Submission to the Domestic and Family Violence Protection Act 2012 Review

Introduction

This submission is informed by the experience of our lawyers and social workers who have worked in domestic violence matters on behalf of both victims and perpetrators, including in the area of elder abuse.[1]  We would be happy to expand upon the ideas ventilated in this submission should that be considered desirable.

1.            Is the current test for issuing a DVO appropriate or should changes be considered?

Within the existing bounds of the definition of domestic violence and scope of the relationships caught by the Act, we consider that the current test for issuing a DVO is appropriately balanced.

2.            Should any changes be considered to the types of relationships covered by the Act?

Elder abuse and intimate partner violence:  the forgotten family violence issues

One of the difficulties in approaching intimate partner violence in older people and elder abuse is that the two forms of family violence are frequently conflated because of the complexities in definition. Does domestic violence “grown old’ amount to elder abuse?  The Seniors Legal and Support Services across Queensland and older persons’ legal services across Australia, take the view that the two forms of family violence are distinct, although some of the behaviours may be similar. Domestic violence is motivated by the need for control and power, whilst  in our experience, elder abuse is motivated by greed in the majority of cases. One of the serious consequences of confusing these two forms of violence and abuse is that elder abuse is often ‘invisible’, attracts few sanctions, and indeed appears to be widely tolerated or at least regarded by many police, institutions and community generally as a ‘family matter’. Therefore protections for older people are difficult to find and to implement regardless of the nature of the abuse.

This point is illustrated by the systemic failure to consider the consequences of the recent amendments requiring Magistrates to consider ouster orders when determining domestic violence applications.  The worthy aim here is to increase the safety of the aggrieved, however the problem we have seen repeated arises from the limited housing options available to respondents.  We have observed drug addicted, unemployed and physically abusive males move back home to their parent (usually their mother) where the violence is transferred onto the older person.

Elder Abuse and the Act

Elder abuse is under-reported and under-researched. It is acknowledged as a form of family violence in the Act by reference to the forms of psychological and emotional abuse[2] and economic abuse[3].  However a gap in the protection of elderly people arises from abuse occurring within relationships of dependency that are not caught by the Act. In particular, formal care providers, boarders or lodgers, and some forms of ‘companion relationships’ are not covered by the Act.  Formal care providers can include those taking on responsibility for receiving a carer’s pension, persons acting under an enduring power of attorney, and persons nominated by older people to be on Centrelink or banking documents.  Formal care relationships can exist between non-commercial service providers such as charitable organisations and their clients.[4]

An audit of 500 of our elder abuse cases conducted in May 2015 indicated that paid service providers ranked just behind adult sons and daughters as the most common perpetrators of abuse and violence against older persons. This was consistent with the findings of a similar case audit by Townsville Community Legal Service in similar time period.

Traditionally the Act and family violence services have focused on younger women and children and this is understandable.  However this does present a number of issues for older people experiencing violence and abuse in that most elder abuse is perpetrated by adult children; almost half the abusers are female; about one third of the victims are male; and victims are often dependent on the abusers for their care.^[5]

The Act is primarily directed at younger women and children, and the complexities of elder abuse appear to lie outside its reach.

Domestic and Family Violence Services

These have historically been – and are currently tailored for the needs of younger women and their children. There are no emergency accommodation services for older women escaping violence, other than emergency hostels for homelessness which can be very challenging and difficult environments, or respite care for which an older person must have an existing entitlement within aged care services.

No other services exist for male victims of abuse, and DFV services which operate on feminist principles and a gendered basis are not equipped to deal with male victims of family violence.

Barriers to seeking assistance

Our elder abuse case audit indicated that the most common barriers to seeking help were:

• Unaware of help options – 38%
• Love /attachment to abuser – 35%
• Impaired capacity – 25%
• Feelings of powerlessness – 19%
• Fear of losing home or assets – 15%
• Family loyalty – 11%
• Lack of financial resources – 10%
• Fear of being removed from home – 10%

Many older people do not identify abuse from their adult children as “family violence” and will choose to protect or shield their children or even enable them, in order to preserve the relationship.

There are currently no prevalence studies in Queensland (or Australia) but international prevalence studies^[6] indicate that likely prevalence ranges from 5% to 10% for older people suffering from abuse and violence, most of which is never disclosed or reported.  In light of the ageing of the population (by 2050 the number of 65 year old+ Australians will double) the magnitude of the problem is evident:

• Vulnerability factors include low financial status, poor education, social isolation, impaired capacity or other disability. This is consistent with international research.
• The recent Aged Care Reforms and the transition to consumer directed care  has meant that we are starting to see cases where the older person is being prevented from accessing aged care because family members do not want the older person’s property sold.
• Financial abuse is the most common form of abuse and is almost always partnered with a range of other forms of other abuse – psychological, emotional and social. It typically takes the form of social isolation of the older person – withholding phones, medication, and money and also often involves other abusive behaviours such as harassment, insults, shoving and pushing. Financial abuse runs at 47% of all of our cases in the 2014 – 2015 period, and anecdotally seems much higher.
• Older women particularly in the 80+ age group are most likely to be victims of financial abuse.  Reasons may include psychosocial factors connected with the adult child such as marital breakdown, business failure, mental health issues or addictions, and vulnerability of the victim is exacerbated when the older person has a disability (cognitive or physical). The culture of entitlement is very strong when it comes to an older person’s assets and their adult children.

