Australia
Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence – A National Legal Response, Report 114 (2010).
This report identifies that ‘vexatious applications in protection order proceedings under state and territory family violence legislation can be a means for a person to misuse the legal system to harass or intimidate a victim of family violence. In addition, because the existence of certain kinds of protection order is a relevant consideration to be taken into account by a court when making orders under the Family Law Act, vexatious applications for protection orders have the potential to affect the operation of both the family law and state and territory family violence regimes.’ (p473)
[6.166] (p291) Noted that reforms ‘should play a significant role in minimising the risk of litigation abuse— especially in the vexatious use of cross applications for protection orders.’
[18.28] False evidence given in protection order proceedings: State and territory family violence legislation generally deals with persons who give false evidence or make false allegations or denials by using provisions relating to vexatious applications or other legislation protecting court processes. A person who gives false evidence may also be charged with a number of offences, including perjury, false swearing and false testimony.
[18.29] (p837) In some circumstances, a court’s ability to award costs against a person who brings an application for, or to revoke, a protection order that is ‘deliberately false’ or made in ‘bad faith’ is linked to vexatious application provisions.
[18.224] (p880) Vexatious litigation may arise in a number of ways in protection order proceedings. For example, repeated applications for a protection order may be made against the same person based on the same or similar allegations and by the respondent to vary or revoke a protection order. Cross applications for protection orders may also be made without legal grounds. [18.225] While such applications may not, in themselves, be vexatious, where they are repeated or made without legal grounds, concerns arise that people who have committed family violence may use the legal system to further harass, control and abuse the victim.
[17.29] (p764) It is particularly important that if family violence matters have been litigated that they are not re-litigated in another proceeding. Where family violence is at play such re-litigation can be a tactic of further abuse.
Australian Government: Australian Law Reform Commission, Family Law for the Future – An Inquiry into the Family Law System: Final Report, ALRC Report 135 (March 2019).
In a 2019 report investigating the family law system the Australian Law Reform Commission included a section in which it recognised and discussed a variety of misuses of processes and systems associated with family law interactions (footnotes omitted):
Misuse of processes and systems
10.26 Stakeholders raised the issue of behaviour involving engagement, and non-engagement, with various family law and other systems and processes to achieve ends other than those for which the processes are designed, in the context of family violence. Higher court use and higher rates of unsuccessful engagement with FDR are associated with patterns of violence marked as part of a pattern of coercive control. Research and analysis over a long period of time has highlighted a range of behaviours that can occur in this context, with submissions providing examples of:
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manipulation in engagement with Family Relationship Centre services either prior to lodging a court application or when mandated by a court order;
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refusing to attend meetings, rescheduling meetings, or refusing to sign documents;
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seeking preliminary advice to create a conflict of interest and prevent the other party from obtaining legal advice, using litigation to waste the resources of the other party, and using the threat of indemnity costs to intimidate the other party;
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repeated engagement with parenting orders programs over issues that have been dealt with by other services over a number of years;
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instigating and re-instigating legal proceedings in multiple courts, including applications for final orders and for enforcement of parenting orders in the family courts;
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repeated applications to the court in the same matter, including in relation to recovery orders;
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prolonging court proceedings by requiring adjournments and challenging interim and procedural determinations, sometimes with the intent to and effect of exhausting legal funding (legal aid or private resources), also known as ‘burning off’;
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making cross-applications in proceedings for personal protection orders;
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using processes in one court to obtain an advantage in another, for example, using family court processes to gain evidence that is also relevant to a criminal matter;
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self-representing in court to create opportunities to personally cross-examine victims about family violence, sexual abuse allegations, and other sensitive issues;
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using evidence gathering processes, including subpoenas, to obtain access to sensitive personal material such as the victim’s therapeutic counselling records or sexual assault service records;
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making multiple notifications to child protection agencies or making notifications to child protection agencies in relation to trivial matters;
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challenging and appealing child support determinations;
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deliberately not engaging or delaying engagement with FDR services to delay resolution or force the other party to self-represent in court; and
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non-disclosure of income and assets in property and financial matters.
10.27 Misuse of processes and systems can impede post-separation re-establishment and recovery from the effects of family violence, as well as parenting compromising capacity and the emotional and other resources available to meet children’s needs. It also has significant implications for the efficiency of the system and access to the system.
Cameron, Prue, ‘Relationship Problems and Money: Women Talk about Financial Abuse’ (Research Report, Wire Women’s Information, 2014).
This research draws on interviews, focus groups and surveys involving more than 200 women. Section four (from p31) focusses on the systemic continuation of financial abuse post-separation and explores abuse perpetrated through the legal system (including tactics of furthering abuse; the emotional cost of legal proceedings; the financial impact of legal costs; vexatious litigation), and Child Support (eg: partner’s hiding assets etc to avoid paying child support).
The authors find that a common theme in the women’s stories is that on-going engagement with their former partner through the courts, the Child Support Agency and Centrelink, continues, and in some cases facilitates, the pattern of financial abuse for years after the marriage ends (p31). Tactics identified by study participants included: running up legal costs; hiring aggressive, bullying lawyers; using the legal system to ‘destroy’ their ex-partners; legal proceedings undermining women’s ability to work; refusing to comply with parenting orders; contesting parenting orders and masking their income to avoid child support.
Chung, Donna et al (2020). Prioritising women’s safety in Australian perpetrator interventions: Mapping the purpose and practices of partner contact (2020). Sydney: ANROWS.
This project documents the practices of men’s behaviour change programmes (MBCPs) in contacting victims/survivors and children of participants. The project considers how partner contact is operating in Australia, its strengths and challenges, and the experiences of victim/survivors who received partner contact support.
