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Family Matters No. 83 - October 2009

Family Violence Protection Act 2008

Judith Peirce

Abstract

Judith Peirce, a former Commissioner of the Victorian Law Reform Commission, provides an historical account of factors that have led to the development of the Victorian Family Violence Protection Act 2008 . She discusses some of the limitations of the previous legislation and recent developments to establish a more responsive family violence system in Victoria.

Twenty years ago, there were few legal remedies for victims of family violence in Victoria and, despite its prevalence, family violence remained a largely hidden problem. Our institutions often failed to protect or properly support victims of family violence. The legal response to family violence was inadequate because its particular dynamics and effects were not well understood. Primarily, family violence was identified as physical assault. Other forms of violence, such as property damage, sexual assault, social abuse (restriction of social interaction), psychological or emotional abuse, verbal abuse and economic abuse were infrequently identified as grounds for a legal remedy.1

Traditionally, the law was reluctant to intervene in the area of family violence because it occurred in private and was considered to be beyond its realm. During the 1970s and 1980s, there were calls for family violence to be recognised and treated as a crime and this influenced policy and justice system reforms in many Western countries, including Australia.

The focus generated by the women's movement during the 1970s led to the setting up of women's refuges, and this increased the many pressures for reform placed on the Victorian government leading up to the introduction of the Crimes (Family Violence) Act 1987 (Vic.). The Act introduced a civil remedy for family violence - the intervention order - but its title also reflected one of the principal debates of that time (and which continues to this day) as to whether legal remedies for family violence should be located in criminal or civil jurisdictions.2

The intervention order system was seen as pioneering legislation that would provide an accessible and free civil option for the protection of victims of violence. It could be accessed by an individual victim or by the police and, in theory, protection could be obtained 24 hours a day. However, problems of interpretation, widely varying attitudes of police officers and magistrates, failure to enforce breaches, inadequate training of court staff, and lack of legal advice - to name a few barriers - soon led many victims to believe that an intervention order was "not worth the paper it was written on". In short, the legislation was itself a "victim" of mainstream prevailing attitudes and inconsistent approaches.

Independent and government reviews to monitor the Crimes (Family Violence) Act 1987 clearly identified serious difficulties and barriers inherent in obtaining an intervention order (Hunter, 2005; Wearing, 1992, 1996). In 2002, as part of its overall approach to system improvement, the Victorian Government asked the Victorian Law Reform Commission (VLRC) to review the Act (Department of Justice, 2004).

The task for the commission was to make recommendations for changes to the law that would result in appropriate new legislation for a complex and diverse society and was no longer in denial as to the extent of family violence and the damage it causes. This review of the legislation also ran parallel to unprecedented changes in Victoria in family violence policy development, service provision and police responses as recognition grew that a whole-of-system approach was required to impact on the complexity of family violence (Statewide Steering Committee to Reduce Family Violence, 2005).

From 2001, resources were allocated to developing the fundamentals, principles and practices of a new responsive family violence system. These developments included:

  • the Victorian Government's Women's Safety Strategy (Office of Women's Policy, 2002);
  • the Victoria Police (2004) Code of Practice for the Investigation of Family Violence;
  • the Magistrates' Court's Family Violence Division, which developed and implemented specialist family violence courts (Magistrates' Court of Victoria, 2009);
  • the Statewide Steering Committee to Reduce Family Violence (2005), which developed a model for a multi-agency integrated response;
  • the Victorian Government's strategy: "Changing Lives: A New Approach to Family Violence in Victoria", which detailed a $35.1 million spending plan (Department for Victorian Communities, 2005);
  • model programs targeting men who are subject to intervention orders, developed by the Department of Justice (2006); and

the Victorian Indigenous Family Violence Task Force (2003) final report, released in December 2003. The Government's response to this report in October 2004 (Department of Human Services, 2004) included the establishment of the Indigenous Family Violence Partnership Forum, support for the establishment of Holistic Family Healing Centres, an Indigenous Men's Resource Advisory Service and eight Indigenous Family Support Innovation Projects.

