Judith Peirce, speech delivered to Magistrates’ conference, 25 November 2004
- Nature and Dynamics of Family Violence and the Legal Process
- Magistrates’ Understandings of the Nature and Dynamics of Family Violence
- Legal Approaches in Other Jurisdictions
- Indigenous communities
- Children and child contact
It is difficult to both define and understand family violence. There are ongoing debates about what terminology should be used to talk about family violence and about what behaviours and relationships should be included in any definition of family violence.[i] There are many assumptions about what family violence is, who uses it, when it occurs and what effect it has. While some of these assumptions may be accurate, others can be misleading. For example, some common misconceptions about family violence are the beliefs that it only affects people from certain socio-economic or educational backgrounds or that it primarily involves physical violence. Understanding the nature and dynamics of family violence and a person’s experience of family violence assists us to come to terms with what may appear to be irrational responses. This experience must inform the response of the justice system because of the unique nature of these offences.
Nature and Dynamics of Family Violence and the Legal Process
Family violence is essentially about control. It occurs most commonly when a man controls, coerces and dominates a woman, who is or has been his partner, by using a variety of behaviours against her.[ii] It is rarely a single incident and is a gendered crime, that is, it is an abuse of women because they are women; 75% of intimate partner homicides involve men killing their female partner.[iii]
Family violence can involve:
- verbal abuse: such as insulting, derogatory or threatening comments
- emotional abuse: such as acting in a manipulative manner
- physical abuse: such as the use or threat of physical violence towards a person or towards their children, pets or associates
- sexual abuse: such as the use of direct or indirect coercion to engage in sexual acts against one’s will
- social abuse: such as regulating and restricting a person’s interaction with friends, family and the community in general
- economic abuse: such as controlling a person’s financial resources for essential needs like food and clothing.
In some Indigenous communities, family violence can involve spiritual or cultural abuse, which involves the restriction of a person’s cultural or spiritual rights and needs, such as denying a person access to cultural sites or ceremonies.[iv]
These forms of abuse may be used in conjunction with one another – a person may be subject to sporadic physical or sexual violence, and constant verbal abuse and social abuse. In fact, women who have been subject to family violence often say that the constant verbal abuse and harassment that they experienced was the most damaging and debilitating aspect of the violence.[v] Family violence is not about one incident of violence, but the use of violence – often in a variety of forms – to exercise control and power over another person.[vi]
Family violence typically involves more than one incident of abuse and has been described as a ‘cycle of violence’. [vii] This cycle involves periods of tension building and intense control, followed by a violent explosion, a period of remorse and promise making and then a honeymoon phase.[viii] Abuse can occur throughout this ‘cycle of violence’ – for example, during the controlling phase, people may use threats and aggression and, during the remorse period, they may try and excuse their violent behaviour by blaming the people that they have abused and forcing them to accept responsibility for the abuse. [ix] This ‘cycle of violence’ may not reflect everyone’s experience of family violence,[x]but it does emphasise the fact that family violence is a pattern of behaviour, rather than an isolated incident.[xi] This means that behaviour that may not seem threatening or abusive in isolation, may actually have a very threatening or abusive effect when it is understood as part of a pattern of controlling and violent behaviour.
Family violence has a significant emotional and psychological impact on people who experience abuse. People who are subject to abuse can experience depression, loss of self-esteem, anxiety problems, eating disorders and are more likely to commit suicide or engage in self-harming behaviours.[xii] People subject to abuse can also experience a range of responses to their situation – they may feel responsible for the abuse because of comments made by the person using the abuse.[xiii] Women who experience abuse may feel guilt or shame that they do not have a happy family life. The fact that the person using violence acts in a non-violent and non-abusive manner towards other people may reinforce the feeling that the person subject to violence is somehow responsible for the abuse experienced.[xiv]
The nature of family violence, as one person’s attempt to control another, and the serious impact of family violence can greatly affect the ability of a person to successfully leave a violent relationship. On an emotional or psychological level, a person who has experienced abuse may lack the self-confidence to leave a violent relationship or, given the pervasiveness of the abuse, may not be able to even visualise the possibility of leaving the relationship.[xv] This can be exacerbated by the fact that people in violent relationships may have lost the social supports they need to leave the relationship, because their partner has isolated them from their friends and family.[xvi] On a practical and financial level, a person subject to abuse may not have the resources to leave a violent relationship and may have nowhere to go.[xvii] While refuge accommodation for women exists, it may not be appropriate for some women, such as Indigenous women,[xviii] or accessible for some women, such as disabled women[xix] or women with male children over 12 years of age.[xx]
The difficulties in leaving a relationship are compounded by the reality that the abuse will not necessarily end when the relationship does. The level of abuse in violent relationships can continue and increase after a break-up.[xxi] Research shows that approximately 43% of women who are murdered by their male partners are killed during or after separation.[xxii] There is also a risk of child abuse during child contact visits, or of violence towards women during child handover. Some women who have been in violent relationships even say that it seemed easier to live under the same roof as the person abusing them, because then at least they knew where that person was and when he or she was likely to act violently.
