Moving beyond legalistic responses in family law
18th Mar 2016
Domestic and family violence (D&FV) is a heinous, and omnipresent epidemic in Australia. D&FV is more than physical violence. It is actual and threatened behaviour, and behaviour which is used to incite fear. It is coercive and controlling in nature, and includes emotional, psychological, economic, sexual, social, property, and family abuse. It is insidious and has no boundaries. No social group is immune from attack.
This article aims to highlight two issues. First, lawyers lack training and understanding about the nature and dynamics of D&FV, which adversely impacts on their preparation of a client’s evidence, and second, that most family lawyers do not have D&FV training or the skills to engage in safety planning in response to a client’s disclosure of D&FV.
It is not uncommon for a family law client to disclose D&FV to their family lawyer; this may even be the first disclosure of D&FV ever made by a client. Most lawyers are not trained in D&FV screening and risk assessments. The traditional response of lawyers to such a disclosure is usually legalistic. In traditional ‘lawyering’, the lawyer will ask the clients some questions about the D&FV (to build a case in the client’s family law affidavit), and the lawyer may test their client’s version (which is contrary to good practice in the D&FV context). In this situation, the lawyer may also advise the client to speak with a psychologist or counsellor about the D&FV, so the file can later be subpoenaed, or a report prepared for litigation purposes. This practice is purely court-and-outcome focused. Undeniably, this is the reason why a client engages a family lawyer —to prepare a legal case, and be outcome-focused.
While this is good legal practice, it is not holistic and responsive practice. While there is nothing wrong with this legalistic response (as a lawyer, this is our job), our scope of practice as family lawyers needs to extend beyond this. This type of practice is arguably not responsive enough to the short-term safety needs of the survivor (note the use of positive, strengths-based nomenclature), and a lack of awareness about D&FV can cause a partial presentation of the D&FV in the client’s evidence. Because of these shortcomings, a client’s evidence may only present the physical violence, and omit the full nature of the D&FV, such as economic control, psychological abuse, and parental alienation. Their ignorance and lack of training can mean that family lawyers fail to ask critical questions that would otherwise elicit important evidence. In order to elicit ‘the full picture’, lawyers must be trained in conducting screening questions for D&FV. For example, it is not sufficient to question a client only about whether they have been physically hit. Questioning should go further than this, to include questions such as whether strangulation has ever occurred (which is an evidenced-based lethality risk factor). While it may seem intrusive to ask this type of question, the family lawyer can explain their reasons for this line of questioning, such as “I am asking you these questions to ensure you and the children are kept safe, and to ensure I understand what you have experienced, and that the court understands yours and the children’s experiences.” Further, other lines of questioning can include: “have you ever been scared of him/her”, “have your finances ever been controlled”, “has s/he ever stopped you from speaking with your family”, or “has s/he ever criticised you in front of the children”, and “how do you feel s/he will react when they receive this family law application? Are you scared, and do you feel you are in danger? Do you think s/he will flip it when they receive it, and what will it look like if they ‘flip out’?”
If you receive affirmative responses, it is at this point that the author advocates for family lawyers to help their client with safety planning. The author’s view is that family lawyers have a role to play to minimize the risk of danger to their client. You should try to ensure that the other party is not served with court documents on a Friday afternoon. Your safety planning with the client can include: advising your client to inform friends or family when the other party is being served with court documents so their safety can be overseen; for the client to inform the children’s school when the other party is being served with court documents, and request that they be contacted immediately if the other party attempts to pull the children out of school early (or request for the school to contact the police if there are any child abduction or safety concerns); to temporarily reside in another property, or to change the locks on the home. This is preliminary safety planning, and the client should immediately be referred to a specialist Domestic & Family Violence Service. This is holistic practice.
A strengths-based approach is empowering for clients; and safety planning is part of a strengths-based approach because clients are empowered to make decisions to protect their safety. Lawyers adopting strength-based approaches will listen to their client’s experiences without judgment; validate and affirm their client’s feelings; take their safety issues seriously; avoid victim-blaming, and work collaboratively to ensure safety and positive outcomes for their clients.
The author is advocating for family lawyers to participate in D&FV training; to engage in safety planning and strengths-based approaches with their clients who have experienced D&FV as part of their scope of practice; and to develop referral protocols with specialist D&FV services.
If your client and their children have experienced, or are experiencing D&FV, there are a number of national services available, such as: -
Kids line; and
Chrissy Leontios is the Principal Lawyer and Family Dispute Resolution Practitioner of the new firm, CLEON Legal & Mediation Services (Justice. Fairness. Equality). This firm was set up to address access to justice issues in Australia; it offers virtual services, with a focus on assisting self-represented persons, in family law matters (drafting Divorce Applications, Consent Orders, Initiating Applications), criminal matters (reviewing briefs of evidence, and assisting accused persons with writing submissions, bail applications, and other criminal matters), and prisoner ombudsman appeals. Additionally, this firm assists families going through family mediations, in person, via the telephone, and via video-link. Chrissy is involved in the academic development of the Graduate Diploma of Family Dispute Resolution Program; she researches and writes widely in this discipline. She is also a sessional tutor with James Cook University, and provides tutorial support in the Indigenous Tutorial Assistance Scheme. Chrissy also conducts Official Visitor Inspections in Townsville prisons. She has a fierce passion for prison accountability, and the fair and humane treatment of prisoners.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).