Cross Applications in Domestic Violence proceedings: Let cooler heads prevail
The Domestic and Family Violence Protection Act (2012)(Qld) eschews the rules of evidence in the aim of making the processes and procedures relating to applications under the act more accessible for self-represented applicants.
Domestic violence is a dynamic concept, always expanding and, often, although erroneously, viewed through a subjective lens. A combination of these factors has, to my mind, resulted in the proliferation of domestic violence applications which are pursued to gain a collateral advantage in family law proceedings. To be clear I am not suggesting that all or even most applications are pursued on this basis. Most applications do detail instances of actionable domestic violence. What I am concerned about is the burgeoning body of applications that can readily be identified as a tool used to further family law aims.
These applications are a serious problem. They must be identified and treated accordingly. It must never be forgotten that the making of Court Orders which affect various rights and interests are serious matter. In RMR v Sinclair [2012] QDC 204 at [13], His Honour Judge Deveraux SC remarked that; “[t]he making of a [Protection] order is a serious matter. Orders should not be made lightly. Breaches involve, as the learned Magistrate said, community as well as personal concerns.”
So, what are some of the problems with vexatious applications?
Firstly, they slow the progress through the courts of meritorious applications by those who are genuinely in need of protection under the law.
Secondly, if such an application is pursued via the Police[1], it can place a strain on police resources and limit their effectiveness in addressing genuine domestic violence cases.
Thirdly, these applications take advantage of the absence of rules of evidence and the expanding definition of domestic violence to weaponise the inevitable tumult surrounding the breakdown of relationships. Not every argument is domestic violence. Not every stern text message is abusive. Not every discussion about finances is a form of financial control.
Fourthly, such applications only serve to further aggravate the often already fractious relationship between the parties. This can have downstream effects for any children and family members who are often pitted into the adversarial paradigm now established by the filing of the application.
These are just a few of the public policy considerations. The forensic considerations for the client are equally problematic.
A client pursuing such an application is often fighting a war on two fronts – in the domestic violence and family courts. This can come at a high emotional and financial cost.
Once the proceedings are on foot all parties need to be very aware of the potential cross admissibility of affidavits filed in support of their positions. Great care must be taken to ensure these affidavits are consistent across the two jurisdictions and that the forensic decisions taken in defending the protection order application don’t impinge upon the broader family law aims. Any misstep can derail progress, particularly in the family law litigation which relies so heavily on negotiated outcomes. Working closely and productively with family lawyers is critical.
Perhaps the most concerning forensic issue arising from these types of applications is the vexed question of cross applications.
The chastised Respondent in a family law motivated domestic violence application often, and quite understandably, feels wounded by the bringing of such an application. The marriage/relationship has often lasted years without any suggestion that either party has been domestically violent. Lo and behold, after separation and with one eye on the battles to come, the relationship is suddenly Sid and Nancy. The grounds for applications arising in such circumstances are often so tenuous, so subjective and self-serving that naturally, the Respondent feels that they too have a myriad of examples which they could also torture to the point of labelling domestic violence in a hastily filed cross application.
The desire to retaliate by filing a cross application is common and is not helped when the Respondent’s family lawyers fan the flames by suggesting some forensic advantage might be gained by making such an application.
There are obviously instances where cross applications are appropriate. This blog isn’t about those cases. It’s about the marginal ones. What I am suggesting is that great care needs to be taken before recommending to your client to make a cross application.
In my view the following considerations are often highly relevant when contemplating a cross application:
- You risk validating the original application.
If the original application relies on spurious and tenuous incidents of domestic violence by responding with a cross application particularised by similar types of incidents, you are, in fact, signalling to the Court that the original application has merit. You are tacitly accepting that your opponent’s threadbare claims are capable of amounting to domestic violence as you yourself rely on similar claims to meet that requirement in your application. Similar considerations apply to assertions about the necessity or desirability of an order.
- You may lose the moral high ground
Right or wrong, cross applications can, at first blush, look like petty retaliation.