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Lack of partner contact as part of an MBCP can lead to some perpetrators using their participation in the program to perpetrate abuse towards the victim/survivor and/or other family members.
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Partner contact is labour-intensive, under-resourced, and often a secondary priority.
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There is currently a lack of consistency in partner contact practices and interventions, and limited awareness about existing guidelines and standards.
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Perpetrator accountability has been a growing focus of work in Australia since the launch of the National Plan to Reduce Violence against Women and their Children 2010–2022 and the subsequent National Outcome Standards for Perpetrator Interventions.
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Men’s behaviour change programs (MBCPs) are a key site of perpetrator accountability that aim to improve safety for women and children.
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Partner contact is known and understood to be a critical element of MBCPs, however a review of literature shows that little has been documented in Australia about safety practices in this context.
The report’s key recommendations are:
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Partner contact support should be offered to all women (either directly or through organisational partnerships) through all MBCPs.
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National minimum practice standards for partner support as a component of MBCPs should be developed, and these standards should be formally recognised within contractual arrangements and funding service agreements.
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Partner contact services should be resourced and funded in ways that enable those national minimum practice standards to be met, and that ensure women have ongoing access to support irrespective of a perpetrator’s MBCP attendance.
Douglas, H & Fell, E 2020, ‘Malicious Reports of Child Maltreatment as Coercive Control: Mothers and Domestic and Family Violence’, Journal of Family Violence, vol. 35, no. 8, pp. 827–837, viewed 24 March 2021.
Abstract: Coercive control is increasingly recognized as fundamental to women's experiences of domestic and family violence (DFV). Systems abuse is also being increasingly recognized by researchers as a tactic of coercive control in the context of DFV. This article explores the phenomenon of abusive partners or ex-partners making malicious false reports of child maltreatment to child protective services as an aspect of coercive control and systems abuse. The article draws on interviews with 65 women who have been victims of DFV, focusing on the experiences of 11 of the interviewees who have been maliciously reported, or received threats that they will be reported, to child protection services by an abusive ex-partner. Those interviewees who had been the victim of malicious reports of child maltreatment by an abusive partner or ex-partner experienced substantial negative impacts. The article concludes that improved investigation processes and investigating both parties, where the reporting party has been found to be a perpetrator of DFV, may better support victims of DFV and deter perpetrators from this form of abuse.
Douglas, Heather, and Robin Fitzgerald, ‘Legal Processes And Gendered Violence: Cross-Applications For Domestic Violence Protection Orders’ (2013) 36(1) University of New South Wales Law Journal 56.
This article reviews cross-applications and orders in Queensland’s courts (2008-2010). It identifies concerns around the misuse of DVPOs for vindictive, strategic or tactical reasons (pp58; 60-62). Tactics include cross-orders being used to pressure the other party to mutually withdraw their application (p86).
Douglas, Heather, ‘Legal Systems Abuse and Coercive Control’ (2018) 18(1) Criminology & Criminal Justice 84-99.
This article explores how legal engagement can be used to exercise coercive control over a former intimate partner, through interviews with victims of domestic and family violence (DFV) who engaged with the legal system (p 87). The results indicate that women’s engagement with the legal system is often experienced as an extension of coercive control (from p 88). Legal systems abuse may be adopted by perpetrators as a means of exerting coercive control when other avenues have ceased due to the relationship having ended (p 85). Specific instances of legal systems abuse may include frequent requests for adjournments (pp 88-9), making counter-allegations (pp 89-90), calling irrelevant witnesses (pp 90-1), and initiating excessive litigation in the Family Court (p 91).
Legal responses to legal systems abuse may include having vexatious cases thrown out, pursuing criminal charges, and restraining the abuser from future litigation (pp 92-3). Actions can also be taken by justice personnel, such as adopting an empathetic approach to engaging with victims (p 93), recognising coercive control as central to DFV (pp 94-5), rigorously upholding ethical standards (p 95), and co-ordinating responses with other elements of the legal system (p 95). It is argued that improved understanding of DFV and coercive control by legal professionals may help to prevent future opportunities for legal systems abuse (pp 94-5).
Finch, Emma and Patricia Easteal, ‘Vexatious litigation in family law and coercive control: Ways to improve legal remedies and better protect the victims’ (2017) 7 Family Law Review 103.
This article examines whether the current Australian family law legislation and court processes adequately protect parties from vexatious litigation. The Family Court has the highest rate of vexatious litigants in Australia (p 105).
The study surveyed ten lawyers on their experience in litigation with vexatious litigants (p 105). The most important issues were:
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controlling behaviours, including persistent litigation and cross-examination (p 106-7);
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effects, including emotional and legal costs (p 107-8); and
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the high threshold necessary to declare a litigant as vexatious (p 109).
The authors recommend suggestions for judicial officers to shield individuals from vexatious proceedings. Notably:
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making more liberal use of costs orders, including making more severe costs orders, and making the vexatious party bear the respondent party’s costs (p 113-14);
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case management (pp 112-13); and
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improved communication between courts, to prevent litigants from instigating proceedings in multiple jurisdictions (p 113).
The article also recommends legislative changes, including lowering the threshold to declare a vexatious litigant, and prohibiting self-represented litigants from cross-examining their alleged victims (pp 110-12).
Francia, L., Millear, P., & Sharman R., ‘Addressing family violence post separation – mothers and fathers’ experiences from Australia’ (2019) Journal of Child Custody.
