All Lawyers to Deal with Family Violence Matters Better

Family violence is on the rise in family law matters in Australia, with 68% of the approximately 2,000 Australian family law professionals attending the Smokeball and FamilyProperty State of Family Law Series saying most of their family law cases have allegations of family violence. This correlates with the fact that in the 2022 financial year, 80% of cases filed in the Federal Circuit and Family Court of Australia (FCFCOA) raised allegations of Domestic and Family Violence and 89% had one or more risk factors.

Senior Judicial Registrar, FCFCOA, Anne-Marie Rice, noted it is highly likely with separated families that there are elements of risk whether the matter is before the Courts or not. “The many factors of risk that the Courts see include domestic and family violence, child abuse, drug and alcohol misuse, abduction, or immediate risk of harm. Between 2021 and 2022, 89% of cases alleged one or more risk factors to be present, and 66% of cases alleged four or more risk factors. It’s naive to think that there are no relevant risk factors just because a matter is not before the Courts”.

“Steps the Courts have taken to address and respond to risk include training on the Safe & Together Model for judges, registrars and court child experts, along with the expansion of Lighthouse, a new screening and assessment tool, to look at matters through this risk lens and ensure we are protecting vulnerable parties and children,” she added.

Mandatory Training

The overwhelming prevalence of domestic and family violence is why Fiona Kirkman, Global Family Law Evangelist at Smokeball, is calling for mandatory family violence training for all family lawyers. “In my work as a family lawyer and as an industry support, I have seen firsthand the huge difference family violence training can have in every stage of the legal process, not only to deliver the best outcome in the judicial system but to help reduce the long-term traumatic impact, particularly on the children, and to reduce the chance of recurrence in the future for that family or with future partners,” said Ms Kirkman.

Joplin Higgins OAM, MD, Joplin Lawyers believes training should be mandatory for all lawyers, not just family lawyers. “The impact of family violence doesn’t just happen in the family law area; it happens in every area where we deal with the public”, Ms Higgins explained. “It’s of extreme importance that all lawyers have an idea what they should look out for, what they should be asking their clients and what they should be getting as a disclosure from the other side where family violence might be influencing the process.”

Steve Frost, Founding Director of Horizons Family Law Centre, agreed. “In a society where family violence has become so prevalent, there is an opportunity to know better so that we can respond better. The definition of family violence in the legal context is violent or threatening behaviour and any behaviour that coerces and controls a person’s family or causes members of the family to become fearful. There has been a welcome evolution in the textured approach to what constitutes family violence and the different areas it impacts,” he noted.

The Series delegates voted overwhelmingly in favour of mandatory training on family violence with a 91% majority. 

Understanding Coercive Control

The FCFCOA recently integrated the global Safe & Together Model in the court system with training for judges, registrars and court child experts, along with new screening and assessment tools, to look at risk through a coercive control lens and ensure that children are protected.

David Mandel, Executive Director of Safe & Together Institute, who the FCFCOA has engaged to undertake family violence-focused training, explained the approach. “Our model provides a comprehensive and holistic perspective on the harm caused to children and adult survivors. It goes beyond isolated incidents of abuse, focusing instead on patterns of coercive control and their impact on behaviours. By examining the actions of perpetrators and the resulting harm caused to individuals, including children, the model offers a deeper understanding of the dynamics within families affected by domestic violence,” he added.

Mr Mandel further explained that coercive control can be inclusive of physical violence but isn’t limited to that. It also includes rule setting, setting unreasonable expectations, entrapment, hindering civil liberties, high levels of control, and not allowing the co-parent to be the parent they want to be and often continues post-separation.

Trends in Domestic and Family Violence

It was noted that domestic violence often intersects with mental health and substance abuse issues. 41% of the delegates say that most of their cases involve coercive control, with 34% of those cases also involving mental health and substance abuse issues. 87% of cases include culturally linked resistance to identifying with family violence.

There are a number of rising trends, explained Ghania Dib, Principal Lawyer GDA Lawyers: “A common practice we are seeing is victim blaming and interrogation where a perpetrator creates a situation that forces the victim to retaliate, and then the Police are called. Police subsequently interrogate the victim, and a family violence order is issued that protects the perpetrator. In CALD communities, there are specific trends that arise from the separation of the law and religion. For example, in Muslim communities where a legal divorce leaves a religious marriage still intact, the husband may refuse to provide the wife with a religious divorce to prevent her from moving on or to pressure her to give up her dowry. Or a man may not register his religious marriage, so if it fails, particularly in the early stages, there is no legal recourse for his wife.”

Behaviour change programs are now available locally and online that aim to rehabilitate individuals who have engaged in family violence. Long-term programs are more effective in promoting real change. 78% of professionals have referred clients to behaviour change management and/or anger management courses.

