File photo. Photo: 123rf.com
A family court lawyer is calling for legislative change, saying court and legal processes are exposing victims of domestic violence to further harm.
Vicki Currie says it is too hard for people in abusive relationships to get urgent protection orders.
A "without notice" application asks the judge to issue a temporary order without notifying the other party beforehand. That person gets a chance to respond before a final order is made.
However, the "incredibly high" thresholds meant some victims were forced to endure more abuse before getting help, Currie said.
"On numerous occasions I've applied urgently for a protection order for a client, it's been refused, the next day or week there's another incident of family violence - sometimes physical.
"I apply again for an urgent protection order which is then granted. So the victim of family violence - and I've done this several times in the last few years - has had to experience more family violence to get a protection order," she said.
"They are designed to ensure victims have urgent access to protection and parenting orders, for example, and they are to provide safety and certainty ... but these systems that are in place to protect victims are failing the victims."
Judges used previous decisions, or case law, when deciding whether to grant an urgent order, but Currie said clearer and more modern guidance was required.
"It's outdated and doesn't acknowledge psychological family violence and the far-reaching impacts of that. It's just not fit for purpose, the case law they're relying on," she said.
"I think the public would be alarmed at how hard it is for a victim of family violence to get an urgent protection order ... this is in need of urgent legislative change."
Those whose applications were declined were often too scared to continue with an application for a non-urgent order, Currie said, because it could lead to further violence.
"[The respondents] get to read all that information that the applicant's said about the family violence. They may be living with that person or they may be still having to come into contact with them for the care of the children.
"Without a protection order there, it puts them at risk so they withdraw the application and, therefore, the family violence essentially just continues."
The lawyer said many of her clients also did not feel safe going to court, but were legally required to attend in person by default. She said that should not be the norm because it meant victims crossed paths with their abusers multiple times, often for short procedural hearings.
However, principal family court judge Jackie Moran said most without notice applications were granted.
"Judges have an acute appreciation of the complexity and impacts of family violence and are bound to make decisions that are in the best interests and welfare of children with regard to the individual specifics of a case.
"Judges are always extraordinarily mindful of the dynamics of family violence and the need to ensure the physical and emotional safety of applicants for protection orders," she said.
"As part of this, lawyers are able to apply for an applicant to give evidence by alternative means and judges can also make those directions of their own motion."
The Ministry of Justice said most applications for temporary protection orders were made without notice and, in the last financial year, 77 percent of these had been granted.
"Access to justice and the right to be heard are fundamental justice principles. It is also important that victims feel safe attending court," a spokesperson said.
"The Ministry of Justice provides free safety programmes for people who have experienced family violence and have applied to the court for a protection order. In Budget 23, the Ministry received additional funding to expand the criteria for accessing these safety programmes to include applicants at high-risk of harm who have not yet been granted a protection order. These changes will take place from 2024."
The ministry also had a project underway to improve the court experience for victims, as part of a whole of government strategy to eliminate family violence and sexual violence.