceedings.

Firstly my recommendations to the Family Violence Royal Commission regarding the Family Court System are as follows

1. No victim should be subjected to any type of ridicule or abuse by anyone. Family Court proceedings for any person involved is already stressful enough, then add the mixture of Family Violence and there is another fear and stress amongst parties.

This recommendation regards the following:

a. Protestors in the front area of the family court entrance. I know we are a country that has free speech, but to be subjected to certain groups yelling with a megaphone about their rights to a victim about to enter Family Court is incomprehensible.

I am going to give you an example. Please do not email me with abuse that I have used a mens group as an example here. I have met and spoken with male victims of Family Violence and they will also be featured in my blog. Violence does not have a gender and can occur across many types of blended families.

I was with a woman who was attending Family Court regarding Family Violence. At the front of the court entrance area a group of men protesting about men being victims of Family Violence started directing their speech toward the woman I was with. She had bruising to her face that was fading, and one comment that was made was “I bet he looks worse”. The woman in question became upset and that seemed to encourage an onslaught of further demeaning comments.

Fortunately I was able to get Family Court Security Staff to assist. No one has the right to behave like this. No one should be able to protest in this area ever.

b. Another time when the case of Mr Hird and the Essendon Football club recent incidents, the entrance walkway to the Family Court was full of reporters and cameras. I was that day with a woman who had just been granted an emergency relocation order due to her ex partner breaching the Family Violence Orders on 36 occasions, (including breaking into the former family home and beating the mother and children.) The Family Court had granted her permission to move to an unknown place. She had attended the Melbourne Family Court because of security fears at another Family Court Facility.

Upon coming to and from the Family Court of Melbourne she was filmed by camera crews awaiting Mr Hird and his entourage. So much for her personal security.

2. Security measures at Family Court should be effective enough to reduce the threat or fear of being subjected to any type of intolerable behaviour by any person(s) towards any other person(s). 

At the entrance to the front of the Family Court of Melbourne is inadequate with security, and deemed in my opinion quite dangerous.

a. Anyone who has had the privilege of standing in line to get through only one security check point at the Family Court in Melbourne may have been privy to some of the issues I have seen and heard. Firstly it can take up to 40 minutes some mornings. I have been present when victims and perpetrators have been within a confined distance. I have heard degrading comments made, intimidating hand gestures ( once a perpetrator kept slicing his throat with his hand and mouthing YOU’RE FUCKING DEAD) in front of me. I have heard barking (unaware who it was directed at), aggressive mannerisms, and basically stand offish filthy intimidating looks.

The entrance should be larger, contain cameras and more security. Perhaps even the model taken by the Melbourne Magistrates Court whereby solicitors, Barristers and Qcs or anyone attending the court regularly in this type of capacity have a different que in order to speed things up. I don’t know what the answer is. All I know is it is another area where a victim can be re victimized unnecessarily, or see others be victimized in front of them.

b.Upon leaving the Family Court, well that’s another matter and a whole other bag of security issues. I have seen people who have not gained the required results so to speak in the court room become upset and agitated and started being abusive towards others (including their legal representation). There should be a separate exit area. Imagine attending Family Court for the first time and hearing verbal abuse and viewing aggression from a person who is clearly upset regarding their predicament. Regardless of whether this is a once off behavioural issue, “out of character” so to speak, I have seen this time and time again. It is very concerning.

c. Security inside the Courtrooms is insufficient. I have been privy to many instances whereby I have been concerned for my own safety sitting in the gallery watching court room proceedings. There are no cameras. I have seen victims be intimidated by looks, hand gestures and remarks made by perpetrators turning their backs to where the actual microphones in the court rooms are. I have seen an entourage of family and friends in the gallery intimidating victims. I have also seen unfortunately members of the Legal profession behave in similar ways. Knowing exactly where the microphones are and turning their bodies to make snide comments to victims. I have actually been privy to a legal representative slide across the bar table written assistance to a perpetrator, and a law-book marked and open. If there were cameras in the court rooms there would be more accountability.

d. Security when no one is present in the courtroom. Cameras need to be installed. The recording of matters only occurs when the residing person is present. Therefore once they leave the court room the recording ceases. I have been privy to perpetrators taking this opportunity to intimidate victims. I have been informed by Family Court Clerk staff of their concerns for safety when they need to leave the courtroom after the Judge and having self represented litigants left by themselves. In one instance I was in the gallery when two self representing litigants involving family violence became embroiled in what can only be described as a Mexican standoff so to speak. For ten minutes I became concerned for my welfare as well as the victims.