Social & Financial Support

Anna Baltins, Associate Director of the Domestic & Family Violence Unit at Legal Aid NSW, discussed the importance of referring clients to social support services, stating: “The Family Advocacy and Support Services (FASS) is a specialist service that provides legal and social support to clients affected by family violence.” The FASS is provided nationally and provides separate social support services for women and men that can be accessed prior to and during court proceedings.

“Collaboration between legal practitioners and support services is essential for effectively addressing family violence cases. It is also important to adopt a holistic and trauma-informed approach when supporting clients affected by family violence. By embracing a multidisciplinary and holistic approach, professionals can ensure that their clients receive comprehensive assistance and support.” noted Ms Kirkman.

The Family Law Act currently lacks any significant guidance as to how family violence can be taken into consideration in relation to property matters. Accordingly, the Australian Law Reform Commission (ALRC) has made recommendations for the FLA to be amended to include a statutory tort of family violence to provide remedies to impacted parties. To date, both the previous government and current government have failed to take up this recommendation.

Property settlement percentage adjustments due to family violence face challenges in proving conduct and impact. Victims can pursue personal injury claims for physical and psychological harm, but time limitations and assessing the recoverability of damages are crucial. Family lawyers should consider victims' support schemes for their clients and refer to personal injury lawyers for advice on tort claims.

Many delegates (64%) have never sought a family law property settlement adjustment due to family violence, (62%) have never had a case with a VSS claim, while 83% have never referred clients to a personal injury lawyer. 

Family Dispute Resolution

When contemplating participation in Family Dispute Resolution (FDR), lawyers and mediators must consider the circumstances of family violence, urgency, and the safety of their client in each case, said Kath Manby, Principal Family Lawyer, VM Family Law. “Quite frequently with family violence, there should not be an automatic goal to get to court, as mediation can often be better for victims of domestic violence in terms of having more control such as minimising contact, allowing support people, and having shorter sessions. With a risk of violence, a client can seek an exemption from FDR, but practitioners need to think carefully if this is in the client’s best interests”.

57% of webinar attendees think that seeking an exemption for participation in FDR in cases involving family violence should not be a general rule.

Ethics

How to ensure you are not complicit in perpetuating violence through your professional conduct was explored in the ethics webinar, especially for professionals working with perpetrators. In addition, practitioners should be aware that certain matters must never be included in an offer at mediation, explained Michelle May AM KC, former Judge and barrister and mediator at Lucinda Chambers. “If a practitioner tries to negotiate the withdrawal of a criminal complaint as part of an offer, this will amount to professional misconduct. Further, it is recommended to avoid discussing “final offers” in mediation."

“Mediators must manage the conflicting and varying emotions and interests of both the parties and their lawyers during mediation. By establishing trust with a pre-mediation conference with each party and continually demonstrating that they are listening and truly hearing what each party is saying, the mediator can increase the chances of reaching a resolution that both parties can live with and can help ease the distress that the parties may be feeling around mediation. This is especially important where family violence is an issue,” Ms May added.

Safety for Professionals

60% of delegates do not have a workplace plan for managing their own and their team’s safety as family law professionals involved in family violence matters.

Joplin Higgins OAM reminded firms that policies should include counselling for both legal and admin staff who are exposed to family violence incidents through creating reports. Physical safety for staff should always be a consideration.

Vicarious traumatic stress (VTS) is the cumulative emotional impact of working with people who have been traumatised and work with associated traumatic material. VTS is a real issue for family law practitioners who often are repeatedly exposed to traumatised clients and traumatic material through their work.

Dr Adrian Allen, Principal Clinical Psychologist at Healthy Mind Clinic, detailed the number of factors at an individual level that may increase the risk of developing VTS, including a practitioner’s own traumatic experiences in the past, being prone to depression or anxiety, and being at a similar life stage or event to a client. Workplace factors such as excessive workloads, poor resource management, and encouragement of harmful attitudes around competitiveness and independence can all leave lawyers vulnerable to developing VTS.

“While family law practitioners will inevitably be confronted repeatedly with traumatic material and traumatised clients, there are many important tools and skills we can use to protect ourselves against developing VTS. These tools include: practicing mindfulness, controlled breathing, engaging in realistic, helpful thinking, engaging in regular pleasurable activity and exercise, maintaining social connections, ensuring regular sleeping and eating schedules, setting boundaries (i.e. not bringing family violence case materials and other traumatic materials home with you, leaving them at the office and only working on them during your set work-related hours), and seeking guidance from trauma-informed mentors and supervisors” he said.

Australian Family Law Lounge