Intimate partner violence in older couples

Violence does occur in older couple relationships. The most common pattern is that of long standing domestic violence in a long term relationship, but it also occurs within more recent second marriages/relationships.  Many older women have continued to live with their abusive spouses – usually they see no option, particularly when there is no available family support and they are on fixed incomes.

Fear of losing a home, becoming homeless or being forced into aged care are potent reasons for older women to stay in abusive relationships particularly when employment is not available or possible, affordable housing is scarce, and public housing may have very long wait times even where the violence is severe. There may be limited choices of location on offer where there is public housing, and we have found that problems of bullying and harassment particularly of single older women by male residents are common.

There is a correlation between exposure to long term domestic violence and later life chronic diseases of the major organs (heart, bowel etc.) as well as to depression, anxiety, PTSD^[7]– we have seen a significant number of female clients who had been in severely violent spousal relationships, who were suffering terminal illnesses (and subject to elder abuse from adult children whilst terminally ill).

There is much public interest in spousal related deaths from domestic violence which have been occurring at the rate of one a week in Australia; however the hidden deaths and resulting costs to later life health are largely unacknowledged.

Summary

There is therefore a significant gap in policy development and legislative responses to the problem of elder abuse. Consideration could be given to targeting elder abuse in the Act, by either including reference to it in the definition of domestic violence and/or by expanding the types of relationships set out in the Act by including such formal relationships of dependency.

It is acknowledged that further consideration would need to be given to the appropriateness of domestic violence orders being issued in situations where the victim has impaired capacity for decision making.  In these situations the appropriate primary response would ordinarily be an application to QCAT for guardianship and administration orders, followed by an application for domestic violence orders. In practice however, it has been our experience that the Public Guardian has been reluctant to initiate applications for DVOs on behalf of persons for whom it has been appointed to make personal decisions. Thus in circumstances where an unhealthy dependency relationship persists between a former carer/decision maker and an older person with impaired capacity, elder abuse can continue notwithstanding the Public Guardian’s involvement.

It may be that the Queensland Government considers the gap in protection against elder abuse would more appropriately be addressed by the introduction of dedicated elder abuse legislation[8] which might provide a suite of protections including a power to QCAT to make orders prohibiting parties (including formal carers) from engaging in acts of ‘elder abuse’.

3.            How could domestic and family violence courts’ consideration of family law issues be improved?

We understand that resolving the problems associated with the overlapping jurisdictions of family law and domestic violence is currently the subject of continuing discussions between the Commonwealth and State Governments.  In the meantime, the Queensland Government could improve the domestic violence courts’ consideration of family law issues by:

• introducing specialist domestic violence Magistrates courts with appropriately experienced and trained Magistrates;
• requiring the court to consider any family court orders made under the Family Law Act 1975 (Cth) (“FLA”); and
• where there are children involved in a relationship, introducing default exceptions to orders to enable contact between parties for the purposes of facilitating parental relationships and responsibilities (see below).

4.            Where there are conflicting allegations of violence, should the court be able to make cross orders by consent?

We consider that the court should be able to make cross orders by consent.  We note that any concerns about cross applications being used to continue victimisation of an aggrieved could to some extent be addressed by the introduction of a requirement that a respondent’s cross allegations be made by  way of sworn evidence.

Ultimately the court’s consideration of cross order applications should be effectively controlled by the existing requirement that orders be both necessary and desirable.[9]  In most cases the making of a cross order will be unnecessary if relevant orders, such as prohibition from approaching the aggrieved, are made in the originating application.

5.            Does the current framework for imposing conditions provide adequate protection for victims?

In our experience the issue here is not the adequacy of protection afforded by conditions but rather the adequacy of the enforcement of orders and the response of the Queensland Police Service (QPS) and the courts to breaches of conditions.

We respectfully suggest that this is an area where policy development would benefit from research into the cause of breaches and the adequacy of systemic responses to breach allegations.

Standardising default conditions in relation to family law issues

We consider this Review presents an opportunity to address a recurring issue which often causes considerable angst and expense to parties to domestic violence proceedings, and the unnecessary public expense of clogging up courts.  In particular, we have observed that many applications to vary DVOs are brought to enable respondents to approach named parties, in order to facilitate or initiate parenting orders or agreed arrangements.

