{"id":2810,"date":"2020-04-14T11:42:18","date_gmt":"2020-04-14T11:42:18","guid":{"rendered":"https:\/\/insight.thomsonreuters.com.au\/?p=2454"},"modified":"2022-08-03T16:03:50","modified_gmt":"2022-08-03T05:03:50","slug":"talking-about-domestic-violence-key-issues-and-covid-19","status":"publish","type":"post","link":"https:\/\/insight.thomsonreuters.com.au\/legal\/posts\/talking-about-domestic-violence-key-issues-and-covid-19","title":{"rendered":"Talking about Domestic Violence: Key Issues and COVID-19"},"content":{"rendered":"\n

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. <\/p>\n\n\n\n

Legal Insight<\/em> talks to Ashleigh Harrold, author for Federal Offences<\/a><\/em> and Dominic Nguyen, author for Indictable Offences Queensland<\/a><\/em> about domestic violence within the context of Australia and its legal systems.<\/p>\n\n\n\n

Domestic violence during the COVID-19 pandemic<\/h2>\n\n\n\n

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<\/a> 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<\/a>. Both Ashleigh and Dominic agree that any reduction in services will be detrimental to those in situations of domestic abuse.<\/p>\n\n\n\n

Dominic observed that \u201cif 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.\u201d<\/p>\n\n\n\n

Ashleigh agreed and also noted that \u201cvictims who might usually feel more comfortable seeking help from a specialised service may now be forced to speak to police instead\u201d and as a consequence, police \u201cwill need to be careful to ensure that complaints are handled sensitively at first instance.\u201d<\/p>\n\n\n\n

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:<\/p>\n\n\n\n

\u201cThis 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.\u201d<\/p>\n\n\n\n

The significance of the Hannah Clarke case<\/h2>\n\n\n\n

Commonwealth Secretary-General Patricia Scotland, in an interview<\/a> with the Thomson Reuters Foundation,\nhas called domestic violence \u201ca pandemic that costs billions of dollars a year,\nbe it in lost work, damaged children or police time\u201d. Hannah Clarke is just one\nof the most recent and visible cases in Australia that has brought the\nweaknesses of the system into stark relief.<\/p>\n\n\n\n

Ashleigh noted that the Hannah Clarke\ncase demonstrated issues with the general conception of domestic violence:<\/p>\n\n\n\n

\u201cThe relationship between Hannah\nClarke and her killer was not what society tends to expect a violent\nrelationship to look like because there were no previous allegations of\nphysical violence\u2026I think this case will serve as a tragic example to the legal\nsystem and the general public that domestic violence can take many different\nforms (eg psychological, emotional, financial, sexual, physical) and the\nabsence of physical violence does not indicate that the victim is less at risk.\u201d<\/p>\n\n\n\n

Dominic does not consider the problem\nto be the definition of domestic violence, pointing out that it \u201chas been\nexpanded significantly over the past 8 years since the introduction of the new Domestic\nViolence and Family Violence Protection Act 2012<\/em> (Qld)\u201d and, referring\nspecifically to section 8 of the Queensland Act, finds that the definition\n\u201cdoes not simply mean physical violence but also includes emotional and\npsychological harm and economic abuse.\u201d<\/p>\n\n\n\n

Dominic recognises that \u201cthe Hannah\nClarke case confirms domestic violence has no social and\/or economic\nboundaries; she was murdered in an affluent (and predominantly white) suburb of\nBrisbane.\u201d<\/p>\n\n\n\n

He also reflected on the failures of\npast reforms to deter and prevent offending, including increased maximum terms\nof imprisonment for breaches of DVOs, increased duration of DVOs from two years\nto five years, a new\noffence of choking<\/a> and the reversal of the onus regarding bail for those\ncharged with choking offences:<\/p>\n\n\n\n

\u201cDespite all the reforms implemented\nover the past few years as recommended by the \u2018Not now, Not ever\u2019 report, it\nappears that not much has changed in terms of decreasing domestic violence and\navoiding the horrible deaths of women.\u201d<\/p>\n\n\n\n

The limitations of Domestic\/Family Violence Orders<\/h2>\n\n\n\n

Both Barristers believe that the\nHannah Clarke case does not underscore the issues with enforcing DVOs; rather\nthey argue that the case demonstrates the shortcomings of the DVOs themselves.<\/p>\n\n\n\n

In Ashleigh\u2019s view, the case had\ndemonstrated the limitations of the system rather too well:<\/p>\n\n\n\n

