Adfvc.unsw.edu.au

Case study
Yasmin, a mother of three, had lived in a domestic violence relationship for thirteen years before she
was finally able to leave. She experienced ongoing physical abuse and at least one of her children
was sexually abused. Yasmin continues to face significant disapproval from her church over the
divorce.
Since separating, Yasmin has spent years in and out of court dealing with property settlement and child custody matters. For the first two and a half years of legal proceedings, Yasmin represented herself but she later hired a lawyer.
Eventually, she was ordered to pay her ex-partner $90 000 so that she could stay in the family home. Her legal expenses amounted to a further $50 000. Although she was unhappy with the outcome, she felt pressured by her lawyer to agree: The lawyer I had was disgusting. He used my vulnerable situation. nonetheless, Yasmin did have one major success, retaining custody of her children: At one level I managed to keep him away from the kids, which was my best win. The price, however, was a significant one, with Yasmin now paying off a $450 000 mortgage on her own. Although she had a well paid job, Yasmin felt financially ruined.
Following separation from an abusive partner, a substantial amount of women’s time, energy and financial resources are taken up with the resolution of matters through legal systems. A large proportion of women in the study (including twenty of the thirty-two women who participated in individual interviews) had engaged in legal matters since separation including: criminal cases; protection orders; property settlement; child contact; wills; victim compensation; bankruptcy; and legal action relating to jointly-owned business.
The study identified legal issues as a pivotal area affecting women’s financial outcomes. positive legal decisions for women can make a difference to their material circumstances and often bring more intangible benefits, such as an acknowledgement of their experience of violence and making their ex-partner accountable for his behaviour. However, legal processes can also be an acute source of financial stress and hardship. The costs of pursuing legal action, often spanning many years, and the consequences of adverse decisions left some women in the study destitute or in substantial debt.
Parenting arrangements
A critical area of concern for women was around family law issues. Changes to the legislation in 2006 gave greater emphasis to children maintaining relationships with both parents and a presumption of shared parental responsibility, possibly leading to more equal time spent with each parent. Aside from safety concerns for families affected by domestic violence, these reforms have had implications for women’s financial settlements, including for child support, property and spousal maintenance arrangements (Fehlberg 2008). Australian longitudinal research by Smyth et al. (2008) suggests that share care arrangements tend to revert to sole care over time (often by the mother), while the property division remains the same. In this eventuality, women may receive a less equitable financial settlement, given they are carrying the greater share of parenting responsibility.
Women in this study reported finding themselves receiving less in financial settlements, where more equal time parenting arrangements had been determined by the court, and then having ex-partners fail to meet their parenting obligations.
The amount of time men spend with their children decreases over time. It builds up to the court case – they are on time and have them for the total time. But after the court case and the ruling’s in, then no phone cal s, no contact. [Service 7 Client focus group 2] As this woman indicates, there is no penalty for men who do not meet their parenting obligations once the order has been made. Moreover, there is no reassessment of arrangements for child support payments or property division, unless the parties go back to court and face additional legal costs.
Property settlement
participants reported a range of tactics used by their ex-partners that contributed to them receiving
poorer outcomes regarding property settlement:
running up large debts on joint bills or credit cards, so that property sold went to pay those debts before settlement delaying agreements regarding property, impacting on optimal selling dates damaging joint property or sabotaging the sale of property in order to negatively impact on making claims on property or settlements that they did not contribute to or were not entitled to tricking or misleading women into receiving a poorer outcome selling property without women’s knowledge, even though they were a joint owner forcing women to sign agreements or documents impacting on property settlement, when they did not properly understand the outcome.
I’ve just in the week gone back to the house and had to patch up punch holes and al of that, spent over $3000 to get the house up to scratch for sale, and his friends threw a party at the open inspection and put al their beer cans up through the garden, and stood out the front, had the police cal ed with their music blaring. So they ruined the whole sale of the house. . Now I got this offer on the house which is $50 000 less than what it should be but I’m going to have to take it because the foreclosure on the house is in two weeks. [Service 2 Client 1] Compounding women’s difficulties in receiving more equitable property settlements is the fact that the Family Court does not take domestic violence into consideration as a cause of financial incapacity, in terms of present or future health costs, or physical incapacity that creates a barrier to employment (Evans 2007; Middleton 2005; Sheehan & Smyth 2000). Currently, the court only takes domestic violence into account in assessing the parties’ contributions to the relationship (e.g. the impact of violence on the non-violent party’s capacity to make contributions) and in assessing whether a party’s health or earning capacity was diminished because of the violence (nSW Law reform Commission 2006). The Family Court takes this perspective because it applies a ‘no fault’ approach in divorce proceedings and because domestic violence compensation matters can be dealt with elsewhere under civil/tort law (compensation) or the common law (criminal proceedings).