We consider that there would be considerably less court time wasted if the standard conditions in relation to family law, for example, as set out in the Domestic and Family Violence Protection Act Bench Book[10], were included as a default position in any circumstances where an order is made prohibiting a person from approaching the victim.  In those cases where the risk of further violence being occasioned is considered unacceptable, the court could alter the orders accordingly to remove the default exception.

We consider such a default exception to prohibited contact orders would significantly reduce:

• the number of adjournments (usually granted to obtain legal advice about exception clauses),
• variation applications, and
• public resources expended by police and courts in responding to breaches occasioned by a respondent’s attempts to initiate or facilitate parenting orders/arrangements.

6.            Is there a need to make any changes to the current provisions in relation to the duration of orders?

Generally speaking a period of about 12 months is a sufficient duration to protect people suffering from spousal violence.  However in numerous cases where the aggrieved has suffered violence that has (or ought to have) resulted in criminal charges such as assault or stalking, it may be appropriate for the court to exercise a discretion to make orders extending beyond 2 years (for a period say up to 5 years).  It is noted that the existing remedy of seeking restraining orders for extended periods (greater than 2 years) in the District Court in criminal proceedings for stalking appears to be underutilised or does not appear to have been effective.

7.            Should court proceedings under the Act be open and/or information about these proceedings be published?

We do not consider there is any public interest served by opening domestic violence proceedings to the public or by publishing details of any proceedings including the terms of any orders made.

8.            What role should perpetrator intervention programs play in the legal response to domestic violence?

We consider that perpetrator programs are underutilised by the courts and that a significant injection of resources is required in order to make high quality specialised programs available to respondents.  We note that the Family Court routinely orders separated couples to attend parenting programs and we see no reason why this should not be the case for respondents to domestic violence proceedings.

Capturing perpetrators at the earliest possible opportunity, i.e. in response to an application for a DVO, may facilitate early intervention and lead to downstream reductions in harm and public expense in any associated family law, criminal law and domestic violence proceedings.

9.            Are there opportunities to make service responses more efficient?

In our experience service of court documents when a Respondent has not been present in Court needs to be timely and with appropriate risk assessment of the safety of the aggrieved.  Service of domestic violence orders has been known to cause further acts of violence against victims, and substituted service methods need to factor in safety considerations.  In our view, personal service of court documents by police officers reinforces the authority of the court, and the gravity of the orders.  The introduction of more ‘efficient’ means of service such as email or sms may unwittingly lead to respondents devaluing the effect of the orders.

We also suggest that DVO service documents should include mandatory information to respondents about the availability of legal advice and other relevant services and programs (such as Mensline etc.).

10.          What role should police issued notices play in the legal response to domestic and family violence?

We do not consider that any changes are required or that it is desirable to extend the discretionary power of police to exclude a person from the family home or prohibit contact with a person beyond 24 hours.

11.          What types of information do you think need to be shared?  For what purpose? Between which entities?

12.          When should information about a person be shared without their consent?

13.          What protections and safeguards do you think should be in place about the sharing of information?

We are aware that some domestic violence support service providers are seeking the removal of the requirement for consent to the referral of victims by police.  We understand that these proposals would effectively afford domestic violence situations the same status as child protection and mental health emergencies, where information can be shared without consent.

The issues surrounding privacy of parties to domestic violence proceedings are complex and technical and involve the balancing of competing rights and interests.  We believe that other agencies are better placed to contribute to this discussion.

14.          Are there other issues that will help ensure the Domestic and Family Violence Protection Act 2012 provides a cohesive legislative framework for domestic and family violence in Queensland?

 Specialist Magistrates

We respectfully consider that Queensland’s justice system could be strengthened by the roll out of specialist domestic violence courts with specially trained and relevantly experienced Magistrates, augmented by the availability of duty lawyers to both parties.

QPS training and attitudes

We also consider that there is room for improvement in the training and attitude of QPS officers to enhance their response to domestic violence and to adhere to existing QPS operational procedures.

Inquisitorial system for domestic violence hearings

There can be little doubt that a major impediment to domestic violence victims seeking the protection of the courts has been the prospect of being exposed to further abuse via cross examination by the Respondent, or their lawyer, in domestic violence proceedings.  Whilst the compounding trauma of such an experience has recently been addressed to some extent by the introduction of special provisions for protected witnesses,[11] and the power to limit cross examination[12], the adversarial nature of the proceedings continues to encourage combative dynamics between the parties, many of whom are experiencing a painful process of acrimonious separation and in the preliminary stages of family law proceedings.

We consider that research should be undertaken, perhaps by the Queensland Law Reform Commission, to investigate the desirability or otherwise of adopting an inquisitorial system of determining domestic violence applications.

We believe that an inquisitorial system could maintain adequate safeguards and evidentiary standards yet enable specially trained Magistrates to investigate and analyse the key dynamics of the relationship between the parties and to make appropriately tailored orders.