\u201cHannah Clarke had a domestic violence\norder in place against her husband, police had charged him with a breach of\nthat order which was pending in the courts, and she was working through the\nFamily Law system to put custody arrangements in place for the children. But\nthose steps still did not protect them.\u201d<\/p>\n\n\n\n

She noted that Hannah Clarke\u2019s case is\ndemonstrative of how difficult it is to judge the risk to the victim based on\nthe nature of a breach or the amount of breaches alone.<\/p>\n\n\n\n

\u201cThe problem is that enforcing the\n[DVO] relies on the victim making a report to police when it is breached,\npresuming they are willing and able to. So, although the making of the order is\na proactive step towards stopping abuse, enforcing it is, by nature, reactive.\n\u2026 The point is that an order is not going to stop an offender if they are set\non their goal and determined to harm the victim. All that the order can do in\nsuch a case is provide the legal basis for a breach charge.\u201d<\/p>\n\n\n\n

The inherent limitation of DVOs is\nthat their function is one of deterrence. Even when enforced to the fullest\nextent, they cannot constitute a form of effective protection; as Dominic noted,\n\u201cthe police cannot be everywhere and protect everyone, 24 hours a day.\u201d<\/p>\n\n\n\n

Domestic violence and the legal system<\/h2>\n\n\n\n

Domestic\nviolence presents particular difficulties for the legal system because it often\ninvolves state or territory and federal jurisdictions as well as multiple areas\nof law. Domestic violence can present in state and territory courts which\nhandle family violence orders and child protection matters. It can also present\nin the federal system which deals with child custody and other family law\nissues. Ashleigh acknowledges this complexity, stating that:<\/p>\n\n\n\n

\u201cIt\ncan be difficult to reconcile Family Law Act<\/em> orders with family violence\norders, because often the orders are different and apply in different\nsituations. Where there is an inconsistency between the two, the Family\nCourt\/Federal Circuit Court orders override family violence orders, which can\nlead to confusion for parties and inconsistency of application.\u201d<\/p>\n\n\n\n

Ashleigh\nis also concerned about information sharing, particularly where there may be\ninvolvement of child protection, police and the Family Court in any one case,\nspread across different courts and hearings. She maintained that:<\/p>\n\n\n\n

\u201cWorking\nout the circumstances in which information can be shared between those various\ndifferent agencies can be complicated, particularly across jurisdictions, and\nagain this can be confusing for victims to work out who to complain to and\nhow.\u201d<\/p>\n\n\n\n

Funding\nremains an ongoing and pervasive challenge to address such a multi-faceted\nissue. Dominic stresses the impact of the lack of resources to \u201cprovide legal\nadvice to both applicants and respondents\u201d, especially in light of such lengthy\nand complex processes.<\/p>\n\n\n\n

Further discussion <\/h2>\n\n\n\n

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<\/a>. Not\nonly is our legal system chronically under-resourced and highly complicated to\nnavigate, but also the avenues available to law enforcement to deter and\nprevent such violence are often ineffective.<\/p>\n\n\n\n

In “A Legal Roadmap for Tackling Domestic Violence<\/a>“, Legal Insight<\/em> 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.<\/p>\n\n\n\n

Thomson Reuters Legal is committed to supporting you and your business with complimentary resources to help navigate this complicated and ever-changing environment. As the Coronavirus continues to spread globally, the Thomson Reuters COVID-19 APAC hub<\/a> will be continually updated.<\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

At a time when families are experiencing stress in close quarters – experts have warned that there will be a spike in offending. <\/p>\n","protected":false},"author":101,"featured_media":2655,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"inline_featured_image":false,"footnotes":""},"categories":[646,647,1326,648,1328,625],"tags":[146,1340,196],"insight_job_role":[1315,628],"insight_practice_area":[584],"class_list":["entry","author-cindywyn","has-excerpt","post-2810","post","type-post","status-publish","format-standard","has-post-thumbnail","category-legal-commentary-and-opinion","category-legal-research","category-legal-trends","category-legislation-and-case-law","category-opinion","category-research-and-know-how","tag-coronavirus","tag-covid-19","tag-domestic-violence","insight_job_role-barrister","insight_job_role-solicitor","insight_practice_area-criminal-law","hentry"],"acf":[],"yoast_head":"\nTalking about Domestic Violence: Key Issues and COVID-19<\/title>\n<meta name=\"description\" content=\"As COVID-19 continues, experts 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