protracted property disputes can have emotional as well as financial repercussions for women. Indeed, for a few women in the study receiving an equitable settlement was less important than achieving final separation from their ex-partner and moving on: I won’t get any money out of this settlement. I don’t want it . . No money is worth it. And I can’t go through much more court stuff, I real y can’t. I’d just be happy if he went away and took everything that he owned and I never saw it again. [Service 3 Client 1] Legal costs
In addition to the financial outcomes of parenting arrangements and property settlement, the costs
involved in pursuing legal action were of deep concern to most of the women in the study. For some, the
expense of legal action was prohibitive, meaning they were unable to gain equitable resolution. Other
women were embroiled in legal battles whether they wanted to pursue them or not. Women incurred a
range of direct costs including:
Legal fees for advice, preparation of documents, correspondence and representation:
I earn $30 000 a year and my legal fees last year were $20 000 and the mortgage was $18 000. Thank God for Kevin Rudd and his hand outs is al I can say. [Service 5 Client focus group] You have to respond to certain letters, you can’t just let them go because if you get back to court you need those as evidence. Every letter’s like $500 or $600. [Service 5 Client focus group] Some women did not qualify for public 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.
ƒ Court associated administrative costs such as charges for filing papers; serving summons
and subpoenas; depositions; court transcripts.
ƒ Court-appointed expert fees which are in addition to existing support from counsellors,
Then I have to pay for the Independent Children’s Lawyer which is $1300. I have to try and get an exemption for that. My lawyer’s agreed to go pro bono and that’s where the money for the house is going to go but she said the Independent Children’s Lawyer is different. When they do the court report, I have to pay for that as wel . [Service 3 Client focus group] Child care and transport costs in order to attend court. One participant’s associated costs
included a $6000 childcare bill amassed over two years.
Costs of collecting evidence such as attending surgeries to ensure doctor’s certificates for
proof of school absences, or video recording breaches of protection orders.
Costs of multiple, ongoing cases including legal action across more than one jurisdiction
and vexatious cases brought by their ex-partners in order to continue the relationship abuse
through the courts:
I’m running four cases in four different jurisdictions at the same time and I have to be down at hearings, photocopying, subpoenas, the whole lot. Masses of documents, heaps of debt – not just appearing at court, I actual y have to prepare it. There was no recognition given to my special circumstances. [Service 8 Client 5] He’s just enjoying taking me through the system because he earns a lot of money. [Service 5 Client focus group] Aside from actual legal fees and court costs, several women also highlighted the impact of attending court in terms of their ability to find and stay in employment. Some women made choices not to pursue their legal entitlements because of the impact of legal action on their capacity to work: There’s a whole bunch of things that maybe I could go to court with but al that’s going to do is put me back [there], being in the court process and dragging lots more finances and causing me to be a fruit loop and I’m not able to be there for my kids. You can’t work when you’re going to court every month. [Service 5 Client focus group] Inadequacy of representation
Given the considerable investment required to pursue legal matters, as well as the impact of successful
outcomes on women’s healing and financial outlook, it is important for women to have faith in their legal
representation. Unfortunately, a number of women in the study were dissatisfied with the quality of their
legal representation. They spoke of feeling they were not being heard or being treated with disdain.