It can also be hard for a person to remain separated from an abusive partner. People subject to abuse may decide to return to a violent relationship, for example, because they did not receive adequate social or legal support when they did leave.[xxiii] Additionally, the factors that make it difficult to leave a relationship, such as a lack of financial resources, psychological barriers and continued harassment, can make it difficult to remain separated from a person using abuse.
Some common questions in relation to family violence are ‘why don’t they just leave?’ or ‘how could they go back?’ It is important to remember that people who are experiencing abuse in a relationship are often actively trying to manage a horrendous situation. The experience of people who live in a violent relationship has been described as a continual process of ‘active negotiation and strategic resistance’.[xxiv] This means that they are making decisions in light of their lived experience and what they can see as possible and achievable. Given the dynamics and experience of living in an abusive relationship, it is a remarkable achievement that such people have the energy and strength to even manage, let alone leave, these relationships.
The nature and dynamics of family violence, and the difficulties involved in permanently leaving a violent relationship, shapes a person’s behaviour in relation to the legal system. The emotional, practical and financial complications in leaving a violent relationship, for example, can affect whether people follow through with an intervention orderapplication or whether they adhere to the terms of an intervention order. The prospect of both leaving a person using violence and then facing him or her in court can be overwhelmingly traumatic for a person in a violent relationship. Due to the pattern of control that characterises violent relationships, a respondent to an intervention order may be able to covertly intimidate and threaten an applicant in an open courtroom. This may be even more likely to happen if an unrepresented respondent is allowed to personally cross-examine the applicant.
The formality of the court environment and processes is another barrier to using the intervention order system or fully completing an intervention order application. Many intervention order applicants do not receive legal representation, which may mean that presenting their case to the judge is a daunting concept. Many do so twice in applying for an interim intervention order and then a final intervention order. Many courts have inadequate or inappropriate facilities, in its most basic form, there may be no provision for childcare or for separate waiting rooms for the applicant and the respondent.
Some people may also be reluctant to become involved with the legal system. Indigenous people, for example, who have experienced or heard about institutional racism[xxv]are fearful that involving the legal system might lead to their partner being jailed.[xxvi] Indigenous and other women may also be reluctant to involve the legal system due to fears that child protection may become involved and remove their children.[xxvii] Again, these considerations may affect whether people become involved with the legal system and whether they complete their intervention order application.
Magistrates’ Understandings of the Nature and Dynamics of Family Violence
Despite the unique nature of family violence, in a recent survey of magistrates that addressed their understanding of the dynamics and causes of family violence, only a small number of magistrates acknowledged the centrality of power and control to family violence.[xxviii] This affected how magistrates conceptualised violent relationships and the responsibilities of the people involved in such relationships. For the preparation of our Consultation Paper, the Victorian Law Reform Commission conducted consultations with police, court personnel, legal staff, community legal centres, support workers and family violence action networks across rural and metropolitan Victoria. Consultation participants expressed a variety of views about the approach of magistrates to family violence intervention order applications.
