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Tracking, Surveillance, Financial Control: Understanding Coercive Control in Intimate Relationships
What area(s) of law does this episode consider? | Coercive control from a family law perspective |
Why is this topic relevant? | In November 2022, the Crimes Legislation Amendment (Coercive Control) Act 2022 was passed in NSW. The Act will come into substantive effect in 2024, and in an Australian first, criminalises certain abusive and controlling behaviour towards current and former intimate partners. |
What legislation is considered in this episode? | Crimes Legislation Amendment (Coercive Control) Act 2022 (NSW) (CC Act) |
What are the main points? |
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What are the practical takeaways? |
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Show notes | New court initiatives help uncover higher prevalence of family violence and other risks (FCFCOA Media Release, 10 November 2021). Personal Safety Survey 2016 (ABS 2016). |
David Turner:
1:00 | Hello and welcome to Hearsay the Legal Podcast, a CPD podcast that allows Australian lawyers to earn their CPD points on the go and at a time that suits them. I’m your host David Turner. Hearsay the Legal Podcast is proudly supported by Lext Australia. Lext’s mission is to improve user experiences in the law and legal services and Hearsay the Legal Podcast is how we’re improving the experience of CPD. In November 2022 the Crimes Legislation Amendment (Coercive Control) Act was passed in New South Wales. Now the Act will come into substantive effect in 2024, and in an Australian first it will criminalise certain abusive and controlling behaviours towards current and former intimate partners. Now, earlier this season, Hearsay took a deep dive into the conduct required to establish the offense from a criminal law perspective with Andrew Tiedt: from J Sutton and Associates, and we also looked at allegations of violence in family law with Senior Judicial Registrars, Brett McGrath and Sharney Jenkinson of the Federal Circuit and Family Court of Australia – or the FCFCOA – touching on the court’s recent Lighthouse Project, a data driven re-imagining of the processes of the court in high risk matters involving children. Today though, we’re looking at domestic and family violence and the impact of these new coercive control laws from the perspective of a family law practitioner with Hayder Shkara. Hayder is an expert family law practitioner, a former Olympian, and the founder of Justice Family Law. Hayder, thank you so much for joining me today on Hearsay the Legal Podcast. |
Hayder Shkara: | Oh, it’s my pleasure. I’m really happy to be here. |
DT: | Now, tell us a bit about how you got into family law and how you came to found Justice Family Law, because as I mentioned in the intro, you are a former Olympian; you competed at the Rio Olympics in Taekwondo. |
HS: 2:00 | I was looking for a job that I could be completely stressed out about 24 hours a day, seven days a week! |
DT: | Yeah. You picked the right one! |
HS:
3:00 | Yeah. And get little to no appreciation. That was in my criteria. No, but I guess it came back ultimately to my roots. And I come from a mixed background family, so my mother’s Japanese, my father is from Iraq. And being in Australia from a migrant kind of background you are always looking at ways as to how to support your community. Especially as my father coming from Iraq. You’re coming from a community that has very limited resources. They have to share and help one another constantly. So, I always thought of my role as; “how can I contribute to the community?” And so, when I was on that path, I thought, doing law was a very kind of noble and prestigious job. My grandfather actually was a judge back in Iraq. Yeah, in the early 1900s. There’s a little bit of history over there in the family. I was very happy to do that and when I graduated, I moved straight away into family law. I found that area extremely interesting. And again, I think it comes back to that whole community kind of spirit, families, ensuring that children are giving the best upbringing that they can. When it comes to my involvement with sports and how those two are linked, I would say that I did spend a lot of time also teaching because, in my early days when I first started university, I opened up a Taekwondo club. |
DT: | Oh really? |
HS: | Yeah, that’s right. And in that club, most of your members are children. And so, I was 18 years old at the time, and I was teaching for a few years there at the club. So again, you’re constantly coaching and bringing up children as you are competing on your own journey. And when you’re seeing that you want to ensure that these children have the best kind of future for them. And so that’s why I saw – as a natural fit – family law for myself. Because whilst you’re representing your clients, most of the time you’re trying to get an outcome that’s positive for the children that are involved. |
DT: | Absolutely. That’s really the overriding purpose. |
HS: 4:00 | That’s right. Exactly. That’s how I went on that journey. And when I opened up the firm it was shortly after I finished competing at the 2016 Olympics. I was home after finalising an Olympic games and the Olympics is a huge kind of moment in your life, but the way it works is you’ve got complete tunnel vision for it. Once it comes it’s like going off a cliff. That’s the way I explain it, because it’s like you’re constantly climbing this mountain for a period of four years, really. That’s the whole Olympic cycle. In my case training for 20 years to get there. And so, once you get to that point it doesn’t decline steadily, like on the way up the mountain. Instead, it’s like a cliff. So, you get to the top of the mountain and then the cliff’s there, you fall off and you’re just like “what do I do now?” |
DT: | So that led you to found Justice Family Law. |
HS:
5:00 | That’s right. Yeah. That’s been open for a bit over five years now. Earlier this year, I actually went into another practice in Melbourne because we found that our client base was growing quite substantially there, especially during COVID. So really the benefit that we found from COVID was we’re able to offer our services to a broader audience. Clients were more accepting of speaking to lawyers closing deals whilst not meeting their lawyers. Whereas previously it was very important for clients to come in, sign our cost agreement, shake our hands, and that’s it. But that’s all changed in the last two years and being able to grow nationally is like our next step. |
DT: | It’s so true, isn’t it? I think we had that experience myself in commercial law. I remember doing a matter in the Corporations List in the Supreme Court of Victoria. Now it’s federal legislation. There’s no reason why not. |
HS: | Yeah, that’s right. |
DT: | But I never would’ve done a matter in the Corporations List in the Supreme Court of Victoria before. It was the enabling factor of COVID. |
HS: | That’s right. |
DT: | …that really allowed us to pick up that work. |