Family violence has been described as the ‘core business of the Family Court’, and child custody decisions continue to be made on a discretionary basis in the best interests of the child. The study focuses on family violence and separated parents’ experiences in the Australian family law system. By means of an analysis of (n40) interviews of separated mothers and fathers, it found that contact with the Australian family law system caused considerable anxiety and distress. Separated parents noted gendered narratives within the system, with mothers referred to as ‘alienating’ or ‘vindictive’ and fathers referred to as ‘abusers’ or ‘perpetrators’. The majority of parents also noted that their concerns, primarily around family violence, were rarely taken seriously. When parents reported concerns for their own or their children’s safety, they were either not believed or experienced lip service of their concerns without appropriate investigation. Further, separated parents found that professionals, such as child protection workers, judges, police and independent children’s lawyers, lacked adequate knowledge or competence in relation to family violence. They also noted coercion by some professionals within the family law system. The article also highlights the ‘devastating emotional and psychological aftermath’ experienced not only by separated parents, but also their children. In summary, the authors suggest that the Australian family law system may not sufficiently meet the complex needs of families experiencing family violence.
Kaspiew, Rae, et al., Domestic and family violence and parenting: Mixed method insights into impact and support needs – Key findings and future directions (ANROWS, 2017).
In interviews with women across Australia with experience of family violence, the study found that controlling and coercive behaviours were the most common tactic of abuse used by abusive fathers, which included setting rigid routines and/or having unreasonable expectations about children’s behaviour. Out of the 50 women interviewed, 45 described direct abuse toward their children, including psychological, emotional, physical, and sexual abuse, as well as witnessing abuse or being a direct victim of incidents that targeted the mother at the same time (p 3). The research identified systems abuse is common. For example systems abuse type behaviours by perpetrators included (p 6):
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exploiting the intersections between family law, child protection, and criminal legal systems to their advantage;
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raising counter-allegations and unjustifiable applications in family law or personal protection orders;
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manipulative engagement with family law services;
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non-compliance with court orders; and
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exhausting women’s legal and financial resources.
Kaspiew, Rae, et al, ‘Evaluation of the 2012 Family Violence Amendments’ (Synthesis Report, Australian Institute of Family Studies, 2015).
Building on findings of the Survey of Recently Separated Parents 2012, the Longitudinal Study of Separated Families, and the 2009 AIFS Evaluation of the 2006 Family Law Reforms, this report examines the impacts of changes to the Family Law Act 1975 (Cth) in the area of family law and has three parts:
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Responding to Family Violence - a survey of family law practices and experiences which primarily involved online surveys of the practices and perspectives of family law system professionals(n=653)
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the Experiences of Separated Parents Study (ESPS), which comprised two cross-sectional quantitative surveys - the Survey of Recently Separated Parents [SRSP] 2012 (n= 6,119) and the Survey of Recently Separated Parents 2014 (n=6,079) providing pre-reform and post-reform data on parents’ experiences of separation and the family law system; and
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the Court Outcomes Project (CO Project) involving:
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Court Files Study: an examination of quantitative data from 1,892 family law court files providing insight into patterns in orders made by judicial determination and consent made in the Family Court of Australia, the Federal Circuit Court of Australia, and the Family Court of Western Australia, including in relation to parental responsibility and parenting time (pre-reform: n=895; post reform n=997);
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an examination of patterns in courts filings based on administrative data from the three family law courts; and
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an analysis of published judgments applying to the 2012 family violence amendments.
One of the ‘Key messages’ from the report is that parents who use family law systems tend to be those affected by complex issues including family violence, mental ill-health, substance abuse and safety concerns for themselves and/or their children. This is discussed in detail in chapter 2. In particular, it was found that each cohort of separated parents studied had similar patterns of family violence (p 10). Around two-thirds of separated parents indicated that they had a history of emotional abuse or physical violence prior to or during separation and this continued for a slightly lower proportion after separation (p 10). It noted the ‘prevalence of physical violence diminished after separation, as did the prevalence of emotional abuse, though to a much less significant extent’ (p 10). The exposure of children to family violence for each cohort of separated parents is discussed at p 14. Chapter 4 sets out the evaluation findings on whether the 2012 family violence amendments had supported increased disclosure of family violence and child abuse concerns to family law system professionals, the screening and assessment practices and responses to disclosures of family violence and/or child safety concerns.
Kaspiew, Rae, ‘Violence in Contested Children’s Cases: An Empirical Exploration’ (2005) 19 Australian Journal of Family Law 112.
This article presents an empirically-based analysis of the treatment of violence in litigated children’s cases.
The author cites growing recognition of the use of litigation, particularly in relation to children, as a control tactic and this was evident in the sample. In a number of cases, there were repeated applications in relation to residence and contact which the mothers claimed were motivated by a desire to harass them, rather than a genuine concern for the children. These cases had the common features of:
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long running litigation,
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a background of violence and
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high levels of denigration against the mothers.
There was judicial acknowledgment in some cases that legal proceedings were being used as a means of harassment (p119).
Notes psychological and judicial approaches may obscure the extent and relevance of a history of violence:
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there is a tendency within judicial discourse to view violence in an ‘incident based’ way which fails to acknowledge that it is part of an ongoing system of violence and control.
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fails to connect pre-separation violence with post-separation control tactics, in which litigation can play a key part.
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fails to apprehend the gendered dynamics of power that subsist in violent relationships. (p138)
Kaye, M et al., Compromised ‘consent’ in Australian Family Law Proceedings. (2021) 35(1) International Journal of Law Policy and the Family 1-25, doi: 10.1093/lawfam/ebab033
Drawing on data from a large study that explored the experiences of self-represented litigants (SRLs) in Australian family law proceedings involving allegations about family violence, this article examines the pressures experienced by female SRLs, who are victims of family violence, to consent to orders. These pressures include judicial pressure, lawyers’ practices, fear of their former partner, and the financial and emotional costs of litigation. These pressures are significant and can impede the extent to which these agreements can be viewed as consensual. Participants reported that these significant and intersecting pressures resulted in them ‘agreeing’ to orders that they saw as unsafe, or financial orders that were less than they were entitled to.
