Australia
Chung, Donna, Damien Green, Gary Smith and Nicole Leggatt, ‘Breaching Safety: Improving the Effectiveness of Violence Restraining Orders for Victims of Family and Domestic Violence’ (Report: The Women’s Council for Domestic and Family Violence Services, 2014).
This Western Australian (WA) study aimed to gain an understanding of men’s perspectives and experiences about being charged with breaching a protection order; their understandings of why the protection order was issued and the events that led to them being charged with breach; and to identify policy and service delivery measures to promote safety for victims.
Ten men were recruited from a WA men’s behaviour change program to participate in a semi-structured, individual interview. The interviews were complemented with a focus group of service providers in the men’s and women’s domestic violence services, Family Violence Court, Family Court, Legal Aid and the Department for Child Protection and Family Support.
The findings were broadly grouped into three categories:
1.
The men minimised their use of violence and externalised responsibility to ‘the relationship’ and/or their partner. They diminished or minimised the role and purpose of protection orders, commenting that they are ‘just a piece of paper’ and ‘anyone can get one’. Most men agreed that protection orders were important for ‘those that really need it’ however they did not see their partners as being in need of protection describing them as being unreasonable or over-reacting. The men’s deflections and minimisations about their violence including breaches of protection orders were reinforced (and strengthened) through, what they perceived to be, violence supportive responses by police or service providers, for example when breaches did not result in police investigation or charges. A pronounced theme throughout all aspects of the interviews was the participants’ lack of empathy or regard for the safety and wellbeing of their current or former partners.
2.
Men’s perception that protection order processes were unfair or unjust. In particular, the men exhibited a lack of understanding about how their violence towards their intimate partner, children and family could result in restrictions to their contact with their children and/or exclusion from their property. The perception of unfairness was exacerbated by a lack of understanding about the process for obtaining a police order or violence restraining order (VRO) including the grounds in which an order can be made, court processes, the conditions an order can impose and penalties of a breach.
3.
Participants explained their breaches in three ways: 1) they were responsible for the breach and related consequences; 2) they claimed their partner was responsible for the breach e.g., initiating or ‘agreeing’ to contact; and 3) they described themselves as ‘accidental breachers’ i.e. the breach occurred because the protected person and respondent were ‘accidentally’ in the same physical location.
Centre for Innovative Justice, ‘Opportunities for Early Intervention: Bringing perpetrators of family violence into view’ (Report: RMIT, 2015).
The aim of this Australian report is to identify opportunities for the police, civil and criminal justice and court systems to develop early intervention strategies that are likely to encourage perpetrator engagement with justice processes; understanding of and accountability for their violent behaviours; and behavioural reform through program participation and other interventions.
One of the criticisms of the current civil responses include (at p 21):
•
Respondents do not always understand the legal basis of the order, or the terms with which they are expected to comply. A recent WA study found that many respondents questioned the validity of the court’s role, not understanding its power to issue an order despite the fact that the police had not laid charges. Some believed that ‘anybody could get one of those’ and felt that the orders were ‘just a piece of paper’, while others inadvertently breached the order repeatedly simply because they did not understand its terms. The latter was also nominated by practitioners in the Northern Territory as a particular problem for perpetrators in remote communities, to the extent that courts often preferred to impose limited conditions…
Mack, Kathy and Anieu, Sharyn Roach, ‘Opportunities for New Approaches to Judging in a Conventional Context: Attitudes, Skills and Practices’ (2011) 37(1) Monash University Law Review 187.
In Australia, magistrates and their courts have undertaken steps to make the disposition of cases more appropriate and more sensitive to the varied needs of defendants. One development is more engaged approaches to judging, which entails direct judicial interaction with court users, requiring judicial communication skills and perhaps greater emotional capacities such as empathy. Careful analysis of empirical evidence of judicial attitudes and practices in court identifies important links between conventional judging values, skills and actions and some elements of the newer forms of judging. This research identifies magistrates’ commitment to core judicial values such as impartiality, their views about skills and practices associated with more engaged judging, such as listening and empathy and their orientation to the social value of their work. The article then examines in-court behaviours, including the demeanours magistrates display towards defendants and the circumstances in which they look at and speak directly to defendants (at pp 206-28). The findings suggest apparent tensions between legitimacy based on a conventional judicial role in an adversary process and the legitimacy of more engaged, active judging. This research finds ways in which values and practices of less-adversarial judging can be incorporated within a relatively conventional understanding and performance of the judicial role.