Many consultation participants said that magistrates need to receive training and education about the nature, dynamics and effects of family violence.[xxix] Some magistrates were seen to lack a proper understanding of family violence, illustrated through comments made in court or as result of their decisions.[xxx] Some magistrates, for example, treat family violence as a ‘relationship issue’ rather than as one person’s use of behaviour to control and dominate another person.[xxxi] This understanding of family violence as somehow reciprocal is demonstrated by the fact that some magistrates consider that mutual intervention orders are appropriate where a respondent intends to defend the intervention order application.[xxxii]
Our consultations show that magistrates may not appreciate the fact that family violence is a pattern of violence that can involve the use of different types of abuse in conjunction with one another. Consultation participants said that some magistrates still do not recognise psychological abuse as family violence, as they focus on physical abuse.[xxxiii] Also, magistrates may not recognise that apparently minor incidents are actually part of a pattern of abuse that will continue if there is no legal intervention.[xxxiv]Magistrates can insist that applicants provide specific details about particular instances of abuse,[xxxv] which can be problematic given that the impact of experiencing such violence may affect a person’s ability to remember each incident of abuse with sufficient clarity.[xxxvi] In relation to abusive behaviour that may be culturally specific, such as the use of threats that must be understood in a particular cultural context, magistrates may not acknowledge that this behaviour is abusive.[xxxvii]
An applicant’s ability to present the relevant evidence to the court can be affected by the potentially traumatic nature of the court process for intervention order applicants.[xxxviii] People who have been subject to family violence may feel that being in the same room as the respondent is terrifying, intimidating and threatening.[xxxix]These feelings can be exacerbated by the daunting and embarrassing nature of dealing with such personal experiences in a public, and very formal, environment.[xl] Some applicants are so intimated by the respondent’s presence that they cannot speak at the court hearing,[xli] while other people are discouraged from even applying for an intervention order because they are too scared of facing the respondent in the courtroom.[xlii]
Our consultations show, however, that magistrates can be insensitive to the confronting nature of the court environment and process. In one case, a magistrate refused to allow an applicant to refer to some notes that she had brought to court to assist her to overcome her fear of appearing in court.[xliii] In other cases, applicants felt that they were not given enough time to relate their experiences.[xliv] Consultation participants also said that applicants often felt like they were being judged by magistrates and registrars,[xlv] and that magistrates sometimes treated applicants with disbelief and scepticism.[xlvi] Sometimes applicants were unsettled by the fact that the magistrate did not seem to be treating the application in a serious manner, as they were joking and laughing with the respondent’s solicitors during the hearing.[xlvii]
In fact, our consultations show that a person’s involvement with the legal system can become an experience of re-victimisation.[xlviii] Being cross-examined by an unrepresented respondent, for example, can be a form of further abuse of the applicant.[xlix] Respondents can intentionally use the legal system to continue to abuse the person subject to abuse, such as making vexatious cross applications for an intervention order.[l] There is a perception among applicants that they are repeatedly required to attend court due to the respondent’s misuse of legal procedure.[li]
Applicants may also have to attend court multiple times because they have been subject to repeat victimisation, which means that they have been abused on multiple but separate occasions.[lii] In general, crime affects a small number of people who experience repeat victimisation.[liii] This is especially true in relation to family violence matters,[liv] where a person subject to violence is often abused by the same person on different occasions, before and after legal system intervention. The prevalence of re-victimisation in relation to family violence means that people subject to violence may have to undergo the traumatic experience of appearing in court multiple times and may also begin to doubt the value of such legal intervention.
Magistrates need to be aware of the nature of family violence and the difficulties that applicants can face in the courtroom. While some magistrates may be cognisant of such issues, our consultations show that there are significant inconsistencies in how individual magistrates approach family violence intervention order applications.[lv] Some magistrates were more accommodating of applicants’ needs than others. In relation to the outcome of intervention order applications, our consultation participants said that magistrates were also inconsistent in their approach to the appropriate length of intervention orders,[lvi] the necessary grounds for an intervention order,[lvii] whether children should be included in intervention orders and making intervention orders in relation to violence in same-sex relationships.[lviii]
Another issue raised was the inconsistencies in dispositions for breaches of orders.
The Consultation Paper to be released on 26 November 2004 refers to these issues.
Legal Approaches in Other Jurisdictions
In Australia and overseas, there is a growing recognition that family violence raises distinct challenges for the legal system and that current legal models may not provide an adequate response. There have been reforms in other jurisdictions that aim to ensure that legal responses to family violence are appropriately tailored to the nature, dynamics and experience of such offences. The achievements of these reforms demonstrate that there are possibilities in improving our response to family violence by developing legal responses that are crafted to the unique characteristics of this form of violence.
