Difficulties in giving evidence

18.4 A number of submissions to this Inquiry highlighted the difficulties that victims of family violence face when disclosing family violence to courts or other service providers and when providing evidence of family violence to courts.^[1] Stakeholders set out a range of reasons why people who have experienced family violence may not readily disclose it. A victim of family violence may hide the abuse due to feelings of shame, low self esteem or a sense that he or she, as the victim, is responsible for the violence. A victim may feel that he or she will not be believed. A victim may hope that the violence will stop, or might believe that violence is a normal part of relationships. Because of the family violence, a victim may feel powerless and unable to trust others, or fear further violence if caught disclosing it.^[2]

18.5 Further, there may be a lack of understanding by courts, service providers and the community of what constitutes family violence. This may mean that, even if family violence is disclosed, it may not be recognised, or acted on, as family violence. In her submission, Professor Patricia Easteal commented that ‘the dynamics of violence in the home are complex and often difficult for those on the “outside” to understand’. She noted that family violence cannot be understood as separate incidents:

Any one ‘incident’ is in actuality just a small part of a complex pattern of control and cannot be adequately understood nor its gravity measured in isolation from that background. At the centre is disempowerment and degradation.^[3]

18.6 Easteal submitted that the many manifestations of family violence may not be effectively understood or weighted and, therefore, not screened for or adequately considered in judicial decision making.^[4]

18.7 Once family violence is disclosed, the victim may then need to provide evidence of the violence to a court. As noted by the Victorian Law Reform Commission (VLRC), giving evidence ‘can be one of the most intimidating and distressing aspects of the legal system for people who have been subject to family violence’.^[5] It can involve giving evidence of traumatic and personal events in public and in the presence of the person who has used violence.

18.8 This trauma is heightened if a victim is involved in multiple proceedings, which take place in different courts. Different courts may impose different evidentiary and procedural requirements—for example, some may require evidence by affidavit while others allow only oral testimony—and the victim may have different, or no legal representation. These difficulties may be compounded for Indigenous women and women from culturally and linguistically diverse backgrounds.

18.9 In addition, family violence, by its nature, is often difficult to corroborate and prove. As noted by the Australian Institute of Family Studies, in its research into allegations of family violence made in relation to parenting matters under the Family Law Act (the Moloney study):

Obtaining corroborative evidence is likely to be very difficult when the violence has occurred over an extended period of time, potential sources of proof may be lost, witnesses (where there were any) may no longer be available, injuries may have faded and the non-physical symptoms of trauma may not be obvious.^[6]

18.10 Sometimes there will be evidence of family violence incidents—such as a police report or medical records. In other cases however, there may be no evidence available because the victim has not previously disclosed the violence or has, for example, sought to explain it away as ‘accidental’. These difficulties are compounded where family violence is manifested by controlling or coercive emotional or economic abuse, rather than physical abuse.

Family law proceedings

18.11 A number of reports have identified that victims of family violence fear the impact that disclosure of family violence may have on family law matters.^[7] In her study of women’s experience of the family law system in the context of family violence, Dr Lesley Laing found that many women reported that they ‘received the strong message not to raise allegations of abuse or violence in the Family Courts’ and felt unable to put their full stories of violence to the court.^[8]

18.12 There is also a concern that family violence may not be raised in cases where there is not strong evidence, because if family violence is revealed but cannot be proved, it may compromise the credibility of the party. In the family courts violence review conducted by Professor Richard Chisholm (Chisholm Review), this was described as the ‘victim’s dilemma’:

The dilemma is that the seeking of such orders, and spelling out the reasons for the fear of risk, may be seen as vindictive or punitive, dwelling on the past and old grievances, or as a way of alienating the children from the perpetrator. The victim might therefore be rightly concerned that if the court does not accept his or her evidence, or if it considers that the protective orders are not warranted, it might take an adverse view of the victim, and not only fail to make the orders sought by the victim, but make orders placing the children with the perpetrator for longer periods, to protect them from what it might see as a style of parenting by the victim that would harm the children by alienating them from the other parent. Such an outcome, the victim would believe, would place the children at additional risk of harm.^[9]

