Australia
Gelb, Karen, ‘Understanding Family Violence Court Proceedings: The Impact of Family Violence on the Magistrates’ Court of Victoria’ (2015) Karen Gelb Consulting.
This report prepared for the Victorian Royal Commission into Family Violence contains data from family violence matters arising out of a study conducted in various Magistrates’ Courts in Victoria. Gelb notes that while the most common outcome in intervention order proceedings is that the court issues an intervention order, many adjournments are still made. Adjournments are often made to synchronise the civil matter with an associated criminal matter or, ‘to allow police to undertake further discussions with the affected family member, to find out about related custody matters, or to provide more information on the precise circumstances of the incident’ (p 40). Gelb notes that, ‘The use of adjournments for either purpose may be problematic, both for the court (in terms of requiring additional court resources when matters are relisted) and for the parties (especially the affected family member, who must return to court time and again)’ (p 40).
King, Michael and Becky Batagol, ‘Enforcer, manager or leader? The judicial role in family violence courts’, (2010) 33 International Journal of Law and Psychiatry 406.
The authors note that judicial supervision of offenders is an important component of many family violence courts. Skepticism concerning the ability of offenders to reform and a desire to protect victims has led some judges to use supervision as a form of deterrence. Supervision is also used to hold offenders accountable for following court orders. Some family violence courts apply processes used in drug courts, such as rewards and sanctions, to promote offender rehabilitation. This article suggests that while protection and support of victims should be the prime concern of family violence courts, a form of judging that engages offenders in the development and implementation of solutions for their problems and supports their implementation is more likely to promote their positive behavioural change than other approaches to judicial supervision. The approach to judging proposed in this article draws from therapeutic jurisprudence, feminist theory, transformational leadership and solution-focused brief therapy principles.
Special Taskforce on Domestic and Family Violence in Queensland, Not Now, Not Ever: Putting an End to Domestic and Family Violence in Queensland (2015).
The report notes that where an application for a protection order indicates that an interpreter is required, ‘a Magistrate will assess whether or not an arrangement should be made for the first court mention. Where the matter is brought to the attention of the court at the first mention, an adjournment will likely be necessary to obtain the services of an interpreter. This potentially creates a gap in protection for victims of domestic and family violence’ (p 295).
Victorian Royal Commission into Family Violence, (Volume 3, 2016).
Delays are discussed at p 124. It is noted that often, there are legitimate reasons for delays caused by respondents to protection order applications – ‘Delays can be caused by the perpetrators lawful assertion of procedural rights; for example, it is not uncommon for the respondent to seek ‘further and better particulars’ about the application and to be given the opportunity to consider those particulars. There may need to be an adjournment to allow the applicant to respond to that request’ (p 124).
However, sometimes respondents abuse processes and cause delays without legitimate reasons. For example, perpetrators could make a cross-application without legitimate reasons (p 124). Other tactics include failing to appear at hearings, evading service of orders and seeking adjournments at short notice. These tactics – ‘are part of the violence perpetrated against the victim and are calculated to terrorise, disempower, humiliate and undermine the victim’s attempts to protect herself (or himself) and other family members’ (p 125). Furthermore, delays associated with parallel criminal proceedings are discussed from pp 126-127.
It is acknowledged that courts across Australia have different approaches to managing domestic and family violence related proceedings. Where possible the safety and wellbeing of victims, their children and other affected people should be promoted and perpetrators/offenders should be held accountable for domestic and family violence behaviours. Expeditious trial processes are likely to contribute to achieving these outcomes; and may be used by judicial officers, where possible, in the exercise of their power to regulate the court’s proceedings. Making adjournment orders is integral to this case management power and, in some cases, an adjournment may be necessary to ensure that parties are afforded fair and equal access to justice. Judicial officers should be familiar with any legislative provisions and practice directions in their jurisdiction requiring them to consider issues specific to the management of domestic and family violence related cases and to deal with these matters expeditiously.
