A Legal Roadmap for Tackling Domestic Violence

Following the tragic deaths of Hannah Clarke and her children in February, there has been significant discussion into how family violence can be prevented. This conversation is all the more important, with some even describing the current situation as a “tinderbox” for family violence owing to increased rates of unemployment and social isolation during the coronavirus outbreak.

Since February, state and federal governments have declared various initiatives to determine what reform will be needed to prevent domestic violence. Queensland Premier Annastacia Palaszczuk announced on 8 April that there would be a $5.5 million allocation of funding for domestic violence services in light of COVID-19 while a federal Senate Inquiry into domestic violence has also been established. 

Following on from “Talking about Domestic Violence: Key Issues and COVID-19”, Legal Insight continued the conversation with Ashleigh Harrold, author for Federal Offences and Dominic Nguyen, author for Indictable Offences Queensland, about legal and systemic reform in the context of domestic violence. 

Law reform and legislative changes 

One notable aspect of the Hannah Clarke case was that she had taken all available steps to protect herself, with Rowan Baxter due to appear in court for breaching the domestic violence order (DVO) against her at the time of the murder/suicide. In light of this, Ashleigh considered that reforms surrounding breaches of domestic or family violence orders may be possible: 

“We might see changes to the options available to police when dealing with alleged breaches in future – for example, the option of issuing a notice to appear/summons rather than bringing an alleged offender before the court at first instance might change.” 

The case is also significant because there had been no prior allegations of physical violence, yet this clearly did not mean she was in any less danger. Ashleigh believes that this will prompt discussion of how domestic violence is defined, with controlling behaviour potentially becoming part of the legal formulation: 

“This concept of ‘coercive control’ is difficult to define in a criminal sense because what you are really looking at is the cumulative effect of several seemingly minor acts that add up over time. Criminalising and prosecuting this form of domestic violence would be challenging, but I suspect the Hannah Clarke case may prompt debate and legal reforms on the issue” 

– Ashleigh Harrold, author for Federal Offences

Such an approach is not without precedent, with Scotland introducing legislation criminalising domestic abuse and coercive and controlling behaviour in 2019. Ashleigh thinks the Scottish approach could be a starting point for Australian reforms as they look at “the purpose of an offender’s behaviour, which allows police to focus on establishing a pattern of abuse over time, rather than concentrating on charging individual acts.” 

Dominic cautioned against “simply legislating new criminal offences such as an offence of control/coercion [or increasing] maximum terms of imprisonment for DV-related offences” but he grants that it would be a starting point for reform. He does agree that a purpose-based approach is crucial, citing MAN v MAM [2003] QDC 398 as an example of alleged acts appearing to be domestic violence then being seen in a very different light once the objective purpose of the acts was known. 

Dominic believes we need a completely new way of thinking about the problem. 

“Perhaps potential offenders need to be identified earlier in the criminal process and more funds allocated to assist them to overcome the cause of their problems such as alcohol and illicit drugs; unemployment; housing and anger management issues” 

– Dominic Nguyen, author for Indictable Offences Queensland

Systemic reform 

Indubitably, there are no easy or clear-cut solutions to a problem which spans multiple jurisdictions and areas of law. However, it is apparent that more can be done to better support litigants where there are allegations of domestic violence. 

Dominic and Ashleigh agreed that the establishment of specialised courts (similar to those which are functioning in Queensland) “which have the power to exercise jurisdiction under the Family Law Act as well as [deal with] matters that arise in state and territory jurisdiction such as child protection and family violence” is an important step. 

Ashleigh noted that family law courts currently have no ability to check whether there are any active family violence orders in place concerning litigants, because such orders arise in state and territory jurisdiction, not federal jurisdiction: 

“This means that the family law system relies on the honesty of parties to tell the court about family violence orders in place, which can be problematic in a jurisdiction that does need to be aware of any alleged domestic violence involving litigants.” 

Both Ashleigh and Dominic considered the resolution of the issue of delay as a considerable key to better supporting parties because as Ashleigh remarked, delays “in finalising the matter can then mean that two parties who should be kept away from each other will remain locked in a legal argument for far too long, leading to further breaches of a DVO and further escalation in tensions.” 