18.13 The Chisholm Review noted that a number of circumstances contribute to the victim’s dilemma, including that:

• the victim may not have complained of the family violence at the time—perhaps because of feelings of shame, or a belief that the violence may stop, or for fear of further violence—and it may then be argued that the victim’s lack of action demonstrates that there has been no family violence, or that it was of a trivial nature;

• because family violence generally occurs in the home and may not be documented, it may be difficult for the victim to provide persuasive evidence of the violence;

• the trauma of family violence may lead the victim to be ‘somewhat unorganised, anxious or depressed, and, for such reasons, an unimpressive witness’.^[10]

18.14 The Moloney study considered, among other matters, the prevalence and nature of allegations of family violence in family law proceedings involving children before the 2006 amendments to the Family Law Act 1975 (Cth). The research indicated that most allegations of family violence in federal family courts were accompanied by little or no supporting evidence.^[11] The study concluded that this ‘scarcity of supporting evidentiary material suggests that legal advice and legal decision-making may often be taking place in the context of widespread factual uncertainty’.^[12]

18.15 This Inquiry concerns the interaction of laws, and a major focus of this chapter is on evidence of family violence in protection order proceedings and how this evidence affects proceedings in federal family courts. The recommendations in this chapter will assist in information capture about family violence at the level of state and territory magistrates courts. A number of recommendations throughout this Report provide complementary measures in ensuring that evidence of family violence is presented in federal family courts. Recommendations in Chapter 31 support education for all those involved in the legal system about the nature and dynamics of family violence, along with a bench book to assist judicial officers dealing with family violence matters. Extensive recommendations relating to information sharing are made in Chapter 30.

Protection order proceedings

18.16 The procedures for seeking a protection order under state or territory family violence legislation differ across jurisdictions. Family violence legislation, and the courts exercising family violence jurisdiction, differ in relation to the nature of evidence required before the court will make a protection order. Specific procedural differences in relation to requirements for written and oral evidence are discussed below.

18.17 Local and magistrates courts deal with a high volume of applications for protection orders. Given this, list hearings for protection orders are often brief. Dr Jane Wangmann, in her study of protection order proceedings in NSW Local Courts, estimated that most protection order mentions in NSW Local Courts were dealt with in less than three minutes, meaning that opportunities to give oral evidence are limited.^[13] In addition, many applications are finalised without a contested hearing.

18.18 Further, Wangmann’s study found that the ‘complaints’—the section of the application form in which the applicant sets out why he or she is seeking a protection order—were often inadequate, in that they were brief, lacking in detail, focused on a single incident and/or contained a considerable amount of irrelevant detail.^[14] Wangmann noted that ‘such an approach adds nothing to the complaint and its role as a statement about the experience of family violence to support the making of a protection order’.^[15]

18.19 The often perfunctory and repetitive nature of the allegations in complaints can be attributed to: lack of representation; limited assistance by hard-pressed court staff; and busy and sometimes inexperienced police (where applications are initiated by police). This combination of factors can lead to the repetition of formulas rather than a carefully considered narrative which relates to the individual circumstances of the applicant.

18.20 While this assessment is not applicable to all applications or narratives of family violence in protection order proceedings, either in NSW or across all other states and territories, similar concerns about protection order proceedings were noted in the course of this Inquiry.

Perceptions about false allegations of family violence

18.21 There are concerns that courts, service providers and others in the community may disbelieve disclosures of family violence made when the victim is engaged in litigation, particularly in family law matters. For example, the NSW Women’s Migrant Movement commented that:

The current, extremely limited interpretation of admissible evidence does not reflect the reality of violence and abuse within families and the limited disclosure to State/Territory systems—after years of violence and abuse, women often have very limited or no documented evidence … The word of a woman making an allegation of violence and abuse without documented evidence is treated with disbelief, without providing opportunities for corroboration by other means. This indicates that, despite all the research to date and experience of legal practitioners showing that false allegations of violence and abuse are not widespread, and therefore aligning with research that shows domestic violence is an under-reported crime, the Court and legal representatives still respond to such allegations with a presumption that they are false.^[16]

18.22 Views differ about how common it is for people to give false evidence to a court about family violence. Some stakeholders have expressed concerns that allegations of family violence or child abuse are sometimes fabricated in order to gain an advantage in family law proceedings, or to remove a person’s partner from the home and deny him or her contact with children.^[17]