In this context, the VLRC made recommendations for changes that drew upon these initiatives. The new Family Violence Protection Act 2008 (Vic.) (FVPA) separates remedies for family violence from stalking and neighbourhood disputes, and includes a clear statement of its aims and principles. The preamble includes four principles, including that non-violence is a fundamental social value, family violence is a fundamental violation of human rights, and that the justice system should treat the views of victims of family violence with respect. It also acknowledges the gendered nature of family violence, the impact on children, its effect on the entire community, and that family violence extends beyond physical and sexual violence to emotional, psychological and economic abuse, and may involve overt or subtle exploitation of power imbalances.

For the first time, "family violence" has been defined and the Act incorporates examples referencing new definitions to ensure clarity in interpretation (FVPA s 5). Examples of economic abuse include behaviour that involves withholding or threatening to withhold the financial support necessary to meet the reasonable living expenses of the person or their child if they are entirely or predominantly dependent on the first person to meet those living expenses (FVPA s 6, Examples). Examples of emotional or psychological abuse include behaviour such as repeated derogatory taunts (including racial taunts), threatening to withhold medication and preventing connections with family or culture (FVPA s 7, Examples).

The terms and conditions of orders may now be tailored to suit the victim's situation and includes a presumption in favour of an order to exclude the perpetrator from the home (FVPA s 82).

Additional protections for children are included in the definition of family violence and include behaviour by a person that causes a child to hear or witness or otherwise be exposed to family violence (FVPA s 5(1)(b)). The examples in the Act include overhearing threats of physical abuse, seeing or hearing an assault, comforting or providing assistance to a family member who has been physically abused, cleaning up a site after property has been intentionally damaged, or being present when police members attend an incident involving physical abuse (FVPA s 5(1)(b), Examples).

Giving evidence in court was identified by some victims as a reason why legal protection was not pursued (VLRC, 2006, p. 386). The new Act provides for alternative methods for giving evidence, such a closed circuit television, and gives the court expanded powers. For example, despite any rules of evidence to the contrary, the court may refuse to admit or may limit the use to be made of evidence if satisfied that it is just and equitable to do so (FVPA s 243). An important addition prevents respondents from cross-examining victims (FVPA s 244).

Police powers are significantly increased, such as the ability to hold and detain a perpetrator and to enable police officers to obtain temporary after-hours protection for a victim without needing a court order (see FVPA, Part 3).

These and other initiatives in the new Family Violence Protection Act provide an important element in our understanding of family violence and development of effective responses to it.

Endnotes

1. For an overview of the background to the need for reform of Victoria's family violence laws, see Victorian Law Reform Commission (2004).