Many reform initiatives are centred on the development of ‘integrated’ or ‘coordinated’ responses to family violence. These approaches are designed to improve a system’s response to family violence by ensuring that societal and legal responses to family violence are based on a shared philosophy, namely to protect people who are subject to violence.[lix] In practice, these approaches encourage collaboration and dialogue between family violence support services, police, court, correctional staff and behaviour change program providers.[lx] While coordinated approaches involve information sharing and the adoption of standardised procedures, integrated approaches entail a more extensive collaboration, which means that different agencies become part of a multidisciplinary response to family violence, rather than retaining their distinct institutional identities.[lxi]
Integrated responses can involve reforms at all stages of the legal process. Many integrated responses are premised on the adoption of a strong criminal justice approachthat emphasises the fact that family violence is a crime and it should be investigated and prosecuted as rigorously as any other crime. Another aspect of integrated responses can be to implement reforms that streamline the legal process, by expediting the time in which cases are heard, monitoring the progress of cases and evaluating whether existing legal responses are effective in preventing recidivism. Reforms to the legal process can also involve the development of specialised family violence courts, with specially trained personnel and specially designed court facilities. Regarding punishment and sentencing, recent reforms often adopt a rehabilitative focus, requiring people using violence to partake in a program to address their violent and abusive behaviour.
The first integrated strategy was developed in 1981 in Duluth, Minnesota.[lxii] Since then, such strategies have been adopted in Canada, New Zealand, Australia and other jurisdictions. In Canada, in Winnipeg, Manitoba, the adoption of an integrated response has involved the development of a specialised family violence court. The court has five main elements:
- firstly, a specialised prosecutorial unit comprised of 11 prosecutors
- secondly, tailored courtrooms
- thirdly, a distinct family violence probation unit that is responsible for administering court ordered treatment programs
- fourthly, support and advocacy programs for women and children affected by family violence, and
- finally, a pro-arrest policy.[lxiii]
The Winnipeg Family Violence Court has been effective in ensuring fast case processing and has managed to maintain a 3 month maximum time limit between respondents’ first appearance and their disposition, despite an increasing case load.[lxiv] The Court has also achieved another one of its goals, namely to provide more appropriate sentences. During the court’s operation, the use of custodial and supervised sentences has increased, while conditional sentences and fines are less frequently used.[lxv] The Court has had more limited success, though, in reducing case attrition.[lxvi]
In New Zealand, the new Domestic Violence Act 1995 (NZ) significantly reformed the civil legal response to family violence. The Act changed the definition of ‘domestic violence’ and ‘domestic relationship’, [lxvii] which seems to have led to an increase in the number of protection order applications.[lxviii] Various protections for children were also introduced, such as the provision that causing a child to witness an act of family violence constitutes an act of psychological abuse against the child.[lxix] Also, protection orders automatically apply to any children living in the household, which is quite significant given that approximately 75% of the New Zealand applicants had children who received protection.[lxx] Applications for occupation or tenancy orders or “furniture orders” are commonly made in this jurisdiction.[lxxi]
Another aspect of the new regime is that it has a rehabilitative aim – whenever courts make a protection order, the court must direct the respondent to attend a behaviour change program.[lxxii] An evaluation of the New Zealand Act shows that respondents have been positive about the program component, however, only 36% of respondents that were directed to attend the program actually completed it.[lxxiii]
In Australia there have also been various reform efforts designed to improve the effectiveness of the legal response to family violence. In the ACT, an integrated response has been developed as part of the criminal justice process.[lxxiv] This jurisdiction’s pro-prosecution policy has led to an increase in case completions.[lxxv] Interagency collaboration has led to the development of a Family Violence List and increased information sharing between criminal justice and social support agencies.[lxxvi] The ACT approach also emphasises the importance of case tracking and data collection.[lxxvii] There are arrangements for education programs for the person using violence, although there is some need for improvement in this area.[lxxviii]
Under the Western Australian Joondalup Family Violence Court model, people subject to violence receive legal support and referral when they apply for a restraining order.[lxxix] The criminal justice elements of the model include a specialised family violence police unit, specialised family violence magistrates, prosecutors and defence lawyers and a commitment to case management.[lxxx] The Western Australia Acts Amendment (Family and Domestic Violence) Act 2004 (WA), recently passed, also enables police to make domestic violence orders in certain, specific circumstances.[lxxxi]
Finally, in South Australia, the NDV program is directed towards reducing the repeat victimisation of people subject to family violence where police have been called to an incident.[lxxxiii] The program involves a three-tiered system of intervention, which is used from the first time the police are called to attend a particular family violence matter.[lxxxiv] If the police are called to a subsequent incident involving the same parties, the nature of police action is strengthened.[lxxxv] The second time police are called, for example, there are follow-up procedures, such as directed police patrols and phone calls over a two week period.[lxxxvi] The NDV program is modelled on the Killingbeck program used in England, which has been successful in reducing repeat victimisation, increasing the number of single attendances by police and increasing the length of time between police attendances regarding the same parties.[lxxxvii]
All of these reform initiatives are directed towards shaping the legal response to family violence to the realities and dynamics of family violence. They show that it is possible to improve our legal system’s response and achieve goals such as reducing re-victimisation, ensuring fast case processing and enhancing the protection of children. There are still, however, various ways in which these approaches can be finetuned. While these approaches are all aimed at improving the general justice system response, it is also necessary to consider the distinct needs of certain communities. In our consultations, we found that Indigenous people and children exposed to family violence, for example, may require a specifically tailored legal response.
