Australia
Braaf, Rochelle and Isobelle Barrett Meyering, Seeking security: promoting women’s economic wellbeing following domestic violence (Australian Domestic and Family Violence Clearinghouse, 2011).
This report specifically examines ‘the impact of domestic violence on women’s economic wellbeing and the intersection of this with their recovery overall’ (p 3). The report identifies legal issues as being key to issues affecting women’s financial outcomes (p 55). In terms of legal costs, some of the women surveyed did not qualify for legal assistance but could not afford private services. ‘They found they were ineligible if their cases were deemed too complex or would take too long to settle; if their ex-partner was already represented by Legal Aid; or if they owned property, even though they were on low incomes’ (p57). Ultimately, many women ‘felt that their access to justice was compromised because they lacked the financial means to pursue legal action or to access quality legal representation. ‘If I had money’ was a recurrent theme in the interviews’ (p 58).
Bryant, Diana and John Faulks, ‘The ‘helping court’ comes full circle: The application and use of therapeutic jurisprudence in the Family Court of Australia’ (2007) 17 Journal of Judicial Administration 93.
The Family Court has taken a range of initiatives in response to the increasing number of self-represented litigants entering their court. They produced Litigants in Persons Guidelines. These guidelines are as follows:
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A judge should ensure as far as is possible that procedural fairness is afforded to all parties whether represented or appearing in person in order to ensure a fair trial;
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A judge should inform the litigant in person of the manner in which the trial is to proceed, the order of calling witnesses and the right which he or she has to cross-examine the witnesses;
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A judge should explain to the litigant in person any procedures relevant to the litigation;
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A judge should generally assist the litigant in person by taking basic information from witnesses called, such as name, address and occupation;
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If a change in the normal procedure is requested by the other parties such as the calling of witnesses out of turn the judge may, if he or she considers that there is any serious possibility of such a change causing any injustice to a litigant in person, explain to the unrepresented party the effect and perhaps the undesirability of the interposition of witnesses and his or her right to object to that course;
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A judge may provide general advice to a litigant in person that he or she has the right to object to inadmissible evidence, and to inquire whether he or she so objects. A judge is not obliged to provide advice on each occasion that particular questions or documents arise;
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If a question is asked, or evidence is sought to be tendered in respect of which the litigant in person has a possible claim of privilege, to inform the litigant of her or his rights;
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A judge should attempt to clarify the substance of the submissions of the litigant in person, especially in cases where, because of garrulous or misconceived advocacy, the substantive issues are either ignored, given little attention or obfuscated (Neil v Nott (1994) 121 ALR 148 at 150);
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Where the interests of justice and the circumstances of the case requires it, a judge may:
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Draw attention to the law applied by the court in determining issues before it;
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Question witnesses;
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Identify applications or submissions which ought to be put to the court;
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Suggest procedural steps that may be taken by a party; and
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Clarify the particulars of the orders sought by a litigant in person or the bases for such orders.
The above list is not intended to be exhaustive and there may well be other interventions that a judge may properly make without giving rise to an apprehension of bias (p 103).
Chisholm, Richard, Family Courts Violence Review (2009).
In discussing appropriate legal representation, the report notes that the ‘importance of appropriate legal representation can hardly be overstated in parenting cases, especially those that involve issues of family violence’. Where one or more parties are unrepresented this jeopardises the ability of the court to receive appropriate evidence and to make decisions about the child’s best interests (p 168).
Cleak, Helen et al, ‘Family violence in culturally and linguistically diverse communities: An evaluation of a family relationship centre’ (2015) 26 Australasian Dispute Resolution Journal 26.
This article evaluates a family relationship centre, in this context considers the reasons for why many people from culturally and linguistically diverse (CALD) groups often do not access legal services. It reviews recent research and notes reasons include language barriers, limited knowledge about rights and lack of trust toward legal authorities. It notes that the available data suggests that people from CALD communities often struggle to find a visible entry point into the legal system’ (p 28).
George, Amanda and Bridget Harris, Landscapes of Violence: Women Surviving Family Violence in Regional and Rural Victoria (Deakin University School of Law’s Centre for Rural Regional Law and Justice, 2014).
