3.1 The Commission’s brief is to assess the validity of the policy objectives of Part 15A, and the adequacy of the provisions of that Part in giving effect to those objectives. In the previous chapter, the Commission examined the current policy objectives of Part 15A, and determined them overall to be valid statements of the nature, purpose and intent of AVO legislation.1 In Part 2 of this Report, the Commission recommends changes to the provisions of Part 15A to ensure that the legislation reflects the policy objectives more effectively. However, no matter how valid the policy or how well drafted the legislation, Part 15A will only be truly effective if it is interpreted and implemented consistently and appropriately. While this is true of any law, it is particularly the case with AVOs, given the difficult and delicate nature of the subject matter.
3.2 The general consensus of views expressed in the submissions and consultations is that, while there are aspects of the legislation that require fine-tuning and some amendment, the main problems lie with its implementation and interpretation.2 Many of these implementation problems can be resolved to some extent by the amendments to Part 15A recommended by the Commission.3 However, other issues, such as the attitudes and responsiveness of police and Magistrates, transcend the legislation, and will continue to be problematic regardless of any legislative reform. Given the impact that the implementation of Part 15A has on the achievement of the policy objectives of that Part, it is important that problems are recognised and appropriate measures be taken to address them.
3.3 It must be noted in this context, that the Commission is well aware that the police, Magistrates, courts and all others involved with administering AVOs have made much progress over the years since domestic and personal violence were first recognised as problems in need of attention. However, there are still areas that call for further improvement.
3.4 Some commentators claim that the problems are mainly the result of attitudinal and procedural inefficiencies and inconsistencies. For example, a recent study of women negotiating child contact and residence against a background of domestic violence4 has found that domestic violence is often trivialised within the broader community and the legal system, that police responses to domestic violence are inconsistent and ADVOs are often not enforced.5 Factors said to improve the effectiveness of the legislation include good policing (such as respectful dealings with parties, taking complainants seriously, prompt attention to calls for assistance, timely service of summonses, warrants and orders); access to courts and legal representation; legal representation that responds to clients’ needs; court support schemes; enforcement of breaches; efficient court practices; safe facilities at courts; and improved co-operation across jurisdictions (for instance between Family Court and Local Courts).6 Factors that hamper the effectiveness of the legislation would be the obverse of the above.7 Many other submissions have made similar observations.8
3.5 The Commission’s consultations have revealed that the major factors promoting the effectiveness or otherwise of AVOs in general, and Part 15A in particular, can be categorised as:
- police attitudes and practice;
- attitudes and practices of judicial officers, court staff and lawyers;
- community attitudes; and
- aspects of the court process.
3.6 The Commission makes no specific recommendations for change in this chapter. Instead, the Commission considers the views expressed in submissions and consultations, and presents its own views on a range of options that may improve implementation. Each of the perceived problem areas is dealt with below.
POLICE ATTITUDES AND PRACTICES
The role of the police
3.7 The police play a crucial role in all aspects of the AVO process. They may either apply for an AVO on behalf of an applicant, or may provide information to people about how they may apply on their own behalf. If police lodge an application on someone’s behalf, they will be actively involved in the entire process, from the time of making the application, through the courts and for as long as the AVO is in force. Part 15A provides that police must apply for an AVO on behalf of a person in need of protection if they suspect or believe that a domestic violence,9 stalking10 or child abuse offence11 “has been or is being committed, or is imminent, or is likely to be committed, against the person for whose protection an order would be made”.12 The police must also apply for an AVO where the applicant is under the age of 16 years.13
3.8 Statistics show that the vast majority of ADVO applications are brought by the police.14 Police are also seen as the first port of call when there is violence in the home or neighbourhood. It has also been suggested that the AVO process is more effective when police lay the complaint as there is a perception that the matter is serious and a police prosecutor acts for the applicant.15 Also, defendants are said to be more likely to consent without admissions which makes it easier to have an AVO in place.16 It is, therefore, of vital importance that the police are approachable, responsive and efficient in the manner in which they handle AVO matters.
Views in submissions
3.9 The Commission has received many submissions presenting diverse views with regard to the police and the manner in which they do and should conduct their role under Part 15A. Some express the view that police are not proactive enough, leaving people in danger without adequate protection. Some consider that police inactivity, both in initiating AVOs and acting on breaches,17 is still one of the greatest barriers to the effectiveness of AVOs. Indeed, the role of police is seen as being one of the major factors in the success or failure of the AVO system.18 On the other hand, there is also a concern that AVOs are granted too readily and that police should be able to exercise more discretion in deciding whether or not to apply for an AVO. Many submissions recognised the vital role police play in the AVO process and acknowledged that police have greatly improved their service delivery over the years.19
Reluctance to act on complaints
3.10 It has been suggested that there is a reluctance to act upon complaints of violence, intimidation, stalking and harassment offences,20 that police do not use their legislative powers to give adequate protection to victims,21 and that domestic violence is tolerated to an extent that personal violence is not.22
3.11 In a Report by the NSW Ombudsman on the policing of domestic violence, it was acknowledged that:
despite broad legislative and procedural change over the past twenty years, misinformed and stereotyped attitudes to domestic violence, such as the perception that ‘it is a private matter that should be handled within the family’, still persist in the community. It is not surprising that these stereotypes and misunderstandings also continue to influence the attitudes of some police.23
On the other hand, there is also evidence that this attitude is changing in some areas.24
3.12 There appear to be many reasons for this perceived or real inactivity. One view is that police have a propensity to play “judge and jury” by making inappropriate assessments of whether the applicant is telling the truth.25 It has also been suggested that police are advising people to make private applications for AVOs through a Chamber Magistrate, even in cases of serious violence.26 It has been suggested to the Commission that police should be more proactive in taking out applications in relation to serious personal violence offences.27
3.13 The relationship between AVOs and criminal offences based on the same grounds can also prove to be an issue. The Commission heard that domestic violence victims seeking to have an offender charged with assault or other violent incident have been advised by the police to seek an AVO as a substitute for criminal prosecution, whereas AVOs should be supplementary to criminal prosecution of domestic violence offences.28 In other cases, it has been suggested that police are more willing to charge the defendant with an offence where an ADVO is already in place.29
3.14 Apart from the reluctance to act generally, it has been suggested that police react inconsistently to women with a disability (particularly a mental illness or an intellectual disability), or from culturally diverse backgrounds.30 There also appears to be a reluctance on the part of police officers to initiate applications for ADVOs on behalf of children and young persons separate from complaints involving the mothers of those children and young persons. Often police officers are said to be unaware that they are able to initiate such applications.31 The Commission also heard that there were problems in some rural areas with smaller social networks. Police may know the defendant, giving rise to the perception of reluctance to take action on behalf of the victim.32
3.15 The view was also put to the Commission that the number of police applications against women is increasing, without adequate investigation into who the primary aggressor may be.33 Another related issue is that situations arise where two parties involved in a domestic violence incident both complain to the police about each other. This places police in the sometimes difficult situation of having to determine who is the perpetrator and who is the victim. The Commission has heard that police sometimes adopt the practice of making an ADVO application on behalf of the party who made the first complaint, without conducting further investigation. If that party is in fact the perpetrator of the violence, then the victim is precluded from having the police bring the action. The victim is also precluded from having police prosecutors handle the hearing and must make a private application through a Chamber Magistrate, represent themselves or pay for a solicitor if they do not qualify for legal aid.34
Lack of response to breaches
3.16 The way in which police respond to breaches of AVOs is a key element in their effectiveness.35 There is evidence that police do not always act on breaches.36 For example, the Commission heard reports that women contacted police numerous times to report breaches of AVOs, and then discovered that no record had been made.37 If the police do not enforce the law when there is a breach, this sends a clear message to perpetrators that they are above the law, thereby leaving the victim less safe.38 It has also been suggested that some police treat violence at changeover times during contact visits as a family law issue rather than a criminal breach.39 This raises the issue of whether police need more training on the interrelationship between ADVOs and family law contact orders.40
3.17 The Commission has heard of instances where police have not taken action for “technical” breaches, that is, ones not involving actual physical violence.41 It was also suggested that there should be provision for review of any decision not to act on a breach.42
3.18 On the other hand, in some areas, police have expressed their frustration that there is often insufficient evidence to substantiate a criminal charge for breach, or the victim does not want to proceed, and the prosecution will fail without her evidence.43 Police also complain about lack of response from Magistrates when breach charges are brought before a court.44
Insufficient numbers of DVLOs
3.19 Domestic Violence Liaison Officers (“DVLOs”) are attached to 165 police patrols across NSW, in either a full or part time capacity. DVLOs are specially trained in domestic violence issues to ensure that victims receive proper advice about legal matters and other support services.45
3.20 During its consultations, the Commission met with a number of active and committed DVLOs, and heard many positive comments from refuge workers and Magistrates concerning their role and performance. However, the Commission heard that there are areas, such as Moree, without DVLOs.46 In such areas, general duties officers are called upon to respond to AVO issues. Even in areas where there are DVLOs, it has been suggested that police culture is such that they are given little or no validation and support within the police service. This would make it difficult to continue to attract dedicated staff to the position of DVLOs to the disadvantage of those who depend on their assistance.