18.23 However, there is no clear evidence to support the claim that false allegations of family violence are routinely made to gain an advantage in family law matters. The Human Rights and Equal Opportunity Commission (as it then was) urged ‘caution against accepting this contention uncritically’:

There is no doubt that Family Court proceedings often are accompanied by allegations of domestic violence and the use of protection orders. However, this may reflect the fact that domestic violence often escalates when couples separate. Australian data demonstrate that women are as likely to experience violence by previous partners as by current partners and that it is the time around and after separation which is most dangerous for women.^[18]

18.24 Research has found that most allegations of family violence, including child abuse, made in the context of family law proceedings are made in good faith and with support for the claims.^[19] For example, a study in 2000 found that allegations of child abuse made in family law proceedings were found to be false no more frequently than allegations of child abuse made in other circumstances.^[20]

False allegations and statements in family law proceedings

18.25 Section 117AB of the Family Law Act requires a court to make a costs order against a person who ‘knowingly made a false allegation or statement in the proceedings’. This section was included to address ‘concerns expressed, in particular that allegations of family violence and abuse can be easily made and may be taken into account in family law proceedings’.^[21] Conversely, there is no specific provision in the Family Law Act to deal with false denials of family violence.

18.26 The Chisholm Review raised concerns that this provision could impede the disclosure of family violence in cases where a vulnerable parent’s allegations of family violence cannot be corroborated by reliable evidence.^[22] The Chisholm Review recommended that the costs order provision in s 117AB of the Family Law Act should be repealed and suggested that consideration should instead be given to amending the general costs provision in s 117 of the Act to direct a court to have regard to whether any person knowingly gave false evidence in the proceedings.^[23] This provision would cover both false allegations and false denials of family violence.

18.27 In addition, the Family Law Council found that there is no evidence that s 117AB ‘has achieved its purpose’ in relation to false allegations of family violence and recommended that the Attorney-General give consideration to clarifying the intention of s 117AB, either through legislative amendment or public education.^[24]

False evidence given in protection order proceedings

18.28 State and territory family violence legislation generally deals with persons who give false evidence or make false allegations or denials by using provisions relating to vexatious applications or other legislation protecting court processes. A person who gives false evidence may also be charged with a number of offences, including perjury, false swearing and false testimony.^[25]

18.29 In some circumstances, a court’s ability to award costs against a person who brings an application for, or to revoke, a protection order that is ‘deliberately false’ or made in ‘bad faith’ is linked to vexatious application provisions. For example, s 61 of the Domestic and Family Violence Protection Act 1989 (Qld) provides that a court may not award costs on an application for a protection order, or a revocation or variation of the order, unless the court dismisses the application as ‘malicious, deliberately false, frivolous or vexatious’. In other jurisdictions, costs may be awarded against a person if the court is satisfied that an application for a protection order was made ‘in bad faith’^[26] or ‘has not been made honestly’.^[27]

18.30 In 2004, the Parliament of Tasmania considered whether the Family Violence Act 2004 (Tas) should include a provision to impose a penalty for false or contrived claims of family violence. The government did not support such amendments on the basis that there were adequate sanctions in the Police Offences Act 1935 (Tas) and other legislation for making false allegations:

If you make a false report to the police you can be charged; if you make a false statutory declaration you can be charged. If you falsely swear you can be charged and it is perjury. All of these things are available for people who fabricate claims, under the Criminal Code as well as the Police Offences Act. Anyone who does that will be charged and people have been charged. We would not put it in here because it is in other legislation and it is covered.^[28]

Commissions’ views

18.31 The Commissions consider that existing measures to sanction persons who give false evidence of family violence are sufficient. Such measures include the courts’ power to dismiss vexatious applications and award costs against a person who brings a vexatious application. The Commissions consider that these measures are sufficient safeguards against giving false evidence before courts generally, and that there is no need for specific provisions relating to false allegations of family violence, in protection order or family law proceedings.

18.32 There are concerns that s 117AB of the Family Law Act may inhibit the disclosure of family violence in family law proceedings where a party cannot provide strong evidence of family violence to the court. The Commissions endorse the recommendations relating to s 117AB made in the Chisholm Review and by the Family Law Council. The Commissions agree that false denials of family violence, as well as false allegations, should trigger the court’s discretion to make a costs order.