How can victims of family violence avoid confrontation in court proceedings?

Going to court can be a very intimidating experience for all involved but particularly in Family Law proceedings where there is a history of family violence. The perceived imbalance of power between parties due to either past or present domestic violence creates unique problems in this area of litigation.

Family violence has a wide definition in the Family Law Act 1975 (s4AB). For example, it includes violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful. It includes physical assault, threats of physical assault, financial abuse by withholding funds in order to exercise control over the family member and isolating a family member from other members of their family.

The Family Law Courts, however, have special procedures when dealing with matters concerning family violence. In parenting matters, the requirement to pre-file a mediation certificate may not be needed (having the permission of the Court) where there are allegations of family violence.

Putting a safety plan into action when attending court

A safety plan can be put in place in advance of any attendance at Court. This plan may include:

• separate rooms for interviews with the Family Consultant in parenting matters,
• appearing by video link in hearings,
• a separate entry and exit from the Court, and
• assistance from Court security if or when required.

It is not necessary to have an Apprehended Domestic Violence Order in place prior to seeking special safety arrangements with the Court. A party seeking a safety plan needs to call the Court at least two days prior to the court event to make arrangements with the Registry.

It is also advisable for the party who has suffered family violence to attend court with a support person, who can accompany them in and out of the building.

The requirement to pre-file a mediation certificate may not be needed where there are allegations of family violence.

Violence and threats of violence, intimidation, stalking and harassment should be reported to the police. The police may issue an interim Apprehended Domestic Violence Order (‘ADVO’) but the existence of an ADVO does not necessarily stop the restrained party from having parenting orders and seeing his children.

Family violence may be taken into consideration in the making of parenting orders to ensure the safety of the parent and/or children. Family violence may also be seen to be relevant in the division of assets in property cases where the level of violence against one party by the other is so extreme as to have negatively affected the abused party’s financial contributions to the relationship. (See Streeterlaw’s article on how the court can adjust property allocations in favour of victims of family violence here.)

The main aim of the Family Courts is to ensure, wherever possible, that all people have equal access to the court process and a just and equitable outcome, while protecting the safety of the parties and their children.

For further information or advice, please contact Streeterlaw Family Law Accredited Specialist Ms Simone Green at Streeterlaw on 8197 0105 or email advice@streeterlaw.com.au.