2. For an analysis of these issues, see Victorian Law Reform Commission (2006), ¶3.19-3.77.

References

  • Department for Victorian Communities. (2005). Changing lives: A new approach to family violence in Victoria. Melbourne: Department for Victorian Communities. Retrieved 10 June 2009, from <www.cyf.vic.gov.au/__data/assets/pdf_file/0004/26374/changing_lives__fv.pdf>.
  • Department of Human Services. (2004). Victorian Government response to the Victorian Indigenous Family Violence Task Force final report. Melbourne: DHS. Retrieved 10 June 2009, from <www.cyf.vic.gov.au/__data/assets/pdf_file/0020/16706/fcs_govt_response_task_force_report.pdf>.
  • Department of Justice. (2006). Family Violence Court counselling programs. Melbourne: Department of Justice. Retrieved 9 June 2009, from <www.justice.vic.gov.au/wps/wcm/connect/DOJ+Internet/resources/file/eb3a6e4f7043da9/Overview_of_Family_Violence_Court_Counselling_Programs.pdf>.
  • Department of Justice. (2004). New directions for the Victorian justice system 2004-2014: Attorney General's Justice Statement. Melbourne: Department of Justice.
  • Hunter, R. (2005). Styles of judging: How magistrates deal with applications for intervention orders. Alternative Law Journal, 30(5), 231-236.
  • Magistrates' Court of Victoria. (2009). Family Violence Court programs. Melbourne: Magistrates' Court of Victoria. Retrieved 9 June 2009, from <www.magistratescourt.vic.gov.au/wps/wcm/connect/Magistrates+Court/Home/Specialist+Jurisdictions/Family+Violence+Programs/>.
  • Office of Women's Policy. (2002). Women's Safety Strategy: A policy framework. Melbourne: Office of Women's Policy, Department of Premier and Cabinet. Retrieved 10 June 2009, from <www.women.vic.gov.au/Web12/rwpgslib.nsf/GraphicFiles/Safety_Strategy_Policy_Framework/$file/Safety_Strategy_Policy_Framework.pdf>.
  • Statewide Steering Committee to Reduce Family Violence. (2005). Reforming the family violence system in Victoria: Report of Statewide Steering Committee to Reduce Family Violence. Melbourne: Office of Women's Policy, Department for Victorian Communities. Retrieved 10 June 2009, from <www.women.vic.gov.au/web12/rwpgslib.nsf/GraphicFiles/Reforming+the+Family+Violence+Sytem/$file/reforming_family_violence.pdf>.
  • Victoria Police. (2004). Code of practice for the investigation of family violence. Melbourne: Victoria Police. Retrieved 10 June 2009, from <www.police.vic.gov.au/files/documents/464_FV_COP.pdf >.
  • Victorian Indigenous Family Violence Task Force. (2003). Final report. Melbourne: Aboriginal Affairs Victoria, Department for Victorian Communities. Retrieved 9 June 2009, from <www.cyf.vic.gov.au/__data/assets/pdf_file/0006/16782/indigenous_family_violence_task_force_report_2003.pdf>.
  • Victorian Law Reform Commission. (2004). Review of family violence laws: Consultation paper. Melbourne: VLRC. Retrieved 10 June 2009, from <www.lawreform.vic.gov.au/wps/wcm/connect/Law+Reform/resources/file/eb1ee54e84dceaa/Family%20Violence%20Web%20Final.pdf>.
  • Victorian Law Reform Commission. (2006). Review of family violence laws: Report. Melbourne: VLRC. Retrieved 10 June 2009, from <www.lawreform.vic.gov.au/wps/wcm/connect/Law+Reform/resources/file/eb920d475ed43ab/Review%20of%20Family%20Violence%20Laws%20Report.pdf>.
  • Wearing, R. (1992). Monitoring the impact of the Crimes (Family Violence) Act 1987. Melbourne: Department of Sociology, La Trobe University
  • Wearing, R. (1996). Monitoring the Crimes (Family Violence) Act 1987: A study of those who do not proceed. Melbourne: La Trobe University.

Judith Peirce is a former Commissioner of the Victorian Law Reform Commission.

Other developments in domestic violence laws around the country ...

by Catherine Caruana

Development of national plan to reduce violence against women

In late April 2009, the Australian Government released the report, Time for Action, prepared by the National Council to Reduce Violence against Women and their Children after widespread community consultation and a review of the research. The release coincided with the announcement that many of the recommendations prioritised in the report would be taken up by the government in the immediate future. These include the funding of:

  • a new telephone and online crisis service, operating nationally, 24 hours a day, 7 days a week;
  • school-based programs on developing respectful relationships;
  • a public education campaign; and
  • research on the treatment of perpetrators and the development of nationally consistent laws.

In addition, the government has undertaken to work closely with state and territory law reform commissions to improve the forensic response to domestic violence and assault by:

  • establishing a national register to assist in the enforcement of protection orders across state borders;
  • identifying best practice in the investigation and prosecution of sexual assault matters; and
  • ensuring coronial recommendations relating to domestic violence deaths are implemented.

