By Nicola Berkovic
FAMILY violence is a “form of terrorism”, even though the goal of it might be personal rather than political, says a family law judge.
Federal Circuit Court judge Joe Harman has also launched an extraordinary attack on the adversarial nature of the family law system, saying the best interests of children were compromised when parents tried to represent themselves in court.
He said a fair trial could not be delivered “in any meaningful way” when parties were self-represented, but this happened in more than 30 per cent of cases in his court.
His statements were made in a judgment involving a physically violent father who terrified his ex-wife and three children by repeatedly driving past their home, phoning them in the middle of the night and turning up at the children’s school and extra-curricular activities.
Judge Harman said that these actions fitted with the dictionary definition of “terrorism” — the “systematic use of violence and intimidation to achieve some goal”.
“The goal to be achieved by the father is personal rather than political,” he said. “However, his coercive and controlling behaviours are and remain ‘terrorism’.”
Judge Harman’s comments come as Victoria this week launched a royal commission into family violence. They raise strong concerns about the family law system.
The judge handed sole care of the three children, aged 11, 14 and 15, to the mother and restrained the father from coming within 500m of their home or schools.
However, he said a fair trial simply could not be achieved in this case because the father was unrepresented and — through no fault of his own — prosecuted his case very poorly, failing to cross-examine the mother on any area of importance or relevance.
“That is a matter of profound significance, bearing in mind that the best interests of children is the subject matter of the trial,” he said.
While in this case he said it did not affect the outcome, Judge Harman said he believed it was just as important for a parent fighting for custody of a child to get access to a lawyer as it was for a criminal facing jail time.
“The deprivation of a relationship between a parent and a child and the massive interference that this represents … is surely of equal importance to a loss of liberty,” he said.
Judge Harman said in popular fiction, such as the film The Castle, it was possible for David to slay Goliath, but in reality this was rare.
“In real life, when Daniel is thrown to the lions (to mix or change metaphors for one moment) he is consumed,” he said.
“An outline of trial processes does not operate as an ‘angel’ to keep Daniel safe from the lion’s jaws. They close and the lion’s jaws tear the mythical Daniel apart.”
He said it was “fanciful” to think that a 20-minute explanation of the rules of evidence at the start of a trial could equip litigants with the skills needed to prosecute their case in court.
Judge Harman questioned whether it was time to overhaul the system.
He said that courts had been slow to recognise the reality of self-representation, but a process that better protected against such “manifest inequalities” could only enhance the perception and attainment of justice and ultimately the best interests of children.
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