HS: | And as well as the AVL links that would’ve occurred in most of the courts which enabled people to appear from anywhere. So that was also a huge benefit. How did you find the practice and procedure in Victoria courts as opposed to New South Wales? Legislation; same, right? But practice. Did you find any differences? Because we did. |
DT: 6:00 | I found the Corporation’s List is very uniform across the states and I think that’s because the Federal Court is also quite uniform with the state Supreme Courts. And so, there wasn’t a great deal of difference there. There’s actually been some very good work done to harmonise the corporations law, but I suppose there’s still some marked differences. I say that; “oh, it’s federal legislation, it’s harmonised across states. There’s no differences“. But of course, in family law there are some marked differences in different state registries. |
HS: | Yeah, I would say some cultural differences. That’s what it comes down to in terms of how procedurally they might operate. They operate fairly different in different states, different registries. |
DT: | I suppose judges have different preferences for how they manage their lists. |
HS: | Exactly, yeah. That’s what it comes down to. |
DT:
7:00 | Yeah. Now we’re talking today about the new coercive control laws, they were passed, received royal assent in November 2022. We have quite a long period, almost 18 monthsbefore they will formally come into effect in early 2024. But they’re quite an interesting new development from a criminal law standpoint. We’re here to get your perspective on these laws from a family law standpoint. Now, I spoke to some Senior Judicial Registrars from the Federal Circuit and Family Court of Australia earlier this year about the court’s Lighthouse Project, a new approach to risk assessment for family and domestic violence. They said that 64% of filing parties in family law matters. – these are for parenting only matters – alleged that they’ve experienced family violence either towards themselves or towards the children of filing. Does that track with the experience that you’ve had with what you are seeing in your practice? |
HS:
8:00
9:00 | That statistic is really interesting. And when you say that and when you provide that statistic, I guess without context, it can appear extremely alarming. But with context, what we say is if there’s 64% of matters that are in the family court that have some element of risk or violence, I guess the next question to that is; “how many matters are not in the family court?” If you think about that, the overwhelming vast majority of matters. And when I say matters, separations, divorces, anything along that nature. The overwhelming majority do not end up in court. We know that it’s an obvious statistic. I’ve looked at the stats and I know roughly you’re talking at least 90% of matters. They don’t even see lawyers. Why? Because they’re able to somewhat get along. There’s a level of amicability. I’m not saying that there’s no domestic violence within those matters. I’m sure there is a substantial amount. The reality is that most people are able to solve their own problems. And not escalate matters further. If anyone can avoid paying lawyers money, they will try. No one’s excited about waking up in the morning and giving their lawyer a thousand dollars retainer in order to get started and write a letter. When you look at those stats and you see the amount of people that don’t use lawyers – that’s the first thing. Then you think about the amount of people that go to lawyers and are able to resolve their matters that way. That’s a huge statistic again, that’s a huge number of people and that takes a large chunk of people away from the court system. And having been in the area for almost 10 years now, the vast majority of family lawyers will do absolutely everything they can to keep a matter out of court. TIP: The data backs Hayder’s position, according to the court’s annual report for 2021-2022, 70% of matters were resolved prior to trial. Equally, 196 applications for final orders were settled at trial accounting for 31% of all applications for final orders and 297 applications for final orders were finalised by judgement amounting to 47% of all applications for final orders. |
DT: | Historically there was such a delay and I suppose there still is such a delay in the resolution of matters through the court and there absolutely is a selection bias there, isn’t there? That matters that are going to court because they couldn’t resolve, are more likely to have those kind of confounding factors that prevent resolution? |
HS:
10:00 | Most definitely. Very well put. The matters that are in court, that means there are real issues that we’re talking about here and that’s why we need the power of the courts to intervene. And that’s why, yes, a lot of clients, they may be experiencing domestic violence. There might be some elements of coercive control. There might be an element of mental health issues that are happening within either the parties or the children. So, the matters that are going to court, they’re normally going to have an element of complexity to them. They’re not going to be just the run of the mill kind of matters because those ones we can solve. |
DT: | Yeah. Yeah, absolutely. |
HS: | Those are the ones that we can solve. Those are the ones that people can solve together. Lawyers can do it together. We’ve got mediators, we’ve got resources that can help us get resolutions on these things and, most of the family lawyers out there, I’ve got to say they do a fantastic job of trying to get solutions. And they’re able to work together to get these solutions. There might be a bit of tension here and there. I’m not saying that that doesn’t happen, but we’re all focused on getting these resolutions and like I said, the ones that end up in court, they’re normally the ones that are a little bit tricky. Yes, there might be some issues that kind of come about and we need a bit of help, and that’s why we’re going to the courts for that. |
DT: 11:00 | Absolutely. Now, as I mentioned at the top of the episode, we’ve talked about this topic of coercive control a couple of times on the show, but for any of our listeners who haven’t heard those episodes – and if you haven’t listeners, go and listen to them, they’re great episodes – but if this is your first time hearing about coercive control, Hayder, maybe you can tell us a little bit about what we mean by that term. You must see some of this behaviour, some of this conduct in your practice? What’s a sort of typical example of coercive or controlling behaviour that you see? |
HS:
12:00
