Tessa scarcely had time to collect her belongings before escaping the home she had shared with her husband of 20 years.
Later, as she took out an apprehended domestic violence order against him, the court asked her to make a list of items she wanted to collect.
But her husband disputed her ownership over a number of the belongings – including her daughter’s toys, camping equipment to help set up the caravan she had moved into, and photo albums – and so the court did not give her permission to take them.
“He still has control over me in the sense that he’s not allowing me to have my things,” Tessa says. “My whole life is in that house.”
Tessa, who asked not to use her real name, is not alone in facing a system she labels too “black and white” when it comes to recovering property. Experts say the rigidity of the process means perpetrators are sometimes able to manipulate the system to their advantage.
“It’s another aspect of the legal system that is quite vulnerable to exploitation by perpetrators,” said Jasmine Opdam, a supervising solicitor for Redfern Legal Centre’s financial abuse service.
‘I literally had to start from scratch’
In Australia, victim-survivors can only take out property recovery orders before an apprehended domestic violence order (ADVO) is finalised.
This leaves victim-survivors a short timeframe to get their property – during a time when they are also dealing with leaving a violent relationship. Once an ADVO is finalised, they have few options.
“If the victim-survivor doesn’t think to mention certain belongings they can miss the boat and it can then be too late to recover property without going through a civil legal process,” Opdam said.
If a perpetrator disputes ownership over belongings listed in the recovery order, victim-survivors face a lengthy and costly legal process. Opdam said the centre often sees this issue with assets, particularly cars.
“Even if the car is worth say $5,000, and it’s their only mode of transport, the minimum they would have to pay a private family lawyer can be $8,000,” she said.
Shortly after Tessa fled from the home she owned with her husband, she returned with a police escort to collect some of her and her daughter’s things, including clothes and blankets.
But she wasn’t allowed to collect half the things she requested after her husband disputed they were hers.
Tessa and her daughter lived in a caravan on a friend’s property for eight months, but she continued to pay half the mortgage on the house she owned with her husband for almost a year after she left. She stopped earlier this year so she could afford to move into a rental and give her daughter a stable home for when she started high school. Before Tessa moved in, she made another request for furniture and cookware – again, it was disputed.
“I literally had to start from scratch to put a roof over my daughters head,” she said.
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Driving up legal costs
After failed mediation through hers and her partner’s lawyers, she is now taking the matter to the family court in in order to get a settlement on the house and have her belongings returned.
Tessa didn’t qualify for legal aid because she earns above the threshold. Legal Aid grants are available to only the lowest 8% of income earners.
Like many other women in similar circumstances, she believes her partner is intentionally drawing out the process to drive up her legal costs.
“I’ve spent probably $50,000 on legal fees to get absolutely nowhere,” she said. “I’ve been told now we potentially won’t get a date for trial for another 12-to-18 months.”
Pip Davis, the principal solicitor at Women’s Legal Service NSW, said property recovery orders are an important provision, but consideration should be given to allowing recovery orders to be made at anytime while the ADVO is in force.
“This should come with some checks and balances to ensure it’s not being used as a tool of systems abuse by bringing victim-survivors back to court to respond to a spurious or baseless application for an order,” Davis said.
Opdam said the issues showed a need for greater flexibility in the legal system to recognise the lived experience of victim-survivors and greater integration across government and legal services.
“I think that the more we recognise that responding to financial abuse and domestic violence requires a whole system response, the more we can really look at how all of those systems interact and make sure that we’re not just making tweaks around the edges,” she said.