This report draws and extends upon a 2013 report released by the Centre for Rural Regional Law and Justice (Victoria) (Jordan, Lucinda and Lydia Phillips, Women’s experiences of surviving family violence and accessing the Magistrates’ Court in Geelong, Victoria (Centre for Rural Regional Law and Justice, Deakin University Australia, 2013)). George and Harris’ report ‘examines the experiences of and outcomes for women survivors of family violence in regional and rural Victoria’ (p 2). Of relevance, the report looks at the role of lawyers in the Family Violence Intervention Order (FVIO) process. It found:
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very few private lawyers appeared for applicants’, many women appeared in court without legal representation;
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the (often prohibitive) cost of lawyers means that many survivors and respondents cannot secure representation.
Kaspiew, Rae et al, Evaluation of the 2006 Family Law Reforms (Australian Institute of Family Studies, 2009).
This evaluation of the impact of the 2006 changes to the Family law Act involved the collection of data from some 28,000 people involved or potentially involved in the family law system - including parents, grandparents, family relationship service staff, clients of family relationship services, lawyers, court professionals and judicial officers - and the analysis of administrative data and court files. Of relevance here see:
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See Chapter 9: ‘Legal system professionals regularly made the point that women felt pressured to agree to outcomes in negotiations that they didn’t feel were in their children’s interests. While this was said to be happening frequently, particular concerns were expressed about the nature of the agreements reached in two different situations. The first concerned cases where there had been a history of family violence. The second situation causing concern involved matters where a lack of legal representation at all, or a perceived imbalance in the quality of the legal representation, failed to alleviate the apparent pressure caused by the imbalance in bargaining power, resulting in women agreeing to inappropriate arrangements’ (p 221).
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Also see ‘15.1.2 Consent orders’ (from p337), noting that ‘The tensions in this area are succinctly summarised in this comment by a legal practitioner about the choice litigants face in deciding whether or not to settle: “Most of them settle by consent and you’ve got a real tension because those that settle by consent feel as if they’ve been bullied into it, get a settlement because they can’t afford it and they want to get it over and done with. Those that run the full trial feel as though they got shafted anyway because they didn’t get heard properly. So either way they feel as though they’ve lost”. In reflecting on their practices concerning consent orders, a common observation among registrars and judicial officers was the limited supervisory role courts have in the context of a system that encourages parties to reach agreement by themselves’.
Kaye, Miranda, ‘Accommodating Violence in the Family Courts’ (2019) 33(2) Australian Journal of Family Law, 100-121
This article argues that allegations of family violence are 'the new normal' in family court matters in Australia and calls for the family law system to prioritise victim safety. It presents findings from a study with independent children's lawyers from Victoria and New South Wales, highlighting their views on issues of family violence, self-representation, safety, and physical court premises, which are in contrast to the recommendations of the recent Australian Law Reform Commission into the family law system, which failed to address the safety of court users. There needs to be a shift in thinking from providing 'special' arrangements to victim safety being the standard approach.
Kyle, Louise, Richard Coverdale and Tim Powers, Conflict of Interest in Victoria Rural and Regional Legal Practice (Deakin University, 2014).
Based on interviews with legal practitioners and others and surveys with legal practitioners this research found:
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‘Conflicts of interest are more likely to occur in regional communities where there are smaller numbers of practising solicitors; parties are more likely to be known to each other and past dealings with others in the community are more likely to have occurred. (p 11).
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‘A common frustration among family violence service providers is that lawyers will ‘go with the status quo’ when a decision has to be made about who will be their client. This manifests in the legal practitioner more frequently acting for the alleged perpetrator for several reasons- the alleged perpetrator is the person who: has to answer to an application to the court; is often a person of standing in the local community; the client who is able to pay. The outcome of this approach is that women are too often appearing in court without legal support and representation and therefore with reduced access to the protection from further violence that a court order might offer’ (p 70).
Queensland, Special Taskforce on Domestic and Family Violence in Queensland, Not Now, Not Ever: Putting an End to Domestic and Family Violence in Queensland (2015).
