Fair hearing and safety

Due to the complex nature of domestic and family violence matters, it may be necessary for judicial officers in their conduct of related proceedings to consider and respond to a range of factors to ensure that parties are afforded fair and equal access to justice and those at risk of harm are protected. Judicial officers should actively consider the power of the court to regulate its own proceedings.

There is a developing understanding among judicial officers in Australia that domestic and family violence rarely involves a single incident or a series of discrete incidents of physical violence. Rather, it manifests as a complex pattern of violent and abusive behaviours through which a perpetrator exercises control over the victim, often for extended periods. The facts of a particular matter and the circumstances of the affected parties are likely to have a direct and substantial bearing on the manner in which a judicial officer discharges their obligations in the conduct of proceedings and the protection of parties.

For some victims their engagement with law enforcement agencies and the courts may exacerbate or prolong the trauma they have experienced as a result of the domestic and family violence. For example, absence of legal representation, lack of interpreter services, giving oral evidence, being cross examined, being present in the court room or court precinct with the perpetrator, or having to repeatedly return to court for mentions, adjournments and hearings may contribute to a victim’s revictimisation or secondary abuse through the court system. Judicial officers should ensure, where practically possible and resources permit, that these factors and their adverse consequences are addressed.

It is critical that parties feel that they have been properly informed of their rights and what to expect in the court process and that they have been taken seriously and given due opportunity to be heard.

For victims, it is critical that their safety and protection are assured and that they are in control of their participation in the proceedings and of choices affecting their lives beyond the court room. In facilitating these outcomes, a judicial officer may need to take into account a victim’s individual vulnerabilities, and their specific experience of domestic and family violence or its impacts.

For perpetrators (or offenders), Australian research indicates the possible adverse effects of a lack of understanding of court processes, the terms of orders, and the consequences for breaches of orders. These effects may include a perception by the perpetrator (or offender) that the process is unfair or unjust, or that the order has no real force. This suggests that efforts by judicial officers to address these perceptions may produce more positive outcomes. Australian research indicates the value of judicial officers looking at and directly speaking to perpetrators/offenders. US research emphasises the importance of the interaction between judicial officers and perpetrators/offenders, and that a process of shared respect may be a key factor in compliance. The Canadian Domestic Violence Bench Book also highlights a range of behaviours and perceptions that are common among many domestic and family violence perpetrators, and points out that when judicial officers keep in mind these behaviour patterns when listening to evidence, perpetrators have fewer opportunities to mislead.