Myth: Family violence is just physical assault
Family violence is much more than hitting or punching. It includes sexual assault and other sexually coercive behaviour; emotional, psychological and verbal abuse; restricting people’s social interactions; and restricting people’s access to money and property.
Myth: Family violence perpetrators lose their temper and can’t control themselves
Family violence is a cycle of domination, coercion and control, rather than a loss of temper. Many family violence perpetrators are able to turn their abuse off and on at will because they use violence to exert control, not because they can’t help themselves. Alcohol does not cause family violence but may be used as an excuse by perpetrators to behave in more extreme and thoughtless ways.
Myth: Victims provoke the violence
Our attitudes towards family relationships have moved on from archaic laws which gave men the right to beat their wives and children and rape their wives. Victoria recently decided provocation was not an acceptable defence to a murder change and most people think it should not be used to excuse family violence.
Myth: Family violence victims can leave the relationship or family
It can be extremely difficult for victims to escape a perpetrator’s control. It may also feel safer to stay—many victims are threatened with violence or death if they leave. Most victims take several attempts to leave a violent relationship before they are successful. Victims may also stay because of a combination of other factors: they can’t afford to leave, there is nowhere for them to go, they don’t know what their legal options are, there is nobody to care for children if they get a job, and police and courts are not helpful.
Myth: Family violence only occurs when people are living together
Some of the worst family violence can occur after a couple separates because the perpetrator tries to force the victim to return. The Australian Institute of Criminology has estimated that close to 30 per cent of women who were murdered by intimate partners were separated from them at the time.
Myth: All family violence victims fall into the “battered woman syndrome” category
Many family violence victims don’t just take it, they fight back. This can be by physically defending themselves, or using other defensive strategies such as calling on friends, family, social services and police for help.
Myth: Men are just as likely as women to be family violence victims
Men are far more likely to be harmed by a stranger than by a family member and women’s violence towards men is more likely to occur in self-defence. Women’s violence has been found to be a response to frustration and stress, whereas men’s violence is most often an attempt to dominate and control. Less than 10 per cent of male homicides are carried out by an intimate partner, and when they are, there is a history of the female being a victim of domestic violence in more than 70 per cent of cases.
Final report—Civil and criminal systems
1 March 2006
There are two legal responses to family violence in Victoria—the criminal and the civil systems.
A criminal response to family violence involves the police charging a perpetrator of violence with a crime. In Victoria we do not have a separate offence of ‘family violence’, so a charge will normally be for assault or property damage. A criminal penalty, such as jail, will be imposed if the perpetrator is found guilty.
A civil response involves a victim of family violence or the police applying for an intervention order to protect the victim. An intervention order will usually prevent the perpetrator of violence from approaching or having any contact with the victim. This is not a criminal penalty, but is an order of the court with conditions that the perpetrator must obey. A criminal penalty will only be imposed if the perpetrator does not abide by the conditions of the order.
The best response to family violence will frequently involve both systems—police should charge the perpetrator with any criminal offences committed and also apply for an intervention order to protect the victim.
What are some benefits of the criminal response?
- Perpetrators of violence are held accountable for their behaviour.
- Violence within the family is seen as a public rather than a private wrong.
- Use of the criminal law may deter perpetrators or others in the community.
- In serious cases it may give protection to the victim through imprisonment of the offender.
What are some benefits of the civil response?
- It tries to protect future acts of violence, rather than only responding to past acts of violence.
- Victims can apply for an order from the court directly – it does not rely on police action.
- Victims can get an order without the need to prove criminal acts of family violence.
- The burden of proving the allegations of family violence is lower in a civil hearing, meaning that it is easier to establish that family violence has occurred.
Final report—Key statistics
1 March 2006
- A 1996 Australian Bureau of Statistics (ABS) survey found that 23 per cent of women who had ever been in a married or de facto relationship had experienced family violence.
