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Precedent (Australian Lawyers Alliance) |
THE JUSTICE GAP FOR WOMEN
THE IMPACT ON VICTIMS OF PARTNER VIOLENCE
By Angela Lynch
‘Violence [against women] cannot be separated from women's lack of access to justice and women's inequality.’[1]
This statement appears in the 1994 report on the Australian Law Reform Commission’s (ALRC) landmark Inquiry into women’s equality before the law.[2] During the Inquiry the ALRC received ‘an unprecedent[ed] public response’ of approximately 600 submissions,[3] most from individual women and related to women’s access to justice, ‘particularly in the context of violence experienced by them’.[4] This was despite the Inquiry not specifically focusing on domestic and family violence (DFV)[5] and other forms of violence against women.
Many inquiries in Australia since this time have specifically considered the issue of DFV, and many have raised access to justice as a key issue of concern.[6] The importance of the legal system in delivering just and safe outcomes to victims/survivors[7] is critical, and their treatment in the legal system and ability to access justice and safety are inextricably linked. When the State through the legal system fails to properly identify and respond to violence against women, the power of the perpetrator is condoned, the perpetrator’s violent actions and behaviour are vindicated, and, more broadly, the violence is accepted and thereby normalised:
‘Empirical evidence demonstrates that women are at greater risk of violence at the hands of someone they know and in the context of a home than by a stranger or in public ... what has become more publicly overt is that violence against women and children is legitimised and reinforced through the very structures in place to protect their rights; for example, by the legal system itself.’[8]
Though women’s access to justice in general is an issue of concern, the need of victims/survivors – particularly of DFV, as the ALRC discovered nearly three decades ago – to access justice continues to be overwhelming and urgent; this is what this article will substantively address.[9] Victims/survivors have a high need for consistent and responsive legal representation, especially in family law, to enable them to obtain orders that best protect their safety and that of their children. The readiness of perpetrators to use the legal system to further their abuse increases victims’/survivors’ legal needs, but unfortunately the system seems ill-equipped to respond well to this. Under-funding of legal aid and ongoing gender bias in legal aid funding (identified as an issue by the Attorney-General’s Department in the early 1990s[10]) further limits the access to justice that victims/survivors both require and deserve.
DFV IS GENDERED
Domestic and family violence is prevalent, and its ramifications are profound, intergenerational, and deeply felt. Men can be victims of DFV;[11] however, in terms of gender the prevalence, impact and consequences of violence between intimate partners are not symmetrical[12] Women are nearly 3 times more likely than men to experience violence from an intimate partner[13] and almost 4 times more likely than men to be hospitalised after being assaulted by their spouse or partner.[14]
For women, the experience can often involve multiple forms of violence – physical, emotional, psychological, sexual and cultural/spiritual violence – and a wide range of controlling and coercive behaviours; the motivator is dominance or control.
Women can also suffer severe long-term mental health consequences associated with violence-induced trauma, and physical outcomes including serious injury; chronic pain; disability; miscarriage; and, at the most extreme, victim death.[15] The experience of violence is ongoing and sustained as part of a pattern, and many live with fear,[16] including after the relationship has ended.[17]
To fully understand the needs of victims/survivors, support them, intervene effectively and provide safe outcomes, including preventing and stopping DFV, a gendered response is required. This must be built on a gendered analysis to provide a contextual understanding of the circumstances in which DFV occurs – an understanding that ensures response and prevention strategies are targeted and effective:
‘Acknowledging the disproportionate impact of [DFV] on women and recognising the predominance of women as victims allows the nature of the problem to be properly characterised. It provides a better understanding of the motivation of perpetrators and helps to inform the development of effective prevention and intervention strategies. Knowledge of the particular needs of victims of [DFV] is the key to the design and resourcing of response and support services’.[18]
A gendered understanding should necessarily incorporate the multi-layered and intersecting forms of discrimination and disadvantage experienced by Aboriginal and Torres Strait Islander women, culturally and linguistically diverse women, women with disability and those from the LGBTIQ+ community.