Quality of representation
3.21 Another concern expressed in submissions was with regard to the quality of representation provided by police prosecutors. This may be to do with time constraints and the large caseload borne by police prosecutors. It has been suggested that both at the mention stage and at final hearings, it is not uncommon for prosecutors to be unfamiliar with important facts and legislative provisions. Often police prosecutors are said to obtain several files on the morning of the hearing, and are therefore not able to be adequately prepared for the hearing or to provide the applicant with proper advice or support.47 A further concern expressed during consultations is that some prosecutors can be insensitive to the circumstances of domestic violence victims and may make inappropriate remarks.48
Inconsistent practices
3.22 Another significant problem appears to be the inconsistency in police practices. The police are technically guided by their Standard Operating Procedures Manual. This Manual provides guidance and instruction on how the police should interpret and implement the legislation. However, the Commission has found that the guidelines provided in the Manual are not implemented consistently across New South Wales.
3.23 For instance, the Standard Operating Procedures Manual prescribes that police should not ask the victim if he or she wants to proceed with a charge where they attend a situation of alleged domestic violence, as the onus should not be placed on the victim.49 However, the Commission has heard that this practice is not uncommon. Also the Commission is aware of situations where the victim does not want the defendant to be charged for a number of reasons. In such situations, some police use their initiative and proceed to charge the defendant if the circumstances indicate that it is the best course of action to protect the victim, and as a matter of public interest.50 However, there appears no consistent practice in this regard. Similarly, some police officers give reasons to the victim when deciding against seeking an AVO, while others do not. The question of whether police should be able to proceed with an AVO despite the opposition of the applicant, is discussed in Chapter 9.
3.24 Police action or inaction on alleged breaches is another area which lacks a consistent approach.51 Much depends on the particular officer in charge, and his or her attitudes and views on domestic violence, which makes it difficult for the parties or other agencies working with the police to know what to expect, and gives rise to inconsistent interpretation and implementation of the legislation.
Problems associated with service of documents
3.25 Failure to serve an AVO on a defendant emerged as one of the major problems impacting on the effective implementation of Part 15A. It is a significant problem since AVOs do not take effect until such service has occurred, leaving the applicant without protection. This contributes to the applicant feeling disempowered, and undermines the effectiveness of the entire AVO process. There have been reports of many hearings having to be adjourned due to failure to serve.52 The Commission heard personal accounts of people having as many as four AVOs lapse due to the failure to serve them on the defendant. Applicants must keep applying and returning to court. This often happens in the most serious cases of violence and abuse, creating the irony that it is often harder to make an AVO enforceable in the most serious cases.53 The high withdrawals rate in AVO proceedings could be partly attributable to difficulties in effecting service of an AVO.54
3.26 Concern was expressed to the Commission that police do not treat service of an AVO as a priority.55 Currently, the police or other authorised persons serve documents on the defendant personally or by leaving them with someone else at the defendant’s last or most usual place of residence.56 It was also suggested that where an initial failed attempt at serving an AVO personally is made, police are unwilling to pursue other methods of substituted service.57 Police, on the other hand, have expressed their frustration with the difficulties they experience in effecting service as defendants often go to significant lengths to avoid service.58
Views held by the police
3.27 The NSW Department of Police provided a detailed response to the issues raised in DP 45. The response was developed through a consultation process that involved Commanders, DVLOs, officers in the field and other agencies within the NSW Police. From a strictly implementation perspective, it is noteworthy that they have expressed some concern about the “large and escalating number of AVOs, particularly ADVOs, applied for by the NSW Police force” and the need to streamline the workload associated with the implementation of the legislation.
3.28 The submission states that the police review and redevelop their Standing Operating Procedures to reflect any new legislative provisions, and then develop training and information campaigns to implement the new provisions. The submission also notes the workload involved in training some 14000 officers on legislative amendments. In this context, the submission suggests that qualitative and quantitative research should be conducted into the effectiveness of the legislation (after the next set of amendments following this Report) before any further legislative change is undertaken, presumably to reduce the need for constant updating and training.
3.29 On the issue of effectiveness of the AVO legislation, the submission states that anecdotal evidence from many officers indicates that AVOs are generally effective. Responses from those involved in the consultation process for the preparation of the submission indicated that the effectiveness of AVOs in protecting victims is hampered for the following reasons:
1. Difficulties in serving ADVOs, as defendants often go to significant lengths to avoid service.
2. The number of withdrawals/ dismissals of AVO applications which is of significant concern to police.
3. Defendants can lack understanding of the nature of an AVO and the conditions imposed in an order.
4. What some police consider to be “inappropriately low” penalties for breach of an AVO.
5. Inconsistencies and confusion arising from the nexus between ADVOs and Family Law contact orders.
6. The length of time police officers spend applying for interim ADVOs and the limits placed on the availability of Telephone Interim Orders.
7. A reliance on victim’s statements in court of their fear (or lack of fear) of further violence, rather than a reliance on other relevant evidence.
3.30 Many of the recommendations arising from those concerns require a legislative response, and are discussed in Part 2 of this Report.
The Commission’s view
3.31 The Commission’s views are underpinned by recognition of the fact that the issues raised above are largely a question of perspective. However, as long as the issues have been raised in many submissions, the Commission believes there is a need to consider how the problems identified can be redressed.
3.32 Given that the role of the police is crucial to the effectiveness of AVOs, the Commission believes that there is a need for the police service to conduct a regular internal review of their policies and practices in relation to AVOs. While some of the issues raised above, particularly those listed by the police in their submission can be improved by legislative amendments (dealt with in Part 2 of this Report), the Commission is of the view that there are still many attitudinal misconceptions that can only be improved by more regular, hands on training and education. Such training and education should cover issues such as the objects of the legislation, the type of behaviour AVOs are designed to address, the consequences of granting and not granting AVOs and the actual provisions of Part 15A.