International
Burke, Kevin and Steve Leben, ‘Procedural Fairness: A Key Ingredient to Public Satisfaction’ (2007) 44 Court Review: The Journal of the American Judges Association 4-25.
This paper discusses the role of judges in addressing public dissatisfaction with the judiciary by giving effect to the key elements of procedural fairness, in particular, voice, neutrality, respectful treatment and engendering trust in authority. Procedural fairness is a value that Americans expect and demand from the judicial system. The purpose of the paper is to address research on the American court system, and to identify and promote changes that will improve the daily work of the courts and judges.
Guzik, Keith, Arresting Abuse: Mandatory Legal Interventions, Power, and Intimate Abusers, (Northern Illinois University Press, 2009).
US research into the practice in many jurisdictions of enhancing the criminal prosecution of domestic abuse cases by adopting mandatory arrest policies for the police and no-drop policies for the prosecution. The author reports that many abusers subjected to the force of these policies feel they are being unfairly treated, and for behaviour they believe is justifiable. Denials, minimisations, excuses and justifications were common among the abuser narratives, as well as claims of self-defence and other disclaimers of responsibility, claiming they were responding to a genuine threat to his person or to his traditional masculine identity.
National Center for State Courts, Court Guide to Effective Collaboration on Elder Abuse (2012).
This Guide provides a comprehensive discussion on elder abuse, discusses the prevalence of the incidence of elder abuse and describes the court settings and the types of legal actions that may be used to address elder abuse. Note issues about assessing cognitive, physical and other conditions that may be relevant to an older person’s needs; crafting appropriate remedies; maximising access and participation of older person (p6). See also the Judicial Benchcard associated with this resource.
Petrucci, Carrie J., ‘Respect as a Component in the Judge-Defendant Interaction in a Specialized Domestic Violence Court that Utilizes Therapeutic Jurisprudence’ (2002) 38(2) Criminal Law Bulletin 263.
A US study. Abstract: Specialized courts and therapeutic jurisprudence both share an emphasis on the judge-defendant interaction. What a judge says, how he or she says it, and how defendants respond, may prove to be a key factor affecting outcomes within the specialized court process. Research has yet to carefully describe this judge-defendant interaction. Using participant observation, transcripts of judicial monitoring sessions, and judge and defendant interviews, this article analyzes one judge's use of therapeutic jurisprudence in judicial monitoring sessions in a specialized domestic violence court. The findings highlight seven key areas that describe progress report hearings: general characteristics, the process, general content, specific content, the judicial role and approach, defendants' perceptions of the judge, and the demeanor of the judge and the defendant. Taken together, these components exhibit a relationship depicted by a process of shared respect between the judge and defendant that may be a key factor in defendant compliance.
Due to the complex nature of domestic and family violence matters, it may be necessary for judicial officers in their conduct of related proceedings to consider and respond to a range of factors to ensure that parties are afforded fair and equal access to justice and that those at risk of harm are protected. In order to properly respond to domestic and family violence judicial officers will often need information presented to them, not just about individual incidents of violence, but also about the history and pattern of violence in the relationship. Judicial officers should actively consider the power of the court to regulate its own proceedings.
There is a developing understanding among judicial officers in Australia that domestic and family violence rarely involves a single incident or a series of discrete incidents of physical violence. Rather, it manifests as a complex pattern of violent and abusive behaviours through which a perpetrator exercises control over the victim, often for extended periods, sometimes referred to as coercive control. The facts of a particular matter and the circumstances of the affected parties are likely to have a direct and substantial bearing on the manner in which a judicial officer discharges their obligations in the conduct of proceedings and the protection of parties.
For some victims their engagement with law enforcement agencies and the courts may exacerbate or prolong the trauma they have experienced as a result of the domestic and family violence. For example, absence of legal representation, lack of interpreter services, giving oral evidence, being cross examined, being present in the court room or court precinct with the perpetrator, or having to repeatedly return to court for mentions, adjournments and hearings may contribute to a victim’s revictimisation or secondary abuse through the court system. Judicial officers should ensure, where practically possible and resources permit, that these factors and their adverse consequences are addressed.