The legal needs of victims/survivors
The 2019 report of the NSW Law and Justice Foundation (Foundation), Quantifying the legal and broader life impact of DFV,[19] noted that victims/survivors had numerous legal problems across a broad range of areas, including family law, consumer and credit debt, health, housing, and rights issues. In fact, DFV victims/survivors were 10 times more likely to have legal problems than the rest of the population and 16 times more likely to experience a family law problem.[20] The legal problems reported were serious, with 4 out of 5 respondents reporting these had a deleterious impact on their everyday lives.
These findings are important. They legitimise what frontline workers with long experience supporting victims/survivors of DFV have learnt: when life goes bad for victims/survivors, everything spirals, and their safety and quality of life are impacted. The findings provide convincing evidence that victims/survivors need accessible, streamlined, wrap-around services to address these impacts – services that offer both legal and human service interventions and assistance.[21]
Enough to ensure access to justice?
What was the Foundation’s research does not highlight is that perpetrators of DFV can be highly litigious, utilising everything at their disposal to continue exerting power over the victim/survivor, within the court system as well as other mechanisms.[22] The high levels of legal problems experienced by DFV victims/survivors exist in part because of the propensity of perpetrators to use the legal system against them. Litigation and systems abuse are part of the broader modus operandi of perpetrators in their attempt to exert power and control over victims/survivors. This approach can form part of what is now commonly referred to as ‘coercive control’. The term has no single agreed definition, but a useful description is ‘a pattern of domination that includes tactics to isolate, degrade, exploit and control’ the victim.[23] Tactics may include social isolation, belittling or threatening behaviour, humiliation, restriction of resources and the abuse of children, pets and relatives. And they may also include physical and sexual violence.[24]
In Baron v Walsh[25] (Baron), the WA Supreme Court (Court of Appeal) provided salient guidance to the legal profession on how to recognise and respond to litigation and systems abuse. Baron involved an appeal concerning a Violence Restraining Order (VRO) application. Around the time of the application, the respondent had made complaints to the appellant’s employer about her unprofessionalism, commenced minor claim proceedings against her, made multiple interlocutory proceedings in the VRO application, and made a perjury complaint about her to the police. The appellant argued that all these proceedings amounted to intimidation, and the Court agreed that the respondent’s actions were improper and abusive, making adverse findings of their intent or purpose.
The Court’s approach in Baron is very useful in identifying coercive control tactics more broadly in proceedings where DFV is relevant. The focus of the court in making these types of determinations should be on the intention behind an otherwise lawful action, and on considering the conduct ‘as a whole’.[26] In my opinion, evidence of a pattern of behaviour can assist the court in determining the underlying motive.
It is imperative that our laws, systems and formal response mechanisms be ‘domestic violence informed’ where there are high numbers of DFV victims (and, logically, high numbers of DFV perpetrators). That is, the system and those who work and operate within the system should have a heightened awareness and understanding of the dynamics of DFV and of perpetrator tactics such as systems misuse and abuse, manipulation and image management.[27]
The current approach, in my experience, contains little accountability for these tactics. And this implicitly allows perpetrators to engage in litigation and systems abuse and ‘get away with it’ because they can, while ostensibly pursuing their legitimate legal rights.
DFV informed courts: better access to justice
We need to do more than provide appropriate legal responses for victims/survivors as recommended by the Foundation’s research.[28] We need to equip our legal system to better identify litigation and systems abuse (and, more broadly, perpetrator tactics), intervene and stop the behaviour. Judicial officers require specialised training in order to recognise this behaviour and respond early and decisively. It is imperative that judicial officers not only be concerned with the litigation in ‘their’ courts, but also adopt a holistic approach to abuse across a system, as occurred in Baron. Legal representatives should be held to high professional standards and held to account if they are breached, and should not engage in litigation or processes if they know these are being used for an improper purpose (including an improper collateral purpose).[29] Law reform may be required to address vexatious litigant laws.
