11 November 2019
I have recently prepared my submission to the Parliamentary Joint Committee regarding Australia’s Family Law System. It summarises a number of issues concerning the operation of the family law system. I consider it important that my recommendation to this inquiry is taken into proper consideration.
In this submission, however, I first remind this parliamentary committee what Prime Minister Scott Morrison has explicitly stated:
This inquiry will allow the parliament to hear directly from families and listen to them as they give their accounts of how the family law system has been impacting them and how it interacts with the child support system.
As also noted by our Prime Minister:
This isn’t about picking sides, it’s about listening to Australians. The lawyers have had their say through the Law Reform Commission… But as we consider that, I think it’s very important that we go and hear from people directly.
I served as a Law Reform Commissioner in Western Australia, from 2012 to 2017. During this time we conducted a comprehensive review process that ultimately led to the enactment of the Restraining Orders and Related Legislation Amendment (Family Violence) Act 2016 (WA).
Published in June 2014 and entitled ‘Enhancing Family and Domestic Violence Laws’, our Final Report comprehensively addressed the effects of legislation dealing with family violence. Our report recommended, inter alia, that such laws must necessarily provide a fair and just legal response to family violence. It explicitly informed that:
[A]s Legal Aid confirmed, this does ‘not mean that fairness and the protection of individual rights are not important considerations.’ In this context, it is vital to acknowledge that not every person who applies for a violence restraining order is a victim of family and domestic violence and not every respondent is a perpetrator.
As noted in the Discussion Paper, the current restraining order system is not without its critics in terms of its overuse or abuse. Although it is true that most applications for violence restraining orders are properly made, sometimes they are unmeritorious or otherwise used for tactical purposes in family law litigation. And yet, many lawyers consider that violence restraining orders, in particular, those applied for after proceedings have been instituted in a family law dispute, may actually exacerbate conflict and decrease the prospects of the parties reaching agreement, with a consequent impact upon legal costs.
Because an interim violence restraining order can be made on the uncorroborated evidence of the applicant, the potential for abuse is very real. One example repeatedly mentioned to the Commission during its consultations is where the person protected by a violence restraining order is the perpetrator and the person bound is the victim. Further, it is important to acknowledge, from the respondent’s perspective, the potential consequences of a violence restraining order: exclusion from the family home; prohibition of contact with children; inability to work; and general restrictions on day-to-day activities. Additionally, a respondent is liable to serious consequences under the criminal law for failure to comply with the order (including an interim order).
For these reasons, the justice system must ensure that the legal rights of all parties are respected and, in particular, that respondents to violence restraining order applications have a right to be heard within a reasonable time. Additionally, the importance of ensuring that the legal system responds to family and domestic violence in a fair and just manner supports the provision of better and more reliable information to decision-makers at the outset, thus enabling more accurate and effective decisions to be made.
I only refer to this matter because the Joint Select Committee on Australia’s Family Law System has been explicitly established to inquire into and report, inter alia:
- on the process, and evidential and legal standards and onuses of proof, in relation to the granting of domestic violence orders and apprehended violence orders, and
- on the visibility of, and consideration given to, domestic violence orders and apprehended violence orders in family law proceedings.
So I have explicitly requested members of this committee to take a most careful consideration to my expert recommendation with respect to these important matters.
There is an undeniable correlation between apprehended orders, false claims of domestic violence, and parental alienation. According to David Collier, a retired judge from the Parramatta Family Court, such orders have become a “major weapon” in the war between parents willing to secure the sole custody of children.5
The problem lies in how these orders are issued and the grounds for which they can be made. There is no doubt that countless applications are unmeritorious and grossly misused. Timing is a possible sign and it may occur when someone is seeking a restraining order for reasons other than a real concern for physical safety. A common example is when someone seeking a DVO is concomitantly initiating family court proceedings for child custody.
Since a restraining order can be so easily obtained, they can and have been maliciously used by unscrupulous applicants. The strategy is rather simple and it consists in one’s ability to defame his or her former partner with no necessity of actual evidence. These false accusations can tear entire families apart – all based on the word of a single person and no evidence provided. As noted by Dr Adam Blanch, a clinical psychologist working in Melbourne:
The more a single parent can restrict the other parent’s access to the children the more financial support they receive from the alienated parent and the government, and a restraining order even when based on allegations that have been unsubstantiated is a great weapon in the fight for primary custody and restricted access.
An analysis of NSW court files reveals that these cases are dealt with in less than three minutes. They are often resolved by “consent without admissions”. The information provided is typically brief and it ‘tends to focus on one single incident’. What is more, write legal academics Patrick Parkinson, Judith Cashmore and Judith Single, references to “fear” are included in a “routine or habitual manner” in these applications, ‘frequently as a bald statement to conclude a complaint without any reasoning or thematic connection to the victim’s experience’.
Having a few days to defend against these allegations may not be enough time. This is compounded by the massive distress caused by being thrown out of the home by armed police officers at the behest of a partner. Of course, an applicant might have spent several months, perhaps even years, planning to file his or her accusation, whereas the accused who then becomes homeless and financially destitute, is given only a couple of days to prepare his or her defence. More often than not, respondents will lose access to their children, and even to joint bank accounts.
Following a final hearing, the accused may be found guilty through a flawed process that is notoriously devoid of due process and the most elementary elements of procedural fairness. They may have lost all their money, property, and even contact with their children, since such an order can make this contact practically impossible.
Of course, it is deeply commendable that strenuous efforts are being made to ensure real victims of domestic violence are given every possible legal support to ensure their safety. But many in the legal profession and elsewhere take issue with the notion that laws should be tilted to favour alleged victims with no regard for traditional legal protections to ensure fair treatment for the alleged perpetrators.
Indeed, not everyone who applies for a restraining order is a genuine victim, just as not everyone who is subject to such an order is necessarily a perpetrator. Indeed, many cases of domestic violence have ended up in courts where these allegations have been disproved, and sometimes many years after the accused found themselves evicted from their homes, and alienated from their children.
As can be seen, apprehended orders that lack a proper application of due process and are granted on a ‘without admissions’ basis (which means no evidence needs to be produced) can lead to gross violations of human rights. Sometimes these victims of false allegations are arbitrarily arrested and they suffer incommensurable damage to their personal and professional reputation. Some are financially bankrupted after facing huge court costs in order to defend themselves from mendacious accusations.
Each year thousands of Australians are issued with apprehended orders evicting them from their homes, often alienating them from their children. Since evidentiary standards are dramatically relaxed, such orders can be granted on a “without admissions” basis that have virtually no evidentiary value in themselves.
Apprehended violence orders result in a legal constraint upon another person’s freedom. Since they should be issued only in the presence of a real threat, false and malicious applications should be viewed in the same manner as any other form of severe domestic abuse.
In this sense, I am advising the parliamentary committee on the family law system that false accusations of domestic violence should lead to severe penalties, including full criminal charges and the loss of primary child custody. This recommendation restores justice to the system and is likely to receive widespread community support.
Above all, is time to restore basic principles of procedural fairness and natural justice to the system. It is important that my recommendation is taken into consideration, as the abuse of apprehended orders that results in considerable loss of parental and property rights is seriously affecting the lives of countless innocent people in this country.
Dr Augusto Zimmermann was a Law Reform Commissioner with the Law Reform Commission of Western Australia from 2012-2017. He is currently Professor and Head of Law at Sheridan College, Perth, and Professor of Law (Adjunct) at the University of Notre Dame Australia Sydney campus. He is also President of the Western Australian Legal Theory Association (WALTA).
A fully footnoted version of this article is available by contacting Dr Zimmermann.