3.33 Inconsistency in police practice and in the exercise of police discretion appears to be an issue of concern. Often, it seems that a decision whether or not to act depends on the views of the officer in charge or the particular police officer attending the scene of a domestic violence incident. While regular education and training would be beneficial, it is important that such education and training be targeted at specific issues, with case studies on how the police ought, and ought not, to react in given situations. In so doing it would be important to ensure that the Standard Operating Procedures Manual, which provides guidelines for the police, reflects the objects of the legislation, is regularly updated and followed consistently across New South Wales. Inconsistency and inefficiency in the way police respond to issues of domestic violence, including ADVOs, has been highlighted in a Ministerial Inquiry into Police Processes.59 That Inquiry has found that the COPs database is antiquated, complex and consequently does not allow police officers to process ADVO applications expeditiously or efficiently.60
3.34 DVLOs perform a vital role in dealing efficiently with AVO matters. As such, it may be prudent to consider increasing the number of DVLOs, ensuring that every area has at least one male and one female DVLO on duty and available to deal with AVO matters. The comments made at paragraph 3.32 above with regard to the need for regular training and education will have particular value and relevance for DVLOs.
3.35 Training and education will also benefit police prosecutors in how they ought to handle AVO matters. They need to have adequate time to prepare AVO matters which should in turn reflect positively on the quality of their representation.
ATTITUDES AND PRACTICES OF MAGISTRATES, COURT STAFF AND LAWYERS
3.36 Like the police, Magistrates, court staff and lawyers practicing in the area are also actively involved in ensuring the effectiveness or otherwise of the AVO process. Again, attitudes are a vital factor and can work for or against achieving the objectives of Part 15A.61 Clearly, the legislation will work most effectively if it is understood and used consistently by all Magistrates and prosecutors.62
Views in submissions
Dealing with the complaint
3.37 The Commission received submissions from a cross section of the community, including individuals, interest groups, lawyers, Magistrates and Chamber Magistrates. Submissions suggest that problems can occur at a number of stages in the AVO process. At the initial enquiry stage, for example, court staff may not be fully aware of AVO procedures or sufficiently sensitive to issues concerning violence. When making complaints through Chamber Magistrates, it appears that some applicants have been turned away, with the Chamber Magistrate directing them instead to the police.63 It was also reported in submissions that some Chamber Magistrates asked applicants to sign a form noting the possibility that costs may be awarded against them.64 Others set the mention date four weeks in advance in anticipation of the matter being withdrawn.65
3.38 At the stage of determination by the bench Magistrate, it appears that some Magistrates have an inadequate understanding of the power dynamics of domestic violence.66 Some Magistrates focus on the purely legal aspects of whether the defendant has broken the law, rather than appreciating the elements of power and control that may constitute violent relationships.67 This can result in applicants being treated with disbelief and disrespect.68
3.39 Submissions have also suggested that many Magistrates see domestic violence as a family law matter. The Commission has heard of ADVO matters being referred to the Family Court, when in fact they are quite separate issues.69 There is also concern that some Magistrates defer issuing an ADVO until the resolution of family law matters, leaving people without protection at a crucial time.70
3.40 Another issue of concern is that many Magistrates do not appear to be using the existing powers under s 68T of the Family Law Act 1975 (Cth) (“FLA”) to alter family law contact orders to accord with the terms of an ADVO.71 Courts appear to be unwilling to consider even minor changes to contact orders, such as varying the place of changeover, which can make a big difference to the safety of an applicant.72 This issue is also often overlooked by unrepresented litigants, police prosecutors and solicitors, which means that the issue of varying a contact order is not brought to the court’s attention.73
3.41 Another issue frequently identified in submissions is the inconsistency between the approaches adopted by different Magistrates.74 Some require more evidence than others before making interim orders.75 For example, it has been reported that some Magistrates require physical evidence of abuse before granting an interim order, giving insufficient consideration to the damage caused by psychological and emotional abuse.76 Some Magistrates require a complainant to be present in court, even when no evidence is required and a fully instructed solicitor is appearing, while others do not.
3.42 The approach and demeanour of Magistrates is also crucial to the overall effectiveness of an AVO.77 Negative attitudes can make the applicant feel that the process is worthless, and fail to convey the seriousness of the matter to the defendant. The Commission has been told of pressure being brought to bear on applicants by legal counsel and sometimes Magistrates to accept undertakings from the defendant rather than proceed with the AVO, without making it clear to the applicant that the undertakings are unenforceable.78
The orders
3.43 Some submissions stated that ADVOs are often inappropriately drafted and may result in unworkable, vague and unclear orders being made, which are then difficult to enforce,79 and create unrealistic expectations and a consequent burden on police and court resources.
3.44 Also, the orders are not always properly explained to parties. For example when an AVO provides that the defendant must not go within 100 metres of the complainant’s residence or workplace, complainants often incorrectly believe that the AVO means the defendant is not allowed within 100 meters of the complainant. Also, terms contained in Standard Orders like “loiter” and “molest or otherwise interfere with” are said to be unclear. Such misunderstandings can work against both parties and may also result in making a complaint to the police about an alleged breach when in fact there was no actual breach.
3.45 There is little point in rushing through the AVO process in court if the result for the applicant and especially for the defendant is simply an unintelligible piece of paper. Women from some cultures have suggested that the public humiliation of having a Magistrate explain to the defendant in open court the conditions of the AVO and the consequences of breaching those conditions, may be more effective in bringing about a change in behaviour than actually making the AVO and serving a copy on the defendant.80
The Commission’s views
3.46 The Commission is of the view that regular training for Chamber Magistrates, court staff and lawyers will assist greatly in alleviating many of the problems mentioned above. It is noted that some training programs already exist, but more are needed.81 The training would need to focus generally on the nature of domestic and personal violence issues, and how they differ from one another. Specific training could be given on particular difficulties experienced by some groups. For example, specific issues concerning same sex domestic violence, barriers faced by people with a disability and violence in indigenous and rural communities.82 In addition, specific attention could also be given to the relationship between ADVOs and family law, as well as the need for consistency in procedure and decision-making.
3.47 While training for all judicial officers is essential, the Commission recommends in Chapter 2 the establishment of a specialist panel to be piloted within a local court, comprising Magistrates specially trained in domestic violence issues. The Commission is of the view that such specialisation will help to address many of the problems noted above.
COMMUNITY ATTITUDES
3.48 Most people consider AVOs to be generally effective as a means of preventing violence, intimidation and harassment.83 However, the Commission has also received many submissions that reflect community concerns with the AVO regime.
3.49 In this section, the Commission considers the views expressed by individuals, and agencies representing them, on the practical difficulties and barriers they face in gaining access to the protection afforded by the AVO regime. This section also considers the views of individuals and groups who are of the view that the system is being abused, particularly in the context of family law proceedings, and generally because AVOs are perceived to be too easy to obtain.
Views in submissions concerning barriers to access
General community perceptions
3.50 There were many submissions that expressed the view that victims, mainly women, are reluctant to make a complaint because of their fear of the repercussions. Given the power imbalance that can exist in violent relationships, and the exploitation of that imbalance by the stronger partner, women fear that they may be worse off if they report an incident of domestic violence. Often it is only after many years of tolerating such behaviour that women seek help.
3.51 Another practical difficulty is the lack of sufficient resources and support services,84 such as the Women’s Domestic Violence Court Assistance Scheme (“WDVCAS”), DVLOs, and interpreter services, particularly in rural areas.85 Where such resources do exist, the AVO regime is said to be working well.86
3.52 Victims of violence, particularly in domestic relationships, may also be subject to financial and cultural pressures that keep them from taking action. For example, the misconception that an AVO will result in the defendant having a criminal record and losing a job prevents some women from applying due to the financial hardship this would cause for them and their children. Community perceptions about the application process and consequences of AVOs also differ widely based on geographical location, educational and cultural background and access to assistance, as is discussed below.