In addition, laws and systems need to disincentivise perpetrators from using the legal system, especially the family law system, to harass DFV victim/survivors. In the Foundation’s research findings, family law child-related issues were rated as the most serious legal problem faced by DFV respondents. The extraordinarily high correlation between DFV and family law problems as evidenced in this research[30] is not only because victims/survivors turn to the family law system for the protection of their children and themselves, but also because they may be pulled reluctantly into the system by the perpetrator and forced to negotiate, mediate, and litigate outcomes with that perpetrator (often on their own).
Women’s Legal Services Australia (WLSA), a national network of community legal centres that provide a specialised response to women, has long warned that the current emphasis in family law legislation on shared parenting, and the presumption of equal shared parental responsibility, incentivise violent men to pursue their ‘rights’ through the legal system at the expense of the safety of victims/survivors and their children. In its five-step plan to achieving safety in family law, WLSA has advocated for the removal of these provisions, and for the Federal Circuit and Family Court of Australia, in its family law divisions, to be recognised as a Family Violence and Family Court; this would help to reorient its focus to responding to family violence and prioritising child and victim safety in decision-making.[31]
Legal aid
The Foundation’s research also found that DFV victim/survivor research participants experienced higher levels of disadvantage than participants who had not experienced DFV. For many years, access to legal representation in family law matters has been a well-recognised gap in the service system response to DFV in Australia. The Foundation research highlighted that serious family law problems often go hand in hand with DFV and are often the most severe legal problems faced.[32]
Legal aid is a key means for financially disadvantaged Australians to access justice and legal representation for their court matters: a mechanism for levelling the playing field in terms of access to justice. So let us now consider the availability of legal aid for women in Australia in family law matters, especially where there is DFV.
It is well recognised that the legal aid system in Australia is under-funded and under pressure.[33] In 2014, the Productivity Commission investigated civil justice arrangements in Australia and found issues of serious concern:
‘Even many relatively affluent Australians could not afford a lawyer if they had a serious legal issue. Legal assistance providers also indicated that those refused a grant of legal aid (on the basis of means) cannot necessarily afford to engage a private lawyer — there is a “justice gap”.’[34]
The Law Council of Australia’s (LCA) Justice Report backed the concerns raised by the Productivity Commission about access to justice in Australia:
‘More than 13 per cent of Australians live under the poverty line, while legal aid is available to just 8 per cent. Many impoverished people are considered too wealthy to get basic legal help.’[35]
At time of writing, as the upcoming federal election looms, the LCA is calling for increased funding of an additional $300 million per annum for Legal Aid Commissions across civil, criminal and family law, and an additional $400 million per annum for the broader legal assistance sector.[36] Eight years ago the Productivity Commission recommended an injection of at least $200 million into the civil justice system, to meet the most pressing needs.[37] Clearly, without additional funding this gap will continue to widen.
Gender bias in legal aid funding grants
For women, this ‘justice gap’ is further exacerbated because of the gender bias in legal aid funding. Some 28 years ago the ALRC highlighted, in its Equality before the Law Report,[38] the lack of availability of legal aid for women and a possible gender imbalance in its distribution. In response, the Attorney-General’s Department (Department) commissioned its own study into legal aid funding and found that between 1990 and 1991 women received only between 31 and 37 per cent of legal aid grants. The Department concluded:
‘If legal aid was allocated solely on the basis of relative poverty, it could be expected that more women would receive it than men, given their inferior economic status’.[39]
More importantly, the Department recognised that the distribution of legal aid was a form of indirect discrimination against women:
‘the gender bias found in litigation legal aid is a product of the distribution of aid which strongly favours applicants in criminal matters and ... this distribution is a function of a lack of a policy to promote gender equity.’[40]
In light of this conclusion, this funding inequity surely constitutes a breach of women’s human rights.
HAS ANYTHING CHANGED?
