‘Legal systems abuse’ refers to the manipulation of legal processes by perpetrators of family violence, in order to maintain or exert control over, threaten, or harass a former partner. In this way, legal systems abuse presents a pertinent issue to the family law system, as practitioners and courts alike are faced with clear incidences of litigants seeking to commission acts of family violence through the legal system and further inflict harm upon their victims both emotional and financial.
Types of Legal Systems Abuse
Family violence is often characterised by one party seeking control by way of stalking or seeking contact with the other party despite their wishes. While legal systems abuse does not fall within the non-exhaustive definition of family violence provided by s4AB(1) of the Family Law Act 1975 (Cth), the methods used by a litigant which constitute legal systems abuse can include any of the following:
- Vexatious litigation which involves the perpetrator persistently pursuing meritless claims to harass or cause financial hardship to the other party who has to defend and/or respond to their applications.
- Exploiting the corporate veil to hide assets or even to make applications against a former partner in multiple jurisdictions or by multiple third parties through the abuse of court processes.
- Refusing to disclose documents to prolong or frustrate the proceedings and in turn increase costs for the other party.
- Making false reports of abuse or neglect to child protection agencies, or making complaints in multiple jurisdictions such as the Family Law Courts, the Children’s Court and the Magistrates Court which deals with Family Violence Intervention Orders.
- Lodging cross applications for domestic and family violence protection orders to intimidate the victim into withdrawing their genuine application.
- The litigant seeking preliminary advice from multiple lawyers so as to deny the victim access to legal representation on the basis of conflict of interest.
Generally, legal systems abuse is characterised by conduct which seeks to control or harass the other party and cause them unnecessary legal fees which are often financially crippling. This is consistent with the element of coercive control which is central to many instances of family violence. In this way, the court processes provide an opportunity for the perpetrator to expand their repertoire of coercive and controlling behaviours post separation.
The Effects of Legal Systems Abuse
Systems abuse commonly result in depleting the victim’s financial resources and emotional wellbeing, and adversely impact the victim’s capacity to prosecute their family law matter, maintain employment or to care for children. The victim may also feel de-legitimised and denied protection from an abuser. In this way, systems abuse not only involves a commission of family violence by a perpetrator manipulating the various limbs of the justice system, but a lack of response from legal practitioners, the police, and Courts who may fail to recognise systems abuse when it is before them.
Instances of legal systems abuse are especially harmful where the victim lacks the financial resources to engage legal representation, and the perpetrator is either financially well-resourced or prepared to engage solicitors and counsel, and fund multiple actions over extended periods no matter the financial cost to them.
Systems abuse remains to be an under-researched, and under reported form of family violence as its conceptualisation continues to evolve. As such, there is minimal data on the experiences of victims who experience family violence by a perpetrator’s manipulation of the legal system. It is therefore vital that there is an improved understanding of legal systems abuse as coercive control by legal practitioners and Courts, who may help to circumvent the opportunities for the abuse to occur.
Clear instances of legal systems abuse should also be distinguished from the right of all litigants to seek justice and redress in legal matters. Whether or not the commission of family violence through these means is a product of all citizens access to justice, it is nonetheless a demonstration and perpetuation of family violence which inflicts significant harm on the victim. As understandings of family violence progress and evolve, it is important that this type of coercive and controlling violence is not left undetected by the justice system.
In exploration of this issue, Nicholes Family Lawyers Senior Partner Keturah Sageman and Senior Associate Catherine Giles were recently joined by barrister Eamonn Kelly, Barrister from the Victorian Bar as part of their presentation in the World Congress on Family Law and Children’s Rights: Through the Eyes of a Child. For more information, refer to the World Congress website: https://wcflcr2020.com/