It is critical that parties feel that they have been properly informed of their rights and what to expect in the court process and that they have been taken seriously and given due opportunity to be heard.
For victims, it is critical that their safety and protection are assured and that they are in control of their participation in the proceedings and of choices affecting their lives beyond the court room. In facilitating these outcomes, a judicial officer may need to take into account a victim’s individual vulnerabilities, and their specific experience of domestic and family violence or its impacts.
The 2024 amendments to the Family Law Act 1975 Cth introduce further protections for the use of DFV victims' confidential communications in family law proceedings (e.g., health records and records from specialist family violence and sexual violence services), which aim to balance the probative value of information with the harm that disclosing the information might do to parties and children involved. (see last section of this context statement for further information).
For perpetrators (or offenders), Australian research indicates the possible adverse effects of a lack of understanding of court processes, the terms of orders, and the consequences for breaches of orders. These effects may include a perception by the perpetrator (or offender) that the process is unfair or unjust, or that the order has no real force. This suggests that efforts by judicial officers to address these perceptions may produce more positive outcomes. Australian research indicates the value of judicial officers looking at and directly speaking to perpetrators/offenders. US research emphasises the importance of the interaction between judicial officers and perpetrators/offenders, and that a process of shared respect may be a key factor in compliance. The Canadian Domestic Violence Bench Book also highlights a range of behaviours and perceptions that are common among many domestic and family violence perpetrators, and points out that when judicial officers keep in mind these behaviour patterns when listening to evidence, perpetrators have fewer opportunities to mislead.
Changes to Adversarial Proceedings and Protected Confidences (Family Law)
The Family Law Amendment Act 2024 allows the Court to better manage any type of family law proceedings in a less adversarial way, with the aim of reducing intimidation and stress of court processes for families. A less adversarial approach may involve the use of technology to facilitate remote attendance where there are family violence allegations, or permitting the use of evidence on the effect and occurrence of family violence which would not usually be admissible
In addition, the disclosure of certain communications (relating to domestic and family violence) for purposes of family law proceedings is acknowledged to be potentially distressing and harmful to parties and children involved. As a result, the Family Law Amendment Act 2024 has introduced protections for documents that record or relate to certain confidential communications referred to as ‘protected ’. The Amendment Act empowers parties in the family law system, and others, to take steps to prevent the disclosure and use in evidence of communications occurring where a person seeks treatment or support from:
•
health services (where ’health’ refers to both psychological and physical health)
•
specialist family violence services
•
specialist sexual violence services.
A communication will be a ‘protected confidence’ if it has “…arisen in the course, or in connection with, a professional relationship where there is an express or implied obligation of .” The Court can make a direction to protect this information and prevent it from being inspected, copied or adduced in court, where access would likely cause harm to a protected confider, or a child involved in the proceedings, and the harm outweighs the desirability/probative value of accessing the evidence. In parenting proceedings, the best interests of the child will be the Court’s paramount interest (s 60CA FLA).
Examples of the types of harm that may be considered by the court include:
•
physical harm
•
psychological harm or oppression
•
mental distress
•
a detrimental effect on the other party’s capacity to care for a child
•
financial harm.
A protected confidences direction can be made by the Court on its own initiative, or an application for a direction can also be made by “a confider, confidant, litigation guardian or person in possession or control of relevant documents (such as a health service or health professional)”. In proceedings involving children, an application can also be made by an ICL or person who has care of, or has or proposes to have, parental responsibility for a child.
Due to the complex nature of domestic and family violence matters, it may be necessary for judicial officers in their conduct of related proceedings to consider and respond to a range of factors to ensure that parties are afforded fair and equal access to justice and that those at risk of harm are protected. In order to properly respond to domestic and family violence judicial officers will often need information presented to them, not just about individual incidents of violence, but also about the history and pattern of violence in the relationship. Judicial officers should actively consider the power of the court to regulate its own proceedings.