Submissions to taskforce raised the lack of legal representation and assistance as a major concern for victims, particularly where a male respondent can afford legal representation. Submissions stated that this often results in the victim withdrawing or not pursuing a legal response and can lead to a failure in protection for an aggrieved. Submissions also noted the benefits from a duty lawyer system:
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‘Mitigating the trauma of the court process for victims;
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Parties are better informed of their rights and the legal process and know what they can and cannot ask of the court
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Victims will receive assistance and advice with completing their application forms. This will ensure all relevant information is before the court. The court process will proceed more smoothly as a consequence of properly prepared documents and legally informed clients appearing before it
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Queensland Police Prosecutors will also indirectly benefit as a consequence in the same way as the court will
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More appropriate orders and conditions can be applied for which improves victims safety, and reduces the risk of recidivism, breach and applications for variations of the orders
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Timely legal advice and information to respondents could lead to a less litigious approach to proceedings and appropriate referrals
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Victims will be empowered to pursue their matters and not withdraw because of fear or intimidation by the perpetrator or because of lack of knowledge of the complex legal system. The result will be greater safety for older people, women and children experiencing domestic and family violence. (p 312)
Wangmann, J., Booth, T., & Kaye, M. (2020). “No straight lines”: Self-represented litigants in family law proceedings involving allegations about family violence (Research report, 24/2020). Sydney: ANROWS.
Abstract: This research focuses on documenting current practice and generating new knowledge about the impact and effect of self-representation by one or both parties in Family Law proceedings involving allegations of family violence.
The research team conducted semi-structured interviews with SRLs and professionals who engage with SRLs in family law proceedings to produce a general interview sample. The researchers then also undertook an intensive case study that involved court observation, case file review, and interviews with SRLs or other representatives involved in those observed/reviewed cases.
The research confirmed that there are high numbers of SRLs engaged in family law cases involving allegations of family violence, and the primary motivation for self-representing is financial. The study revealed that SRLs are impacted by their self-representation, as well as histories of family violence, in numerous ways. Primarily, SRLs lack knowledge of the legal process: for example, they are often unaware of the heavy emphasis on paperwork and negotiation in family law cases, and they are unprepared to complete paperwork, or negotiate, in ways that effectively support their case. Intersecting with the lack of knowledge is the impact of family violence: ability to complete paperwork and negotiate is also affected by experiences of violence and resulting trauma, and perceptions of safety.
Given these findings, the report stresses the importance of enhanced, up-to-date and practical information for SRLs in multiple formats, as well as increased access to lawyers and legal advice. The report also raises the need to explore possible system change, particularly with a view to the fragmentation of areas of law that respond to family violence. Alongside enhancing family violence expertise across key court personnel, the report recommends integrating information about safety into routinely accessed documents in order to raise awareness about available services.
International
Buel, Sarah M, ‘Fifty Obstacles to Leaving, aka, Why Abuse Victims Stay’ (1999) 28(10) The Colorado Lawyer 19.
‘When the victim lacks a tenacious advocate, she often feels intimidated, discouraged, and, ultimately, hopeless about being able to navigate the complex legal and social service systems needed to escape the batterer. Some well-intentioned advocates engage in dangerous victim-blaming with the assumption that there is something about the victim’s behaviour or past that precipitates the violence’ (p 19).
Coy, Maddy et al, Picking up the pieces: domestic violence and child contact (Rights of Women and CWASU, 2012).
Section 5 of this report presents quantitative and qualitative data on women and legal professionals’ experience of legal proceedings. In relation to legal representation, this report found that there were instances where women had to represent themselves (and thus have to cross-examine men who had been violent to them) or face the prospect of being cross-examined by their ex-partners. Women were afraid of these two scenarios (p 38). Solicitors and barristers surveyed identified two issues relating to potential abuse and intimidation that self-representation raises. First, ‘perpetrators representing themselves used cross-examination as another route to harass and undermine their ex-partners’. Second, fearful victim-survivors representing themselves may not disclose the full details of their abuse and may inhibit themselves from questioning perpetrators about their actions and motivations (p 39). The report identifies multiple ways in which the outcome of the case can be influenced where women and/or their abusive ex-partners represent themselves:
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Victim-survivors are not enabled to give their best evidence about histories of abuse, which may be crucial to determining whether contact, and in what form, is deemed appropriate.
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The difficulties of cross-examining their perpetrators may mean they do not ask sufficiently probing questions or challenge responses, which again informs what evidence is available to the court.
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They are rarely equipped with the legal knowledge and experience to prepare documentation and negotiate family law processes e.g. requesting finding of fact hearings.
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Pressure to reach speedy resolution may mean that women accede to arrangements which are not necessarily in their own or their children’s best interests’ (p 40).