- The ABS found younger women are more at risk of violence than older women—19 per cent of women aged 18–24 had experienced one or more incidents of violence in a 12 month period compared to 6.8 per cent of women aged 35–44, and 1.2 per cent of women aged 55 and over.
- The ABS found that 20 per cent of women who had been pregnant in a past abusive relationship said their previous partner started becoming violent when the pregnancy began and 42 per cent said they had been abused sometime during a pregnancy.
- VicHealth found family violence is the leading contributor of death, disability and illness in women in Victoria aged 15 to 44 years. It is responsible for more disease burden than high blood pressure and obesity.
- Access Economics found family violence costs Australia about $8 billion a year nationally and $2 billion a year in Victoria, a substantial proportion of which is borne by the victims themselves.
- Between 1998–99 and 2002–03, most charges of breach of an intervention order found proven that attracted a sentence resulted in a non-custodial sentence (81 per cent) and the most common non-custodial sentence was a fine (30 per cent). The majority of custodial sentences (60 per cent) were for less than three months.
- An Australian Institute of Criminology paper found that one-quarter of all Australian children have witnessed violent behaviour towards their mother or stepmother.
- 17.7 per cent of police family violence reports submitted in 2004–05 resulted in criminal charges, a 73.2 per cent increase on the previous year, probably caused by the introduction of the Police Code of Practice.
- The Police Code of Practice has led to a significant increase in police applications for orders. In 2004–05, when the code had been partially implemented, the proportion of applications made by police was 35 per cent, compared to 10 per cent in 2000–01.
- Police applications for orders are more successful than non-police approximately 61 per cent compared to 49 per cent.
- A UK study found that, on average, a woman has been assaulted 37 times before her first contact with police.
Final report—Key recommendations
1 March 2006
- The Crimes (Family Violence) Act should be replaced by a new Family Violence Act.
- The new Act should contain aims, principles and a definition of family violence. Non-physical forms of violence should be included in the definition of family violence.
- The definition of family member should be broadened to include home carers of people with a disability and Indigenous definitions of family member.
- Police, registrars and magistrates should be trained in the myths, stereotypes and dynamics of family violence and awareness of barriers facing Indigenous Australians, immigrants and people with disabilities. They should also be trained in the impact family violence has on children who experience it or witness it.
- The government should fund a widespread community campaign to promote respect for women and zero tolerance of family violence in relationships.
Effective Intervention Orders
- A new Act should clearly outline magistrates’ power to vary or suspend Family Court child contact orders when making an intervention order and if child contact is to occur to set conditions that strictly govern handover to protect the victim.
- The new Act should specifically include exclusion orders, which remove family violence perpetrators from the family home, regardless of who owns or rents the home.
- The Sentencing Advisory Council should review sentences for intervention order breaches.
- Intervention order applicants and respondents should have access to free legal advice in uncontested matters and legal representation in contested matters.
- Intervention orders can be made against the associates of a respondent and also made to protect the associates of applicants.
- Victoria Police should establish a specialist family violence prosecution unit.
- The Magistrates’ Court should establish a statewide specialist family violence list using magistrates and registrars trained in family violence issues.
- Intervention order application forms and intervention orders should be rewritten in plain English and be available in different languages and formats for people with disabilities.
- The government should review the system for providing interpreters in court and the Magistrates’ Court should make interpreters swear an oath to interpret accurately in court.
- Courts should have separate waiting areas and entries for victims and perpetrators, and provide private areas for people to make intervention order applications.
- Intervention order respondents should be banned from personally cross-examining victims.
Consultation paper—Main problems
26 November 2004
- Responses to family violence across the state from court staff, magistrates and police are inconsistent. The attitudes of these people can influence what action an intervention order applicant will take.
- Applicants need access to more information about the process and what their rights are. Access to legal advice is not always available and few people are represented in court.
- Most people we talked to wanted the police to apply for intervention orders rather than referring people to court to do it themselves.
