A national discussion about domestic violence has been sparked by the murders of Hannah Clarke and her children, but in the current coronavirus outbreak – where families are experiencing stress and financial insecurity in protracted close quarters – experts have warned that there will be a spike in offending.
Legal Insight talks to Ashleigh Harrold, author for Federal Offences and Dominic Nguyen, author for Indictable Offences Queensland about domestic violence within the context of Australia and its legal systems.
Domestic violence during the COVID-19 pandemic
Women’s Safety NSW recently surveyed frontline workers, coordinators and service providers to ascertain how the COVID-19 outbreak is affecting domestic and family violence responses in NSW. The summary report they published shows that there has already been an increase in both the complexity of domestic abuse cases and the demand for domestic violence support since the outbreak of COVID-19. However, many domestic violence services are being forced to scale back facilities and contact points in an attempt to comply with government restrictions to help halt the spread of the virus. Both Ashleigh and Dominic agree that any reduction in services will be detrimental to those in situations of domestic abuse.
Dominic observed that “if police resources are moved to enforcement of self-isolation and social distancing then this may see a decrease in police being able to respond and investigate incidents of domestic violence which may put those victims at risk.”
Ashleigh agreed and also noted that “victims who might usually feel more comfortable seeking help from a specialised service may now be forced to speak to police instead” and as a consequence, police “will need to be careful to ensure that complaints are handled sensitively at first instance.”
Courts are currently operating at reduced capacity but have taken measures to ensure domestic violence proceedings can continue. As at 17 March 2020, the NSW Chief Magistrate has permitted the non-attendance of a protected person in respect of any application brought by police for a Domestic Violence Order unless they are fixed for hearing. Dominic also pointed out that the Chief Magistrate of Queensland had issued a Practice Direction banning physical appearances in court from 30 March 2020 except, amongst other things, urgent non-police private domestic violence applications. Of the Queensland direction, Dominic said:
“This is an important exception and legal practitioners who are able to assist the aggrieved with these private applications should do so, whether pro bono or privately funded.”
The significance of the Hannah Clarke case
Commonwealth Secretary-General Patricia Scotland, in an interview with the Thomson Reuters Foundation, has called domestic violence “a pandemic that costs billions of dollars a year, be it in lost work, damaged children or police time”. Hannah Clarke is just one of the most recent and visible cases in Australia that has brought the weaknesses of the system into stark relief.
Ashleigh noted that the Hannah Clarke case demonstrated issues with the general conception of domestic violence:
“The relationship between Hannah Clarke and her killer was not what society tends to expect a violent relationship to look like because there were no previous allegations of physical violence…I think this case will serve as a tragic example to the legal system and the general public that domestic violence can take many different forms (eg psychological, emotional, financial, sexual, physical) and the absence of physical violence does not indicate that the victim is less at risk.”
Dominic does not consider the problem to be the definition of domestic violence, pointing out that it “has been expanded significantly over the past 8 years since the introduction of the new Domestic Violence and Family Violence Protection Act 2012 (Qld)” and, referring specifically to section 8 of the Queensland Act, finds that the definition “does not simply mean physical violence but also includes emotional and psychological harm and economic abuse.”
Dominic recognises that “the Hannah Clarke case confirms domestic violence has no social and/or economic boundaries; she was murdered in an affluent (and predominantly white) suburb of Brisbane.”
He also reflected on the failures of past reforms to deter and prevent offending, including increased maximum terms of imprisonment for breaches of DVOs, increased duration of DVOs from two years to five years, a new offence of choking and the reversal of the onus regarding bail for those charged with choking offences:
“Despite all the reforms implemented over the past few years as recommended by the ‘Not now, Not ever’ report, it appears that not much has changed in terms of decreasing domestic violence and avoiding the horrible deaths of women.”
The limitations of Domestic/Family Violence Orders
Both Barristers believe that the Hannah Clarke case does not underscore the issues with enforcing DVOs; rather they argue that the case demonstrates the shortcomings of the DVOs themselves.
In Ashleigh’s view, the case had demonstrated the limitations of the system rather too well:
“Hannah Clarke had a domestic violence order in place against her husband, police had charged him with a breach of that order which was pending in the courts, and she was working through the Family Law system to put custody arrangements in place for the children. But those steps still did not protect them.”
She noted that Hannah Clarke’s case is demonstrative of how difficult it is to judge the risk to the victim based on the nature of a breach or the amount of breaches alone.
“The problem is that enforcing the [DVO] relies on the victim making a report to police when it is breached, presuming they are willing and able to. So, although the making of the order is a proactive step towards stopping abuse, enforcing it is, by nature, reactive. … The point is that an order is not going to stop an offender if they are set on their goal and determined to harm the victim. All that the order can do in such a case is provide the legal basis for a breach charge.”
The inherent limitation of DVOs is that their function is one of deterrence. Even when enforced to the fullest extent, they cannot constitute a form of effective protection; as Dominic noted, “the police cannot be everywhere and protect everyone, 24 hours a day.”
Domestic violence and the legal system
Domestic violence presents particular difficulties for the legal system because it often involves state or territory and federal jurisdictions as well as multiple areas of law. Domestic violence can present in state and territory courts which handle family violence orders and child protection matters. It can also present in the federal system which deals with child custody and other family law issues. Ashleigh acknowledges this complexity, stating that:
“It can be difficult to reconcile Family Law Act orders with family violence orders, because often the orders are different and apply in different situations. Where there is an inconsistency between the two, the Family Court/Federal Circuit Court orders override family violence orders, which can lead to confusion for parties and inconsistency of application.”
Ashleigh is also concerned about information sharing, particularly where there may be involvement of child protection, police and the Family Court in any one case, spread across different courts and hearings. She maintained that:
“Working out the circumstances in which information can be shared between those various different agencies can be complicated, particularly across jurisdictions, and again this can be confusing for victims to work out who to complain to and how.”
Funding remains an ongoing and pervasive challenge to address such a multi-faceted issue. Dominic stresses the impact of the lack of resources to “provide legal advice to both applicants and respondents”, especially in light of such lengthy and complex processes.
Domestic violence is an intricate and pervasive problem in our society, with one in four women and one in thirteen men experiencing intimate partner violence in Australia. Not only is our legal system chronically under-resourced and highly complicated to navigate, but also the avenues available to law enforcement to deter and prevent such violence are often ineffective.
In “A Legal Roadmap for Tackling Domestic Violence“, Legal Insight continues the discussion with Dominic and Ashleigh as to potential reforms to the law and legal system, the impending merger of the Family Court and Federal Circuit Court and the practical ways in which practitioners can help combat this silent pandemic.
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