3. When someone requests Security to be present in a courtroom it should be provided. The fear of being within a confined space with a perpetrator can trigger emotional and psychological fears. It also can be a way to intimidate the victim.

a. This would have to be one of the most highly discussed issues of concern with Victims of Family Violence. I have been privy to Justice MacMillan removing security from the courtroom because “she did not see the need for it as the defendant didn’t look like a threat to her” and she openly ridiculed the victim in the courtroom for suggesting that security was warranted. Prior to this hearing in front of Justice MacMillan the same victim had been intimidated, verbally berated, and another Judge had made sure that security was always present on numerous occasions.

b. Another case I was observing involving Justice Thornton whereby a Victim requested not to attend court physically and requested video link facilities was declined. The request was made by the victim due to recent breaches in their family Violence orders that were being investigated by Victoria Police. Justice Thornton made a comment in open court that “nothing will happen because others will be present”. Yet that did not assist the trauma the Victim had to face being within a confined space of a perpetrator who was under investigation for stalking and intimidation.

c. I was also privy to another incident regarding Justice Thornton that totally shocked me. An issue was raised in a case regarding Economic Abuse and Justice Thornton remarked “is that Family Violence?” I have kept in contact with the victim of these proceedings and have received transcripts of further proceedings regarding this case and Justice Thornton. Another comment made by Justice Thornton which shocked me was when the victim was being cross-examined on the fourth day, she was crying and asked the Independent children’s Barrister why she was doing this to her? Justice Thornton replied “well that’s what your barrister did (referring to the half day of cross-examination the perpetrator had)”. Fifteen minutes later, after continual sobbing, the victim, still in the witness-box asked for a 10 minute break to compose herself. Justice Thornton denied the victim not once, but four times these requested breaks. So a victim of 12 years of extensive family violence was in the witness-box for four days, being cross-examined by the perpetrator as well as the Independent Childrens Lawyer Barrister. Evidence was heard and admitted to by the perpetrator and by the expert psychiatrist admitting to family violence. (including the father assaulting the child).

What happened at the end of the trial? The victim lost parental responsibility and her children to the perpetrator. Just for an update. The child in question was assaulted again by the father, and he still has not been investigated regarding this issue. The mother is in the process of attempting to appeal the family court orders, but was recently informed by Justice Thornton that “she had no hope” and the application to suspend the current family court orders until the appeal was heard was denied.

d. I have viewed Justice Benjamin, who upon a request from a victim to have security present he rolled his eyes and said no. When the victim attempted to explain that they feared the perpetrator, he held his hand up in a stop like position and stated “no and that’s the end of that matter”.

e. Magistrate Turner from the Federal Circuit Court, I was privy to observing his approach to Family Violence. The victims solicitor requested security to be present (due to a previous incident at the Federal Circuit Court outside the courtroom regarding intimidation towards the solicitor and victim by a family member of the perpetrators) Magistrate Turner informed the solicitor that “she was a big girl” and “could handle a bit of criticism, as it went with the job” . Afterwards the victim informed me that the solicitor had been intimidated. She was approached and told that they knew where she lived, and the train times she caught to work was discussed. I asked the victim why the solicitor did not push the matter further, and I was informed because her role entailed being at the Family Court regularly, and she did not want to upset Magistrate Turner because she would be in front of him again. This solicitor who I have kept in touch with moved firms and relocated to a regional area to practice only recently.

f. Magistrate O’Dwyer from the Federal Circuit Court wins the wooden spoon for having no empathy whatsoever for Family Violence Victims. I have been present (when after an apparent back operation, and appeared to be in extreme pain and medicated) Magistrate O’Dwyer decided that one victim of family violence was, in his words was “stretching the truth”. In this instance the victim and the perpetrator were both self represented. The victim was requesting that she did not attend round table dispute services due to ongoing family violence. Magistrate O’Dwyer stated that the perpetrator in this instance “looked harmless” , “he was only small in stature” and that he “didn’t appear to be the type who would hurt anyone”. I kept in touch with the victim in this instance, and her family violence worker. Approximately three weeks after this court appearance the perpetrator was charged with assaulting the victim in a supermarket car park with an iron bar. Looks can be deceiving Magistrate O’Dwyer.

