Michael Challinger
A legal process to restrain family violence needs to work faster and more fairly.
Photo: Intervention orders do more than just restrain violence. Often they separate a man from his children, evict him from his home and deprive him of his property. Photo: Craig Sillitoe
My client Tom* was at work when the police turned up. They served him with an intervention order, took him home and told him to pack a suitcase. If he returned home, or contacted his wife or children, he’d be facing two years’ jail. He’d had no inkling this was coming.
The order was an interim one, granted ex parte. That means the court issued it in his absence, having heard only his wife’s side of the story.
No magistrate wants to make a mistake, then appear on the evening news when an application has been refused and something terrible has happened. But orders do more than just restrain violence.
In theory, Tom could go to court and argue his case, but a hearing date was months away. With his wife now in sole possession of the family home, her lawyers came on heavy about a divorce and a property settlement. They hinted that if he played ball, he could start seeing his kids again.
As is often the case, the intervention order was just a tactic in family law proceedings. It’s not what intervention orders are intended for, but delays in getting court time mean ploys such as this are common. Magistrates’ courts are so swamped with these cases, the parties wait months for a hearing.
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Another client of mine, for example, was subject to an interim order for a year before the application against him was dismissed. And that took nine separate court appearances. Although he won, the client had to bear all his legal costs himself.
In intervention order cases, costs are awarded only for “frivolous” applications, or those brought in bad faith. In practice, this means almost never.
Most men simply can’t afford to keep paying out indefinitely for lawyers. They can’t keep taking days off work. They can’t stand not seeing their children for months on end, so they come to terms with the applicants. They consent to orders without admitting the allegations and then try to negotiate some child access.
Those who dig their heels in and contest the applications don’t fare much better. Often, the paperwork doesn’t even particularise the case they have to meet. Tom’s application claimed he was “abusive and controlling”. How? When? In what way? He’d find that out in court.
In any event, the act defines family violence so widely, it includes the sort of friction that occurs occasionally in even the happiest family: heated argument, raised voices, the silent treatment. I’ve seen an application succeed where the husband criticised his wife’s cooking and (on a separate occasion) slammed a door. You can always find something a man’s done wrong.
Cases often come down to one person’s word against another’s, where the absence of corroboration is explained away as the “dynamics of family violence”. The victim never complained of family violence before? Never confided in a friend? Never visited a doctor or called the police? That just proves how disempowered she was.
Sometimes, of course, that’s exactly what’s happened. But, true or false, it’s an argument that’s unanswerable.
Courts err on the side of caution. Their job is to protect victims of family violence. But the unspoken reasoning seems to go: “If these allegations are true, we’ve got to restrain the man from violence. If they’re not true and he’s not violent, then an order won’t affect him.” It’s not the way to do justice.
No magistrate wants to make a mistake, then appear on the evening news when an application has been refused and something terrible has happened. But orders do more than just restrain violence. Often, they separate a man from his children, evict him from his home, deprive him of his property – sometimes even his vehicle and tools of trade, when an applicant is especially vindictive.
Half my clients are women, so these concerns aren’t just gender bias on my part. They’re shared by female lawyers practising in the jurisdiction and many police. We all see men pressured by delay and circumstances into consenting to orders. We see fraudulent claims for immigration purposes and suburban courts overwhelmed with sham or trivial cases.
At present, there is no mechanism for filtering out spurious applications at an early stage. Indeed, the ease of applying for an order itself creates problems. Most litigation incurs some cost in getting the ball rolling. Not so for an intervention order, where there’s no stamp duty or filing fee.
Victims should never be discouraged for financial reasons from seeking protection, but a nominal fee might deter some of the more bogus claims. A service that costs nothing isn’t valued or respected. At present, the system is an invitation for any mischief-maker to air a grievance, indulge a squabble or settle scores. It takes resources from the genuine cases.
There absolutely has to be a legal process to restrain violence and intimidation, but it needs to work more speedily and fairly for those on both ends of applications.
At present, many men feel a justified sense of grievance that the system is loaded against them and doesn’t give them a fair go.
* Not his real name.
Michael Challinger is a Melbourne barrister.
Read more: http://www.theage.com.au/comment/why-men-feel-aggrieved-in-family-court-interventions-20150810-givcxp.html#ixzz3iVc6AGZQ
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