Family Court is an unsafe space for victims of family violence

Justice

That victims of family violence should need an independent guide to help them with support information shows the systemic failures of our court system

Opinion: Approximately 80 percent of women appearing in the Family Court in cases involving care of children, and almost all cases involving protection orders, are victims of family violence who are litigating against their perpetrators.

Because the Family Court is a civil court, people who use it are treated as equal parties, like neighbours arguing over a boundary dispute. Women who come to Family Court seeking protection for themselves and their children are not considered victims but instead parties to proceedings and are therefore afforded none of the protections of the Victims’ Rights Act.

Clearly, they might need information about what supports are (or are not) available to them in the Family Court.

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The Backbone Collective, a national coalition of survivors of Violence Against Women in Aotearoa New Zealand, recently released the Information Guide for Victim-Survivors to provide just that. The impetus was Backbone’s research, in which hundreds of women who experienced violence reported that attending Family Court proceedings put them at risk of further abuse.

In Backbone’s survey in 2017, 496 victim-survivors from Aotearoa New Zealand reported their experiences of Family Court proceedings. According to the guide: “Fifty eight percent of the survey participants said they had been threatened, intimidated, or physically assaulted by their abuser while attending court-related appointments of hearings.” Backbone continues to hear from victim-survivors who say the physical court environment is not protective, court personnel are not well-trained, and there are few policies or practices that help keep them safe while at the Family Court.

Concerned about these findings, Backbone produced the guide to mitigate the harm victims may experience within a system that clearly needs to better protect those who are expected to go to court at the same time as the person who abused them or their children or both.

Though we have a long way to go in improving the treatment of women and children who have experienced sexual and family violence in our criminal courts, the Family Court has an even longer way to go

The guide offers valuable guidance and advice to help victims manage and reduce the risk of what is an inherently risky situation, and in doing so highlights the systemic flaws of the Family Court. To name but a few: court security officers may not attend Family Court proceedings (even ones involving family violence); victims are unlikely to have access to separate walkways, waiting areas, or toilet facilities; and they may be present in the common waiting areas with their abusers, where they could be threatened or intimidated by them.

It also warns victims that court personnel often hold misconceptions and misunderstandings about family violence that can cause them to use insensitive and harmful language and that there is no legal requirement for judges to intervene if a witness becomes distressed or traumatised. Victims seeking to give evidence out of court, such as via a video link, may apply to do so, and the guide provides information about how. But it also notes the court rarely grants permission to do so. Providing evidence in alternative out-of-court ways is routine in the criminal courts.  

The guide points out that that the perpetrators of family or sexual violence are not entitled to personally cross examine victim-survivors, but Backbone have heard from women who have been, and in practice there does not seem to be any mechanism to uphold the law that prohibits them doing so.

The guide recommends victims be prepared to wait for long periods for their cases to be called, not to object if judges ask their support persons to leave as it may affect their cases, be prepared to withstand pressure to agree to child contact arrangements, and suggests how victims can develop strategies to manage distress and trauma responses during proceedings.

The guide is a critically important piece of work for victims who must go to Family Court, but that victims should need it is disturbing evidence of the systemic failures of our court system in its obligations to victims. The Family Violence Act 2018 obligates the court to prevent perpetrators from inflicting family violence and keep victims safe.

International human rights law obligates all state institutions, including the courts, to prevent family violence, protect victims from it, and ensure access to redress and reparation for survivors. We have failed as a society to live up to these obligations when our Family Court requires a warning guide.

Gathering information for the guide took investigative knowhow, tenacity, and many voluntary hours. That the information provided by the Guide did not previously exist in one place, and in a way accessible to victim-survivors, is surprising given we know the bulk of cases going through the Family Court involve allegations of violence and abuse.

When Backbone made an Official Information Act request to the Ministry of Justice for information about the supports that were available to victims in the Family Court, the response largely consisted of links for statutory provisions in the Evidence Act. This might be helpful to lawyers, but it does not provide the information that relates to the physical and psychological needs of victims.

The guide also demonstrates the jarring disconnect between the way victims are treated in criminal courts and in the Family Court. Though we have a long way to go in improving the treatment of women and children who have experienced sexual and family violence in our criminal courts, the Family Court has an even longer way to go.

This discrepancy is starkly visible when the same woman who is a victim in a criminal court proceeding involving an assault from her ex-partner is simultaneously involved in Family Court proceedings in which she is applying for a protection order or finalising safe parenting orders.

If she were in the criminal court, she would be recognised as a victim and appointed a victim advisor. She could also access other ways of giving evidence, use separate walkways, waiting areas, and bathrooms, and security would be close at hand. Yet in the Family Court, she must advocate for herself to access even minimal supports.

The Government recently announced a slate of reforms for victims in the justice system, which seem to apply only in the criminal courts. Why are victims only victims if they are in the criminal courts? The Ministry of Justice has endorsed the “no wrong door” approach to family violence, which dictates that victims should get an appropriate response from any agency to whom they reach out for help – police, Oranga Tamariki, health professionals, or the Family Court.

Unfortunately, in Aotearoa New Zealand, the Family Court door has a yellow sticker on it.

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