Laing, Lesley, No Way to Live: Women’s Experiences of Negotiating the Family Law System in the Context of Domestic Violence (Faculty of Education and Social Work, University of Sydney, 2010).
This research reports on the experiences of 22 women who were involved in the family law system following their separation from a relationship in which they had experienced domestic violence. In particular see section titled: “‘He just wants to see his children’ – a lens for excusing men’s behaviour” (from pp47-49) that draws on a number of excerpts detailing how fathers have manipulated police to harass and intimidate mothers (e.g. calling police to her house alleging she’d threatened to kill her children; turning up late for contact)
Laing, Lesley, ‘It’s Like this Maze You Have Make Your Way Through’: Women’s Experiences of Seeking a Domestic Violence Protection Order in NSW (Faculty of Education and Social Work, University of Sydney, 2013).
This research reports on interviews with 40 women who attempted to obtain a domestic violence protection order in Sydney. The report highlights examples of police being used as a form of control, such as the abusive partner calling the police on their partner (p34), and the impact cross-applications have on women required to pay for legal advice to defend them.
Parkinson, Patrick, Judy Cashmore and Judi Single, ‘Post-Separation Conflict and the Use of Family Violence Orders’ (2011) 33(1) Sydney Law Review 1.
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Analysis of the use of family violence orders (FVO) during post separation conflict of 181 parents in 164 different families across Australia. Includes, in a number of cases, accounts from both of the former partners, giving their different perspectives of the same events.
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The research demonstrates the wide range of situations in which FVOs may be sought. While applicants reported a valid legal basis for applying for family violence orders, orders were also sought for ‘collateral purposes’ such as determining the occupancy of the home on separation or maintaining boundaries between newly separated parents. In certain cases they were used as well for purposes connected with the family law dispute, on legal advice (p1).
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Notes cases where respondents viewed the application for FVOs as tactical, for example to gain advantage in family law proceedings. ‘It is difficult to assess such views of FVO applications with only one side of the story, particularly given the evidence that some men seriously minimised the level of their own violence, and also that men may not recognise how frightening their behaviour might be to their former partners. Nonetheless, there were certainly accounts by men of women, or their new partners, seeking FVOs where the timing seemed tactical and where the cases were apparently thrown out.’ (p32)
Rathus, Z, 2020, A history of the use of the concept of parental alienation in the Australian family law system: contradictions, collisions and their consequences, Journal of Social Welfare and Family Law, 42:1, 5-17, DOI: 10.1080/09649069.2019.170192
Abstract: This paper presents insights into the history and current deployment of the concept of parental alienation in the Australian family law system. It begins in 1989, when an article on parental alienation syndrome was first published in an Australian law journal. It then traces aspects of the socio-legal and social science research, gender politics, law reform and jurisprudence of the following 30 years, paying attention to moments of significant change. The impacts of major amendments that emphasise the desirability of post-separation shared parenting outcomes in 1996 and 2006 are specifically considered. More recently, in 2012, reforms intended to improve the family law system’s response to domestic and family violence were introduced. The history reveals an irreconcilable tension between the ‘benefit’ of ‘meaningful’ post-separation parent-child relationships and the protection of children from harm. When mothers’ allegations of violence in the family are disbelieved, minimised or dismissed, they are transformed from victims of abuse into perpetrators of abuse – alienators of children from their fathers. Their actions and attitudes collide with the shared parenting philosophy. This is arguably an inescapable consequence of a family law system that struggles to deal effectively with family violence in the context of a strong shared parenting regime.
Reeves, E. (2020) Family violence, protection orders and systems abuse: views of legal practitioners. Current Issues in Criminal Justice, 32(1): 91-110 10.1080/10345329.2019.1665816
The findings of this research suggest that male perpetrators may use the FVIO system to commit ‘systems abuse’ by encouraging police officers to apply for a FVIO against the genuine victim-survivor. It is argued that there is a strong need for a greater recognition of systems abuse within the police and the judiciary in order to prevent the FVIO system from serving as a tool of abuse readily available to perpetrators of family violence.
Reeves, E., Fitz-Gibbon, K., Meye, S. & Walklate, S (2023) Incredible Women: Legal Systems Abuse, Coercive Control, and the Credibility of Victim-Survivors. Violence Against Women, 0(0) doi: 10.1177/107780122312220370
This article draws on the experiences of 54 women victim-survivors of coercive control in Australia who had experienced legal systems abuse within criminal and civil protection order systems. The authors highlight that the legal system continues to disbelieve women and validate abusers (extract from abstract).
Wangmann, Jane, ‘Gender and Intimate Partner Violence: A Case Study from NSW’ (2010) 33 University of New South Wales Law Journal 945.
This article reviews cross-applications and orders in NSW courts (2002-2003). The article argues that the use of cross-applications is a form of harassment or a bargaining tool (from p967). The article draws on interviews with women and professionals who suggest cross-applications are ‘a possible extension of the violence and abuse itself’ and identify that ‘the use of the law against victims of domestic violence is rarely depicted as part of their continuing experience of violence, yet it is seen that way by victims and clearly evidences a type of act that is directed at exerting control (or reasserting control)’ (p968).