13:00 | Oh, look I’ll rattle off a couple of examples that we see fairly regularly. One big one is the monitoring of another person. Consistently monitoring them. And what does that come down to? It could be things like; everyone’s got an iPhone or smartphone, so you’ve got the tracking ability on every phone to have that permanently on and a requirement where people are fearful of turning that off. So that’s one part of the tracking. There could be tracking of vehicles. There could be surveillance systems within the house. So, you know, it’s okay to have an alarm or whatever surveillance system that monitors what goes on outside. When there’s a substantial amount of cameras within the house that could be seen as some kind of monitoring or some kind of control to make sure you know exactly where your partner is at all times. There could be things like connecting your smartphone device to their smartphone device so you know what all their incoming calls are, what messages they’re receiving, things like that. So that’s, I would say, on the monitoring side of things, in terms of another form of control that is fairly prevalent. And that we see quite a lot of in terms of what parties explain to us; is financial control and abuse. The financial aspect of limiting, completely limiting one party’s resources not being able to access any funds. Having to get approval constantly for basic needs. The financial abuse is, it’s always a let’s say it’s a fun topic to talk about because it’s something that can be raised and you can have a conversation with lawyers, non-lawyers about it because at what point does financial control become abuse? TIP: Public uproar after the deaths of Preethi Reddy and Hannah Clarke led the NSW parliament to amend the Crimes Act to include section 54D through the passing of the Crimes Legislation Amendment (Coercive Control) Bill 2022. That Act has the result that coercive control is now covered by a separate offence in NSW. The Bill was passed on the 16th November 2022 and received assent on 23 November 2022. The new section 54D provides that the defendant – an adult who must be 18 years of age at the time of committing the crime – commits an offence if they engaged in a course of conduct that constitutes abusive behaviour against a complainant and that the defendant and complainant were partners or former partners. The defendant must have intended to engage in such conduct in order to coerce and control the complainant. A reasonable person looking at the conduct must consider that the conduct would be likely to evoke feelings of fear of violence or serious adverse impact to a complainants capacity to engage in some or all of their day-to-day activities regardless of whether the fear or impact did in fact take place. |
DT: 14:00 | And we’re talking about laws here that criminalise this conduct. So, at what point does – this is something we spoke to Andrew Tiedt about earlier in the season – at what point does conduct which you would frown upon, which you don’t like, which you wouldn’t do in your own relationship, which you find odious, at what point does that tip over into criminal conduct… |
HS: | Correct. |
DT: | …that might be sanctioned with a custodial sentencing? |
HS:
15:00 | Yeah. Of seven years. And that’s completely correct. So even if I go back to that monitoring example. One party might just turn around and say; “oh, I do that because I’m worried about where they might be. It’s a safety precaution, I just need to make sure that I know where my partner is at all times because what happens if something happens to them or maybe they’ve got a medical condition and I need to know if they’ve passed out or something like that.” so these are the types of things that could be counted or people could explain. And the same thing with the financial control. It could be the case that one person saying; “hold on, this is our budget. We’ve got to save up this money to achieve this.” And we had a case not too long ago, where this was really the argument and one party was arguing they were under the control and financial abuse of the other. And she was saying that she couldn’t access her own funds and she had to ask for approval all the time and she couldn’t pay for basic things. And so, we went through the bank statements and we were able to show that; “oh, hold on. You bought this appliance” – I think it was a vacuum cleaner or something – “You bought it for $700. Did you have to get approval for that? No, it wasn’t. Oh, hold on. You had your credit card where you had a $5,000 limit. How is that financial abuse?” Whilst people might perceive that they’re completely under control, maybe the reality doesn’t match that. And it’s a very tricky kind of point. Like you said it might be something that’s regular in one household, but in another household, it might be completely foreign. |
DT:
16:00 | And it’s really about the intent or the purpose of the conduct, then the conduct itself in a way in the sense that the same conduct might in one case be intended to coerce, to control, to influence someone’s behaviour. And then another is a mutually consented to budgeting strategy or mutually consented to approach to manage the household finances. So, in a way, this is really why these laws needed to be passed, isn’t it? Because these are the sorts of ephemeral kinds of abuse that were not captured by pre-existing laws. |
HS: | That’s right. Yeah. There was nothing to encapsulate this. And I think there’s a huge push within the government in order to do something about domestic violence in its various forms. And really these things are only coming up now. So, these conversations about monitoring or financial abuse or coercive control, these weren’t conversations that were happening in the public sphere 10 years ago or 20 years ago. They’re only conversations that are starting to come out now in terms of people understanding what different forms of abuse is. You’d be surprised on a daily basis, the amount of times I have to explain to people what domestic violence actually encapsulates these days. |
DT: 17:00 | Yeah, I suppose you might see in your practice many people who might not be aware that they are the subject of coercive or controlling behaviour, or aware that they are committing coercive and controlling behaviour because one of the insidious things that about this conduct, and we’ve spoken about this many times on the show, is that often the victims of it themselves are not aware that it’s happening. |
HS: | Yes, that’s right. I guess that goes to the broader kind of issue that I would say is really the underlying issue here, and it comes down to education. And knowledge. Because like I said, I’m constantly having to explain what the parameters of domestic violence is. And I’m having to explain that to ordinary Australians. But I guess what is even more important than maybe passing a legislation is this education. And that’s really where I’m coming from here. People need to understand what is coercive control before we start enforcing coercive control. And I think that’s really important. I think that’s why – and I think we’ll touch on it later on in our later questions – that’s why this legislation has been structured with such a staggered start. |
DT: 18:00 | Yeah, absolutely. And in the same way that the law can either reflect current standards and widely held beliefs, or it can mould those standards. It can lead the way, maybe this is part of that education piece to bring that into the public consciousness more greatly, because it is an important area to legislate. But of course, given some of the nuances of this new legislation, hugely important that lawyers like yourself know how to interact with it and work with it, because it can be very tricky to identify an offense under this legislation. |
