Family and domestic violence (FDV) is a common feature in relationship breakdowns, sometimes characterised by court events in care and protection proceedings in the Children’s Court, criminal proceedings and restraining order proceedings in the Magistrates Court, and parenting and financial settlement proceedings in the Family Court, often for the same couple.
In 2014-2015, at the time of filing the application for substantive relief in the Family Court of Western Australia:
- 56.7% of applicants seeking parenting orders only
- 22.4% of applicants seeking financial orders only
- 27.8% of applicants seeking parenting and financial orders
No statistics are available for the number of self-represented respondents, or for litigants who became self-represented by the time of trial. Anecdotal evidence from practitioners suggests that litigants self-represent once legal fees become prohibitive, and that attrition accounts for a large proportion of settlements. The grim reality for judicial officers of the court is that they must balance the need for access to justice, procedural fairness for parties and efficiency with limited resources. The Court’s obligations to self-represented litigants are outlined in In re F: Litigants in Person Guidelines, decided before the current provisions for special witnesses were inserted into the Evidence Act 1906 in 2004.
The court must take into account evidence of FDV in some, but not all, substantive applications: in parenting cases, in determining the best interests of the children, and in financial cases when a party makes a Kennon claim. As an unfortunate consequence of the concept of “no fault” divorce, only the most egregious marital conduct, that which would otherwise be actionable in tort, is the basis for compensation of victims for FDV, notwithstanding the fear and misery in which they have lived, many for decades.
Fear of the judicial process itself is a significant deterrent to victims, let alone the opportunities perpetrators have to abuse the process to punish or intimidate their victims. The decision by the Court of Appeal in Baron v Walsh is seminal in confirming that pursuing legally available procedures can comprise an act of abuse within the meaning of Section 6 of the Restraining Orders Act.
We as a profession, and a community, are slow to recognise all of the forms FDV takes. We are all familiar with physical assault as an obvious method, however we may perceive this as an isolated incident, or characterise the behaviour as “historical” or “situational”, without recognising this and other behaviour may be part of a pattern of coercive control. The FDV dynamic tends not to change once the relationship ends, but the forms of coercive control may change. These forms of coercive control escalate when the victim ends the relationship or applies to the Court, such behaviours by the victim constituting a direct challenge to the perpetrator’s control.
In cases where FDV is not relevant to the substantive issues in dispute, there is a tendency (certainly by practitioners) to treat evidence of FDV as irrelevant in family law proceedings. There is a significant risk that the court’s delivery of procedural fairness and access to justice is impaired if this results in a vulnerable witness being subjected to cross examination by the self-represented perpetrator.
Lawyers acting for alleged victims of FDV have a duty to identify when the quality of their client’s evidence is likely to be compromised as a consequence of the FDV dynamic in the relationship between their client as witness and the self-represented cross examiner. Further, we as a community, have a common interest in protecting our most vulnerable from further abuse by the exploitation of our justice system.
A party’s right to cross-examine a witness is fundamental to our system of justice. Cross-examination also has the potential to be exploited by perpetrators to commit further emotional abuse against their victims. In balancing what might otherwise be competing objectives, the court should be able to afford procedural fairness to the alleged perpetrator while protecting the interests of an alleged victim of FDV. An associated challenge in applying procedural changes is to avoid the appearance of pre-judgment in circumstances where an alleged perpetrator denies the allegations of FDV.
Practices vary between judicial officers and courts. In the criminal jurisdiction, the courts have admirably protected complainants in sexual assault trials, child witnesses and “special witnesses” by exercise of the powers in s106R of the Evidence Act 1906.
Subsection 106R(3) provides:
(3) The grounds on which an order may be made are that if the person is not treated as a special witness he or she would, in the court’s opinion —
(a) by reason of physical disability or mental impairment, be unlikely to be able to give evidence, or to give evidence satisfactorily; or
(b) be likely —
(i) to suffer severe emotional trauma; or
(ii) to be so intimidated or distressed as to be unable to give evidence or to give evidence satisfactorily, by reason of age, cultural background, relationship to any party to the proceeding, the nature of the subject-matter of the evidence, or any other factor that the court considers relevant.
While there is no consistent practice, the authorities indicate that in general:
- The court receives an application for a declaration that a witness is a “special witness”.
- The application is sometimes, but not always, supported by evidence from an expert witness, such as a psychiatrist or social worker . Evidence of a police officer has also been accepted.
- If the court makes the declaration, it then determines by what process the witness shall give evidence. The Act provides for the witness to:
- have a support person present; or
- have a communicator while giving evidence; or
- give evidence outside the court room, by video link.
Courts have made other arrangements when video link is not available, such as excluding the accused from court while the child complainant’s police interview was played to the court in the complainant’s presence.
The Family Court of Western Australia has used this type of process sparingly.
Section 44C of the Restraining Orders Act 1997 prohibits cross examination of a witness in a family and domestic relationship by a self-represented alleged perpetrator, unless the witness consents and the court considers it otherwise appropriate, or that the court is of the opinion that it is not just or desirable for the order to be made. This section is for the benefit of the witness, not the examiner.
The Family Court of Australia published Family Violence Best Practice Principles (FVBPP) in cases concerning children in 2009. The policy is confined to parenting cases. Consideration should be given to these principles being applied equally in financial matters.
The Family Court of Western Australia has a Family Violence Policy, which is available on its website. The policy includes the Court’s family violence strategy which specifically acknowledges the impact family violence on a person’s ability to participate in court proceedings, and states the court’s safety measures. The court provides parties an opportunity to communicate their safety concerns and to propose measures to ameliorate those concerns by written request.
The Family Court Rules 1998 (WA) are in the process of being redrafted. Those rules, and relevant provisions in the Family Court Act 1997 (WA), should provide for a process that:
- Identifies victim witnesses and parties, either by relying on the person’s self-identification or by the court’s own assessment to an “arguable case” standard, based on a standard assessment tool such as the Common Risk Assessment tool;
- Once identified, the witness must be treated as a special witness pursuant to Section 106R of the Evidence Act, unless the witness or party opts out (akin to s44C of the Restraining Orders Act 1997) of the “special witness” category as provided in s106R of the Evidence Act;
- At minimum, in some cases involving a self-represented cross examiner, prohibit direct cross-examination of the witness;
- If at all possible, have special witnesses routinely give their by CCTV from within the Court precinct, or by video link from a remote location.
While this procedure may not eliminate the trauma, intimidation and distress caused to victims in cross examination by the perpetrator, we can inform ourselves of their experience, and act to prevent the justice system from being a tool of further emotional abuse.
Lara Anstie, Partner, Clairs Keeley Lawyers