Ensure your affidavits are thorough and do justice to your clients, practitioners at the Family and Criminal Law Conference in Brisbane were told on Friday.
Federal Circuit and Family Court of Australia (Division 2) Judge Samantha Murdoch presented Perspectives from the Bench: coercive control in the FCFCOA, as the keynote speaker at the Queensland Law Society’s event at the Sofitel Brisbane Central.
Judge Murdoch, who is based at the Sydney Registry, briefly defined coercive and controlling behaviour for the packed conference room before offering sage advice to her lawyer audience.
“I am constantly confounded by the poor drafting of affidavits by legal practitioners on behalf of clients who are alleging often very serious allegations of coercive and controlling behaviour, and that there be an order for no time between the subject child and the father,” she said.
“Remembering that you are asking the court to make serious findings of fact, your client’s evidence must be as detailed and specific as it can be.
“This is not a memory test for your client but you need to make the time and take the time to ensure that your client’s evidence is as thorough as it can be.”
Judge Murdoch said it was widely known that lawyers were time poor but this was not an excuse for poor affidavits.
“Only having one interview, because you are public funded, either by the Legal Aid Commission, or through the Family Violence and Cross Examination Scheme, shines through to a judge like myself, throughout the final hearing,” she said.
Judge Murdoch addressed a packed conference.
Use of the term “walking on eggshells” should be avoided at all costs, she also warned.
“It doesn’t do your client any favours – you need to unpack that statement,” she said.
“Asking clients ‘is there someone in your life making you afraid or controlling what you do or say?’ promises an even more profound awakening than simply asking them about violence.”
She advocated the use of screening tools for drafting affidavits, and a focus on articulating behaviour in three dimensions: primary perpetrator, potency and patterns.
“The effect of the perpetrator’s behaviour may cause your client to recall the history of family violence in a confused, patchy or inaccurate manner,” she said.
She said invariably, a client’s police statement would differ from the account as deposed to in an affidavit.
“Such differences should be addressed in your client’s affidavit material, and if, in the various updates of your client’s affidavit material, your client has recalled new events or provided new detail, address that as well,” she said.
“Sometimes, different versions arise from the use of interpreters, and if this is the case, explain that in your client’s affidavit.
“Perhaps your client has a domestic violence specialist or other mental health treater who can give evidence about the impact of past family violence on your client’s ability to recall details, or the process of recollection they observed during their sessions with your clients.”
Judge Murdoch offered plenty of advice.
Judge Murdoch also urged practitioners to consider two main approaches to addressing allegations of coercive and controlling behaviour in an affidavit: chronologically or by grouping patterns of behaviour under sub-headings.
“Coercive control can get lost in a chronology because it arises from a pattern of control around everyday activities. Remember, coercive and controlling behaviour is not incident based, it needs to be seen as a broader pattern of behaviour,” she said.
“Using sub-headings in an affidavit may be the best way of identifying and grouping together patterns.
“Having said that, sometimes a chronological presentation of evidence is the best way to present the behaviour of the perpetrator,” she said, pointing to an example of a case where such a chronology accurately presented the all-consuming and consistent nature of the behaviour.
Her Honour’s presentation was one of many sessions across the conference’s three tracks – Criminal Law, Family Law, and Domestic and Family Violence – which covered topics such as sexual violence case management; anti-money laundering provisions; advocacy; the solicitor and counsel relationship; and community safety and youth justice.
Other speakers at the conference, which was worth seven CPD points, included Federal Circuit and Family Court of Australia (Division 1) Justice Jacoba Brasch, Federal Circuit and Family Court of Australia Senior Judicial Registrar Anne-Marie Rice, Magistrate Cameron McKenzie, QLS CEO Matt Dunn, and barristers Andrew Hoare KC and Michael Drysdale KC.
Recordings of the sessions will soon be available for purchase in the QLS Shop.
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