Domestic Violence Laws

Written by James Hirby and Fact Checked by The Law Dictionary Staff  

It is becoming increasingly accepted that violence within the family is no longer a purely ‘domestic’ issue. It is a problem which belongs to society as a whole, and which should properly be the subject of debate and co-operation between health, policy and legal professionals. It is unacceptable that children and families in Australia continue to experience domestic violence at disturbingly high levels. Along with the criminal justice system, the family law system has a vital role to play in protecting families and children from harm.

 

The current law applying to Domestic Violence is The Domestic and Family Violence Act 1989. It is aimed at preventing violence and abusive behaviour between married partners, defacto relationships and families involving children. However, this Act is only effective to a certain extent. Domestic violence is often a hidden matter that should not be hidden, not least because it affects many people but also because it is the hidden underbelly of many societies. The Queensland Parliament has a very important job in trying to redress domestic and family violence to protect victims and survivors. The State Government must prioritise the issue of dealing with relationship disputes by helping individuals resolve the issue. They must do this not only in the strict legal sense but also as a community, so that they do not create enormous distress to victims and cost to the community. Legislation is part of that, but other matters need to be challenged, such as society’s attitudes and traditions to the overall impact and adverse effects of Domestic Violence.

 

Domestic Violence occurs when a family member uses violent and abusive behaviour to control another family member or members. It can include physical, verbal, emotional or sexual abuse. Women and children are the majority of those who are subjected to abusive and violent behaviour in the home with 1 in 5 women around Australia falling victim to domestic violence. Men too are victims of violence but the violence their experience is much more likely to be at the hands of a male stranger, with only 4% of the male population having been attacked by a current or formal female partner.

 

A national survey was conducted in 2009 to determine Australians attitudes towards Violence against Women with 10,000 Australians being surveyed from equal gender. 98% of respondents to this survey acknowledged that domestic violence is a crime, an increase from 93% in 1995. However, disappointingly the survey highlights that some Australians still hold attitudes which excuse or trivialise violence against women, with one in five thinking that domestic violence can be excused if the violent person later regrets what they have done. The United Nations State of World Population Report 2005 revealed that gender based domestic violence globally is the most tolerated of human rights violations with one in three women internationally having been beaten, coerced into sex or otherwise abused by a family member.

 

There have been some attempts to assess the economic impact of family and domestic violence. In 2004, it was estimated that domestic violence cost the Australian economy $8.1 billion in 2003-2004. The estimated annual cost of the Queensland’s legal systems response to domestic violence was $298 million and the total ‘second generational’ cost of domestic violence was estimated to be $220.3 million. That includes services provided to families that are affected by violence in their homes.

 

The Family

Violence within the family may have varying consequences. It does not always prompt a breakdown of the family. Whilst the Family Court sees only those families who have separated, it would be wrong to ignore the fact that many victims and their children may continue to live with violent partners for a significant period of time, sometimes with tragic consequences. They may do so for any number of very complex reasons, including lack of economic freedom or fear of physical retribution. Sadly, the worst violence often occurs when victims, usually women, attempt finally to leave the relationship.

The Victim

The devastating effects of family violence on adult victims are well recognised. Those effects include physical damage, psychological damage, an impaired ability to function normally (which can include an inability to work), and damage to parenting abilities. These adverse effects can in some cases be short-lived; in many other cases they cause long-term serious harm to a person’s ability to function; and in the most serious of cases, they can be life threatening.

 

The Children

The effect of family violence on children has traditionally not been as widely recognised. In extreme cases, such as the murder of the mother by the father, the effect upon the children is obvious. Yet until comparatively recently it was widely assumed that unless directly involved in it (for instance, by being injured), children were not seriously affected by violence, or threats of violence, between parents. However, in numerous papers in the last few years, child psychiatrists have recorded the adverse effects upon the children of witnessing assaults and threats.

Even where it occurs in non-violent circumstances, the breakdown of the relationship between parents and the resultant tension within the family is well known to affect children adversely. To witness or to be aware of abuse, threats and actual violence toward the other parent is obviously highly detrimental to children of any age, including the very young.

 

The Court of Appeal looked at this issue in early 2000, in a case called Re L, which related to the issue of contact and domestic violence. That case came shortly after the Children Act Sub-Committee of the Advisory Board on Family Law sent its final Report on the effect of domestic violence on applications for contact by the non-resident parent. In hearing the appeal in Re L, it looked at a joint report from two distinguished child psychiatrists, Dr Sturge and Dr Glaser, later published in Family Law.

Doctors Sturge and Glaser’s report emphasised that whether as witnesses or as victims, children are affected as much by exposure to violence as by being involved in it. Indeed, there are research findings showing that in very young children, threats to the carer on whom the child is dependent have more serious psychological consequences for the child than attacks on the child themselves.

 

This particular case shows that their still are significant inadequacies in the justice system’s response to family and domestic violence. There remain questions about the ability of the justice system to adequately deal with the variety of issues that family and domestic violence presents.

