NPO publishes blog articles to inform and to stimulate conversation about issues of importance to NPO's mission.  All blog articles express the opinions of the authors as individuals and do not necessarily reflect the views of National Parents Organization, its Board of Directors, or its executives.  

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November 21, 2019 by Robert Franklin, JD, Member, National Board of Directors

Augusto Zimmerman’s article in The Spectator summarizes his recommendations to the new Joint Committee on Australia’s Family Law System (The Spectator, 11/11/19).  Zimmerman is a heavyweight in the Australian family law community; among other things, he’s a law professor and former commissioner of the Law Reform Committee of Western Australia.  His words damn the system of domestic violence restraining orders from start to finish.

It’s a truism about human nature that, whenever we give power to any group of people, there’s a substantial likelihood that some of them will abuse that power.  The recognition of that truism explains why there are so few monarchies left, why we have a system of “checks and balances,” a Bill of Rights, etc.  It’s why we audit financial statements of businesses and monitor (ideally via the press) the doings of governmental officials.  It’s why we have elections.

And so it is with domestic violence and the restraining orders that Australian judges hand out like so much candy to children.  Those who claim victimization and seek restraining orders are placed by law in a position of power.  Most of them don’t abuse that power, but altogether too many of them do as the truism predicts.

It is that system of granting astonishing power to one person at the expense of others that Zimmerman so effectively excoriates.

At the outset, a person claiming victimization need produce no evidence of same beyond her/his say-so.  Orders are routinely issued on the basis of nothing but that.  Zimmerman reports that, according to officials in New South Wales, those hearings take less than three minutes each.  Needless to say, there’s little a judge can do in that time to assess the “evidence” or the complainant’s credibility.

When restraining orders are issued, the target is removed from their home, refused all contact with their children and often access to joint bank accounts.  The result is that they find themselves homeless, unable to work, penniless and unable to access resources with which to defend themselves.

Plus, as other attorneys have made clear to us, when a claim of victimization is made, the judicial hearing takes place almost immediately and the order issued just as quickly.  But when the respondent wants their day in court, it can take many months to get a hearing.  In that way too, the system places its thumb on the complainant’s side of the scales.

Of course, there are many benefits to claiming victimization.  A restraining order in one’s favor means the children are in the sole care of the claimant.  That in turn confers a huge advantage in the child custody case that strongly encourages making the allegation in the first place.  Greater time with the child means more money in the form of child support paid by the respondent to the claimant.  Plus, apparently the Australian government compensates victims of DV, so there are direct inducements to claim victimization.

None of this would be justified even if the claim were of actual violence, but often it’s not.

What is more, write legal academics Patrick Parkinson, Judith Cashmore and Judith Single, references to “fear” are included in a “routine or habitual manner” in these applications, ‘frequently as a bald statement to conclude a complaint without any reasoning or thematic connection to the victim’s experience’.

As a further indignity, a respondent may eventually – even after many years of being subjected to the restrictions of the restraining order – affirmatively disprove the allegations.  That is, they may be proven false, but, if they are, the false complainant suffers no consequences.  In other words, an allegation of DV is a free shot, one that can confer many benefits, but for which there is no detriment.  Given that, why wouldn’t there be false claims?

But disproving allegations isn’t easy.  Here’s how Zimmerman describes final hearings in DV cases:

[They are] notoriously devoid of due process and the most elementary elements of procedural fairness. 

He later called the system “a gross violation of human rights.”

Such is the Australian system for adjudicating claims of DV.

Against that backdrop, Zimmerman offers recommendations to the parliamentary committee conducting the review of family law and courts.

First of course he recommends that the process be altered to provide traditional legal protections to the accused.  Those include due process of law and the right to be judged “guilty” only if there’s reliable evidence of guilt.  He also argues that intentionally false claims of victimization should be treated as what they are – severe domestic violence themselves.  After all, claims of DV mean a child loses contact with the targeted parent and vice versa.  If such a claim is falsely made, both the respondent parent and the child suffer due to the malice of the claimant.  And that indeed is domestic violence.

This is the system for which Zimmerman seeks reform.  It is also the system people like Zoe Rathus and Jess Hill want to maintain intact.  Rathus, Hill and so many others prefer the power the system gives to one person at the expense of the other (and possibly the family’s children).  To them, if parents, children and the whole edifice of individual rights and procedural fairness suffer to promote their ends, well, you can’t make an omelet…

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