Many of these 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: I’m continuing to have to deal with a violent man and put my child at risk, and I feel like that if I had money to pay for the court case, if I had lots of money to get a good lawyer – because with Legal Aid I’m finding I’m writing my affidavit, I’ve had to do most of it myself, and when I went to see the lawyer it was a rush through. [Service 2 Client 3] The main problem I had was – I went through Legal Aid which I was lucky with, I didn’t have to pay much – but the lawyer I had was absolutely crap. Half of the information I gave her she didn’t want because she said, ‘I don’t need that until it goes to trial’. Then we went to mediation and my barrister cracked the shits because I hadn’t told the lawyer or the lawyer hadn’t told her al the stuff I was saying. She said, ‘None of this is written down’. So the communication between them was absolutely disgusting. [Service 3 Client focus group] Some women who were, in fact, eligible for Legal Aid chose to pay a private lawyer instead, due to concerns for the safety of their child and the risk that their ex-partner would get some shared parenting arrangement.
participants’ experiences emphasise that good legal process and representation optimises positive financial outcomes for victims but that this entails significant cost. As such, they used five key strategies to support their capacity to ensure quality legal representation: Legal advocacy
Study participants greatly valued advocacy for women seeking legal solutions to their concerns. All of
the services in the study provided some form of legal advocacy and were able to provide clients with
legal information and/or refer them to local and specialised legal services (e.g. migration services). They
explained legal letters and other documents in plain English or in the language of the women seeking
assistance. They helped gather and prepare documents for court, including providing photocopying
services. A number of women in the study indicated that legal advocacy had assisted them to feel heard,
equipped and confident enough to proceed.
Legal information
Women in the study emphasised that having information about their rights and understanding legal and
court processes were invaluable to helping them make decisions and alleviating their anxiety about
pursuing legal action. Most women had accessed or been given written information about their legal
rights and processes, although some had found this overwhelming and would have preferred to speak
with someone in person or have the information provided in another format (e.g. a DVD).
Women found information provided directly by advocates and legal services, as well as legal workshops, such as divorce and family law classes run by Legal Aid, very helpful in making information more comprehensible.
Some participants commented that the police are also well positioned to provide women with important information about their rights and legal processes when attending call outs.
Self representation
One way of reducing legal costs is through self representation. A number of women in the study spoke of
becoming very familiar with the law and with their rights in order to be able to deal with cases themselves
or to stand up to bullying tactics of their ex-partner:
I think I read the DV review laws – al 509 pages of them. Not by choice or obsession or anything but just about finding out one bit and then reading another bit and another bit and going ‘Oh my god’. [Service 5 Client 3] Several women represented themselves because they did not qualify for Legal Aid and could not afford representation, or because they were disappointed with the representation they had received in the past: So what I did, I rang the family law court themselves, spoke to a lovely guy and explained my situation. He said: ‘You can represent yourself. You sound like you’ve got it together. We can help you with al the paper work, lodging forms, there is duty solicitor on cal every day. If you get court support through the DV service they can come along with you’. [Service 5 Client 3] These women were able to represent themselves because they had the time and capacity to become familiar with the law, and the confidence to resolve the matters themselves. Only a few women in the study felt in a position to be able to take this on.
Court support
The court room and court process can be a daunting experience for those engaged in legal battles. Becoming familiar with the environment and the process can go a long way to reducing anxiety about giving evidence and having to face one’s abuser in the court room.
Court support workers can provide assistance by explaining the court process to clients, providing information about rights, making safety arrangements, providing emotional support during court and assisting in preparing documents. Women in the study who had been able to access court support spoke highly of the assistance provided. Even those who were able to have a family member, friend or worker attend court with them found this provided substantial emotional support.