Przekop, Mary, ‘One More Battleground: Domestic Violence, Child Custody, and the Batterers’ Relentless Pursuit of their Victims Through the Courts’ (2010-2011) 9 Seattle Journal for Social Justice 1053.
Although the article is not directly about legal representation, it makes the observation that female abuse survivors in family court settings ‘are far less likely than men to be represented, which places them at a disadvantage. The most common reason why they are without representation is because they cannot afford to hire an attorney. This fact is not surprising, as studies show that the financial situation of divorced fathers improves after a divorce, which places men in a better position to afford representation in the first place’ (p 1062).
Where a party is self-represented in domestic and family violence related proceedings, there may be adverse consequences to both parties and more generally to the administration of justice.
Bench books, best practice guidelines and other resources have been developed in a number of Australian jurisdictions to assist judicial officers in ensuring that self-represented parties are afforded procedural fairness and access to justice while maintaining their independence and neutrality (see Judicial Action guide).
Where a party who is a victim of domestic and family violence is self-represented and required to cross-examine the perpetrator, their capacity to appropriately and fully question may be diminished or negated by their fear of the perpetrator. Where the perpetrator is represented, a self-represented victim may feel particular pressure to withdraw or not proceed with an application, or to consent to orders or undertakings as a result of fear or intimidation, or to avoid being compromised or intimidated by a hearing or other ongoing proceedings.
A perpetrator may choose to be self-represented so as to secure the opportunity to directly cross-examine the victim. The victim’s capacity to give evidence or the quality of the victim’s evidence in these circumstances may be compromised by the victim’s fear of the perpetrator and, as a consequence, the probative value of the evidence may be diminished or negated. Importantly, there are some jurisdictions where in certain circumstances direct cross-examination of the victim by the perpetrator is prohibited or limited – see 7.2.1 table and 9.2.3 table for legislation references and summaries of the restrictions on direct cross-examination.
Where a perpetrator uses their own or the victim’s self-represented status to subject the victim to further abuse through judicial processes, the victim may experience a form of secondary abuse.
Not only does the absence of legal representation potentially prejudice the self-represented party and limit their access to justice, it may also jeopardise the ability of the court to receive the necessary evidence and to make decisions for the safety and protection of victims and children.
Research has shown the value to the court and parties of self-represented parties receiving advice and information on appropriate conduct and language in the courtroom prior to any court appearance or hearing. Legal assistance providers deliver duty lawyer services to self-represented litigants in many courts, including providing legal advice and information about court processes, help with the preparation of documents, and in some cases, representation.
Australian studies reveal that many victims, mostly women, appear in protection order application proceedings without legal representation; this may be due to lack of access to legal assistance or the cost of engaging private lawyers. A party may not qualify for legal assistance if they own property, notwithstanding earning a low income.
The problem of lack of private legal representation may be exacerbated in regional and rural communities where there may be fewer lawyers available, and the perpetrator may be given priority based on their standing in the community, their prior dealings or relationship with lawyers, or their financial resources. Further in this context, where the perpetrator is aware that the victim may be in a financial position to engage legal representation, the perpetrator may use a tactic known as ‘conflicting out’, which involves seeking preliminary advice from multiple lawyers in the geographical area so as to deny the victim access to legal representation on the basis of conflict of interest.
Aboriginal and Torres Strait Islander people and people from culturally and linguistically diverse backgrounds may also be less likely to be legally represented or to seek representation due to language barriers, limited knowledge of their legal rights, and a lack of trust in judicial processes.
The approach to the protection of adult victims of domestic and family violence and sexual assault complainants / witnesses (sometimes called vulnerable or special witnesses) in domestic violence protection order matters and criminal cases varies throughout Australia. Protections may include closed courtrooms, using closed circuit television rather than being in court, using a screen in court, having evidence recorded so the person is only cross-examined once, allowing the presence of a support person and disallowing direct cross-examination of one party by another in certain proceedings. See 9.2.3 Vulnerable or Special Witnesses for a table outlining jurisdictional approaches.
Note that detailed information about children giving evidence in criminal proceedings can be found here: Bench Book For Children Giving Evidence In Australian Courts
Important note: The expression “self-represented” is used in this bench book to refer to any situation where a party is not represented by a lawyer. It is acknowledged that the expression may be inappropriate in some contexts. It may, for example, suggest that a party has exercised a choice to represent themselves, when in fact they do so due to lack of financial resources or access to legal assistance. On the other hand, some parties choose to represent themselves because they believe they are best equipped to do so and may object to the use of an expression such as “unrepresented” on the basis that it may, for example, be interpreted to suggest that they are unable to properly or fully participate in the proceedings in their own right.
