It’s time for a change

By Greg Spearritt

A Change.org petition is currently circulating that seeks to transform the Family Court. The basic argument is that the Federal Circuit and Family Court of Australia “lacks the necessary capacity to investigate domestic violence and child abuse safely and adequately. It is adversarial by design, mimicking tactics of coercive control.”

As I’ve argued before, the work of Louise Milligan, among others, demonstrates persuasively the disastrous limitations of our criminal justice system when it comes to sexual assault cases. Milligan quotes a defence barrister describing his job:

The whole purpose of running a criminal trial is to win. And that involves a fundamental and often brutal attack on the complainant’s credibility. We are often crafting ways to catch witnesses out – that’s what we are paid to do. When it comes to the trial, it can be ugly.

The petition proposes “a new inquisitorial system, co-created with lived and living experience of justice system failures”.

Some time ago, In discussing the treatment of sexual assault victims recently, writer Steve Biddulph reflected in a Brisbane Times article on the difference between our system and that of Germany:

In Australia, judges and juries are like umpires in a battle between two opposing sides – the police prosecutor, and the accused and his or her lawyer. The survivor of an assault has a distressingly passive role in this, they become like the ball that the other parties kick goals with. By contrast, in Germany judges become investigators and use a non-adversarial trial process, where the evidence, the emotional impacts, the whole ecosystem of facts can be brought into the picture without the need for warring sides. A quiet, respectful and even cathartic process can arrive at a judgment being made.

It’s time for a change in Australian legal practice.

Disclaimer: views represented in SOFiA blog posts are entirely the view of the respective authors and in no way represent an official SOFiA position. They are intended to stimulate thought, rather than present a final word on any topic.

Photo by Bill Oxford on Unsplash