In the nearly 30 years since this finding of gender bias, there has been little change. The National Legal Aid website provides publicly available statistical information, including a gender breakdown of all approved grants between family, civil and criminal matters across all states and territories. In 2020/2021, women still only received 32 per cent of the approved grants, and men 65.7 per cent.[41]
Women use the civil justice system (for example, for domestic violence protection, family law proceedings and child protection) as a primary means to protect their children and/or themselves from DFV and abuse, or seek some economic justice after marriage breakdown. Men, however, predominantly use legal aid for support with criminal matters. The Foundation’s research found that the family law problems identified in the context of DFV are serious and often involve child custody, contact, care and protection issues.[42] Where these matters involve issues of child safety and welfare arising from the risk to children in DFV households,[43] the inability of women to obtain funding for legal representation directly impacts their children’s safety and economic security. And their own.
This challenge forces many vulnerable women into negotiating for or representing themselves. And this makes it highly possible that victims/survivors will enter into unsafe arrangements: they may engage in alternate dispute resolution without the necessary specialised professional support, and give in to the perpetrator’s demands. They may walk away with nothing, perhaps into a lifetime of poverty – or return to the abuser where the alternative is too costly, exhausting or unsafe, or a combination of all of these.
These concerns about the injustice of legal aid distribution are shared within the legal profession. Elizabeth Shearer, Chair of the Queensland Law Society Access to Justice Pro Bono Committee, recently called out the funding injustices:
‘It means there's a skewing of resources towards criminal law, and away from other parts of the law, like child protection, domestic violence, all sorts of other areas where really fundamental legal rights are at stake.’[44]
WHAT SHOULD BE DONE?
Address legal aid’s gender bias
Funding decisions are political decisions, and the priorities are clear. Decades-long gender bias in legal aid funding grants has short-changed women in their access to justice (and to safety). The argument about identifying and responding to gender bias is not about redirecting funding away from criminal law, but about ‘growing the overall funding pie’.
At the same time, however, the scales need to be rebalanced towards women’s priorities, especially those relating to women’s and children’s safety, and towards reducing women’s impoverishment, especially as a result of DFV.
An analysis should be conducted of how the current legal aid guidelines and funding policies operate in practice and how they unwittingly exacerbate various issues for DFV victims, including gender bias.
Make our laws and courts ‘domestic violence informed’
Our legal system and legislation, especially where there is high usage by victims and perpetrators, should be transformed to become ‘domestic violence informed’. This is especially true in family law, where the legislation and approach arguably incentivise litigation against victims/survivors. Centring child and DFV victim/survivor safety in court decision-making and legislation will not only deliver greater safety to victims/survivors but will also have positive financial impacts on the system, as a more informed system will limit the extent of litigation abuse and provide other efficiencies.
As discussed, there is an absolute imperative on the legal profession to become more aware of litigation and systems abuse. Then the courts will be able to intervene proactively and protect victims/survivors. There may also be a need for reform of vexatious litigation laws.
A comprehensive national inquiry into women’s access to justice
After 28 years of little to no progress, it is time for a comprehensive inquiry into access to justice for women, and a commitment, by whichever government is successful in the federal election, to fully implementing the recommendations. Any inquiry should be wide-ranging, linking data across systems to try to answer broad questions about the connections (if any) between women’s limited access to justice and DFV, women’s homelessness and poverty, and the soaring rate of women’s imprisonment.[45]
CONCLUSION
Australia’s former Governor-General and Chair of Queensland’s landmark Domestic and Family Violence Taskforce, Dame Quentin Bryce AO, has recognised DFV as a ‘horrific ... breach of human rights’.[46]
Article 7 of the UN Declaration of Human Rights, to which Australia is a signatory, recognises that ‘All are equal before the law and are entitled without any discrimination to equal protection of the law.’ As the ALRC’s Inquiry into women’s equality before the law concluded nearly three decades ago, women were clearly not receiving equal access to justice.[47] This inequality has continued, and substantive work needs to be done to stop the ‘justice gap’ for women from widening even further, thereby increasing the discrimination against women.
If Australia is to honour its commitments to recognising the basic human rights established by the UN, it is imperative to address as a matter of urgency women’s access to justice and equal legal representation. This is even more critical when there are such clear links to the importance of the law in protecting women from DFV and other forms of violence.