HS: | It’s difficult to define, it’s difficult to legislate, and it’ll be difficult to prosecute. Because of all of those reasons. It’s not as simple as “I hit this person; I’ve committed an offense“. |
DT: | Yeah. We spoke about that on the show earlier where, most criminal offenses have an act and a mind, the actus reus and the mens rea. You’ve got something that you can clearly point to as the guilty act, something you can clearly point to as an intention behind that. But a course of conduct… |
HS: 19:00
20:00 | Yeah. Over a period of time is also another requirement. So, it’s just not as clear cut. It’s, like I said, it’s difficult to identify. It’s difficult to define. But having said that, does that mean we do nothing about it? No, that’s not what I’m saying. It’s certainly not! Something needs to be done about it, but I guess there’s so much discussion and debate around this topic because of those reasons. If you go up to a normal person on the street and say; “what is coercive control and how do we find the markings of it? How do we identify it?” People are not going to understand what that means. People really won’t. And it goes back to your point. So, by introducing this it’s not enough. That’s what I’m saying by just to introduce it. There needs to be a whole program to educate and help people understand what it actually means. Because the lawyers are struggling. And I think the judges will struggle, and I know the police officers will struggle. We’re going to have to get a little bit more direction. And I think that’s where I personally feel the legislation is a little bit lacking in terms of giving that direction. Because it’s trying to do a lot of things. Which is admirable and it’s trying to encapsulate as much as possible, which is also admirable. But in doing so, I personally feel it leaves a bit of a sense of vagueness. And empty space. For the ordinary person to figure out what the legislators are actually meaning by these things. |
DT: | Because I suspect if you did ask a person on the street what’s coercive control, you might get an answer a little bit like; “you know what, when you see it, you know that I can’t tell you what it is. But if you showed me something, I can tell you if it is or it isn’t.” We don’t have that luxury when drafting legislation. |
HS: | No. |
DT: | And this legislation’s been drafted with a range of non-exhaustive examples to help us. |
HS: | Again, very interesting how they’ve done that. I personally think it’s not common that you see such a list like that. |
DT: 21:00 | And what I think’s uncommon is – I should say, I really like the modern drafting practice of including examples in legislation. I think it’s very useful. You don’t often see examples within the examples, which is; “here’s a list of non-exhaustive examples.” |
HS: | That’s right |
DT: | And in this first example, an example, this example might be this list of non-exhaustive examples. I think it demonstrates – I’m not saying that to ridicule the drafters. I think that’s a useful and necessary technique – but it demonstrates how many kinds of conduct this single offense might have to cover. |
HS:
22:00 | So, to put it in another way, we’re unpacking a box within a box within a box. And we keep unpacking, and like you said, it’s not a criticism. It really isn’t. And it’s just, it’s difficult. And so, this is the solution that the legislators have come up with. Let’s do it this way. And I guess again, the positive thing that they’ve included in the legislation is the feedback system that they’ve integrated within it and they’ve done that for a very strong reason, and they know that the feedback on a legislation like this is going to be important. Is it too wide? Is it too narrow? Have we made the parameters too difficult to understand? So, look, you, we’ve got to start somewhere and that’s where we’re headed. We’ve got something. It’s been passed. Great, let’s see how it runs. Let’s see what needs to be tweaked and let’s see how the public kind of receive it. |
DT:
23:00 | Absolutely. There is that long tail period before we see the laws coming into force before we see them being enforced. And you’re absolutely right. There is that review period for the legislation as well. So, we can see how the legislation is operating once it does come into force. And let’s take it back to the family law perspective as you mentioned, there are a large number of allegations of domestic violence and also coercive in controlling behaviour. Matters that do proceed to court. And you also see, as you described earlier, sometimes that allegation of coercive and controlling behaviour is made, even if it’s not necessarily made out on the facts. How does the court handle those allegations? Are there any sort of procedural steps that are different in those sorts of matters compared to a parenting matter where those allegations haven’t been made? And if I can add a third limb to that question, how do you think that might change now that those allegations are potentially criminal allegations? |
HS:
24:00 | Let’s start off this conversation by saying this, and I think this is not going to be a surprise to anyone, but there is a, I would say a movement or somewhat of a preference of people that are in the family court. Whether it be the practitioners or the clients themselves to seek some form of an advantage in any form that you can receive it in. And quite often people will think that receiving an advantage would be by explaining to the court that they’ve been a victim. They’ve been a victim of domestic violence or coercive control. They think that they will receive an advantage as a result of this, and that advantage would be in the form of either receiving more time with their children or receiving more funds from a settlement. Now, when I say that, please don’t take it as me saying that those things don’t happen. There are many people that are victims of domestic violence, but the reason I start off by saying that in explaining this is people will use what they can in an adversarial court to try and obtain an advantage. That is really the nature of the beast. Whether we like it or not, people will try and get an advantage in litigation. Doesn’t matter if you’re in commercial, doesn’t matter if you’re in family, doesn’t matter where you are. |
DT: | Yeah. There’s no particular place to lay that blame is there? It might be that the party is fabricating or creating or enlarging their experiences. |
HS: | I like the word enlarging. That’s what I would say is probably the most accurate out of those adjectives, because quite often it is that. |
DT: | Or it might be a practitioner who’s shaping the evidence that they’re being given. |
HS: | Correct. |
DT: | To fit a particular legally significant conclusion. |