International
Clements, K., et al., (2022) The Use of Children as a Tactic of Intimate Partner Violence and its Relationship to Survivors’ Mental Health. Journal of Family Violence, 37: 1049-1055. https://doi.org/10.1007/s10896-021-00330-0
Abstract: Although prior research has established that intimate partner violence (IPV) often leads to increased depression, anxiety and post-traumatic stress disorder (PTSD), little is known about how often abusive partners and ex-partners use survivors’ children as an abuse tactic, nor whether this form of IPV also is detrimental to survivors’ mental health. The current study interviewed 299 unstably housed survivors of intimate partner violence shortly after they sought services from a domestic violence agency. All participants were parents of minor children. In-person interviews asked about abuse experienced in the prior six months, including the ways children were used as a form of IPV. Participants were also asked about their current depression, anxiety, and symptoms of PTSD. As hypothesized, the majority of parents reported their abusive partners and ex-partners had used their children as a form of IPV to control and hurt them. Further, after controlling for other forms of IPV, use of the children significantly predicted both increased anxiety and greater number of PTSD symptoms. Results show the importance of focusing on the use of children as a common and injurious form of abuse used against survivors of intimate partner violence (IPV).
Gutowski, E.R., Goodman, L.A. Coercive Control in the Courtroom: The Legal Abuse Scale (LAS). (2022). Online first Journal of Family Violence doi:10.1007/s10896-022-00408-3
This article highlights various forms of legal systems abuse as part of domestic and family violence. The authors observe that intimate partner violence survivors seeking safety and justice for themselves and their children through family court and other legal systems may instead encounter their partners’ misuse of court processes to further enact coercive control. To illuminate this harmful process, this study sought to create a measure of legal abuse. The authors developed and piloted a list of 27 potential items on the basis of consultation with 23 experts, qualitative interviews, and existing literature. They then administered them to a sample of 222 survivor-mothers who had been involved in family law proceedings. The analyses yielded the 14-item Legal Abuse Scale.
Jaffe, Peter G., Janet R. Johnston, Claire V. Crooks, Nicholas Bala, ‘Custody disputes involving allegations of Domestic violence: toward a differentiated approach to parenting plans’ (2008) 46(3) Family Court Review 500.
Premised on the understanding that domestic violence is a broad concept that encompasses a wide range of behaviors from isolated events to a pattern of emotional, physical, and sexual abuse that controls the victim, this article addresses the need for a differentiated approach to developing parenting plans after separation when domestic violence is alleged. A method of assessing risk by screening for the potency, pattern, and primary perpetrator of the violence is proposed as a foundation for generating hypotheses about the type of and potential for future violence as well as parental functioning. This kind of differential screening for risk in cases where domestic violence is alleged provides preliminary guidance in identifying parenting arrangements that are appropriate for the specific child and family and, if confirmed by a more in-depth assessment, may be the basis for a long-term plan.
Regarding the credibility of allegations of child maltreatment, domestic violence and parental abuse of drugs and alcohol, the authors (at pp506-509) write there is virtually no research on the extent to which spousal abuse allegations are clearly false and maliciously fabricated, but this issue is becoming an increasing concern for the justice system …it is critical to emphasize that the making of false allegations of spousal abuse is much less common than the problem of genuine victims who fail to report abuse, and the widespread false denials and minimization of abuse by perpetrators (Jaffe et al., 2003; Johnston, Lee, et al., 2005; Shaffer & Bala, 2003).
Klein, Andrew, ‘Practical Implications of Current Domestic Violence Research: For Law Enforcement, Prosecutors and Judges’ (National Institute of Justice (US), 2009).
This report reviews research in the United States on domestic violence to determine what works best in protecting victims and stopping abuse. The section on judicial responses (from p52) is helpful. It recommends:
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Judges should strive to create user-friendly, safe court environments for petitioners, be sympathetic to the parties before them, but firm with respondents once abuse has been determined. Thus, victim concerns are validated, and respondents’ abusive behaviors are clearly condemned. (p60) (Based on limited studies on the impact of judicial demeanour.)
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Judicial attention before trial to address the risk to victims posed by alleged abusers will result in quicker case resolution and decrease re-abuse by defendants who fail to show for trial. (p62) (based on multiple studies).
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Judges should respond to noncompliant abusers immediately to safeguard victims. (p72) (based on multiple studies).
Miller, Susan L, and Nicole L Smolter, ‘“Paper Abuse”: When All Else Fails, Batterers Use Procedural Stalking’ (2011) 17(5) Violence Against Women 637.
Drawing on interviews with women who have exited violent relationships, attorneys, and practitioners/policy specialists, this US research considers the continuation of control as women encounter “paper abuse.” The article reports on the ‘barrage’ of frivolous lawsuits, false reports of child abuse, and other system-related manipulations that exert power, force contact, and financially burdens ex-partners. The article draws parallels between paper abuse and stalking, in that they both involve harassing behaviours, however paper abuse is distinct in that it uses legal options rather than criminal acts to perpetrate abuse (p641). That fact means it requires documentation so that it is not overlooked or justified as exercising legitimate legal rights.
Neilson, Linda, ‘Assessing Mutual Partner-Abuse Claims in Child Custody and Access Cases’ (2004) 42(3) Family Court Review 411.
This article explores issues associated with mutual claims of domestic violence in the context of research on gender and violence, and in the context of litigation tactics commonly employed by perpetrators in child custody and access cases. It identifies:
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Heightened litigation may be a form of stalking (p419).