3.53 Lack of information generally, and for defendants in particular, has been raised as an issue in a number of telephone submissions made to the Commission. For many, answering the door to a police officer, or being served with a summons, is the first contact they have ever had with the legal system, which can be daunting. People claim they have consented to orders they didn’t fully understand, and have had insufficient information about the AVO process including procedures for applying for revocation and appeals. There is also a need for more information sheets in a range of languages,87 perhaps even in video format. Pamphlets and posters could also be targeted specifically, for example, at violence in same sex relationships, to show that this is also covered by AVO legislation.88
Barriers for people living in rural New South Wales
3.54 In rural New South Wales, the Commission found that women were extremely fearful of seeking help or going to court unless there were support services available.89 For example, it has been reported that there is a need for more WDVCAS services in many areas outside Sydney,90 and the expansion of those services to enable greater co-ordination of legal representation.91 Another problem is that, given the nature and size of country towns, a defendant may socialise with the local police, making it harder for an applicant to pursue a complaint.92 The “fear” element and consequent need for support affects most people experiencing domestic violence, but particularly people who live in regional areas because of their geographical isolation, irrespective of their socio-economic status or educational background.93 Distances also make transport to and from the courts difficult for many women living in rural and regional areas. Often, the defendant and victim are forced to travel in the same train or bus, increasing the risk of further violence. Sitting in the same courtroom with the defendant staring at the victim was also cited as an intimidating experience.94
Barriers for Aboriginal communities
3.55 Some indigenous people may have difficulty reporting matters of domestic violence to the police, because of deeply-rooted suspicions concerning the criminal justice system. This appears to be the case both in metropolitan and country areas. The police are working on projects to address this issue.95 The Aboriginal Strategic Direction Policy Document launched in August 2003 is one such initiative. One of the key targets is to strengthen communication and understanding between the police and Aboriginal communities to better deal with family violence by establishing Aboriginal consultative committees in local area commands. The committees will be chaired by the local area commander. Members of Aboriginal communities will be invited to identify crime and violence issues and to develop action plans for dealing with such issues.96 While it should not be assumed that indigenous people never seek the assistance of the criminal justice system,97 it is hoped that better communication will help break down the barriers even further. Indeed, the Commission found that increasing numbers of Aboriginal women are seeking AVOs in areas where support staff and case workers help them to understand the issues.98
3.56 The experiences of Aboriginal women who have been victims of family violence in Wagga Wagga, Bourke and Dubbo, have been examined in a recent report by the Centre for Rural Social Research at the Charles Sturt University.99 In addition to noting the general limitations of the criminal justice system in addressing the problems of violence in indigenous communities, that Report notes some specific limitations of the AVO scheme in relation to Aboriginal women. The first limit is the lack of consensus on the definition of family violence. While the broad view that such violence includes psychological and emotional damage may be favoured by academics and policy makers, the report notes an inability or reluctance in the communities consulted to view anything other than actual physical assault as family violence.100
3.57 The Report also discusses the negative experiences that some indigenous people have of the formal justice process, including the difficulties that may sometimes arise for applicants trying to obtain legal representation,101 and problems associated with AVOs not being properly enforced.102
Barriers for people from culturally diverse backgrounds
3.58 People from culturally diverse backgrounds have also submitted other reasons for the limited effectiveness of AVOs.103 Women believe that if they want to obtain relief from domestic violence they have to leave the family home. However, they are not usually in a position to leave home and seek refuge because of the number of children they have, language difficulties, financial dependence on the violent spouse, cultural views and values about bringing shame to the family, or uncertainty about immigration status.
3.59 In some communities women may be completely ostracised for involving police and other public officials in what can often be regarded as a “private matter”. Separation and divorce, regardless of the reason, also result in ostracism for women (but not necessarily for men) in some communities. Women in these circumstances are often in a dilemma about whether to apply for an ADVO. They may endure domestic violence and abuse for many years rather than face complete social isolation.
3.60 Domestic violence issues for migrant women are sometimes complicated by their immigration status. Women who have been sponsored to Australia by their husband or fiancé are usually completely dependant on them for financial support and information about their legal rights and immigration status. This dependency can result in a reluctance to invoke the ADVO provisions for various reasons. For example, there may be the fear of jeopardising the chances of attaining permanent residence unless there is clear evidence of domestic violence (of the kind required by the immigration regulations). Women on a temporary or bridging visa may also fear that bringing an ADVO complaint against their violent partner may result in loss of income support.
3.61 A significant barrier to people from culturally diverse backgrounds accessing AVOs is that of language. Many people are unable to explain their situation to police or Chamber Magistrates. Taking statements or preparing a summons is therefore very slow and complex.104 Although s 562GC(4) requires that orders be explained in a language likely to be readily understood by the parties, the Commission has heard that this provision is not always complied with, due to a lack of interpreter services.105 Even where interpreter services are available, there are so few that it is not uncommon to have a single interpreter assist both parties.106 There have also been instances where only the defendant has been asked if an interpreter service was needed.107 The interpreters must also be experienced in dealing with domestic violence issues. It has been reported to the Commission that, in some instances interpreters can impose their own cultural, religious or social views on the client.108 It has also been suggested that the information sheets must be provided in a range of languages if they are to service people from culturally diverse backgrounds adequately.
Barriers for people with a disability
3.62 People with a disability are extremely vulnerable to physical abuse both within their domestic relationships and from strangers. This vulnerability is exacerbated for people with a disability, particularly if that person is also from a non-English speaking background, or where a victim has a child with a disability. They are often unaware of, or unable to access the services and mechanisms available in NSW to protect them from abuse.109 It may also be difficult to find sufficient support services, such as refuges and counselling, to meet the special needs of people with a disability.
The Commission’s views
3.63 Many of the issues raised in submissions could be addressed by improvements in community education about the nature and purpose of AVOs, and through the continued and enhanced provision of adequate support services. While there has been much progress in the area of community education and support, the barriers that some people evidently still face in accessing AVOs indicate that there is more that can and should be done. Education campaigns and support services should be developed in conjunction with the community following extensive consultation to ensure that the information and support being offered is appropriate to meet identified needs. Some submissions expressed the view that more funding would see an improvement to access and effectiveness,110 and could be targeted to women from non-English speaking backgrounds, indigenous women, and women with disabilities (all of whom are currently under-represented as WDVCAS clients),111 and to gay men.112 Given the success of services such as the WDVCAS, DVLOs and interpreter services particularly, the continued development and expansion of those programs would be beneficial.
Abuse of AVOs
3.64 There is ongoing community concern that AVOs are too easy to obtain and that they are often abused. Some submissions expressed the view that AVOs in themselves were an abuse of the legal system since they can expose a defendant to criminal liability for engaging in behaviour that is not in itself criminal, such as making telephone calls.113 The perception of abuse applies both to ADVOs and APVOs. In the ADVO context, the abuse referred to is mainly that women seek ADVOs in the course of family law proceedings to gain some tactical advantage in property settlements or to preclude or limit the defendant’s access to his children.114 In the APVO context, anecdotal accounts suggest that a large percentage of APVO applications are unmeritorious and frivolous.
