By Di Simpson
Earlier this year, I read an article in Daily Life where Jane Gilmore explored, “How can Victoria tackle domestic violence without a national response?” Jane identified a number of key issues relating to the challenges facing the Victorian government in its plan to implement all 227 of the recommendations from the Royal Commission into Domestic Violence. While funding remains a key challenge, Jane highlights the necessity of the Commonwealth government to assist in finding the resources necessary to improve existing services and to establish new ones.
I was struck however, by a comment made to the Royal Commission, by a victim of violence, which Jane extracts in her article:
“One victim told the Commission: “[A]ll the barristers are friends with each other, and all the magistrates are, and they’re all really chummy with each other and it [is] kind of, and I hate to say this, at a higher class than where I am, so their ideals and standards are here, I’m coming from there and so there’s a huge class difference and they haven’t been in the position that I am at the moment so they have no idea what it’s like to have to see your abuser there [at court] three or four times a week.”
So, not only does the victim of violence have to endure seeing the perpetrator, she does so in an environment where she feels uncomfortable, where she feels like the outsider and where her “otherness” is emphasized by the familiarity of the other players in their language and comfort in that world.
How do we discharge our obligations to our clients in these circumstances? As lawyers who work in family law, it is imperative that we remain conscious of this potential disconnect for our clients. Though we may move freely and confidently in the domain of the courts we do so for and on behalf of someone else – this is the heart of advocacy and agency.
For many clients engaging with the court system for the first time, it is like being visitor to a new country. You don’t speak the language, you don’t know where you are going, you don’t know the rules that society sets for its travelers. How do you begin?
The comments of the victim to the Royal Commission remind us that we must do more to ensure that our clients feel supported as they encounter and move in the court system.
I believe that there are some essential practical steps we can all take –
- Respect the client experience.
Make no assumptions that your client understands the process or what is going on; be explicit and be present in your discussions with your client. - The little things do matter.
Does your client know where the Court is? What time should your client be at court? Will there be waiting time (a 10am listing rarely means the case will be heard at that time). Arrange to meet somewhere first so you can talk to your client about what is going on, what they will see, and what different people will be doing. If possible, walk into that place with your client or be there to meet them when they arrive – this is a foreign place for most clients and they are going to be anxious at the thought of being there, let alone having to navigate all the practical issues of trying to find the court room, what level of the building, which entrance and so on. - Explain how the court list works.
How many other cases are before the Judge, what happens when her matter is called on, where you will sit, where you want them to sit. - Are there going to be other people in the Court room, waiting for their cases too?
Explain the concept of “open court” and what that means in terms of private stories being told in front of strangers. - Explain the people involved in the case and what their different roles are. Who is the Judge; who is doing what, what they will say, why certain things will happen, what might happen next and step through the process.
- Is your client required to give evidence at Court?
If so, make sure they know that and you have properly gone through that process – where they will stand to take an oath or affirmation, what that is and the difference between them; when you will ask them questions and when the other party’s advisor may ask them questions. - Will you be with your client the whole time?
If you cannot be with your client the whole time they are at court (because you have other clients there too), speak about this ahead of time. Suggest your client brings a friend or family member with them for company and support. - Will you both be leaving at the same time?
If you won’t be able to immediately follow your client out of court to speak with them after the hearing, let them know that ahead of time, and ask them to wait at an agreed spot, or make arrangements to speak at an agreed later time. - Become familiar with the Court.
Especially before a final hearing, and if time permits, suggest your client takes the opportunity to go to the Court ahead of the court date, to become familiar with the building, and to sit in the back of a court where other hearings are happening, and to see what is going on.
It is our privilege to appear in the courts on behalf of our clients. Our obligations to our clients include ensuring that we share with them information about the court world and its processes, how it operates and what will happen – empowering us to truly act as their agent, as their spokesperson.