HS: 25:00 | Yeah. So, I think we have to acknowledge that the adversarial nature of family law proceedings, it naturally pushes us to seek the advantages that we can get. Having said that, people are constant looking for these different points that they can see where they can get up on and the court also picks up on this. They’re seeing these matters day in, day out. So, whilst practitioners and clients think they’re being clever and trying to get these advantages, I would say the judicial officers working at the court across the board, they are privy to this. |
DT: | I imagine they take a very dim view of allegations that are not bona fide when they see so many bona fide ones |
HS:
26:00
27:00
28:00 | Correct. So, look, I don’t envy the job of the judicial officers that are constantly having to sift through this material and determine what is on a bona fide level something that needs to be of concern and something that isn’t, because that’s a very difficult role. And I’m sure the Registrars that were in on the show earlier, they were going through that and explaining the difficulty that they might be facing during that. Whilst everyone’s trying to get their advantage, the court has extremely intelligent people that are running these lists, court lists, and they’re trying to decipher what is real, what is not real. How serious is this? Is this enlarging? Is it fabricating? Sure. It might be a little bit difficult to determine. I think the judicial officers, they go through enough material to try and figure out and sift through. They might not have a hundred percent accuracy rate here. They’re only human. But I’m sure they’re doing a good enough job to get through and at least filter out what they think to be the more serious types of matters and the less serious types of matters. Let’s use some examples. We’ve got a matter where we’ve got a client that is absolutely adamant that we need to raise a whole array of different risks that the other parent is posing to the child. And when you list them out, it looks, from my perspective, very weak. Things like she physically disciplined the child one time. It was a while ago. How did that happen? Grabbed the child aggressively, something like along those lines, or one time, the child did this and the other parent was yelling aggressively at the child for five minutes. So, things like that where they’re not great by any means. And parenting is no easy feat. But we’re also in a court where there are allegations of sexual violence towards children and where there might be substantial evidence to support things like that. So, when you’re saying that a child is in a position of risk because mum yelled at the child for a few minutes because the child was playing in the mud. That’s a very different scenario. There was a child that was found in a drug house and there was a needle of heroin nearby and the child was surrounded by previously convicted sex offenders. Yes, neither situation is great. I think everyone can admit that, but some matters will take more seriousness and precedence over others. So, the processes the court put in place they do have these checks and measures to go through it. When someone’s submitting evidence, there’s a Registrar I know that has to go through the documents to determine maybe the urgency or should it go in a separate list, should it be determined by judges that are more experienced in the domestic violence kind of area. Or should it just go through the normal course? So, there are these checks and measures in place that provide that safety and security to these people. |
DT: | We spoke to some Senior Judicial Registrars, including some Evatt list Registrars earlier this year about the Evatt List that deals with high risk matters for domestic and family violence. And places them in that list to prioritise their resolution. Have you had any matters that were listed in the Evatt list? And if you have; how does that process work compared to your experience of a usual matter progressing through the court? |
HS:
29:00
30:00 | Yeah. The Evatt list is a great initiative, I must say. If you’ve got a matter in there, at least then be prepared. It’s not going to just run the normal course of; you file your documents and then you rock up eight weeks later or whatever. It’s not handled in such a way. It is extremely accelerated. And you’re expected to keep up with the times. Things that would be done – for example, procedural orders and procedural things that would be done at a first court date of a normal matter – would be done almost immediately by a Registrar once they review all of the material, right? Registrar will make orders, and Registrar will get things in place. Independent children’s lawyer will be appointed. There might be subpoenas issued. There might be documents requested from the police from child protective services. Everything is going to happen fairly soon. Whereas opposed to the normal course of events where you file your documents, you appear in court a few weeks later, and then things might start happening then. So, the Registrars, they’re reviewing the documents very quickly and they’re pushing things out and they want stuff to happen. They’re case managing it extremely closely. They’re holding it close to their chest because they’re not letting these matters go and just go through the normal system in the wilderness amongst everyone else. It’s a great initiative. I think it just needs to keep growing and continuing. TIP: The Evatt List aims to provide assistance and support to litigants who are at high risk of family violence or other similar risks. A litigant must have completed the Family DOORS Triage questionnaire and that questionnaire must show a high-risk of family violence. More information on the Evatt List and the Lighthouse Project can be found in an earlier episode entitled, ‘The Risk Business: Triaging Risk in the Amalgamated Federal Circuit and Family Court of Australia’ with Senior Judicial Registrars Brett McGrath and Sharney Jenkinson. Make sure you check it out! |
DT: | It’s great that it’s now being expanded beyond the pilot registries into, I think, pretty much every major registry on the eastern seaboard, which is fantastic. I imagine that the court takes a very dim view to requests for adjournments in the Evatt list. Would that be fair to say? |
HS:
31:00 | Yeah. Like I said they’re there to manage it very intensely. You’re not going to get away with the things that you would normally get away with in a normal list. They’re there to make sure that things are followed through and that all the evidence is before the court so that they can make the proper decisions. Because there’s been other moments where we’ve been to court, it could be four or five months before you start getting subpoena material back from when you first filed. And that subpoena material is important because it’s got reports that the court needs access to in order to make decisions about what’s good for the children. But not the case in Evatt list. They’re going to be on top of it straight away. |