- Some people said police were reluctant to enforce orders, especially if there is no physical violence and complaints had been made in the past and withdrawn.
- Prosecution of breaches can happen months after the incident.
- Police rely on the complainant’s testimony rather than gathering evidence at the scene of a breach. People who have experienced violence then have to relive it in court when they give evidence.
- People who need interim orders outside of court hours must rely on the police to apply for one.
- Court penalties for breaches are seen as too lenient.
- People find it difficult to get an intervention order for non-physical abuse.
- The clash between Family Court orders about child contact and intervention orders is a widespread problem.
- Magistrates tend to apply a standard set of terms to intervention orders, rather than tailoring them to individuals and their situations.
- If people do not apply for an extension before an order expires they have to apply for an order all over again.
- Ouster orders are rarely used. In most circumstances of family violence it is the people who have experienced the violence who leave the family home, not the person who has committed the violence.
Consultation paper—Key statistics
26 November 2004
- Family violence is common. A 1996 Australian Bureau of Statistics’ survey found that 23 per cent of women who had ever been in a married or de facto relationship had experienced family violence.
- A 2002 Victorian Community Council Against Violence survey found that family violence tends to affect younger women more than older.
- In 2002–03, the Victoria Police dealt with at least 28 454 family violence incidents
- The ABS survey found that approximately 95 per cent of women who were abused by their current partner, and approximately 75 per cent of women abused by their previous partner, did not report their last experience of abuse to the police. An Australian Institute of Criminology survey found that only 14 per cent of women victimised by an intimate partner reported the incidents to police or judicial authorities.
- There is a significant overlap between intimate partner abuse and child abuse; co-existence of partner abuse and child abuse is estimated to be between 30 per cent and 60 per cent (See p26 of consultation paper).
- Indermaur (2001) found that one-quarter of children have witnessed violence against their mother or step-mother.
- Victoria Police crime statistics show that in the financial year 2002–03, criminal charges were laid in 11.4 per cent of cases where police submitted a Family Incident Report.
- In Victoria in 2002–03, 57.3 per cent of family violence intervention orders were made for a period of one year or less and 17.2 per cent of orders were made for between one and two years. Only 11.5 per cent of family violence orders were made for longer than ten years or of indefinite duration.
- Most applications for orders are submitted by the people subjected to violence. In 2002–03, three-quarters of applications were submitted by people seeking protection for themselves or another person, and one-quarter were submitted by police.
Children and family violence
26 November 2004
Children who are subjected to or witness violence in the home can have intervention orders made to protect them from further exposure to violence.
Until recently, magistrates responded inconsistently to applications for orders for children who witnessed violence, but a Bill was passed this year that requires magistrates to grant intervention orders for children in these circumstances.
One of the problems that was raised a number of times in our consultations in rural and metropolitan areas was that some magistrates will only deal with the adult complainant and will automatically refer the children to the Children’s Court.
This can be good for the children as they get legal representation in the Children’s Court. However, if an adult is also applying for the order it means there are two separate hearings covering the same issues.
If people live a long way from the nearest Children’s Court, cannot easily travel or found the experience of giving evidence at the Magistrates’ Court traumatic, then they may not go through with the application for the children.
Another problem that emerged in our consultations concerned the clash between the Family Court’s child contact orders and intervention orders. We heard that magistrates rarely overturn a contact order, even when they have the power to do so.
Research has shown that violence by respondents commonly occurs during the child’s contact visit or when the child is handed over to the other family member. Even if the respondent has not been violent towards a child in the past, he or she may do so after separation as a means of continuing abuse against the applicant.
Two other issues about children that arose in our consultations were fear of child protection services taking children from parents and a lack of emergency accommodation for older male children. Both of these issues can stop people reporting violence. A fear of child protection services was a significant disincentive to reporting for Indigenous people.
People with disabilities
26 November 2004
People with disabilities face some of the greatest barriers to accessing the intervention order system.
