#childsafety | He had a QC, she couldn’t afford a lawyer. Is that justice?

When the money runs out for women fighting for their children in the Family Court, a growing number represent themselves. An arduous process for often traumatised women quickly becomes near impossible. Kirsty Johnston reports.

It was at the most critical point of the hearing that Anna broke down in front of the judge. A screen hid her face from the courtroom, but it couldn’t hide the soft sound of her crying as she described what she wanted out of the ongoing custody battle with her ex-husband.

“I want it to stop,” she said, as the security guard brought tissues. “I’m stuck in two places … I want it to stop, but I’m worried about the children.”

By that point, Anna* had spent nearly four years before the Family Court.

Her case began when she sought a protection order, alleging domestic violence, including rape, against her ex-husband. The allegations were not upheld. The court said although the man had been convicted of a violent criminal offence, his behaviour wasn’t part of a wider pattern. There was not enough proof of sexual offending, the court said, noting police had not taken a prosecution due to lack of evidence. The judge ruled Anna’s fears were “contrived”, and refused to grant her the order.

* She spent $50,000 trying to get safe. In the end, she gave up.
* Alison Mau: The cycle of silencing victims is beyond frustrating
* Gender-based violence NZ’s shame, women’s rights commissioner tells UN

This time, Anna had been brought to court because of her three children. Her ex-husband wanted a parenting order enforced – the children had recently refused to go to his home despite a shared care arrangement. He believed Anna’s negative views were influencing the children against him, and a court order would ensure their co-operation. But Anna was arguing that she believed the children had valid reasons to be afraid, and that she couldn’t force them to comply.

Now, however, Anna was at a double disadvantage. Not only was she unable to re-litigate her previous allegations of violence, but she didn’t have a lawyer to help her. Anna had run out of money – after borrowing $200,000 for her previous case – but she didn’t qualify for legal aid. Instead, she was representing herself.

Meanwhile, her ex-husband had managed to get his criminal conviction overturned, arguing it would affect his high-flying career. His income meant he could afford a Queen’s Counsel – the most senior of lawyers in New Zealand. Where Anna was emotional and at times confused by proceedings, his lawyer was calm and in control.

“It wasn’t an equal footing,” says Anna. “He had access to all these people – multiple lawyers, accountants that he could pay for. Whereas even though I drove myself into the ground working 24/7 on my case, I was also recovering from trauma. I had post-traumatic stress disorder. The outcome was never going to be what he could achieve.”

Kathryn George/Stuff

Family violence isn’t always a scene from Once Were Warriors. More often, it’s about men controlling women, sometimes without physical abuse at all. (Video first published in September 2020)

Self-represented litigants are an increasing part of New Zealand’s family law system, a civil arena that hears relationship, custody and property disputes. The Ministry of Justice reports that each year, upwards of 6000 people choose to argue their own cases in the Family Court.

But “choose” isn’t really the right word for women like Anna, who fall between the financial cracks of having too much money to meet the strict criteria for legal aid, and not enough money to pay for a lawyer. Many women in the Family Court have recently left abusive relationships – research suggests more than 60 percent of Family Court cases also involve violence – and are struggling to get back on their feet.

The legal community has been concerned about the uptick in self-representation since at least 2014, when the then-chief High Court judge Helen Winkelmann gave a speech centring on what she called the “justice gap”. With fees for even a one-day hearing nearing $7000, it was out of the reach of most people, she said, and yet self-representation was not “effective advocacy”.

The Law Society has also noted an increase in inequality between litigants, particularly since reforms to the legal aid system in 2011.

“We have seen this most starkly in the Family Court,” Family Law chair Caroline Hickman says. “We sometimes see women going through the system who are unable to qualify for legal aid but need protection and don’t have the resources to pay for a lawyer over an extended period of time.”

New research from Australia has raised further concerns. The study, published by Australia’s National Research Organisation for Women’s Safety (ANROWS) found not only is the court experience worse for self-represented violence victims, but it leads to worse outcomes – particularly for children.

“It’s a double whammy of imbalances of power – first the abuse itself and then the self-representation,” says the report’s author Dr Jane Wangmann, from the University of Technology Sydney. “There is a distinct disadvantage.”

The researchers found the way the courts treat women almost mirrors what they’ve already been through, and in some cases escalates into abuse perpetuated through the legal system.

“Women complained about being bullied and yelled at in court,” she says. “We also heard about strategies designed to deplete their resources, for example bombarding their lawyers until they ran out of money.”

Wangmann says self-represented litigants struggle both with the expectations of the process and the complexity of the family law system. In particular, they are unprepared for the heavy emphasis on paperwork and negotiation.

The research also found victims who self-represent are not always safe from violence in the court, and don’t understand the options available to them, such as screens or waiting rooms. In total, the burden can overwhelm victims, leading to unsafe decisions.

“Some victims of family violence may agree to orders that are unsafe or unsatisfactory because that has been their mode of dealing with the perpetrator to ‘keep the peace’, or they simply ‘give in’ because they … have been worn down by the court process,” the research states. “Many professionals considered that [self-represented litigants] generally achieve poorer and less child-focused outcomes.”

Bridgette Toy-Cronin, of Otago University, has conducted research into legal self representation in New Zealand.
Bruce Mercer/Waikato Times

Bridgette Toy-Cronin, of Otago University, has conducted research into legal self representation in New Zealand.