DT: | Returning to the new coercive control legislation, we’ve talked about the offense that it introduces into the Crimes Act, but it also introduces into the legislation that governs apprehended violence orders, a new basis for obtaining those orders, which is to say that coercive control or family abuse in the language of the legislation has occurred. How will that interact with the family law jurisdiction? For example, when a apprehended violence order is obtained and it’s inconsistent with a parenting order, how is that inconsistency addressed? |
HS:
32:00 | Let’s start off with the basics and the fundamentals. If there’s an order from a state court prevents or injuncts a person from doing a particular action or thing i.e., an apprehended violence order in New South Wales where, you’d be prevented from either getting close to communicating with – or a number of different things – with a protected person. Could be a child or your ex-partner. If there was such an order that was put in place and there’s a order from the Family Court that provides that you’re able to spend time with a child or one of the parties is able to spend time with the other child then the Family Court order will supersede those that are in the state courts. They’ll take that into consideration. And if; the AVO should be presented in front of the Family Court, so the Family Court can consider it. But an order from the Family Court will essentially supersede any kind of intervention order or domestic violence order. That’s important to understand because the family court sees its position as facilitating or regulating time between parents and children sometimes. And they’ve got a more specialised and deeper knowledge and understanding as to that specific area opposed to, I would say the state courts that have a broader kind of practice. |
DT: 33:00 | And so, when a AVO is made, that’s probably an important time to relist the matter in the Family Court so that if a parenting order does need to be varied, or at the very least, that argument can be ventilated. |
HS: | Yeah. The argument will be put forward. And again, it’s really up to the court, we should be putting information before the court so the court can make these decisions. And we’d make submissions on either side of the argument, but the court requires full disclosure. it requires us to put that information before it. |
DT:
34:00 | Now something that, I’d like to ask you because I don’t know if this is something that might impact on litigation in the family court, but in my field in civil litigation, we have a Briginshaw standard where we want to be satisfied of something on the balance of probabilities, we weigh a seriousness of the allegation against the proof of that allegation. So, it’s not that the standard is different, it’s just that the seriousness of an allegation is itself some evidence against the allegation being made. It’s called the Briginshaw standard, and one thing that might weigh heavily against something on the balance of probabilities, according to the Briginshaw standard, is if the allegation is of criminal conduct. So, if there’s an allegation of fraud in a commercial law matter, we take that very seriously. Not satisfied of that except if the evidence is very persuasive. Is there a potentially unintended consequence here of the coercive control legislation in that you see these allegations all the time being ventilated in parenting matters? Often truthful, sometimes not. And when that conduct becomes criminal. If a Briginshaw standard does apply in the Family Court, does that mean that the court will require more persuasive evidence to be satisfied of the proof of those things because they’re effectively determining on the balance of probabilities, whether or not a criminal act has occurred. |
HS:
35:00 | Yes, family court’s not there to determine whether or not a criminal offense has occurred and whether a party should be sentenced and convicted as a result of that. They’re there to determine what’s in the best interest of the children and how should financial settlement occur. So, I guess what you are asking is about the burden of proof and how heavy that would need to be maybe in these sorts of allegations. Again, if the court makes a finding that certain actions did occur in a particular case, and those actions resulted in, let’s say coercive control the court might make that finding, but that finding is done in order to make further findings, which would be what’s going to happen now? And it’s not necessarily to say; “no, this person’s going to jail” because again it’s not the right jurisdiction for that. I don’t think particularly that it would change how the court would process certain things or issue. Because the court would still make the same findings, because really the burden of proof hasn’t changed for the court. |
DT:
36:00 | Now we talked about how the new offense, on the one hand, captures a very broad range of conduct. All kinds of coercive and controlling behaviour that you’ve seen in your experience as a family law practitioner. On the other hand, though, it’s quite narrow in some ways in that it only extends to current or former intimate partners. Now, that category of current or former intimate partners – I suppose especially former – is likely to capture a lot of family law matters. Parenting disputes are by their nature between former intimate partners usually. But other parties, other extended family members can often be involved in parenting matters, can’t they? Grandparents can be involved, foster parents or adoptive parents. Do you think that the offense should have extended further past current or former intimate partners as it does in the UK for example? |
HS: | It’s an interesting point. I definitely think there’s a specific reason as to why it’s been done in such a way. And I can tell you what that reason would probably be. And it’s primarily because most of the violence does occur between current or former partners. Overwhelmingly… |
DT: | Yes. |
HS: | … the stats will show that. |
DT: | I think that’s fair to say. |
HS:
37:00
38:00
39:00 | Yeah. The DV and the coercive control overwhelmingly are limited to current and former partners. Now I can rattle off some stats in relation to that. So currently in Australia we have one woman a week killed by a current or former partner. So that’s, again, just limited to that category. And another stat; in terms of all homicides that occur between intimate partners, two thirds of them actually occur within the first three months of separation. TIP: Those DV stats are remarkable and pretty grim reading. According to the Australian Institute of Health and Welfare: ● 1 in 6 women and 1 in 16 men in Australia have experienced physical and/or sexual violence by a current or former partner since the age of 15. ● 1 in 4 women and 1 in 6 men have experienced emotional abuse by a current or former partner since the age of 15. ● 1 woman every week and 1 man every month is killed by a former or current partner. ● More than 54% of women who have endured violence from a current partner had endured more than one violent incident. ● And in 2014-2015 8 women and 2 men were hospitalised each day after