g. Magistrate O’Sullivan from the Dandenong Federal Circuit Court has been dubbed as the loose cannon of Magistrates. His demonstration of his understanding on Family Violence matters has been known to “change like the wind” as one legal counsel described him as. I have been privy to a number of sittings of Magistrate O’Sullivan in Dandenong, yet I was not present when he was involved in Family Violence cases so I cannot substantiate any previous information obtained from victims of family violence.

4. An expert witness has a duty to act independently and needs to be transparent and professionally accountable for their actions.

a. Family Consultants, like any expert witness (ie psychologist, psychiatrist etc) should be accountable for their report processes and this function should be outsourced from the actual Family Court Building in Melbourne.

Firstly independence is the key. Most Family Consultants are psychologists with professional liability insurance and are accountable like any other professional body. My biggest grievance is with the fact that the Family Court of Melbourne has enabled Family Consultants to be housed inside the court arena. This means that all sorts of families attending family court to see a family consultant is subjecting children and parents to seeing behaviors of others mentioned previously.

Secondly, a senior female Family Consultant, with only a Social Work background has been involved in proceedings time and time again that I believe is not benificial to anyone who has been a victim of Family Violence. One victim, who provided me with copies of her reports demonstrates her bias nature that should be addressed immediately. Another victim provided me with recordings of their interviews with this said consultant, and after reading the reports I was overwhelmed with the discrepancies and unprofessionalism of the Senior Family Consultant. Had she been in private practice a lawsuit would have incurred.

Thirdly, the relationship with this senior Family Consultant and other court staff is unhealthy and bias in nature. She sends other court staff into family court appearances literally as spies. How do I know this? I have been privy to watching some of these staff contacting the said consultant directly after hearings on their mobile phones. As I have spent four years in the court arena I have been privy to watching the same court staff attend matters that she is involved in. Coincidence? I think not. I have also been privy to Michelle Smith, who works on the same floor as the said consultant report back to the Senior Family Consultant in front of another victim. (who relayed the information to me). Another need for cameras in the courtroom.

Fourthly, then there is the relationship with this said Senior Female Family Consultant and a Senior Female Registrar that I have been privy to obtaining from Victims of Family violence evidence of their incestuous relationship. It is deplorable in this day and age that two such senior staff of the Family Court of Australia can wield such unauthorised power. They appear to be judge, jury and executioner. The amount of evidence that I have gathered regarding these two staff have become a focus of fear for the victims of family violence. They have no accountability and seem to be able to influence proceedings. This senior registrar informed a family violence victim not to press charges against her former partner regarding assault, and berated her by yelling and bullying her in front of her ex partner. The victim in this instance recorded the conversation, and upon hearing the conversation I was appalled by the behaviour in question. Another victim received written emails from the same senior registrar that I believe were abusive, insensitive and demeaning.

5. All Court Staff employees should have accountability for their behavior towards others.

In my time of being at the Family Court I have met a lot of genuinely helpful people who are employed at the Court in different types of roles. Yes I have heard the odd disgruntled complaint about one or two staff members, but overall the real complaints I have genuinely heard about have been regarding the senior family consultant and the senior registrar that can basically “make or break” a family violence case. This is a failure of the family court system and should be addressed immediately.

a. A proper complaints process needs to be enforced in a timely manner. I have seen copies of complaints made regarding these two by family violence victims, and eventually they get a rely usually 90 to 120 days after the complaint is made. The reply letters I have seen are basically the same, and possibly come in the standard letter format.

Conclusion

Chief Justice Diana Bryant of the Family Court of Australia has implemented some positive principles and guidelines surrounding family violence, and should be commended for her contribution into addressing this significant issue.

I just hope and pray that the recomendations I suggest to the Family Violence Royal Commssion assists in some further improvement in the implementation of these principles and guidelines.

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