 

Several newspaper articles from late 2009, all prove that there is a problem with the current Family and Domestic violence legislation due to increasing incidents of domestic violence in Queensland. One article “Bligh Labor all talk and no action on Domestic Violence” states that during 2007-2009, there were more then 44,000 domestic violence applications made across Queensland Courts. The same article also states that in the same period, Queensland Police reported more then 16, 700 breaches of domestic violence orders, indicating that the orders are not worth the paper they are written on when it comes to actually offering victims protection. Many of these articles state that the State Government has failed to look into thousands of cases of suspected domestic violence because of spiralling demands and a shortage of resources and funding. This is a controversial problem that is in need of immediate reform.

 

Community organisations are at the forefront of helping victims of domestic violence, providing emergency help and support, yet many of these organisations are struggling for resources and funds themselves. Victims of domestic violence need to have confidence in the laws and their enforcements as well as emotional support before they are going to speak out. When children are involved, the implications are greater and the reassurances need to be much stronger. These issues should be the focus of the Government – improving the access of all victims of domestic violence to community services, strengthening the legal response to offences, and helping regional areas that demonstrate particular need.

 

The inadequacies of the present system are demonstrated by the fact that many victims of domestic violence simply do not use the justice system, and those that do use it often withdraw from it. Reasons for this include fear of retribution from the perpetrator, shame and embarrassment, a lack of awareness of available services and the difficulty of making contact with service agencies if the victim is under constant surveillance by the perpetrator. It has also been noted that victims can lose faith in the justice system if they do not receive the desired outcome or if they are faced by a lack of understanding by personnel within that system. Despite the fact that family and domestic violence is now treated as crime, it has been observed that the traditional criminal justice approach does little to discourage domestic violence in the home. This is evidenced by the continuous prevalence of domestic violence and the frequency in which perpetrators of that violence breach bail conditions, violence restraining orders, community-based orders suspended sentences and parole orders. Despite laws criminalising domestic assault and breaches of protection orders, low charge and conviction rates for these crimes have been common around Queensland, suggesting that criminal justice institutions do not consider them serious enough to warrant the full force of the law. As arrest and prosecution are significant social means of insisting on perpetrator accountability and may provide a level of protection to victims, proactive policing policies have been seen as important components of an improved Government and community response. A strong criminal response is also an important means for changing social norms about violence.

 

The delays in the present system are also a problem with delays causing further tension in families, increasing the trauma of the experience, and may also cause victims to withdraw their testimony out of fear of increased violence while waiting for trials to be heard. The process can be slow, intimidating, humiliating, confusing, frustrating and often fails to provide victims with the best outcomes. In spite of the Domestic and Family Violence Act 1989 aiming to protect victims of domestic violence and holding perpetrators accountable, victims till have considerable difficulties accessing legal remedies. Currently the victim must negotiate different locations, may or may not qualify for legal aid, may have to employ different advocates, and will appear before different judges, each of whom may only have a partial awareness of the relates matters due to the way information is compartmentalised. In addition, the justice system operates largely in isolation from the broader social service system, meaning that victims who approach the legal system for assistance directly – that is, not via a domestic violence service – often have unmet support needs. Victims of domestic violence are likely to need a wide range of services including health, housing, financial, cultural, educational, legal and child-specific services. No single agency is able to provide all these services. Communication between relevant agencies within this broader service system is often too limited to ensure that victims can use the services they need in order to be safe or to recover satisfactorily from the effects of violence.

 

In Queensland, the regional Domestic Violence Networkers work towards improving communication between agencies through the establishment of local area Domestic Violence networks. In some regions they have developed strategic plans to strengthen service capacity. As the justice system integrate their responses, other parts of the service system such as health and education will be encouraged and supported to co-ordinate their responses.  Despite the Queensland Government’s commitment to consult widely, there are still inconsistencies in the degree to which different departments consult and some examples of policies that undermine efforts to improve the victim’s safety, for example, the introduction of home detention. The participation of domestic violence service providers and their service users at all levels of the reform process is an issue that cannot be taken for granted in Queensland.

 

A coordinated Queensland-wide approach must be adopted if we are to reduce and prevent domestic violence, identify trends and patterns, improve community interventions and facilitate systemic change. This motion calls on the government to support a state-wide approach. The establishment of a committee on tackling domestic violence would see a coordinated approach where all stakeholders could actively work towards ending violence against women and their children in this country. Over the years there have been a number of programs and strategies aimed at tackling domestic violence, but it is only in recent times that serious consideration has been given to the perpetrator of the violence. There is a need to increase efforts in the area of primary prevention as it is essential to tackle the causes of domestic and family violence rather than simply to deal with the outcomes.

 

The Sate-wide approach needs to foster discussions and awareness of domestic violence in mainstream community settings such as schools, churches and social service agencies. The work of Family Violence Prevention Networkers in important in this respect. The process of change is as important as the actual changes made. The community’s most marginalised victims of domestic violence need to be empowered to be part of the process if and improved response is to be made.

 

By implementing certain strategies such as expanding primary prevention and early prevention strategies, improving funding of support services, improving accommodation options for victims of violence, increasing perpetrator programs, strengthening responses from the justice system and continued attention and collaboration on this issue, it can be assured that families, especially children, are protected from harm.

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