enduring abuse from a spouse or partner. So, it’s an extremely dangerous time, I’d say for a lot of people especially in particular relationships. It’s a time where people are really in fear as to what’s going to happen to their lives. And to be honest, it’s completely unacceptable that in Australia we have such statistics showing and demonstrating the violence is that prevalent between current and former partners. Yeah. The legislation is specific because of that. Sure. Can other people be involved in that? Can other people outside of the current or former partner parameters, can they be involved in coercive control or coercive conduct? I think so. Yes. It’s definitely possible, but it’s hard enough to legislate for current and former partners and the examples that might occur there. But if we were to go further and legislate, potential examples of, I can think of how many different relationships where that might be exerted, the parent child relationship where someone’s coercively controlling. I think that’s a very dangerous territory to legislate because what parent isn’t somewhat controlling their child? Definitely under the age of 18, but also it extends over the age of 18. There’s, I can think of, I won’t put my parents under the bus here, but… |
DT: | While you’re living under this roof … |
HS: | It’ll be a very strange territory to navigate around. So, I think there’s a reason as to why they’ve specifically done that. |
DT:
40:00 | I suppose it’s a matter of priority, isn’t it? We hear those statistics and we are aware of the significance of that problem in our community. Put that fire out first or respond as quickly as possible to that issue before we manage the difficult but still concerning issues that might exist in other relationships. One we talked about on the show with Andrew Tiedt was with elder abuse. Might need to be the subject of a criminal offense of a similar character, but of course a matter for another day. Now we mentioned the lead time before this offense becomes enforceable in 2024. Between now and that time a task force is going to be established, as you mentioned earlier, to consult key stakeholders about the offense about the sort of conduct that it might capture. And of course, the kind of ephemeral nature of the offense means that that task force will have a really meaningful role in shaping the practical implementation of that legislation and once it does come into force, tell us a bit about the task force. |
HS: | Yeah, so again, I think this is a great initiative that they’ve put in place to have some kind of a feedback loop in order to engage with other stakeholders and see how things are panning out. As discussed, this is not a simple legislation. It’s not a simple “one plus one equals two“. It’s a lot more in the grey area. We need to have that constant feedback not just in the first few months or the first whatever year and a half of implementing this legislation. There’s actually a constant feedback loop that has been integrated within the legislation, which I think is extremely important because we need to see, is it effective? Are police using this? Is it being prosecuted? Is it too wide? Is it too narrow? What are we doing here? |
DT: 41:00
42:00 | Something we’ve seen in the UK for example is very few individuals have been charged with their coercive control offense. Unless they’ve also been charged with – I hate to use the term – what you might call a traditional domestic violence offense of physical violence because it’s so difficult to prove the coercive control offense in the absence of something else. TIP: David is on the money here, in 2021 although there were 33,954 offences of coercive control recorded by police in England and Wales there were only 373 convictions. Similarly, in 2020, there were 24,856 coercive control offences recorded by police with only 374 people convicted. These numbers indicate a drastic increase from 2016 which resulted in 59 convictions a year after the offence was introduced. Of that 374 convicted in 2020, 364 convicted were men. The youngest of those convicted were aged between 15 and 17 and 206 were sentenced to jail or were sent to a young offender’s institute; 68 of those convicted received a suspended sentence. |
HS: | And, I’m just speculating here, and you might speculate as well that might very well be the case as to what happens here. |
DT: | Yeah. We may see a similar thing, so it’s important to have that feedback loop. |
HS: | Yeah. It’d be hard enough to establish things on its own or have police identify and have a special unit to identify these things just to have this as a standalone offense. It might be certainly something that might be tacked on. At the end of a list of other offenses that have occurred because; “oh we’ve got the evidence; we think we can get over the evidential burden here by doing that“. |
DT: | I think that is the term in the UK that’s commonly used, that it is a tack on offense… |
HS: | Yeah. |
DT: | … that accompanies other charges. But of course, that’s not really achieving the legislative objective, is it? No, because if you’re only charging those who would’ve been charged under the existing legislation… |
HS: | That’s right. |
DT: | …you’re not really achieving that societal and community change that we were describing earlier. |
HS: 43:00
44:00 | That’s right. Yep. So, the task force. They’ve set up essentially this panel of representatives. One from the New South Wales Police Force, one from the Chair of the Domestic and Family Violence and Sexual Assault Council, and a member from the Domestic and Family Violence Sector with substantial expertise and experience in domestic and family violence service delivery. The purpose of the task for the task force is it’s essentially to provide training, it’s to monitor, it’s to give any kind of education or resources in relation to the coercive control offense. And it’s also done to evaluate the implementation of the coercive control offense and see how it’s been received in the wider public. The task force also is there to see how the offense is implemented and received within minority groups as well. And specifically, you would put in that category, ethnic minorities as well as the LGBTI community, as well as the Aboriginal and Torres Strait Islander community. So, there’s a specific desire to assist these smaller minority groups. I guess the government is concerned as to the impact of this legislation within those groups. And as I was stating before this constant feedback loop will be put in place by this panel or task force every six months from now until the commencement of the legislation. And then every 12 months thereafter there will be a meeting with the Minister and the task force in order to assess the effectiveness as to what’s been done and see how it’s been implemented and how it’s been received. And again, it comes back to my earlier point. Legislation’s great. We can implement all the laws in the world that we want, but without the proper education and implementation, it will mean absolutely nothing. And all of these efforts, all these discussions will mean absolutely nothing. For example, the police officers that are implementing this or the prosecutors that are implementing this, simply left confused or in the dark or don’t have a proper understanding as to how to handle such matters. |