The Australian Law Reform Commission (ALRC), in conjunction with state and territory Law Reform Commissions, will also undertake a review of laws that deal with the safety of women and children. An advisory group will be established to inform the development of a national plan to reduce violence against women, due for release in 2010.

More information about the ALRC inquiry <www.alrc.gov.au/inquiries/current/family-violence>

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Changes to laws relating to apprehended violence orders (AVOs) in NSW, which came into effect in late 2008, include the following:

  • the creation of a stand-alone Act, rather than provisions relating to domestic violence contained within the Crimes Act 1900 (NSW);
  • the creation of the specific offence of domestic violence;
  • the automatic generation of an AVO where a person is charged with certain personal violence offences;
  • children automatically being included in an AVO unless there are good reasons not to do so; and
  • expanded police powers to facilitate the making of interim AVOs by telephone, 24 hours a day, either at the request of victims or on their own initiative, to ensure the safety of a person or their property.

Domestic and Family Violence Act 2007 (NT)

As of 18 February 2009, the Northern Territory became the first jurisdiction in Australia to mandate the reporting of incidents of domestic violence, or anticipated domestic violence, where a woman's life is believed to be in danger. The Domestic and Family Violence Act 2007 (NT) makes it an offence for an adult to fail to report an incident where they believe on reasonable grounds that:

  • a person has caused, or is likely to cause, serious physical harm to another person within a domestic relationship; and
  • another person's life or safety is under serious or imminent threat.

Proposed domestic violence law reform in South Australia

The South Australian Government has announced proposed changes to domestic violence and sexual assault laws in that state, following a review by Maurine Pyke QC. The changes include:

  • increased powers to enable the complainant to stay in the family home and to impose conditions on an alleged perpetrator before the matter gets to court;
  • a wider definition of violence to include sexual, economic and emotional abuse;
  • removal of the ability of alleged perpetrators to personally cross-examine alleged victims in court;
  • a broadening of the kinds of relationships covered by the legislation to include carers; and
  • higher penalties for breaches.

Review of the Tasmanian Family Violence Act 2004

A review of the first three years of operation of Tasmania's Family Violence Act was tabled in the State Parliament on 13 March 2008. The review looked at the effectiveness of the legislation in furthering the objectives of reducing the level of violence, improving safety for adult and child victims of domestic violence and changing the offending behaviour of perpetrators.

While the report found that there had been an improvement in the protection of adult victims of violence (brought about primarily by a change in the culture and response of the police at the first point of contact), there was a lack of confidence among stakeholders that the reforms had resulted in improved safety for children. A lack of data made it difficult for the reviewers to report on the deterrent effect of the legislative scheme.

This concludes the first phase of the review, with a wider evaluation of the Safe at Home initiative - namely the service systems, protocols and systems that form part of the integrated response - currently being undertaken.

Best practice guidelines relating to family violence adopted by the Family Court

On 6 March 2009, the Family Court of Australia adopted new guidelines for dealing with matters involving family violence. The Family Violence Best Practice Principles provide judges with a checklist of matters to consider when making decisions and represents the final initiative in the court's Family Violence Strategy, launched in 2004.

New certificate to allow exemption from mandated family dispute resolution

From 3 March 2009, family dispute resolution (FDR) practitioners have additional grounds on which to issue a certificate exempting a party from being required to participate in mediation. Amendments to the Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth) now allow for certificates to be issued where the FDR practitioner becomes aware during the course of the family dispute resolution that it would be inappropriate to continue given factors already contained in regulation 25(2), such as the presence of violence, concerns about safety, power balances, risk to the child of abuse and the physical and/or psychological health of the parties.

 

Suggested citation:

Peirce, J. (2009). Family Violence Protection Act 2008Family Matters, 83, 48-51.