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Submitting to an inquiry into family violence, leading legal bodies have addressed how chronic delays, inadequate resourcing and underfunding have exacerbated the violence and contributed to the ongoing rise in the number of family matters before the courts.
Rather than assisting with the reduction of family violence matters, family courts have only exacerbated the issue and contributed to further violence, due in large part to the chronic delays, underfunding and lack of dedicated resources for victims and lawyers.
“The family courts are not adequately resourced to deal properly with violence and its effects,” wrote the Law Council of Australia (LCA), adding that the absence of the court environment during COVID-19 through to an inadequacy of resources for investigating allegations and risks are due to a system that is “comprehensively underfunded”.
“Addressing the factors may be key to improving the ability of these families to access justice and support where family violence occurs. More importantly, it may remove the families’ need to do so by preventing violence from ever occurring,” the LCA wrote.
The LCA said that while it strongly supports the use of family dispute resolutions which exist outside the courts to resolve issues arising from the breakdown of relationships, the Family Court provides vital resources for those unable to access the services. Those vulnerable parties need a court that is “flexible, accessible and resourced”.
Almost 70 per cent of matters before the Commonwealth family courts involve violence against a family member. At any given time, Family Violence Prevention Legal Service has to turn away between 30 and 40 per cent of people who have reached out for their support because they do not have the resources to meet community demand.
According to the Victorian Bar, delayed access to the family law courts “could be used by perpetrators of family violence as a further tool for abuse” and once accessed, the chronic delays in the determination of issues by the courts “exacerbate” the violence.
“Different combinations of frontline services may be called upon at different times and provide both immediate and sustained support in the longer-term to assist the survivors of family violence. These services must be resourced to provide support both on initial contact and ongoing basis for as long as that support is required,” the Victorian Bar wrote.
The Law Institute of Victoria (LIV) said that while Victoria is to be commended on how it implemented recommendations from the Royal Commission into Family Violence, it noted that widespread implementation has not occurred. In states like NSW where the cross-examinations have not been tackled, victims are “particularly disadvantaged”.
The LIV said that while the right to cross-examination is fundamental to a fair hearing, the coercive and controlling nature of family violence is a significant risk factor which may intimidate a victim into consenting, void of genuine consent.
“The LIV therefore recommends that all jurisdictions introduce a mandatory prohibition on respondents cross-examining the victim and instead a cross-examination scheme by the preferred method,” the Victorian legal body wrote.
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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