Domestic violence and family law
3.65 As stated above, there is concern that some people, mainly women, are seeking ADVOs in the course of family law proceedings to gain an advantage or punish the defendant by limiting contact with his children. There is also a view that solicitors encourage parties to take out an AVO when there is a family law matter on foot to gain some tactical advantage.115
3.66 The Criminal Law Committee of the Law Society of NSW stated that:
ADVOs are very often used as a tool by one, other or both of the parties following a separation. They can be especially important in relation to matters pertaining to occupation of the matrimonial home and in respect of children’s issues. The separation of a marriage is an inherently stressful situation and parties may well be more inclined to behave inappropriately at such times. … The abuse of the system in the circumstances undermines the real value of Part 15A of the Crimes Act and the objectives stated there”.116
3.67 However, that submission also contained the following rider:
The views in respect of this issue do not necessarily reflect the views of Family Lawyers. We understand that their view is that these orders are used to protect the weaker party and children at these sometimes volatile times in their lives. The number of AVO’s in these circumstances is rarely seen by Family Lawyers as a “tactic” to aid their case.117
3.68 The Children’s Magistrate at Lidcombe Children’s Court suggests that it would be “naïve to assume some complainants do not institute ADVO proceedings (where they would not otherwise have done so) in order to take advantage of such an order or to ‘puff up’ a genuine but otherwise minor incident and then seek an order”.118 He also considered that AVOs may potentially have a significant influence in a contested residency/contact dispute in the Family Court.119
3.69 In DP 45, the Commission discussed some previous studies that have considered the allegations of abuse of ADVOs in the family law context, and noted that those studies have not found those allegations to be substantiated.120 This comment elicited a strong negative response in a number of submissions. For example, the Family Law Reform Association121 was critical of the studies referred to by the Commission, stating that they were “highly subjective and inconclusive”.122 Other written and oral submissions from those who have been defendants in ADVO matters stated that the ADVO system had been manipulated through allegedly spurious applications that operated to deprive them of contact with their children and rights to their property.123
3.70 It has been suggested that more filtering needs to occur before ADVOs are granted,124 and that the presumption against refusing to issue process in ADVO matters should be removed.125 The Family Law Reform Association proposes that, except in cases where actual violence has occurred, a mandatory investigation into the circumstances in each ADVO application be conducted within a specified period, such as seven days. The investigation would determine if the interim ADVO should remain and be listed for hearing, or be withdrawn with either the parties being referred to some form of mediation, or no further action taken.126
3.71 The Domestic Violence Advocacy Service notes that there may be a small number of women who may take out ADVOs as a tactical measure, often recommended by their solicitors. However, they are usually dissuaded by the threat of costs.127 Even if this practice does occur, the onus ought to be on practitioners to ensure that they are not aiding their clients to abuse AVO provisions.128 In the Service’s experience, unmeritorious ADVO claims are usually cross-applications.129
3.72 The Commission has also received a large number of submissions that vehemently opposed the view that ADVOs are being abused. Those submissions expressed concerns that such assertions were generally unfounded,130 and the perception of abuse of the ADVO system is a “myth” that needs to be “exploded”.131 Further, it is seen as a denial of the problem of violence against women, a refusal to listen to and accept women’s experiences, an attempt to trivialise and minimise the reality of violence for women,132 and a belief that it is a private issue between the individuals concerned.133
3.73 Submissions expressed the view that instead of investigating allegations of abuse of ADVOs, perhaps questions should be asked about why women exercising their legal rights are depicted in such a pejorative sense,134 particularly because ADVOs are not easily available and require the establishment of a reasonable apprehension of violence.135 Another submission noted that the assertion that AVOs are misused for family law purposes is similar to the assertion that AVOs are used for immigration purposes. Both arguments are said to detract from the real issues of power and control in abusive relationships.136
3.74 Submissions assert the view that the fact that many ADVOs are taken out at the time of separation does not imply that they are being used as weapons, but that the risk of violence increases at the time of separation.137 Coincidence of timing may contribute to unwarranted concerns.138 Violence has occurred on changeover visits.139 The Domestic Violence Advocacy Service and Women’s Legal Resources Centre (“DVAS/WLRC”) argue that domestic violence and family law proceedings are inextricably linked and that AVOs are not lodged to give them advantage in family law disputes:
Rather it may reflect women’s much needed and overdue access to legal and other support in separating from her violent partner and taking steps to protect herself and her children.140
3.75 When instances of violence occur during the course of protracted Family Court litigation, people find their way to the Local Court for speedy resolution. In such cases, one submission noted that “it is a good thing that the Local Court can respond so effectively. It would be wrong to regard such cases always (or even often) with suspicion of ulterior motives”.141
3.76 The emergence and resilience of this view is seen by some as damaging to women seeking protection as it can influence the attitudes of police, lawyers and magistrates, ultimately having an impact on the level of protection that can be afforded.142 Also it fails to recognise the highly negative impact that living in a household with domestic violence has on children and young people.143
3.77 Submissions also referred to a recent research study144 which found no evidence of women using allegations of domestic violence or seeking ADVOs maliciously or for purely strategic reasons. The research also indicated that obtaining an ADVO is not as easy as some people perceive it to be, with the overwhelming majority of the women interviewed (82.6%) having experienced difficulties and delays. For example, more than half reportedly had been to court on several occasions, typically five or six times. It was also found that women who had experienced violence were more likely to downplay that violence.145
3.78 Other submissions supported the view that the existence of an AVO has little impact on the outcome of family law proceedings: it is not proof of the existence of domestic violence, rather it is only proof of the existence of an AVO.146 Further, submissions noted that the Family Court favours a presumption of contact even if there is an AVO, so there would theoretically be little tactical advantage in obtaining one.147
3.79 The submission from the Hawkesbury Nepean Community Legal Centre stated that, in its experience, an AVO can in fact be detrimental in legal proceedings as many Magistrates may view it as a tactic.148
3.80 Some submissions also asserted the view that the abuse works the other way: that defendants and solicitors use the FLA to undermine the effect of an AVO.149 Defendants allegedly “use the court process, in both AVOs and family law, in an attempt to exert power and control and prolong the abuse the woman has suffered within the relationship”.150
Abuse of APVOs
3.81 In similar vein, concerns about unmeritorious and frivolous APVOs have arisen regularly over the past two years. That perception alone creates problems as it can impact on the effectiveness of ADVOs, since a great deal of the benefit derives from community respect for the seriousness of the AVO process.151 Although it appears that the numbers of APVOs are on the increase, there is a dearth of any empirical data or qualitative research on the types of orders being sought and granted, the nature of the violence, intimidation or harassment giving rise to the orders, or how effective they are in preventing or stopping such behaviour. It has been suggested that more studies are needed on the type and nature of APVO applications152 and on the effectiveness of the implementation of APVOs.153
3.82 Apart from the need to conduct more studies on APVOs, it has also been suggested that other methods of resolving problems should be encouraged. For instance, the Commission has examined whether the discretion to refuse to issue process in APVO matters is being exercised appropriately by authorised justices, and the role that mediation should play in the resolution of APVO disputes.154 These matters would require legislative amendment and are dealt with in Chapter 5.
The Commission’s views
3.83 Like all laws, there is undoubtedly scope for Part 15A to be used inappropriately or even abused. In relation to ADVOs, the Commission has heard of instances where they were clearly sought in an attempt to gain a tactical advantage in family conflict situations. However, the Commission disagrees with the view ADVOs should be made more difficult to obtain. In keeping with the policy objectives recommended in Chapter 2, Part 15A needs to provide a mechanism for people genuinely in fear of violence, intimidation of abuse to seek protection by means of an ADVO. It would be a retrograde step to insert additional legislative or administrative barriers making it more difficult for people to receive the protection they need in order to prevent isolated instances of abuse of the system.