Continued failure to address women’s access to justice and equality before the law will contribute to and exacerbate the identified human rights failures.
Helplines offering support with DFV-related stresses are listed on page x.
Angela Lynch is a lawyer and advocate against domestic, family and sexual violence. She is currently the Secretariat for the Queensland Sexual Assault Network, and a member of the Queensland Domestic and Family Violence Review and Advisory Board; she is also a consultant on issues relating to violence against women. Angela’s various roles over 27 years with the Women’s Legal Service Queensland include a 5-year term as CEO. EMAIL secretariat@qsan.org.au. PHONE 0482 061 726.
[1] Australian Law Reform Commission, Equality before the Law: Justice for Women (ALRC Report 69 Part 1) 1994 (ALRC Report), [2.31] <http://www.austlii.edu.au/au/other/lawreform/ALRC/1994/69.html#69part1> .
[2] Ibid.
[3] Ibid, [1.4].
[4] Ibid, [1.6].
[5] The term ‘domestic and family violence’ (DFV) incorporates a broad spectrum of violence that can occur within the family or household context between different family members – violence most commonly perpetrated by men against their woman partner or ex-partner. However, the term can also cover elder abuse, some forms of child abuse and adolescent violence against parents – see VicHealth Promotion Foundation, Violence against women in Australia: An overview of research and
approaches to primary prevention, 2017 (VicHealth), 6 <Violence-Against-Women-Research-Overview.pdf (vichealth.vic.gov.au)>. ‘Male intimate partner violence’ is also used to describe violence against women perpetrated by current or previous male partners (VicHealth, 5). This article will focus on male intimate partner violence as the most common form of DFV. The term ‘family and domestic violence’ can also be used – see the previous article, pp xx to xx.
[6] For example, Royal Commission into Family Violence, Volume III: Report and Recommendations 2016, 170; Special Taskforce on Family and Domestic Violence in Queensland, Not now, not ever: Putting an End to Domestic and Family Violence in Queensland (Report, 2021) (Special Taskforce), 269.
[7] In this article, this term includes women and children who have been murdered, or have otherwise lost their lives, as a result of DFV.
[8] ALRC Report, above note 1, [2.31], citing Centre Against Sexual Assault, Melbourne, Submission, 197.
[9] It is worth noting that children can be the direct targets of DFV (VicHealth, above note 6, 11) and/or can be exposed to DFV while living in a home characterised by violence; this can have significant, lasting impacts on them. See the discussion on the long-term psychological, developmental and behavioural impacts of DFV exposure and abuse on children, including an increased incidence of youth suicide, in Queensland Government, Domestic and Family Violence Death Review and Advisory Board 2019–20 Annual Report (Death Review Annual Report 2019–20), 57 <https://www.courts.qld.gov.au/__data/assets/pdf_file/0008/663632/domestic-and-family-violence-death-review-and-advisory-board-annual-report-2019-20.pdf>.
[10] ALRC Report, above note 1.
[11] VicHealth, above note 5, 6.
[12] Ibid.
[13] Our Watch, Quick Facts, citing Australian Bureau of Statistics (ABS), Personal Safety Survey, Australia, 2016, ABS cat. no. 4906.0, Canberra, 2017 <https://www.ourwatch.org.au/quick-facts/?msclkid=8d544596bc5b11ecbb0a81ccee1cafbc>.
[14] Australian Institute of Health and Welfare (AIHW), Family, domestic and sexual violence in Australia, Cat. no. FDV 2, AIHW, Canberra, 2018 <https://www.aihw.gov.au/getmedia/d1a8d479-a39a-48c1-bbe2-4b27c7a321e0/aihw-fdv-2.pdf.aspx?inline=true>.
[15] R Braaf and I Barrett Meyering, ‘The Gender Debate in Domestic Violence: The Role of Data’, Australian Domestic & Family Violence Clearing House, Issues Paper 25, 2013, 1–23, 3 <The_gender_debate_in_domestic_violence_ADFVC_2013.pdf (nzfvc.org.nz)>.
[16] VicHealth, above note 5, 6.