(a) Indigenous communities
Firstly, with respect to Indigenous people who experience violence, there was a general perception that the existing legal system does not provide sufficient or culturally appropriate protection. Consultation participants said that Indigenous people often have a fear of the police and the legal system that can prevent them from seeking legal protection from family violence.[lxxxviii] A frequent suggestion was that there should be more Indigenous staff in the legal system.[lxxxix] Consultation participants also called for existing justice system staff to be educated about Indigenous culture.[xc]
The nature of existing legal protections, namely intervention orders, was also seen to be inappropriate for Indigenous family violence. During our consultations, participants said that there needs to be a more flexible approach to dealing with family violence in Indigenous communities.[xci] The person using violence and the person subject to violence often live in the same community and, therefore, in close proximity to each other.[xcii] An intervention order that prevents the parties from being within a certain distance of each other will inevitably be breached and they fail to provide any protection to the person subject to violence.[xciii] For Indigenous communities, there needs to be more effective ways to stop the person using violence while acknowledging that they may continue to have contact with the person subject to violence. This means that for Indigenous people, counselling and behaviour change programs are crucial, both before and after a court hearing, to try stop the person using violence from doing so in the future.[xciv]
Our consultation participants also said that any response to Indigenous family violence must address the distinct needs of Indigenous communities. They suggested Indigenoushealing centres that could deal with the damage that family violence causes not only to the people involved, but also the community in general.[xcv] Regarding the prevention of family violence, consultation participants supported the development of ‘time-out’ houses for people to go to when they feel like they are at risk of using violence.[xcvi] A predominant theme in our consultations was that Indigenous communities need to be involved and have some ownership over any proposed initiatives.[xcvii]
(b) Children and child contact
Secondly, regarding children that are exposed to or subject to family violence, some specific consideration needs to be given to whether they have contact with the person who has used abuse after an intervention order has been made against this person. Our consultation participants felt that it is difficult to get children protected under a parent’s intervention order when they have not been directly abused by the person using violence.[xcviii] The perception is that most of the time, magistrates automatically stipulate that any intervention order is subject to child contact arrangements.[xcix] This practice may unnecessarily put children at risk of being abused during child contact visits as research shows that there is a significant overlap between intimate partner violence and child abuse.[c] It may also expose women to further abuse given the fact that women are at a significant risk of being abused during child handover visits.[ci]
Our consultations also show that magistrates only rarely used their powers in relation to suspending, varying, discharging and making child contact orders.[cii] The failure to make specific intervention orders may lead to a situation where the intervention order may be easily breached and be of little use. In relation to interim intervention orders, consultation participants suggested that the court should also make interim contact orders to enable the police to effectively enforce the interim intervention order.[ciii] Balancing the competing demands of protecting people who experience abuse and facilitating children’s contact with both their parents is a difficult task, but one that must be considered in any attempts to reform the legal response to family violence.
Family violence can be difficult to understand and challenging to respond to. Our existing legal response can be effective, but it is also has a number of problems. In Australia and overseas, various reform initiatives have been implemented in order to improve the legal response to family violence and they have had notable successes in doing so. As the Victorian legal system embarks on a process of change, our aim should be to respond to family violence in a way that is tailored to the unique dynamics, nature and experience of this type of violence.
[i]Domestic Violence and Incest Resource Centre, What's in a Name?: Definitions and Domestic Violence Discussion Paper No 1 (1998) 2; Therese McCarthy, Public Health, Mental Health and Violence Against Women: Report Produced for VicHealth (2003) 10.