Date: 26 May 2021 Time: 1:00 PM – 2:30 PM AEST Venue: YouTube Live via ZOOM Speaker: Heather Douglas
About the Presenter:
Heather Douglas joined Melbourne Law School in 2021 and teaches and researches in the area of criminal law and procedure. Her expertise on legal responses to domestic and family violence is internationally recognised and she co-ordinates the National Domestic and Family Violence Bench Book.
Heather is currently working on an Australian Research Council funded research project exploring the application of non-fatal strangulation offences. She was an Australian Research Council Future Fellow from 2015-2019 and her project explored women’s engagements with the legal system as part of their response to domestic and family violence. Her book, Women, Intimate Partner Violence and the Law, was published by Oxford University Press in 2021. She is a member of the Melbourne Alliance to End Violence Against Women and Their Children (MAEVe).
Heather is an elected Fellow of the Academy of Social Sciences in Australia and the Australian Academy of Law. Previously she was a Professor at the University of Queensland, School of Law. Heather has held visiting fellowships at Humboldt University, Faculty of Law (2018); Durham University, Institute of Advanced Studies (2016) and Oxford University, Centre for Socio-Legal Studies (2004).
Summary:
On 26 May 2021, the Victorian Family Law Pathways Network invited its members to engage with a webinar with Heather Douglas titled ‘Legal Systems Abuse and Coercive Control’. Heather’s presentation was centred upon her longitudinal study of women’s involvement with law as a response to domestic violence, ‘Using law and ending domestic violence: Women’s voices’, with the Australian Research Council Future Fellowship. The study was conducted in Queensland and involved interviews with 65 women over time.
Heather spoke to the following key themes:
1. Regular failure of legal processes and actors to come to terms w the significance of non-physical abuse and coercive control and the negative effects this has on their experiences of going
2. Legal system actors’ common expectation is that separation is a single event, rather than a process. Has implications for their connections with law and the outcomes they achieve over time.
3. Abusers creatively harness multiple aspects of the legal process and its actors, from protection orders, to custody cases, to police and beyond, in their effort to continue to exercise control – systems abuse.
Leaving is dangerous and going to law can exacerbate the danger:
Post-separation, abusive men may be prone to ‘changing the project from attempting to keep her within the relationship to destroying her for leaving it’ Dobash & Dobash (2015, p. 39). One woman spoke of the five ways her husband threatened to destroy her post-separation using the legal system – family, finances, reputation, professional life, psychological life. Women’s engagement with the law can trigger post separation violence – legal processes can be experienced as part of the violence.
The fragmented nature of legal responses and the different aspirations and definitions embedded in different legal responses can contribute to women’s danger (Stubbs & Wangmann, 2015; Jeffs, Kelly & Klein, 2018). Different systems have different procedures, affidavits, evidentiary burdens. This may create the situation where women may have different narratives, creating gaps which can be used by perpetrators to enhance their control over women post-separation
Legal processes: The women interviewed were heavily engaged with the legal system. Indeed, a lot of civil matters started by the male partner, which may include:
Being on a contract for car they never drove, paying phone bills, tolls, tenancies
Defamation cases (being sued by their partner)
Immigration, where a lot of women on spousal visas are looking to use the Exception under the Migration Act to gain Permanent Residency despite not living with partner for the requisite two years
Child protection – where women are maliciously reported by partners
The fragmented nature of legal responses and the different aspirations and definitions embedded in different legal responses can contribute to women’s danger (Stubbs & Wangmann, 2015; Jeffs, Kelly & Klein, 2018). Different systems have different procedures, affidavits, evidentiary burdens. This may create the situation where women may have different narratives, creating gaps which can be used by perpetrators to enhance their control over women post-separation.
Legal processes: The women interviewed were heavily engaged with the legal system. Indeed, a lot of civil matters started by the male partner, which may include:
Being on a contract for car they never drove, paying phone bills, tolls, tenancies
Defamation cases (being sued by their partner)
Immigration, where a lot of women on spousal visas are looking to use the Exception under the Migration Act to gain Permanent Residency despite not living with partner for the requisite two years
Child protection – where women are maliciously reported by partners
Case examples: Theophane & Hunt; Baron v Walsh; Conomy v Maden; Warpole & Secretary, Department of Communities and Justice.
Alex’s story:
‘His purpose is to keep me engaged by going to court… it’s the only way he has access to me. He’s using the law as a tool to abuse me and how do you get out of that, because you can’t just not turn up’.
Systems abuse is often a ‘perfect storm’. Her partner was initiating overlapping applications in multiple systems, involving multiple adjournments, subpoena multiple witnesses, extensive cross-examinations. Alex’s case involved:
Dometic violence protection order matters including adjournments, cross-applications, directions and appeals
Criminal breaches (as prosecution witness), requests for separate trial
Family law matters, including appeals
Small claims matters (tribunal) re property
Summary offence charges called as his witness
Defamation matters and appeals
Hiring and firing of lawyers
Legal systems abuse continues the experience of family violence, increases pressure to settle (pressure to consent), increases trauma, and increases costs: mental health, child care, days off work, etc., legal representation.
The invisible work of engaging with the law includes: organising witnesses, filling in forms for legal aid and protection order applications, drafting, checking and completing court documents, photocopying and writing notes and diary entries, logging recordings, emails and texts and keeping a record for potential material as evidence. Where victims are constantly engaging with a partner via the legal system, they are unable to get closure.
Areas for improvement:
Recognise coercive control
Better co-ordination across systems
Information sharing/communication between courts
Case and court management – disclosure, adjournments, service subpoenas, remove disrupters
Reduce delay
Abuse of process
Ethical lawyering (where just being the mouthpiece for the client is not necessarily ethical)
Cost orders
Lower the threshold to declare a litigant vexatious (e.g. across systems)
Q&A:
1. Are women represented in portraying systems abuse and coercive control behaviours as well?
Heather views systems abuse as a gendered issue. When looking at protection order applications, more than 80% protection orders are awarded to women. Additionally, far more male applications are dismissed and there are more breaches by male respondents.
2. What legal support did perpetrators have?
Although, a lot of perpetrators were unrepresented, some women spoke of their partners’ lawyers being the mouthpiece for the perpetrator and allowing him to run actions that were doomed to fail. Heather is an advocate for ethical lawyering, on both ends. Indeed, there is often insufficient engagement by a woman’s own lawyer/prosecutor, to stop inappropriate or irrelevant questions and subpoenas.
3. What can non-legal support workers (such as social workers) do to help victims of systems abuse?
Heather advises that non-legal support workers provide any help they can to victims, such as writing letters of support to employers, assisting with photocopying or childcare costs, and facilitating access to mental health support. Workers can call courts in advance to set up safe entry/exit points and waiting rooms to limit contact with perpetrators.