3.84 The Commission agrees with the Chief Magistrate’s view that whether abuse exists must remain a matter for determination in each case, with the costs provisions acting as a disincentive.155 Rather than assume that ADVOs are taken out to gain advantage, it may be necessary to consider systems that will avoid such perceived advantages materialising, such as facilitating contact in the interests of the children with utmost safety precautions during the time of change over. Submissions from community legal centres have confirmed this view.156
3.85 While there are a few studies concerning ADVOs,157 and the experience of domestic violence victims and their dealings with the Family Court,158 the Commission is concerned that there is a lack of empirical or qualitative research in relation to APVOs generally, and a dearth of useful or reliable statistics.159 It appears that we still know very little beyond anecdotes about how APVOs are operating. Thus, any assessment of the effectiveness of APVOs is limited due to the lack of available information in key areas.
3.86 Given that current data collection by police and local courts appears to be inadequate and inconsistent, the Commission is of the view that more integrated data collection would help to isolate patterns and inform future reviews of the effectiveness of both ADVOs and APVOs, to identify the gaps, provide more appropriate alternatives, and assess the need for greater support services.160
3.87 In particular, the Commission agrees with the views expressed in submissions that more accurate information ought to be available on the following issues:
- the type of people who apply for APVOs and the nature of their complaint;
- whether the discretion to refuse to issue process in APVO matters is being used and what are the results;
- the types of matters that are sent to mediation and the results;
- the number of ADVO applications in same sex relationships;
- the need for refuge accommodation for gay men who experience domestic violence ( be means of a feasibility study);
- the numbers of people from culturally diverse backgrounds and indigenous people who use the legislation;161
- the number of children protected on orders;
- the reasons for withdrawals (which may shed light on why there are so many);
- more cross-matching of data to check on multiple and cross applications;
- the use of the stalking and intimidation provisions; and
- the use of exclusion orders.
3.88 There is also a need for more research on the specific issue of the experience of children and young people in the AVO process, which has not been covered in past reviews.162
3.89 Overall, the Commission believes that better databases need to be maintained. A central index should be established registering all AVOs and breaches of AVOs, as well as orders made under the FLA, to assist both local courts and the Family Court to deal with conflicts between orders.163 This would also help notify courts and police of cross and multiple applications.164 Also, the Commission believes that copies of all domestic violence complaints and ADVOs which are currently required to be forwarded to the Commissioner of Police,165 should be required to be recorded on the Police Domestic Violence Central Bank computer system.166 This would provide a history of violence, including complaints made but not proceeded with, which would provide police attending an incident of domestic or personal violence with a long term background and context.167
ASPECTS OF THE COURT PROCESS
3.90 Many aspects of the court process have been identified as areas in need of reform. Some of these matters require legislative reform, and are dealt with in Part 2 of this Report. From an implementation perspective, one of the most crucial issues at a practical level is the need for greater vigilance during court attendances in order to provide the applicant with better protection, both in terms of physical safety and protection from further psychological harm. Attending court is a traumatic experience for most people escaping domestic violence, particularly if it involves seeing the defendant and giving evidence in court.168 Submissions and consultations revealed that AVOs may be breached while parties are attending court. The Commission has been told of many instances where an application for an AVO was withdrawn because the applicant could not face seeing the defendant in court and because she did not feel that her safety at court could be guaranteed.169
3.91 Currently, the only recognition that the court process is traumatic for victims of domestic violence is the provision for a support person to be present in court.170 There are no facilities for applicants to give evidence by closed circuit television. Also, considering the sensitivity attached to domestic violence, there is no requirement that courts should be closed to the public during AVO proceedings.171 Cross examination of the applicant can also be intimidating, particularly given that a number of defendants represent themselves in AVO proceedings.172 The Northern Territory has introduced measures to address these issues, such as providing for the defendant to cross examine the applicant through a third party, and for a screen to be placed between the applicant and the defendant.173
3.92 The need to attend court numerous times is another problem faced by applicants. Apart from being time consuming and emotionally draining, it requires the applicant to come face to face repeatedly with the defendant.174 It has been suggested that a standard practice should be developed of not requiring the attendance of the applicant at court if he or she is represented by legal counsel and does not need to give evidence.175 It has also been suggested that, where the applicant’s presence is required, he or she should be able to sit in a support room, rather than inside the courtroom.176
The Commission’s views
3.93 In order for AVOs to be truly effective, it is important that the diminution of fear and of the threat of violence be an objective of the court processes as well as the legislation. Fear of going to court is said to be a factor in the high rate of withdrawal of AVO applications.177 In recognition of this element of fear, courts should make provision for the victim not to have to be exposed to the defendant, particularly where there has been a history of violence. The Commission is of the view that consideration should be given to the suggestion made in submissions and consultations that a standard practice be developed of not requiring the attendance of the applicant at court if he or she is represented by legal counsel and does not need to give evidence. Where the applicant is required to attend court, measures such as closed circuit TV, the placing of a screen between the applicant and defendant, or requiring that the court be closed to the public in certain circumstances when hearing an AVO application, may be of assistance.
FOOTNOTES
1. See para 2.67-2.73, where the Commission recommends that the current objectives applying to ADVOs be retained and expanded, and similar but separate objectives be developed for APVOs.
2. AVLICC, Submission; NSW, Department for Women, Submission; Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission; NSW Commission for Children and Young People, Submission; Hawkesbury Nepean Community Legal Centre, Submission; Shoalcoast Community Legal Centre, Submission; Young Lawyers Criminal Law Committee, Submission; Manly Warringah Women’s Resource Centre, Submission; Jane Wangmann, Submission; NSW Women’s Refuge Movement, Submission; Family Law Reform Association, Consultation; Redfern Legal Centre and South Sydney Domestic Violence Unit, Consultation; Newcastle consultation.
3. See Chapters 4-12.
4. M Kaye, J Stubbs and J Tolmie, “Domestic violence and child contact arrangements” (2003) 17 Australian Journal of Family Law 93.
5. Julie Stubbs, Submission.
6. Julie Stubbs, Submission.
7. M Kaye, J Stubbs and J Tolmie, Negotiating child residence and contact against a background of domestic violence (Griffith University, Families, Law and Social Policy Research Unit, Working Paper, forthcoming) Chapter 3.
8. AVLICC, Submission; NSW, Department for Women, Submission; Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission; NSW Commission for Children and Young People, Submission; Hawkesbury Nepean Community Legal Centre, Submission; Shoalcoast Community Legal Centre, Submission; Young Lawyers Criminal Law Committee, Submission; Manly Warringah Women’s Resource Centre, Submission; Jane Wangmann, Submission; NSW Women’s Refuge Movement, Submission; Family Law Reform Association, Consultation; Redfern Legal Centre and South Sydney Domestic Violence Unit, Consultation; Newcastle consultation.
9. See Crimes Act s 4(1).
10. See Crimes Act s 562AB.
11. As defined in Children and Young Persons (Care and Protection) Act 1998 (NSW) s 227.
12. Crimes Act s 562C(3) and s 562H(2A).
13. Crimes Act s 562C(2A).
14. In 2001, 78.15% of ADVOs were issued to police applicants: Local Courts unofficial and unaudited figures provided to the Commission on a confidential basis.
15. AVLICC, Submission; Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission; Legal Aid NSW, Submission; Local Court NSW, Submission.
16. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission.
17. Shoalcoast Community Legal Centre, Submission.
18. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission; Shoalcoast Community Legal Centre, Submission; WDVCAS Network Meeting (5 March 2003).
19. Bourke consultation; Orange consultation; Moree consultation; Campbelltown Benevolent Society, Domestic Violence Unit, Consultation; WDVCAS Network Meeting (5 March 2003).
20. AVLICC, Submission.
21. Manly Warringah Women’s Resource Centre, Submission.
22. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission.
23. NSW Ombudsman, Policing of domestic violence in NSW (1999) at 13. See also NSW Ombudsman, Submission.
24. Wollongong consultation.
25. Shoalcoast Community Legal Centre, Submission.
26. Redfern Legal Centre and South Sydney Domestic Violence Unit, Consultation; Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission; Jane Wangmann, Submission.
27. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission; Newcastle consultation; Wollongong consultation.
28. Redfern Legal Centre and South Sydney Domestic Violence Unit, Consultation.
29. Mt Druitt and Area Community Legal Centre, Submission.
30. Multicultural Disability Advocacy Association, Submission.
31. NSW Department of Community Services, Submission.
32 Moree consultation; Orange consultation; Bourke consultation; Campbelltown Benevolent Society, Domestic Violence Unit, Consultation.
33. Redfern Legal Centre and South Sydney Domestic Violence Unit, Consultation.
34. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission.
35. Recommendations concerning legislative reform with regard to breach are discussed at para 10.11-10.46.
36. Moree consultation; Orange consultation; Bourke consultation; AVLICC, Submission; Jane Wangmann, Submission. See also H Katzen, “How do I prove I saw his shadow? Responses to breaches of Apprehended Violence Orders: a consultation with women and police in the Richmond Local Area Command of NSW (Prepared for the Northern Rivers Community Legal Centre, 2000).
37. Hawkesbury Nepean Community Legal Centre, Submission.
38. Legal Aid NSW, Submission; Margrette Young, Submission.
39. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission; Redfern Legal Centre and South Sydney Domestic Violence Unit, Consultation.
40. Jane Wangmann, Submission.
41. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission.
42. AVLICC, Submission. This is discussed further in Chapter 10.
43. Wollongong consultation.
44. Jane Wangmann, Submission.
45. See «http://www.police.nsw.gov.au/text/prevention/detail.cfm?ObjectID=91&SectionID=prevention».
46. This is despite the fact that Moree has a high percentage of indigenous residents where a designated Aboriginal DVLO would be beneficial: Moree consultation.
47. AVLICC, Submission; Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission; Manly Warringah Women’s Resource Centre, Submission; Jane Wangmann, Submission; NSW Women’s Refuge Movement, Submission; Redfern Legal Centre and South Sydney Domestic Violence Unit, Consultation; Bourke consultation; Moree consultation; Orange consultation.
48. Redfern Legal Centre and South Sydney Domestic Violence Unit, Consultation.
49. NSW Police, Domestic violence policy and standing operating procedures (April 2000) at para 3.2.
50. AVLICC, Submission.
51. NSW Department of Community Services, Submission.
52. Hawkesbury Nepean Community Legal Centre, Submission.
53. Newcastle consultation; Wollongong consultation.
54. Jane Wangmann, Submission.
55. Bourke consultation; Moree consultation. The Commission makes a recommendation for amendments to Part 15A regarding service at para 11.57-11.61 (Recommendations 51-52).
56. See Crimes Act s 562J; Local Court NSW, Submission.
57. Redfern Legal Centre and South Sydney Domestic Violence Unit, Consultation; Newcastle consultation; Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission.
58. NSW Police Service, Submission.
59. That Inquiry is being conducted by former police officer Michael Drury at the direction of the Minister for Police.
60. The Inquiry is suggesting that the COPs computer program be enhanced and updated to enable police to process ADVOs and access information more efficiently. The Inquiry has also found that there are many instances when junior police officers are instructed to deal with “serious” crimes, rather than spend time on ADVOs. The Inquiry recommends the need for greater awareness within the police force of the seriousness of ADVOs such that domestic violence responses will not be compromised. The Inquiry has also recommended an extension of police powers in relation to service of documents (which the Commission deals with in Chapter 11): information supplied directly to the Commission by Michael Drury.
61. Hawkesbury Nepean Community Legal Centre, Submission; Legal Aid NSW, Submission; Jane Wangmann, Submission.
62. Manly Warringah Women’s Resource Centre, Submission; NSW Women’s Refuge Movement, Submission.
63. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission.
64. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission; Jane Wangmann, Submission.
65. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission.
66. NSW, Department for Women, Submission; Hawkesbury Nepean Community Legal Centre, Submission; Newcastle consultation.
67. University of Newcastle Legal Centre, Submission.
68. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission.
69. AVLICC, Submission; NSW, Department for Women, Submission; Newcastle consultation; Manly Warringah Women’s Resource Centre, Submission; Jane Wangmann, Submission.
70. NSW, Department for Women, Submission. In a 1999 Survey of Magistrates concerning AVOs, 40% said that they agreed with the practice of deferring granting a final AVO where there were concurrent family law proceedings: see J Hickey and S Cumines, Apprehended Violence Orders: a survey of magistrates (Judicial Commission of NSW, Monograph Series 20, 1999) (“Magistrates Survey 1999”) at 35; M Kaye, J Stubbs and J Tolmie, Negotiating child residence and contact against a background of domestic violence Families (Griffith University, Law and social Policy Research Unit Working Paper, forthcoming) Chapter 3.
71. See also M Kaye, “Section 68T Family Law Act 1975: Magistrates’ powers to alter Family Court contact orders when making or varying ADVOs” (2003) 15(1) Judicial Officers’ Bulletin 3 at 3. AVLICC, Submission; NSW, Department for Women, Submission; Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission; Jane Wangmann, Submission; Newcastle consultation; Manly Warringah Women’s Resource Centre, Submission; Blue Mountains Community Legal Centre, Submission.
72. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission.
73. Blue Mountains Community Legal Centre, Submission.
74. Blue Mountains Community Legal Centre, Submission; Redfern Legal Centre and South Sydney Domestic Violence Unit, Consultation; Newcastle consultation; Wollongong consultation.
75. Chamber Magistrates consultation.
76. Newcastle consultation.
77. Jane Wangmann, Submission. See also James Ptacek, Disorder in the court: judicial demeanor and women’s experience seeking restraining orders (PhD Dissertation, Brandeis University, Massachusetts, 1995).
78. Correspondence to the Commission from the Violence Against Women Specialist Unit (21 March 2003).
79. University of Newcastle Legal Centre, Submission; Julie Stubbs, Submission.
80. Multicultural Disability Advocacy Association, Submission.
81. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission; Erin’s Place for Women and Children, Submission; Jane Wangmann, Submission.
82. See discussion below at para 3.54-3.62.
83. AVLICC, Submission; NSW, Department for Women, Submission; Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission; Hawkesbury Nepean Community Legal Centre, Submission; Law Society of NSW, Criminal Law Committee, Submission; Legal Aid NSW, Submission; NSW Commission for Children and Young People, Submission; NSW Police Service, Submission; Jane Wangmann, Submission; Redfern Legal Centre and South Sydney Domestic Violence Unit, Consultation; Newcastle consultation; Wollongong consultation.
84. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission.
85. Hawkesbury Nepean Community Legal Centre, Submission. See also para 3.54 below.
86. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission; Hawkesbury Nepean Community Legal Centre, Submission.
87. AVLICC, Submission.
88. Inner City Legal Centre, Submission.
89. Bourke consultation; Orange consultation; Moree consultation; Gosford consultation.
90. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission.
91. Legal Aid NSW, Submission.
92. Moree consultation; Bourke consultation; Orange consultation; Campbelltown Benevolent Society Domestic Violence Unit, Consultation.
93. Orange consultation.
94. Bourke consultation; Orange consultation; Gosford consultation; Moree consultation.
95. NSW Police Service, Submission.
96 Such committees have already been established in the mid-North coast and in Orange. Many other schemes that offer support and assistance exclusively to Aboriginal victims and offenders are also in operation around the state: the DV support group in Kempsey, the Lismore Perpetrator Program, the Dubbo Aboriginal Women’s Group, the West Dubbo men’s group, the Manning Great Lakes Police and Aboriginal women’s refuge partnership, Operation Choice in Nowra are examples of projects aimed at building communication and understanding between the Police and Aboriginal communities within the context of family violence.