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Notes that demeanour and presentation are not reliable indicators ‘as many abusive partners are both manipulative and highly skilled at presenting positive public images of self.’ (p420)
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Litigation tactics are often designed to discredit victim witnesses, such as claiming infidelity or promiscuity to deflect attention from abuse, attempting to discredit minute details of testimony or arguing ‘parental alienation’ (p422-24)
The author provides suggestions for assessing mutual claims of abuse and responding to litigation tactics (specifically, mutual claims of abuse).
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Careful scrutiny of past conduct and the power and control dynamics of the relationship are critical to accurate assessment when intimate partners make allegations of abuse against each other. (p425)
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Careful consideration of context. Context includes indicators of domination and control in the relationship in association with: patterns of violent action (including emotional abuse) over time, social and cultural context, victim vulnerability, and psychological (as well as physical) impact. Victim fears and perceptions are particularly important. (427)
The importance of awareness by judicial officers of litigation tactics is referred to throughout this report, examples are identified:
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perpetrators attempting to introduce evidence of psychological harm from domestic violence as evidence of unfitness to parent, pp5, 17.
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making spurious complaints to social service and investigation agencies, and engaging in litigation tactics to deflect responsibility, p28.
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using litigation tactics to confuse police etc, p31.
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setting up the party convicted of resistance violence to engage in technical breaches p83.
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a perpetrator's attempts to introduce covert audio or video recordings can actually constitute evidence of continuing monitoring, stalking or surveillance of the targeted parent, or of attempting to ‘set up’ the targeted parent as a litigation tactic p122
Nonomura, R; et al., (2022). ‘When the Family Court Becomes the Continuation of Family Violence After Separation: Understanding Litigation Abuse’, Family Violence & Family Law Brief (14). London, Ontario: Centre for Research & Education on Violence Against Women & Children. ISBN: 978-1-988412-61-0
This Canadian resource, focused on the family court, recognizes ‘litigation abuse’ as a gendered phenomenon. It highlights some of the possible ways a court may respond to litigation abuse. It observes that the court may regard this as a form of family violence to consider in making decisions about parenting time and responsibilities, or, as a factor in allowing the victim to relocate with the children.
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If a court finds that litigation abuse has occurred, this may affect an award for “costs,” requiring a party who has behaved “unreasonably” in the course of litigation to pay part or all of the legal fees and litigation costs of the other party.
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A person who has been the subject of repeated, unmerited court applications may make an application to have another person declared a “vexatious litigant,” preventing the person who has abused the legal process from bringing further court proceedings.
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In limited circumstances the courts may make a restraining order to prohibit certain types of behaviours associated with the court process, such as a prohibition on posting abusive information related to the proceedings on the internet.
Ptacek, James, Battered Women in the Courtroom: The Power of Judicial Responses (Northeastern University Press, 1999).
This book was one of the first to look at the role of judges in the domestic violence protection order process. Ptacek approaches the issue using three inquiries. He asks: “What do judges do with their authority in restraining order hearings? How do judges interpret their role in responding to woman battering? What effect do judges have on women seeking restraining orders?” (ix).
Ptacek’s research was conducted primarily through interviews. He consulted widely with women in shelters, staff at shelters, feminist lawyers, judges, court support staff, and criminal justice researchers. He focused on two courts in Massachussetts that are considered to treat battered women with respect and take seriously their allegations. However, Ptacek identifies types of judicial behaviour can negatively affect victims in court. This form of abuse is sometimes referred to as ‘secondary abuse’.
Ptacek has illustrated the judicial responses reinforce women’s entrapment in a diagram available here and extracted in the table below. Many of the issues relate to perpetrators’ misuse of court process as a way to further their abuse of the victim.
Prioritising women’s safety | • asking about women’s fears • asking about weapons • confiscating weapons • training court personnel on battering • making a safe space for women to wait for hearings |
Making the court hospitable to abused women | • providing a separate restraining order office • informing women of their legal options • providing translators • making the building handicap accessible |
Supportive judicial demeanour | • listening to abused women • asking questions • looking women in the eye • recognising the complexity of women’s circumstances and choices |
Connecting women with resources | • Providing advocates for battered women • developing relationships with shelters, batterers’ programs, and community services |
Taking the violence seriously | • communicating through words and actions that the court will not tolerate battering • encouraging women to return to the court if they need to |
Focusing on the needs of children | • demonstrating concern for the safety of children • making space in the courthouse for children • recognising the effects of battering on children |
Imposing sanctions on violent men | • imposing sanctions for violating court orders • refusing to joke and bond with violent men • correcting institutional bias toward men |
Addressing the economic aspects of battering | • asking whether women need child support • connecting women with community resources around housing and financial assistance |
Conversely, Ptacek has also illustrated how the judicial responses that empower battered women in a diagram available here and extracted in the table below.
Neglecting women’s fears | • ignoring women’s fears • lack of safe waiting areas in courthouse • lack of coordination with police and probation • inadequate training of court personnel |
Courtroom intimidation | • inattention to the impact of a courtroom on victims • bureaucratic and indifferent treatment of abused women • failure to provide women with information about their legal options |
Condescending or harsh demeanour | • patronising displays of authority • harsh or hostile remarks • racist attitudes toward women of colour • bias against unmarried women |
Furthering women’s isolation | • failure to provide advocates • lack of resources for non-English speakers • lack of resources for deaf and disabled women • lack of coordination with community resources |
Minimising, denying, and blaming | • mirroring batterers’ actions by making light of the abuse • saying the abuse didn’t happen • saying she caused it • making her feel guilty • saying it’s just a “lovers’ quarrel” |
Neglecting the needs of children | • failing to see how batterers manipulate women through their children • no space in the courthouse for children • lack of concern for safety of children |
Colluding with violent men | • showing greater concern for defendants than for women seeking protection • unwillingness to impose sanctions on batterers • joking and bonding with defendants |
Blindness to the economic aspects of battering | • ignoring women’s requests for child support and restitution • bias against women on welfare |
Tutty, L., Radtke, L. & Nixon, K. (2023) He Tells People He’s Going to Kill My Children”: Post- Separation Coercive Control in Men Who Perpetrate IPV Violence Against Women, doi 10.1177/10778012231166408
This research examined men’s use of coercive controlling tactics against female partners after separation. This mixed-methods study is based on secondary analysis of interviews / surveys involving 346 Canadian women who experienced coercive controlling tactics used by their ex-partners (86.4% identified at least one). The researchers also interviewed another 34 women. The article found that ‘abusive partners used numerous strategies to coercively control their ex-partners by stalking/harassing them, using financial abuse and discrediting the women to various authorities’ after separation.