Delay cannot be improved without additional resources being made available to the courts and legal service providers. Dominic stressed that there needs to be more Commonwealth resources funnelled into the family law system to help with delays but worries that, in the current climate, “we may even see a decrease” in resources. He also noted that more “legal resources for both parties especially those who do not qualify for legal aid yet who can’t afford lawyers” would be advisable. 

Merging of Family Court and Federal Circuit Court 

A further challenge is the impending merger of the Federal Circuit Court with the Family Court. There are already lengthy waits between time of filing and time of trial in both courts and Dominic doubted that “the merger would result in any decrease in the number of litigants that come before the court but it would certainly not result in a decrease in the length of time a person has to wait for a trial date.” 

Both authors recognised that the merger will mostly likely result in a more generalised court handling family law issues which, as Ashleigh said, “means a consequential loss of specialisation in an area that really does require training and specialised support.” 

However, Ashleigh suggested that there may be a silver lining as “merging the courts will likely help to reduce confusion for families as to where matters should be filed and how they will be handled, which is one good outcome.” 

How practitioners can support clients in situations of family violence 

Legal practitioners are well-placed to support their clients not only through legal channels but also in a practical sense. However, with new challenges posed by coronavirus and increased caseloads, this will become a particular challenge for lawyers. 

Dominic noted that supporting clients who are navigating family violence issues can be very difficult. He considered that, as a starting point, lawyers in general need better education about a holistic approach to domestic violence. 

Ashleigh also believes that profession-specific education is necessary; specifically, training to detect and manage controlling or intimidatory behaviour by abusers seeking to exploit the system through their lawyers ought to be “required as standard for practitioners in the family law system.” 

For those practising in criminal law, Ashleigh recommended making it their practice to confirm with clients about existing or contemplated Family Law Act orders to ensure that family violence orders can be tailored appropriately. She also warned that in cases of concurrent proceedings in the Family Court or Federal Circuit Court, practitioners should explain carefully how the orders of each jurisdiction work in order to clarify what will constitute breaching conduct. 

Ashleigh encouraged practitioners of family law to “be live to the possibility that you might yourself unwittingly become an instrument of domestic violence, and be prepared to have some direct discussions with your client about this if you think it is an issue.” 

A long way to go 

There is undoubtedly a myriad of other ways to provide better support for those dealing with domestic violence which need to be considered. However, most advocates in support programs and government initiatives agree that ensuring ongoing funding and implementing holistic responses will be vital to effect long-term change. 

As at 4 April 2020, it was announced that the Morrison government is providing $32.5 million in priority funding to states and territories to immediately bolster frontline services to protect those most at risk from domestic violence due to living with changes enforced by the coronavirus crisis. The funding was agreed at an inaugural Council of Australian Government’s Women’s Safety Council and will be directed to safer housing and emergency accommodation, counselling and outreach, crisis support and helplines as well as men’s behavioural change programs and other perpetrator interventions. 

Amid ongoing discussion of legislative reform, the Hannah Clarke tragedy has brought to the forefront the way our system lets down those most vulnerable to family violence. As Ashleigh observed: 

“There have already been significant efforts around the country over the past few years to improve our laws to better address this issue of domestic violence, but cases like this demonstrate how far we still have to go and how difficult it is to tackle this issue.” 

Wyn is an experienced Senior Product Editor in the Analytical Law Team at Thomson Reuters with a long history of working in the information services industry. She holds a Bachelor of Media and a Postgraduate Certificate in TESOL from Macquarie University. In her years with Thomson Reuters, she has worked on numerous publications in both Primary Law and Secondary Sources and is at present, nurturing multiple subscription services including Uniform Evidence Law, Indictable Offences Queensland and Victorian Courts. Prior to joining Thomson Reuters, she worked for Pan Macmillan Australia at the Macquarie Dictionary and taught English as a Second Language and Academic English at Macquarie University. Cindy is a Legal Portfolio Editor in the Analytical Law Team at Thomson Reuters and manages a range of subscription products including High Court Practice and the Federal Circuit Court Guidebook. She holds Bachelor of Laws and Bachelor of Arts degrees from the Australian National University, having studied an English major and Chinese Language minor. She worked for two years as a Legal Consultant and subsequently as a Legal Copywriter prior to joining Thomson Reuters.

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