Women with disabilities are twice as likely to be the victim of family violence as women without disabilities.
Many people with a disability have difficulties accessing information about family violence and the support available. We heard in one consultation that a hearing-impaired woman didn’t know she was a victim of family violence until she saw a poster about it.
The services they access are often unable to provide the range of support they need. Disability services may not have expertise in family violence issues and family violence workers may not have expertise in dealing with particular disabilities.
It is also difficult for them to access services if the person who is abusing them is the person they rely on for day-to-day assistance.
People with a disability from non-English speaking backgrounds are even more disadvantaged, and may also face prejudice within their community for having a disability.
People with disabilities cannot access the intervention order system if they are abused by someone who is paid to look after them, rather than by a family member, even though the abuse may occur in a residential situation and take on the characteristics of family violence. Their only recourse is to make a complaint to the service provider or to the police.
People with cognitive impairments may not know that what has happened to them is a crime and authorities may doubt their credibility if they report the incident.
If their report is taken seriously, they may have trouble explaining what has happened to them or understanding the complex language used in the courtroom, especially during cross-examination.
People with a cognitive impairment who are respondents to an order may not understand the terms or the consequences for breaching the order.
All these difficulties mean people with disabilities who report family violence once are unlikely to report it if it happens again.
The way ahead
26 November 2004
During consultations and research for this paper a number of options or suggestions for change were raised to improve the State’s response to family violence. These included:
Strengthening the system
- Introducing specific family violence crimes.
- Increasing penalties for crimes involving family members. So a person convicted of assault on a family member, for example, would receive greater punishment than a person convicted of assault on a non-family member.
- Police and the courts adopting pro-arrest, pro-charge policies to demonstrate family violence will not be tolerated by the State.
- Introducing specialist courts. Trials of dedicated family violence courts are set to begin early next year in Heidelberg and Ballarat.
- Amending the Act to address problems with the current wording, and changing current court and police processes to be more sensitive to people who have experienced violence.
- Changing how evidence is given in court may stop people dropping applications and encourage them to pursue breaches. It could include allowing the use of CCTV, closing the court, banning respondents cross-examining the applicant, allowing some hearsay evidence in certain circumstances and introducing social framework evidence about family violence.
A different approach
- As part of the new family violence courts, respondents to intervention orders may be referred to a behaviour change program to help them deal with their violence. Such programs can be an alternative to intervention orders or work alongside them.
- Counselling can be used for respondents and applicants to help them stop violent behaviour and resolve problems that may be contributing to ongoing violence.
- Mediation or family conferencing could be used instead of intervention orders if all parties agreed to it.
- Circle sentencing is used in Indigenous Canadian communities and involves community elders giving advice to judges before a sentence is passed.
- Safe houses and cooling-off houses have been suggested as a way of protecting people from violence. People subjected to violence could go to a safe house when they experienced or were threatened with violence, and people who think they are about to be violent can go to a cooling-off house to give them time to calm down.
How intervention orders work
26 November 2004
Family violence occurs
Person who has experienced the violence (applicant) or the police apply for an intervention order at the local Magistrates’ Court.
A hearing date for the application is fixed.
If people are in immediate danger they or the police can apply for an interim order, which gives them temporary protection until the application is heard.
A magistrate hears the application for an order; the person who has committed the act of violence (respondent) can contest or agree to the application.
The magistrate decides whether to grant the order, in doing so he or she will set terms for the order, ie what the respondent is and isn’t allowed to do, and the length of time the order will last.
If children are included in the application the applicant may have to travel to the nearest Children’s Court to provide evidence for a separate intervention order.
If the respondent breaks any of the terms of the order (a breach) then the applicant reports it to the police who must gather evidence to bring a criminal charge against the respondent.
Police decide whether there is enough evidence to prosecute the respondent for breaching an order.
If the respondent is found guilty by the magistrate then he or she can face imprisonment or a fine.
1 March 2006