97. Julie Stubbs, Submission.
98. Bourke consultation; Orange consultation; Moree consultation; Gosford consultation.
99. E Moore, Not just court: family violence in rural New South Wales; Aboriginal women speak out (Charles Sturt University, Centre for Rural Social Research, 2002).
100. E Moore at vii.
101. The Report states that the Aboriginal Legal Services (ALS) has a practice of representing only one party to a legal proceeding to avoid a conflict of interests. If the police do not act for the victim and the defendant has already approached the Aboriginal Legal Service, then the victim may be denied any legal representation: E Moore at viii.
102. E Moore at ix.
103. Mt Druitt and Area Community Legal Centre, Submission; Multicultural Disability Advocacy Association, Submission.
104. Mt Druitt and Area Community Legal Centre, Submission.
105. AVLICC, Submission; NSW, Department for Women, Submission; Multicultural Disability Advocacy Association, Submission, Newcastle consultation; Wollongong consultation.
106. NSW, Department for Women, Submission; Wollongong consultation.
107. AVLICC, Submission.
108. Redfern Legal Centre and South Sydney Domestic Violence Unit, Consultation.
109. Multicultural Disability Advocacy Association, Submission.
110. Legal Aid NSW, Submission; Jane Wangmann, Submission.
111. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission.
112. Inner City Legal Centre, Submission.
113. See eg Cameron Beaumont, Submission.
114. Family Law Reform Association, Submission, and a number of confidential personal submissions.
115. Orange consultation.
116. Law Society of NSW, Criminal Law Committee, Submission.
117. Law Society of NSW, Criminal Law Committee, Submission.
118. Children’s Magistrate, Lidcombe Children’s Court, Submission. He also acknowledges, however, that ADVOs are beneficial in responding to violence that erupts during the course of protracted family law disputes, and that it would be wrong to suspect that such cases always, or even often, are the result of ulterior motives: see para 3.75 below.
119. Children’s Magistrate, Lidcombe Children’s Court, Submission.
120. See DP 45 at para 5.15.
121. The Family Law Reform Association is an organisation representing the interests of members who have grievances with aspects of family law, including the alleged misuse of ADVOs.
122. Family Law Reform Association, Submission.
123. See Chapter 1 for an explanation of the Commission’s policy of confidentiality regarding submissions which reveal personal details.
124. Family Law Reform Association, Submission.
125. Family Law Reform Association, Submission.
126. Family Law Reform Association, Submission.
127. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission.
128. Western NSW Community Legal Centre, Submission.
129. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission.
130. Legal Aid NSW, Submission.
131. AVLICC, Submission. See Jane Wangmann, Submission; Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission.
132. South West Sydney Legal Centre, Submission; Redfern Legal Centre, Submission.
133. Hawkesbury Nepean Community Legal Centre, Submission.
134. Jane Wangmann, Submission.
135. South West Sydney Legal Centre, Submission; Redfern Legal Centre, Submission.
136. Redfern Legal Centre, Submission.
137. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission; Legal Aid NSW, Submission; Jane Wangmann, Submission. See also BOCSAR 1997 evaluation at 31 and forthcoming study by M Kaye, J Stubbs and J Tolmie, Negotiating child residence and contact against a background of domestic violence families (Griffith University, Law and Social Policy Research Unit Working Paper, forthcoming) at 36 (studies indicate violence is at its peak immediately following separation); University of Newcastle Legal Centre, Submission.
138. Legal Aid NSW, Submission.
139. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission; Redfern Legal Centre and South Sydney Domestic Violence Unit, Consultation; Newcastle consultation; Wollongong consultation.
140. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission.
141. Children’s Magistrate, Lidcombe Children’s Court, Submission.
142. Jane Wangmann, Submission.
143. Jane Wangmann, Submission. See also Children’s Magistrate, Lidcombe Children’s Court, Submission; NSW Commission for Children and Young People, Submission; and L Laing, Children, young people and domestic violence (Australian Domestic and Family Violence Clearinghouse, Issues Paper 2, 2000).
144. Julie Stubbs, Submission quoting from M Kaye, J Stubbs and J Tolmie, Negotiating child residence and contact against a background of domestic violence families (Griffith University, Law and Social Policy Research Unit Working Paper, forthcoming).
145. See Julie Stubbs, Submission.
146. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission.
147. University of Newcastle Legal Centre, Submission.
148. Hawkesbury Nepean Community Legal Centre, Submission.
149. Erin’s Place for Women and Children, Submission.
150. Hawkesbury Nepean Community Legal Centre, Submission.
151. Legal Aid NSW, Submission.
152. Jane Wangmann, Submission.
153. NSW Police Service, Submission.
154. NSW Commission for Children and Young People, Submission.
155. Chief Magistrate, Local Court of NSW, Submission.
156. Shoalcoast Community Legal Centre, Submission; South West Sydney Legal Centre, Submission.
157. See J Stubbs and D Powell, Domestic violence: impact of legal reform in NSW (NSW Bureau of Crime Statistics and Research, 1989); S Egger and J Stubbs, The effectiveness of protection orders in Australian jurisdictions (National Committee on Violence Against Women, AGPS, Canberra, 1993); and L Trimboli and R Bonney, An evaluation of the NSW Apprehended Violence Order scheme (NSW Bureau of Crime Statistics and Research, Sydney, 1997); H Katzen, “How do I prove I saw his shadow?” Responses to breaches of Apprehended Violence Orders, a consultation with women and police in the Richmond Local Area Command in NSW (Prepared for the Northern Rivers Community Legal Centre, 2000).
158. H Rhoades, R Graycar and M Harrison, The Family Law Reform Act 1995: the first three years (University of Sydney and the Family Court of Australia, 2000); K Rendell, Z Rathus and A Lynch, An unacceptable risk: a report on child contact arrangements when there is violence in the family (Women’s Legal Service Inc, Brisbane, 2000).
159. Jane Wangmann, Submission.
160. Wollongong consultation.
161. Jane Wangmann, Submission.
162. NSW Commission for Children and Young People, Submission.
163. Chief Magistrate, Local Court of NSW, Submission; Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission.
164. NSW, Department for Women, Submission; Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission.
165. Under Crimes Act s 562J(3).
166. Erin’s Place for Women and Children, Submission.
167. Erin’s Place for Women and Children, Submission.
168. Redfern Legal Centre, Submission; Bourke consultation; Orange consultation; Moree consultation; WDVCAS Network Meeting (5 March 2003).
169. In one particular instance, a court was unable, due to resource constraints, to provide security for an applicant, despite that fact that she had been assaulted by the defendant during a previous court appearance: Redfern Legal Centre, Submission.
170. See Crimes Act s 562ND.
171. Where an order, or an application to vary an order, is sought to protect a child under 16 years of age, that hearing is to take place in the absence of the public unless the court otherwise directs: Crimes Act s 562NA.
172. See NSWLRC, Questioning of complainants by unrepresented accused in sexual offence trials (Report 101, 2003) for a discussion of relevant concerns regarding cross examination by unrepresented defendants.
173. Redfern Legal Centre, Submission.
174. Redfern Legal Centre, Submission; Bourke consultation; Orange consultation; Moree consultation; WDVCAS Network Meeting (5 March 2003).
175. Redfern Legal Centre and South Sydney Domestic Violence Unit, Consultation.
176. Redfern Legal Centre, Submission; Orange consultation; Bourke consultation.
177. Redfern Legal Centre, Submission.