[17] Queensland Government, Domestic and Family Violence Death Review and Advisory Board Annual Report 2018–19 (Death Review Annual Report 2018–19), 64: the Board identified post-separation violence as a recurring theme throughout its review of cases since its establishment in 2016–2017; Death Review Annual Report 2019–20, above note 9, 63, quoting research that (post separation) abuse can be more serious and more likely to lead to homicide as perpetrators perceive a loss of control of the primary victim and family unit.
[18] Special Taskforce, above note 6, 50.
[19] C Coumarelos, ‘Quantifying the legal and broader life impacts of domestic and family violence’, Law and Justice Foundation NSW, Justice Issues, Paper 32, June 2019.
[20] Ibid, 12.
[21] Ibid, 23, 25.
[22] Australasian Institute of Judicial Administration Inc, National Domestic and Family Violence Bench Book (AIJA) <https://dfvbenchbook.aija.org.au/>.
[23] Ibid, ‘Coercive control’ definition <https://dfvbenchbook.aija.org.au/terminology/coercive-control/?msclkid=6a20e5fbbc7311ec876505b570203243>.
[24] Death Review Annual Report 2018–19, above note 17, 100.
[25] [2014] WASCA 124 (Baron).
[26] Ibid, [62].
[27] Queensland Government, Domestic and Family Violence Death Review and Advisory Board 2020–21 Annual Report, 61 (discussion on image management).
[28] Coumarelos, above note 19.
[29] See Baron, above note 25, [63], re improper collateral purpose.
[30] Coumarelos, above note 19.
[31] Women’s Legal Services Australia, ‘Safety First in Family Law: Five steps to creating a family law system that keeps women and children safe’ (Campaign document, 2020) <https://www.wlsa.org.au/wp-content/uploads/2022/03/Safety_First_in_Family_Law_Plan.pdf>.
[32] Coumarelos, above note 19, 24.
[33] Law Council of Australia, ‘Courts win funding but wider legal sector misses out’ (Media release, 6 October 2020) <https://parlinfo.aph.gov.au/parlInfo/download/media/pressrel/7599088/upload_binary/7599088.pdf%3BfileType=application/pdf#search=%2522media/pressrel/7599088%2522>.
[34] Australian Government Productivity Commission, Productivity Commission Inquiry Report, Access to Justice Arrangements (Productivity Commission), Volume 2, No. 72 (Report, 5 September 2014) 639.
[35] F McLeod, ‘160,000 people turned away: How the justice system is failing vulnerable Australians’, ABC News <https://www.abc.net.au/news/2017-08-03/how-the-justice-system-is-failling-vulnerable-australians/8770292>.
[36] L Croft, ‘LCA president: “It’s important that justice remains human-centered”,’ Lawyers Weekly (4 February 2022) <https://www-lawyersweekly-com-au.cdn.ampproject.org/c/s/www.lawyersweekly.com.au/biglaw/33546-lca-president-it-s-important-that-justice-remains-human-centered/amp>.
[37] Productivity Commission, above note 34, Recommendation 21, Volume 1.
[38] ALRC Report, above note 1, [4.10].
[39] Ibid.
[40] Ibid.
[41] National Legal Aid, National Legal Aid Statistics Report: Gender for Financial Year 2021–2022 as at April 2022 (Report, 2022) <https://nla.legalaid.nsw.gov.au/nlareports/reportviewer.aspx?reportname=Gender>.
[42] Coumarelos, above note 19.
[43] Ibid, 24.
[44] Cited in J Dennis, ‘Lawyers for Legal Aid Queensland say declining pay is leading to an exodus and “huge injustices in the legal system”', ABC News <https://amp-abc-net-au.cdn.ampproject.org/c/s/amp.abc.net.au/article/100762198>.
[45] C Wahlquist, ‘“A mass imprisonment crisis”: why more women are doing time’, The Guardian (17 November 2020) <https://www.theguardian.com/australia-news/2020/nov/17/a-mass-imprisonment-crisis-why-more-women-are-doing-time>.
[47] ALRC Report, above note 1.
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