Adjournment orders are commonly made by courts dealing with matters involving domestic and family violence for a range of reasons, including to synchronise the civil matter with an associated criminal matter, to allow police to have more detailed discussions with the victim, their children or other affected people, to clarify child and parenting arrangements, or to provide more information about the matter before the court. Adjournments may also be granted to ensure procedural fairness where a party seeks further and better particulars about the application or where the other party requires an opportunity to fully respond; or where a party requires legal representation, an interpreter or other support services that are not immediately available. In some cases it may be appropriate to adjourn a matter even though, for example, the applicant or a key prosecution witness has not attended court. In such cases an adjournment will allow inquiries to be made about the safety of the relevant person before concluding the matter.
There may be cases where a party does not have a legitimate reason for seeking to delay proceedings; their motivation may be to abuse court processes as a means of continuing the perpetration of domestic and family violence against the victim (this is also known as “systems abuse”). Tactics include seeking adjournments at short notice, initiating applications or making cross-applications without proper grounds, failing to appear at mentions and hearings, and evading service of orders. These tactics may not be readily apparent to a particular judicial officer if used by a party in multiple courts before different judicial officers and, as a consequence, may be difficult to scrutinise and assess. Courts should carefully scrutinise a party’s request for an adjournment. Appropriate case management may include refusing an adjournment if it appears the respondent seeks the adjournment to prolong the proceedings and maintain control over the victim.
When an order for the adjournment of proceedings involving domestic and family violence is made, judicial officers should consider whether it is appropriate to make additional interim orders, directions or arrangements for the duration of the adjournment to ensure the safety and wellbeing of the victim and their children.
It is acknowledged that courts across Australia have different approaches to managing domestic and family violence related proceedings. Where possible the safety and wellbeing of victims, their children and other affected people should be promoted and perpetrators/offenders should be held accountable for domestic and family violence behaviours. Expeditious trial processes are likely to contribute to achieving these outcomes; and may be used by judicial officers, where possible, in the exercise of their power to regulate the court’s proceedings. Making adjournment orders is integral to this case management power and, in some cases, an adjournment may be necessary to ensure that parties are afforded fair and equal access to justice. Judicial officers should be familiar with any legislative provisions and practice directions in their jurisdiction requiring them to consider issues specific to the management of domestic and family violence related cases and to deal with these matters expeditiously.
Adjournment orders are commonly made by courts dealing with matters involving domestic and family violence for a range of reasons, including to synchronise the civil matter with an associated criminal matter, to allow police to have more detailed discussions with the victim, their children or other affected people, to clarify child and parenting arrangements, or to provide more information about the matter before the court. Adjournments may also be granted to ensure procedural fairness where a party seeks further and better particulars about the application or where the other party requires an opportunity to fully respond; or where a party requires legal representation, an interpreter or other support services that are not immediately available. In some cases it may be appropriate to adjourn a matter even though, for example, the applicant or a key prosecution witness has not attended court. In such cases an adjournment will allow inquiries to be made about the safety of the relevant person before concluding the matter.
There may be cases where a party does not have a legitimate reason for seeking to delay proceedings; their motivation may be to abuse court processes as a means of continuing the perpetration of domestic and family violence against the victim (this is also known as “systems abuse”). Tactics include seeking adjournments at short notice, initiating applications or making cross-applications without proper grounds, failing to appear at mentions and hearings, and evading service of orders. These tactics may not be readily apparent to a particular judicial officer if used by a party in multiple courts before different judicial officers and, as a consequence, may be difficult to scrutinise and assess. Courts should carefully scrutinise a party’s request for an adjournment. Appropriate case management may include refusing an adjournment if it appears the respondent seeks the adjournment to prolong the proceedings and maintain control over the victim.
When an order for the adjournment of proceedings involving domestic and family violence is made, judicial officers should consider whether it is appropriate to make additional interim orders, directions or arrangements for the duration of the adjournment to ensure the safety and wellbeing of the victim and their children.