Unfortunately, while court support is available to women for some legal matters, it is not available everywhere and for all matters. For example, the Legal Aid Commission of nSW administers state government funding for the Women’s Domestic Violence Court Advocacy program (WDVCAp), involving thirty-three Women’s Domestic Violence Court Assistance Schemes servicing fifty-five local courts throughout nSW. However, the WDVCAp is not available for family law matters. The different levels of support available in different courts can be confusing: I do have a support person with the criminal case, a social worker. With the custody case, I don’t have anyone. They’re very different. They’re like separate worlds. [Service 2 Client 5] Access to restitution and compensation
One, often unrecognised, source of financial support for victims of domestic violence is statutory
compensation. Victim compensation is available around the country to women affected by domestic
violence through the following legislation:
Victims of Crime Assistance Act 2009 (Qld) Victims of Crimes Assistance Act 2006 (nT) Criminal Injuries Compensation Act 2003 (WA) Victims Support and Rehabilitation Act 1996 (nSW) Victims of Crime Assistance Act 1996 (Vic) Victims of Crime (Financial Assistance) Act 1983 (ACT) Victims of Crime Assistance Act 1976 (Tas). Under these Acts, there are standard eligibility requirements for compensation which refer to the types of injury, severity of injury and availability of a police report, and a set time frame in which to apply for compensation. There are also limits to the amount that can be applied for, which vary across jurisdictions Only a few women in the study had taken up the option of victim compensation for the abuse they had experienced. While they did not feel it adequately compensated them for their experience of violence, it did offer them some much needed financial relief: The [state victim compensation authority] paid for my teeth, $16 500. My mouth was al smashed so that was enough evidence. [Interviewer: How did you come to apply for victim compensation?] I found a pamphlet one day in one of the domestic violence services. I went to the GP and he wrote a letter. They [the domestic violence service] linked me up to a lawyer that did my case for free. They organised counsel ing for the children because one of my kids is very suicidal. And then they fixed my teeth. [Service 7 Client focus group 2] In a recent paper on victim compensation schemes in Australia, Barrett Meyering (2010) has specifically drawn attention to measures adopted in different jurisdictions to increase access to compensation for domestic violence victims, such as: provisions acknowledging the discriminatory nature of time limitations on applications; provisions acknowledging the likelihood of more than one act of assault; the abolition of clauses that exclude applications by victims who were in a relationship with the assailant; and the relaxation of reporting requirements. In new South Wales and the northern Territory, women also have the option of applying for a standard award of $7500 to $10 000 for the ‘compensable injury’ of domestic violence. This is a smaller compensation amount than available under the broader victim compensation schemes but has less stringent eligibility requirements. More widespread uptake of these changes is likely to increase access to this source of compensation for women affected by domestic violence.
Consideration of domestic violence in making parenting orders
participants in the study saw that that the Family Court’s orders for shared parenting arrangements
with violent men not only put women and children in danger, but ultimately resulted in poorer financial
outcomes for women in terms of child support payments, property settlements and other financial
divisions. Three recent, key government inquires into issues of Australian family law and the courts have
all pointed to poorer wellbeing for children resulting from shared parenting where family violence is an
issue (Chisholm 2009; Family Law Council 2009; Kaspiew et al. 2009). This is not only a major concern
for the best interests of the children but has ongoing implications for the financial security of victims and
their families.
participants strongly recommended that domestic violence be recognised as evidence in determining parenting arrangements. There were calls for monitoring adherence to parenting orders and subsequent penalties for non-compliance, as well as reassessment of property and other financial divisions. It should be noted that at the time of writing there were proposed amendments to the legislation to give greater consideration to family violence in making parenting decisions.
Consideration of domestic violence in determining property settlement
Greater consideration by the courts of domestic violence as a factor when determining property settlements was recommended by workers in the study to support better outcomes for victims. This is supported by the nSW Law reform Commission (2006), on the grounds of increasing social awareness and intolerance of domestic violence, and the potential for providing some form of redress for survivors. Similarly, Middleton (2005) recommends that domestic violence be viewed as unreasonable conduct and that the court make orders that reflect the perpetrator’s responsibility in cases where he has brought about financial losses. She argues that the fact that domestic violence has had financial consequences for the survivor can be more easily proven by objective evidence (e.g. legal costs, relocation costs, lost income and past medical expenses), than proving that the violence has had a discernible impact on a survivor’s contributions (the latter being the current focus of the courts).
Recognition of vexatious cases
Women and workers in the study repeatedly expressed the view that men were not made accountable for
their behaviour through justice and other legal processes and instead were able to continue their abuse
through the pursuit of multiple and ongoing legal matters. Study participants recommended that the
courts recognise vexatious cases as part of the continuation of domestic abuse and not allow them.
In its 2008 submission to the parliamentary Law reform Committee, Women’s Legal Service Victoria listed a number of recommendations to this end, including: that the Victorian Attorney General monitor cases and make application for a vexatious litigant where applicable (thereby avoiding retaliation towards the other party); and that the management of vexatious litigants be informed by research around family violence/stalking (Women’s Legal Service Victoria 2008 ). The Clearinghouse researchers support these recommendations and their implementation across Australian jurisdictions.
Widened access to legal representation
Greater access to legal representation for women was strongly advocated by workers and women in the study.