Ward, David, ‘In her words: Recognising and preventing abusive litigation against domestic violence survivors’ (2015-2016) 14 Seattle Journal for Social Justice 429.
This US study interviewed 10 survivors of domestic violence and their lawyers. It identifies different types of abusive litigation tactics (pp 434-47), including seeking sole custody of children, portraying themselves as the victim, initiating frivolous litigation, filing excessively long applications (pp 434-47). It also offers recommendations for judicial officers to respond to abusive litigation, including: having one judicial officer oversee all the litigation, imposing sanctions rather than relying primarily on verbal admonishments, limiting or placing conditions on court filings (457-63).
Australian and international bench books alert judicial officers to various forms of systems abuse or abuse of processes that may be used by perpetrators in the course of domestic and family violence related proceedings to reassert their power and control over the victim. The National Plan to End Violence against Women and Children 2022-2032 observes that perpetrators of domestic and family violence may manipulate legal and other systems to control, threaten and harass a current or former partner. More broadly, as identified in the Western Australian Court of Appeal decision Baron v Walsh [2014] WASCA 124, recourse to legally available processes, when used by a party with improper intent or purpose, could amount to malicious prosecution, abuse of process or a criminal offence. See also Chapter 5 of this Bench Book for further consideration of fair hearing and safety
Research has also recognised that a party to proceedings in domestic and family violence related cases may use a range of litigation tactics to gain an advantage over or to harass, intimidate, discredit or otherwise control the other party. These tactics may be referred to in legislation and other bench books and by judicial officers as malicious, frivolous, vexatious, querulous, or an abuse of process
Perpetrators of domestic and family violence who seek to control the victim before, during or after separation may make multiple applications and complaints in multiple systems (for example, the courts, Child Support Agency, Centrelink child protection) in relation to a protection order, breach, parenting, divorce, property, child and welfare support and other matters with the intention of interrupting, deferring, prolonging or dismissing judicial and administrative processes, which may result in depleting the victim’s financial resources and emotional wellbeing, and adversely impacting the victim’s capacity to maintain employment or to care for children. In the court system, this tactic is sometimes known as ‘burning off’, and is prevalent where, on the one hand, a victim lacks the financial resources to engage legal representation (and is therefore forced to self-represent), and on the other hand, the perpetrator is either financially well-resourced or prepared to incur significant debt (and is therefore able to engage solicitors and counsel, and fund multiple actions over extended periods). Where the perpetrator is aware that the victim may be in a financial position to engage legal representation, the perpetrator may use a different tactic known as ‘conflicting out’, which involves seeking preliminary advice from multiple lawyers (this is a particular concern in regional, rural and remote communities) so as to deny the victim access to legal representation on the basis of conflict of interest.
Although there is a widespread belief in the community that mothers frequently fabricate allegations to influence family law proceedings, the research to date indicates that it is more likely that they will be reluctant to raise allegations for fear of having their motives questioned, and that the making of false allegations is much less common than the problem of genuine victims who fail to report abuse, and the widespread false denials and minimisation of abuse by perpetrators. A 2015 evaluation of the 2012 Family Violence Amendments to the Family Law Act 1975 (Cth) recognises that parties to proceedings in the Family Court of Australia may use those proceedings as a means of perpetuating harassment of the other party. For example, a parent who is also a perpetrator of domestic and family violence may use this tactic, while the perpetrator or their lawyer states to the court that they ‘just want to see their children’.
Cross applications for domestic and family violence protection orders may be used by some perpetrators to intimidate the victim into withdrawing their application, resulting in mutual withdrawal and an end to proceedings. This tactic may also be seen as an extension of the violence itself. Perpetrators in these circumstances may seek a cross order to neutralise the effect of the victim’s order (or order obtained on the victim’s behalf) on the operation of the presumption/exemption. While some cross applications may be genuine where both parties face a threat of violence and are equally in need of protection from one another, those that constitute intimidation may have the effect of trivialising or silencing the victim’s claims for protection. The consequent risk is that dangerous behaviour may be misinterpreted or overlooked by the court, and the victim may be left unprotected.
Victims from culturally and linguistically diverse backgrounds who may be unfamiliar with Australian legal systems, have limited or no English literacy skills and uncertain or contested immigration status, may be particularly vulnerable to further abuse by the perpetrator through judicial processes. Some commonly reported examples include the perpetrator: failing to appear in court; repeatedly seeking adjournments; appealing decisions on tenuous grounds; obtaining a protection order against the victim and misleading the victim into breaching the order; objecting to or refusing to consent to the victim’s application for divorce; and giving false evidence to the court that the victim’s motivation in applying for a protection order is to obtain an advantage in the immigration/visa process.