Where a party is self-represented in domestic and family violence related proceedings, there may be adverse consequences to both parties and more generally to the administration of justice.
Bench books, best practice guidelines and other resources have been developed in a number of Australian jurisdictions to assist judicial officers in ensuring that self-represented parties are afforded procedural fairness and access to justice while maintaining their independence and neutrality (see Judicial Action guide).
Where a party who is a victim of domestic and family violence is self-represented and required to cross-examine the perpetrator, their capacity to appropriately and fully question may be diminished or negated by their fear of the perpetrator. Where the perpetrator is represented, a self-represented victim may feel particular pressure to withdraw or not proceed with an application, or to consent to orders or undertakings as a result of fear or intimidation, or to avoid being compromised or intimidated by a hearing or other ongoing proceedings.
A perpetrator may choose to be self-represented so as to secure the opportunity to directly cross-examine the victim. The victim’s capacity to give evidence or the quality of the victim’s evidence in these circumstances may be compromised by the victim’s fear of the perpetrator and, as a consequence, the probative value of the evidence may be diminished or negated. Importantly, there are some jurisdictions where in certain circumstances direct cross-examination of the victim by the perpetrator is prohibited or limited – see 7.2.1 table and 9.2.3 table for legislation references and summaries of the restrictions on direct cross-examination.
Where a perpetrator uses their own or the victim’s self-represented status to subject the victim to further abuse through judicial processes, the victim may experience a form of secondary abuse.
Not only does the absence of legal representation potentially prejudice the self-represented party and limit their access to justice, it may also jeopardise the ability of the court to receive the necessary evidence and to make decisions for the safety and protection of victims and children.
Research has shown the value to the court and parties of self-represented parties receiving advice and information on appropriate conduct and language in the courtroom prior to any court appearance or hearing. Legal assistance providers deliver duty lawyer services to self-represented litigants in many courts, including providing legal advice and information about court processes, help with the preparation of documents, and in some cases, representation.
Australian studies reveal that many victims, mostly women, appear in protection order application proceedings without legal representation; this may be due to lack of access to legal assistance or the cost of engaging private lawyers. A party may not qualify for legal assistance if they own property, notwithstanding earning a low income.
The problem of lack of private legal representation may be exacerbated in regional and rural communities where there may be fewer lawyers available, and the perpetrator may be given priority based on their standing in the community, their prior dealings or relationship with lawyers, or their financial resources. Further in this context, where the perpetrator is aware that the victim may be in a financial position to engage legal representation, the perpetrator may use a tactic known as ‘conflicting out’, which involves seeking preliminary advice from multiple lawyers in the geographical area so as to deny the victim access to legal representation on the basis of conflict of interest.
Aboriginal and Torres Strait Islander people and people from culturally and linguistically diverse backgrounds may also be less likely to be legally represented or to seek representation due to language barriers, limited knowledge of their legal rights, and a lack of trust in judicial processes.
The approach to the protection of adult victims of domestic and family violence and sexual assault complainants / witnesses (sometimes called vulnerable or special witnesses) in domestic violence protection order matters and criminal cases varies throughout Australia. Protections may include closed courtrooms, using closed circuit television rather than being in court, using a screen in court, having evidence recorded so the person is only cross-examined once, allowing the presence of a support person and disallowing direct cross-examination of one party by another in certain proceedings. See 9.2.3 Vulnerable or Special Witnesses for a table outlining jurisdictional approaches.
Note that detailed information about children giving evidence in criminal proceedings can be found here: Bench Book For Children Giving Evidence In Australian Courts
Important note: The expression “self-represented” is used in this bench book to refer to any situation where a party is not represented by a lawyer. It is acknowledged that the expression may be inappropriate in some contexts. It may, for example, suggest that a party has exercised a choice to represent themselves, when in fact they do so due to lack of financial resources or access to legal assistance. On the other hand, some parties choose to represent themselves because they believe they are best equipped to do so and may object to the use of an expression such as “unrepresented” on the basis that it may, for example, be interpreted to suggest that they are unable to properly or fully participate in the proceedings in their own right.