There is a developing understanding among judicial officers in Australia that domestic and family violence rarely involves a single incident or a series of discrete incidents of physical violence. Rather, it manifests as a complex pattern of violent and abusive behaviours through which a perpetrator exercises control over the victim, often for extended periods, sometimes referred to as coercive control. The facts of a particular matter and the circumstances of the affected parties are likely to have a direct and substantial bearing on the manner in which a judicial officer discharges their obligations in the conduct of proceedings and the protection of parties.
For some victims their engagement with law enforcement agencies and the courts may exacerbate or prolong the trauma they have experienced as a result of the domestic and family violence. For example, absence of legal representation, lack of interpreter services, giving oral evidence, being cross examined, being present in the court room or court precinct with the perpetrator, or having to repeatedly return to court for mentions, adjournments and hearings may contribute to a victim’s revictimisation or secondary abuse through the court system. Judicial officers should ensure, where practically possible and resources permit, that these factors and their adverse consequences are addressed.
It is critical that parties feel that they have been properly informed of their rights and what to expect in the court process and that they have been taken seriously and given due opportunity to be heard.
For victims, it is critical that their safety and protection are assured and that they are in control of their participation in the proceedings and of choices affecting their lives beyond the court room. In facilitating these outcomes, a judicial officer may need to take into account a victim’s individual vulnerabilities, and their specific experience of domestic and family violence or its impacts.
The 2024 amendments to the Family Law Act 1975 Cth introduce further protections for the use of DFV victims' confidential communications in family law proceedings (e.g., health records and records from specialist family violence and sexual violence services), which aim to balance the probative value of information with the harm that disclosing the information might do to parties and children involved. (see last section of this context statement for further information).
For perpetrators (or offenders), Australian research indicates the possible adverse effects of a lack of understanding of court processes, the terms of orders, and the consequences for breaches of orders. These effects may include a perception by the perpetrator (or offender) that the process is unfair or unjust, or that the order has no real force. This suggests that efforts by judicial officers to address these perceptions may produce more positive outcomes. Australian research indicates the value of judicial officers looking at and directly speaking to perpetrators/offenders. US research emphasises the importance of the interaction between judicial officers and perpetrators/offenders, and that a process of shared respect may be a key factor in compliance. The Canadian Domestic Violence Bench Book also highlights a range of behaviours and perceptions that are common among many domestic and family violence perpetrators, and points out that when judicial officers keep in mind these behaviour patterns when listening to evidence, perpetrators have fewer opportunities to mislead.
Changes to Adversarial Proceedings and Protected Confidences (Family Law)
The Family Law Amendment Act 2024 allows the Court to better manage any type of family law proceedings in a less adversarial way, with the aim of reducing intimidation and stress of court processes for families. A less adversarial approach may involve the use of technology to facilitate remote attendance where there are family violence allegations, or permitting the use of evidence on the effect and occurrence of family violence which would not usually be admissible
In addition, the disclosure of certain communications (relating to domestic and family violence) for purposes of family law proceedings is acknowledged to be potentially distressing and harmful to parties and children involved. As a result, the Family Law Amendment Act 2024 has introduced protections for documents that record or relate to certain confidential communications referred to as ‘protected ’. The Amendment Act empowers parties in the family law system, and others, to take steps to prevent the disclosure and use in evidence of communications occurring where a person seeks treatment or support from:
•
health services (where ’health’ refers to both psychological and physical health)
•
specialist family violence services
•
specialist sexual violence services.
A communication will be a ‘protected confidence’ if it has “…arisen in the course, or in connection with, a professional relationship where there is an express or implied obligation of .” The Court can make a direction to protect this information and prevent it from being inspected, copied or adduced in court, where access would likely cause harm to a protected confider, or a child involved in the proceedings, and the harm outweighs the desirability/probative value of accessing the evidence. In parenting proceedings, the best interests of the child will be the Court’s paramount interest (s 60CA FLA).
Examples of the types of harm that may be considered by the court include:
•
physical harm
•
psychological harm or oppression
•
mental distress
•
a detrimental effect on the other party’s capacity to care for a child
•
financial harm.
A protected confidences direction can be made by the Court on its own initiative, or an application for a direction can also be made by “a confider, confidant, litigation guardian or person in possession or control of relevant documents (such as a health service or health professional)”. In proceedings involving children, an application can also be made by an ICL or person who has care of, or has or proposes to have, parental responsibility for a child.