One of the most effective ways to counter applications being pursued for a collateral purpose is to take the moral high ground by not making a cross application. What I mean by this is that by asserting to the Court, in your material in response to the application, that the Aggrieved has also been responsible for acts they now rely on as domestic violence but that a cross application is not pursued as your client accepts that the accoutrements of the dissolution of a relationship are, more often than not, not domestic violence. By subtly making this point you are signalling to the Court that you appreciate that there must be some threshold of acrimony which does not amount to domestic violence. That you should not abuse the Court processes when you are not genuinely in need of protection. That the ends of relationships are hard and that while people say and do things they regret, not all of these actions are domestic violence or, more precisely, warrant a domestic violence application.
In a jurisdiction bulging at the seams with dubious applications, self-represented litigants and Magistrates urged to act on assertions rather than evidence, showing yourself to be the more reasonable party is often a smart forensic decision.
- You risk the Court taking the easiest option of imposing orders for both applications
In some instances, mutual Orders are necessary. However, this is generally where there are genuine domestic violence allegations being made by both sides.
The legislation is protective in nature and construed broadly. Magistrates can be forgiven for erring on the side of caution in borderline applications and imposing an order. Our experience shows that this is particularly the case when cross applications are pursued. The Court’s might reason that mutually imposed orders ensure a power balance which is beneficial for the parties moving forward. When the applications mirror each other in the types of domestic violence which is alleged, this is even more common. A client should be advised that there is a real possibility that if they pursue a cross application many Courts will resolve both applications by imposing an order on both parties (and no, this isn’t a reason to pursue a hopeless application).
- You are making the proceedings more forensically complex
Responding to an application in a structured, logical, balanced and concise fashion is almost always in your client’s best interests. With the introduction of a cross application there is naturally a far greater pool of material which the court and the lawyers need to consider. This often calls for more complex and detailed filings which, if you’re not careful, resemble those of the family courts. The agility borne of not bearing an onus is lost and you can become mired in the literal “he said, she said” contentions of both parties. This is often unhelpful particularly when you remind yourself that the Magistrate is reading and hearing the evidence for the first time on the day of hearing and will not relish the prospects of reading voluminous affidavits.
- You may risk losing a realistic chance of costs
Costs under the DFVPA are extremely difficult to obtain. Applications filed by lawyers really shouldn’t fall foul of the criteria which might enliven a costs application. However, if you make a cross application which, as the Act decrees, must be determined at the same time as the original application, it is difficult to delineate the costs associated with responding to the original application from the costs associated with the bringing of the cost application. Moreover, one of the largest components in the calculation of costs – the costs associated with attending the final hearing – cannot said to be solely related to responding to the original application. The line therefore to successfully obtain costs, already very narrow is further compromised by the presence of a cross application.
Conclusion: We all have a part to play
It would be easy for me to write this critique and conveniently leave out a key cohort responsible for the problem: lawyers. We must commence from the premise that our clients will, by in large, follow our advice.
As Uncle Ben says, with great power comes great responsibility. In this instance, that responsibility, consistent with our ethical duties, is to not recommend applications (whether they be originating or cross applications) which are lacking in merit. Equally, when someone does allege domestic violence and is in need of protection, we have an important role to play in best ensuring their safety.
To this end, I have found it very helpful to take work on both sides of domestic violence applications. It has helped me understand the nuances of working with both victims and perpetrators of domestic violence. It also helps develop the ability to objectively assess a case before filing the application. For that reason I am circumspect before recommending the filing of any domestic violence application. I ask the client to provide me with a short list of particularised instances of domestic violence they will allege so that I can, putting on my Respondent hat, critically evaluate these claims to ensure the application has merit. This approach might not always suit the ‘baying for blood’ applicant but, once you explain your reasoning behind it, they will often come to thank you for taking the time at that early stage to truly assess whether an application is worthwhile.
Of course there will always be a less scrupulous lawyer who will see the financial incentive to advise otherwise but, by acting responsibly and hopefully reducing the amount of frivolous applications pursued for a collateral purpose, such applications will be become more easily identifiable by the courts.
Rémy Kurz
Senior Associate
Robertson O’Gorman
Accredited Criminal Law Specialist
9 July 2021
[1] This isn’t a criticism of Police, the current political climate makes it incumbent on them to act on claims of domestic violence and operational realities make forensic consideration of the merits of such an application difficult.