Research indicates that a court’s failure to respond adequately or appropriately to a victim’s allegations of domestic and family violence may constitute a form of abuse that is secondary to that already being experienced by the victim. In the context of judicial proceedings, a victim may feel intimidated, isolated or neglected by, for example: having to sit in proximity to the perpetrator and their family and friends in the courtroom; experiencing condescending, reproachful or diminishing language or demeanour from defence lawyers or judicial officers; feeling unable to effectively advocate on behalf of children in their care; or enduring the ongoing economic impact of being a party to judicial proceedings. In these circumstances, judicial officers may need to weigh up and assess the requirements for procedural fairness and access to justice against protection of the victim from further abuse through the perpetrator’s exploitation of the justice system.
Systems abuse may be one aspect of a complex pattern of behaviours engaged in by perpetrators in order to control another person, sometimes referred to as coercive control.
Australian and international bench books alert judicial officers to various forms of systems abuse or abuse of processes that may be used by perpetrators in the course of domestic and family violence related proceedings to reassert their power and control over the victim. The National Plan to End Violence against Women and Children 2022-2032 observes that perpetrators of domestic and family violence may manipulate legal and other systems to control, threaten and harass a current or former partner. More broadly, as identified in the Western Australian Court of Appeal decision Baron v Walsh [2014] WASCA 124, recourse to legally available processes, when used by a party with improper intent or purpose, could amount to malicious prosecution, abuse of process or a criminal offence. See also Chapter 5 of this Bench Book for further consideration of fair hearing and safety
Research has also recognised that a party to proceedings in domestic and family violence related cases may use a range of litigation tactics to gain an advantage over or to harass, intimidate, discredit or otherwise control the other party. These tactics may be referred to in legislation and other bench books and by judicial officers as malicious, frivolous, vexatious, querulous, or an abuse of process
Perpetrators of domestic and family violence who seek to control the victim before, during or after separation may make multiple applications and complaints in multiple systems (for example, the courts, Child Support Agency, Centrelink child protection) in relation to a protection order, breach, parenting, divorce, property, child and welfare support and other matters with the intention of interrupting, deferring, prolonging or dismissing judicial and administrative processes, which may result in depleting the victim’s financial resources and emotional wellbeing, and adversely impacting the victim’s capacity to maintain employment or to care for children. In the court system, this tactic is sometimes known as ‘burning off’, and is prevalent where, on the one hand, a victim lacks the financial resources to engage legal representation (and is therefore forced to self-represent), and on the other hand, the perpetrator is either financially well-resourced or prepared to incur significant debt (and is therefore able to engage solicitors and counsel, and fund multiple actions over extended periods). Where the perpetrator is aware that the victim may be in a financial position to engage legal representation, the perpetrator may use a different tactic known as ‘conflicting out’, which involves seeking preliminary advice from multiple lawyers (this is a particular concern in regional, rural and remote communities) so as to deny the victim access to legal representation on the basis of conflict of interest.
Although there is a widespread belief in the community that mothers frequently fabricate allegations to influence family law proceedings, the research to date indicates that it is more likely that they will be reluctant to raise allegations for fear of having their motives questioned, and that the making of false allegations is much less common than the problem of genuine victims who fail to report abuse, and the widespread false denials and minimisation of abuse by perpetrators. A 2015 evaluation of the 2012 Family Violence Amendments to the Family Law Act 1975 (Cth) recognises that parties to proceedings in the Family Court of Australia may use those proceedings as a means of perpetuating harassment of the other party. For example, a parent who is also a perpetrator of domestic and family violence may use this tactic, while the perpetrator or their lawyer states to the court that they ‘just want to see their children’.
Cross applications for domestic and family violence protection orders may be used by some perpetrators to intimidate the victim into withdrawing their application, resulting in mutual withdrawal and an end to proceedings. This tactic may also be seen as an extension of the violence itself. Perpetrators in these circumstances may seek a cross order to neutralise the effect of the victim’s order (or order obtained on the victim’s behalf) on the operation of the presumption/exemption. While some cross applications may be genuine where both parties face a threat of violence and are equally in need of protection from one another, those that constitute intimidation may have the effect of trivialising or silencing the victim’s claims for protection. The consequent risk is that dangerous behaviour may be misinterpreted or overlooked by the court, and the victim may be left unprotected.
Victims from culturally and linguistically diverse backgrounds who may be unfamiliar with Australian legal systems, have limited or no English literacy skills and uncertain or contested immigration status, may be particularly vulnerable to further abuse by the perpetrator through judicial processes. Some commonly reported examples include the perpetrator: failing to appear in court; repeatedly seeking adjournments; appealing decisions on tenuous grounds; obtaining a protection order against the victim and misleading the victim into breaching the order; objecting to or refusing to consent to the victim’s application for divorce; and giving false evidence to the court that the victim’s motivation in applying for a protection order is to obtain an advantage in the immigration/visa process.
Research indicates that a court’s failure to respond adequately or appropriately to a victim’s allegations of domestic and family violence may constitute a form of abuse that is secondary to that already being experienced by the victim. In the context of judicial proceedings, a victim may feel intimidated, isolated or neglected by, for example: having to sit in proximity to the perpetrator and their family and friends in the courtroom; experiencing condescending, reproachful or diminishing language or demeanour from defence lawyers or judicial officers; feeling unable to effectively advocate on behalf of children in their care; or enduring the ongoing economic impact of being a party to judicial proceedings. In these circumstances, judicial officers may need to weigh up and assess the requirements for procedural fairness and access to justice against protection of the victim from further abuse through the perpetrator’s exploitation of the justice system.
Systems abuse may be one aspect of a complex pattern of behaviours engaged in by perpetrators in order to control another person, sometimes referred to as coercive control.