The primary recommendation was for a widening of the eligibility criteria for Legal Aid, particularly to include women who may own their own home or have other property but who have a low income. A secondary recommendation was for a review of Legal Aid’s policy on pursuing cases and the process of allocation of lawyers to cases – so that women can retain the same lawyer throughout their case. The authors suggest that a review of Legal Aid might consider these and other issues concerning women affected by domestic violence.
Other recommendations concerning legal representation were for joint legal and social support services, and improving women’s access to community legal centres, women’s legal services and pro bono lawyers. There was also a recommendation for providing more translators to assist cases where women have limited or no English or have a disability hindering their communication.
Training for legal and court officers
In order to address a perceived lack of understanding of domestic violence and lack of concern for safety
shown by the court, women and workers in the study called for compulsory training of lawyers, registrars,
court staff and the judiciary around domestic violence issues and the intricacies of laws relevant to
domestic violence proceedings. In Australia, domestic violence awareness training is available but
is not commonly taken up by the judiciary. Moreover, domestic violence training is not a compulsory
component of any law degree and further training for judges is taken up on a voluntary basis.
There are a number of ways in which education and training might be delivered to the courts and judiciary. For example some overseas jurisdictions make domestic violence issues training compulsory for judges (and lawyers), particularly if presiding in a domestic violence court.
A useful accompaniment to such training is a specialised benchbook for judges and magistrates. For example, the new Mexico Judicial Education Centre provides a benchbook on domestic violence, available to all levels of the state judiciary; and the national Judicial Institute in Canada has developed an electronic benchbook on domestic violence and family law (neilson & McGarry 2009).14 Development of a benchbook resource in Australia could be taken up by individual state and territory law reform commissions, legal aid bodies or law councils.
A further innovation from north America concerns the establishment of a national Judicial Institute on Domestic Violence.15 A national Judicial Institute on Family Violence is being considered in some legal circles in Australia and was an option discussed by the Australian Judicial Institute of Administration at its family violence conference in 2009.
Court specialisation
Court specialisation would offer an opportunity to put many of the above recommendations in place and offer victims of violence greater safety and access to justice. The purpose of court specialisation is to ‘consider evenly the safety of victims of domestic violence and ways to ensure offender responsibility and accountability’ (Stewart 2005). Specialisation also aims to improve efficiency in the court’s process and to expedite domestic violence cases.
Features of court specialisation differ in different jurisdictions but may involve: high quality brief preparation to encourage guilty pleas specially convened courts or allocated list days for domestic violence cases training around domestic violence issues for lawyers, court staff and judges and magistrates court monitoring of offender progress and compliance with court orders referral and intervention of multiple services and agencies to provide support services to victims and their children, as well as services for perpetrators coordination systems and protocols between agencies and services to respond to referrals. 14 See new Mexico Domestic Violence Benchbook. Viewed 6 February 2010, <http://jec.unm.edu/resources/benchbooks/dv/new%20Mexico%20Domestic%20Violence%20Benchbook.pdf>.
15 Viewed 6 February 2010, <http://www.ncjfcj.org/content/blogcategory/78/299/>.
Some specialist courts deal with all matters related to the one family, recognising the broader context of domestic violence; that is, the court might deal with all family law matters and property settlement, as well as domestic violence, child abuse, sexual assault and drug and alcohol offences that affect the parties. While a number of pilot specialist courts or aspects of specialisation have been established around the country, there has yet to be a widespread uptake of specialisation in response to domestic violence.
Key recommendations
Government to amend the Family Law Act 1975 to give greater consideration to domestic
violence in family law cases, to promote more equitable financial settlements and reduce
victim court costs; e.g.:
à consideration of domestic violence as a cause of victims’ financial loss à introduce monitoring around adherence to parenting orders, with penalties for non compliance Legal Aid to review its policies with the aim of improving service to domestic violence
clients; e.g.:
à widen eligibility criteria for domestic violence victims; assist in complex cases à allocate the same lawyer throughout a case à means test to take into account victims’ lack of access to funds Legal bodies to develop specialised domestic violence training and information for the
judiciary, court and legal officers, to be promoted by Attorneys General and organisations
with judicial oversight; e.g.:
à establish a domestic violence benchbook and/or web site; establish a national institute of Attorneys General to implement more integrated specialist domestic violence courts.

Source: http://www.adfvc.unsw.edu.au/Seeking_security/9_Chapter%207.pdf