Head of Otago University’s legal issues centre Bridgette Toy-Cronin says the study’s findings are directly relevant here, and need to be addressed. While financial drivers are the main reason litigants chose self-representation, some also cite bad experiences with lawyers and a belief they can do a better job alone, Toy-Cronin says.

“People think they will go to court, tell their story, and the judge will see that and make a decision,” she says. “But our system isn’t like that. There’s a lot of weight in what you plead, and your sworn affidavit. Which is why we have law school. It’s deeply unfair to expect people to make that jump.”

Toy-Cronin says it’s particularly difficult for family violence victims to explain what happened to them, because of the impact of trauma.

“Often they get to court, and they haven’t processed it. It affects their ability to speak.”

The ANROWS study found that trauma had a negative impact on how victims present their case in a courtroom. Women reported finding it difficult to control their emotions, with fear and anxiety exacerbated by the proximity of the alleged perpetrator. But the court didn’t always recognise that impact.

“It doesn’t matter how scared you are, it doesn’t matter if you are in trauma,” one litigant told researchers. “I was told by the judge ‘This is not a therapy session, this is a court of law.’”

Auckland University mental health expert Dr Debbie Hager says the after-effects of violence – such as trauma and anxiety – limit a victim’s ability to focus.

“There’s also just fear. I think we really underestimate fear in terms of women’s ability to confront the perpetrator in court,” Hager says. “There will be signals he’s sending that no one else understands. How he looks, a certain hand action, something he says that’s a complete trigger for her.”

Hager says post-traumatic stress disorder adds an extra layer of complexity in that victims can dissociate, a practice where they take themselves mentally outside their bodies.

“It’s a way of preserving some integrity during abuse processes. But it’s dysfunctional in a situation where it’s not needed – for example in court – and can be perceived as not concentrating or taking things seriously,” she says.

Sometimes, that behaviour is misunderstood by judges. In Anna’s case, the judge in her first hearing described her as “fragile” and her evidence as “chaotic in nature”. A psychiatrist later said she was probably dissociating. However, she never appealed that judgement – the decision against a protection order – because she was warned by her lawyer she would not succeed.

Similarly, the lack of understanding of violence can result in the withdrawal of legal aid upon appeal. This is because legal aid will not fund cases that have little chance of success. If a woman has a negative judgment in the first instance, it is unlikely to fund a second.

In a submission to the judicial subcommittee on improving access to civil justice last year, the Auckland Coalition for the Safety of Women and Children said this was both unsafe and unfair on victims.

“This leaves many women unable to access funds to take an appeal,” the coalition wrote. “However, there is no advocacy or support to help her with this process and the High Court Registry is not set up to be able to offer this support.”

The coalition argued that to correct the balance, there should be no cost to victims appealing a Family Court decision if that decision relates to family and sexual violence or child abuse and neglect.

“Women who have experienced violence and abuse are severely discriminated against by the current responses from the courts,” it wrote. “It should not come as an additional burden on them to fight to access justice; it is surely enough that they are forced to fight for their own and their children’s safety.”

In Australia, ANROWS suggested extending a pilot scheme already in place in their courts called the Family Advocacy and Support Service (FASS). It combines free legal advice and support at court for people affected by domestic and family violence.

This is an extension on their duty lawyer scheme, which provides advice to any unrepresented people on their court day, including helping with documents and negotiations.

New Zealand currently has neither of those options, although it does have a Family Legal Advice service, for low-income people in custody cases. There is no duty lawyer service, which is also considered a difficult option given the length of Family Court proceedings. But expanding legal aid is also off the table, according to Justice Minister Kris Faafoi.

There is no prospect of legal aid being any more widely available, based on comments from Justice Minister Kris Faafoi.

Hagen Hopkins/Getty-Images

There is no prospect of legal aid being any more widely available, based on comments from Justice Minister Kris Faafoi.

“While we understand that the threshold means there are people who fail to be eligible for legal aid yet still may not be able to afford a lawyer, there is limited ability to fund these services beyond those people with the most insufficient means,” Faafoi says. Instead, the Government has provided more money for community law centres, and is introducing a “navigator” role that will provide guidance and information to parties in the Family Court.

Toy-Cronin says a more radical option would be empowering judges to have more control over cases, to prevent abuse of the litigation process.

“Currently, if one person has money they can mobilise it against the other. They can bring application after application, dragging the other through the court,” Toy-Cronin says. “You can only disrupt that if judges say, ‘that’s enough’. But you need a judiciary who understand family violence dynamics before you give power to them.”

Anna’s case never really recovered after she broke down. She tried to argue, again, that her priority was keeping her children safe. She pleaded for the judge to address the domestic violence. She tried to argue the psychologist’s report didn’t cover what the children had been exposed to.There was evidence the court hadn’t properly heard, she said, because her husband’s lawyer had it struck out.

It was no use. The judge was kind, but firm. He was going to make a parenting order, and it was up to her and her ex-husband to make it work, he said. Because Anna hadn’t pursued her appeal, the alleged violence was no longer a consideration.

“At some point you have to say, ‘that’s enough’,” the judge said. “There is no magic solution.”

The parenting orders were made final in January. The children are still refusing to see their father. Anna doesn’t know what will happen next. But she hopes she never has to go to court again. “I don’t know how to explain what I went through,” she says. “It’s enough to make you go crazy.”

* Vulnerable parties before the Family Court are unable to be identified.

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