The current extensive news coverage of family violence in Australia and the Government’s emergency meeting of the National Cabinet on 1 May 2024 to discuss responses to gendered violence have highlighted the prevalence of family violence and its impact on the Australian community, specifically women and children. It is critical that the family law system responds effectively to ensure that victims of family violence are not re-traumatised by the Court process. Family lawyers frequently work with families impacted by family violence, and through our work, we can substantially and significantly improve outcomes for these families.
Duty to the Court
All legal practitioners have a duty to the Court to act in the interests of justice. Family lawyers must uphold this duty by acting to ensure that their clients understand the law, act reasonably and promptly in accordance with the law, and comply with Court Orders in a timely manner.
Although the Family Court operates with less formality than other Courts, a family law matter is still a structured process which places a high administrative burden on parties engaged in proceedings. Lawyers are obliged to do all that they can to ensure that parties to proceedings are aware of their obligations to the Court and each other.
When families are impacted by family violence, our lawyers’ duty to the Court requires that our conduct of the matter does not result in the authority of the Court protecting perpetrators and putting victims at further risk.
From 6 May 2022, the Family Law Act 1975 explicitly identifies safety for children and their caregivers as the first factor for consideration when determining what is in children’s best interests. It is, therefore, incumbent upon family lawyers to consider safety issues first and foremost when advising their clients and conducting a matter in the Family Court.
Advising Clients
Family lawyers will be engaged to act for both victims and perpetrators of family violence. Enabling access to effective legal representation for victims of family violence has been a key element of the national strategy to improve outcomes for families, and lawyers who work with victim survivors are in a unique position to empower those individuals to protect themselves and their children.
However, acting for perpetrators of domestic violence offers as many opportunities to improve outcomes for families as does acting for victims of family violence. A family lawyer may be the first person that a perpetrator has spoken to openly about their own involvement in family violence. A perpetrator may also have a poor understanding of how their behaviour constitutes family violence.
Whether a client is a victim or a perpetrator of family violence, a family lawyer can advise the client frankly, from a position of authority and trust, as to their client’s rights and obligations under the applicable legislation. A family lawyer can also advise and encourage their client to access information and services such as counselling, mental health support services, and behaviour change programs as appropriate. Approaching family law practice holistically can assist clients to improve their understanding of what is required of them to behave lawfully and reasonably in relation to their family members.
Critical risk periods
It is acknowledged that victims of physical violence by family members are predominantly women, and that the risk of significant injury or death to women and children is at its highest during the period immediately after a separation from a male domestic partner. The intense pressure of ongoing family law proceedings is also a heightened risk factor, as the emotional and financial cost takes its toll on parties’ resources and wellbeing. Therefore, family lawyers must act in accordance with this heightened risk, to promote the safety of any family member that may be in harm’s way. Engagement with the Court, opposing counsel, police, or family violence support services may be required, and practitioners must be fully apprised of their ethical considerations to ensure that they can do this effectively.
At Lynn and Brown lawyers, we are constantly addressing these types of issues and we ensure that we undertake appropriate education so that we are aware of services and supports so that when the need arises, we can act protectively to assist parties.
About the Authors: This article has been authored by Alison and Jacqui. Alison is a career-change lawyer who undertook her legal studies as a mature age student. She completed her Bachelor of Laws with Edith Cowan University in November 2022, her Graduate Diploma in Legal Practice with the College of Law in May 2023, and was admitted as a Lawyer in the Supreme Court of Western Australia in August 2023. Jacqui has over 20 years’ experience in legal practice and practices in family law, mediation and estate planning. Jacqui is also a Nationally Accredited Mediator and a Notary Public.