DT: 45:00 | Something that really jumped out at me when you were describing some of the conduct, in terms of coercive control in your practice, on the monitoring side of things was how technologically dependent some of this conduct is. That a lot of the nature of the conduct is likely to evolve with technology. And I suppose that’s also on the financial side as well. When we’re primarily doing most of our banking online, we’re primarily processing most payments online it’s so important to have that regular review because I suppose there’s no limit to the ingenuity… |
HS: | Oh yeah. |
DT: | …of the coercive controller, either. |
HS: | Yeah, that’s right. That’s right. |
DT: | Hayder, thank you so much for being on the show. We’re nearly out of time, but before we close, I wanted to ask you, we’ve talked about some pretty confronting stuff. And when I speak with someone in your part of the profession, compared to my fairly sedate part of the profession in commercial law it must be pretty emotionally draining to be dealing with a parenting dispute at all, let alone one that might involve coercive control or domestic violence. How do you stay grounded? How do you stay positive about work and about your role? And do you have any advice for other lawyers in the area who might need help doing that? |
HS: 46:00
47:00 | Where do I start with this question? Because… yeah, look, it is stressful. It really is stressful and the stress can follow you. It can follow you everywhere. There’s been days where I wake up in the morning and all I can think about is a particular matter or case. And the practitioners in my office, they also experience the same thing. What I would suggest, for practitioners out there, is to find a supportive work environment. For example, where at our firm I make sure that the practitioners there have as little stress as possible from myself. I really do my best not to annoy them and to be there to support them because they don’t need any more stress. Their clients are stressing them out. Their opposition lawyers are stressing them out. The court’s probably stressing them out. There’s deadlines everywhere. It’s a stressful job. I see my role as support really. It’s not to come down on them, but to rather see what I can do to support and enable them to get further. And it’s important to be in a workplace like that, otherwise you’re going to burn out very quickly. The way that I deal with stress personally… if I don’t exercise, I really go crazy. So that’s extremely important to me. I’m not going to say anything that’s completely crazy. Exercise, sleep, eat, do all of those things. |
DT: | All the things we know we should be doing. |
HS: | Yeah, exactly. All the things that you should be doing. And look whilst it is a stressful area, I would say this as well, law itself, litigation itself is always stressful. And it doesn’t matter what area you’re in. The people that you’re dealing with are going to be fairly emotional. They’re going to want one thing or another. They’re going to want things done within a certain timeframe. It doesn’t matter what practice area you’re in, you’re going to be under some form of stress. Family law, yeah. It comes in different shapes and forms and it can be a lot more involved and a lot more personal. Having said that, the reward that you get from assisting clients to go from A to B to get them through potentially the most difficult phase of their life I would say outweighs all the other practice areas. And that’s why we love doing it. |
DT: 48:00 | And like you said, at the top of the show, you’re helping give the children in those families the best start in life that they can possibly get. |
HS: | Yeah, that’s right. So, if you take it back to why you started practicing in a particular area, if you take it back to what the results that you’ve achieved have actually provided for other people, I think you find that the rewards definitely outweigh the stress and the difficult times that you might endure. |
DT: | Yeah, absolutely. I think sometimes we forget how significant the matters we work on are to the people that we work for. They’re just another matter to us. |
HS:
49:00 | Yeah, that’s right. I had a good example of that the other day. I had a client that I had worked on maybe five years ago or something and it was a good case, we got a good outcome. And he was one of those clients that left a nice taste in your mouth because you had a good kind of relationship with him and a good experience. And then I’d just seen him recently and he had another matter, not a family law matter, but was helping him out with some of his wills and things like that and he brought along his daughter who was off school for the day and it was the same girl obviously that we had helped him out with the family law proceedings and it was really a beautiful moment because you normally don’t see the children that you’re involved with, but you just seen the relationship that she had now with her father and it was beautiful to see. And also, the grandparents were there and she was just this light in their lives and everyone was just so happy to have her around. And in the back of your mind you’re just thinking, oh, I was part of the reason as to how this could happen, I enabled it. So, it was a really beautiful moment. And if you can focus on those and harness the positive energy from that, then you can go very far in the profession. |
DT: | Absolutely. It’s great to find those beautiful moments every once in a while. Hayder Shkara, thank you so much for joining me today. |
HS: | Thank you for having me. |
Ross Davis:
50:00
| As always, you’ve been listening to Hearsay the Legal Podcast. I’d like to thank our guest Hayder from Justice Family Lawyers for coming on the show! If you’re keen to hear more family law, we have some great episodes on the site from Chauntelle Ingenito and Registrars Brett McGrath and Sharney Jenkinson. Definitely check those out! If you’re an Australian legal practitioner, you can claim one Continuing Professional Development point for listening to this episode. Whether an activity entitles you to claim a CPD unit is self-assessed, but we suggest this episode entitles you to claim a Substantive Law point. More information on claiming and tracking your points on Hearsay can be found on our website. Hearsay the Legal Podcast is, as always, brought to you by Lext Australia, a legal innovation company that makes the law easier to access and easier to practice, and that includes your CPD. Finally, before you go, I’d like to ask you a favour. If you like us, please leave us a Google Review. It helps other listeners to find us and that means that we can keep making the great content that you love. Thanks for listening and we’ll see you on the next episode of Hearsay. |
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