Hunter, Rosemary; Stubbs, Julie --- "Model Laws or Missed Opportunity?" [1999] AltLawJl 3; (1999) 24(1) Alternative Law Journal 12

(a) causing or threatening to cause personal injury, abduction or confinement to a protected person; or
(b) causing or threatening to cause damage to a protected person’s property; or
(c) harassing or offensive behaviour.

A ‘protected person’ is defined as a person’s spouse, relative or former relative, or a child who normally resides with the person or of whom the person is a guardian. Potential extensions of this definition are canvassed to include a person who has or has had an intimate personal relationship with the person, or who is or has been ordinarily a member of the person’s household (cl.2(1)).

Both of the definitions are inadequate, and these inadequacies are likely to have wide-ranging ramifications. The definitions are crucial because they delimit the relationships to be covered by the legislation and because the proposed s.4(1) requires that an ‘act of domestic violence’ has taken place in order for a protection order to be made (see further below). The manner in which the Model constructs and represents what is held legally to be an act of domestic violence will affect the interpretations and practices of lawyers, courts and police and is also likely to have wider effects in terms of shaping community understandings of domestic violence.

The proposed definition of domestic violence fails to cover clearly a number of forms of conduct which are widely recognised as domestic violence, even within existing protection order provisions in at least some Australian States. These include:

•	attempts to harm;
•	sexual assault (unfortunately, it cannot be assumed that courts will always see this as a form of ‘personal injury’);
•	causing or threatening to cause personal injury or abduction to another (including threats to abduct the children of the parties);[13]
•	verbal, economic and emotional abuse, intimidation, possessiveness, sexual jealousy: these actions, particularly when taken in isolation, may fall short of the notion of ‘harassing or offensive behaviour’, but nevertheless are well recognised and frequently experienced elements on the domestic violence spectrum, which place their targets in fear for their safety.

It is important the legislation go beyond stereotypically masculine definitions of violence (focusing on physical violence) to address women’s actual experience. Recent NSW research found over one-third of those interviewed had been stalked by the defendant, one-third had received nuisance phone calls, 80% had been verbally abused and 12% had received inappropriate gifts, flowers or letters.[14] The proposed definition of ‘domestic violence’ should be expanded to include ‘a course of conduct causing substantial emotional distress’,[15] or ‘a pattern of coercive behaviour’.[16] Alternatively, the South Australian definition of ‘any behaviour that arouses fear and apprehension’ in a protected person[17] should be adopted.

The Discussion Paper raises the question of whether same-sex partners should be included in the legislation (p.11). There is no principled reason for excluding same-sex couples. Moreover, there are additional barriers to same-sex partners invoking the legislation.[18] The failure to include same-sex relationships within the scheme of protection would constitute yet another example of the law sanctioning violence against lesbians and gay men.

Finally, while the full proposed definition of protected person would include people who have been in a sexual relationship but have not lived together, and people in shared households who may equally need protection against domestic violence, it does not appear to cover the situation of date or acquaintance rape, where the victim has been threatened or is otherwise fearful of a further assault and therefore seeks protection. The parties are not related, have never lived together and have not had an ‘intimate personal relationship’ but the woman who has experienced the violence may have a reasonable basis to fear future violence. Accordingly, ‘dating’ as well as ‘intimate’ relationships ought to be covered.

Requirements for protection orders

As mentioned above, the Discussion Paper proposes in cl.4(1) that an act of domestic violence must have occurred in order for a protection order to be made. This focus on an act of domestic violence as a ‘trigger’ is a retrograde one. It is at odds with understandings of domestic violence which recognise that a pattern of abusive behaviour over time might culminate in what on the face of it may seem to be a trivial or minor event, but which the protected person, because of her heightened sensitivity to her partner’s violence, may recognise as a threat to her safety. Should the courts focus on this ‘culminating event’, they may fail to appreciate its significance as one incident in a pattern of abuse. Moreover, as Kim Scheppele has powerfully illustrated, the forms of oppression which constitute domestic violence may not always be readily visible to others:

Sometimes, for example, violence takes the form of intimidation which produces compliant and docile bodies in its victims. And docility is rarely interpreted as problematic . . . If a man has succeeded in intimidating or threatening the woman and she avoids contact with him, then they may not have any interactions to report after a certain point. But a lack of interaction between any two people is rarely evidence that something occurred. It is more usually understood that nothing occurred . . . Like the person who ducks before being hit because she knows what is coming, the person who sees danger because she expects it is often in a position to avoid the violence that leaves physical traces, though fear and threats of violence leave their own sorts of scars . . . Women who have been tracked by stalkers, whose husbands monitor them with intrusive curiosity and whose bodies are the subject of frequent male threat, learn the danger signs and try to bend before breaking . . . But in these situations ‘nothing has happened ‘ because the oppressions are not made visible in the world through physical evidence (emphasis in the original).[19]

This focus on a triggering event evokes the debates of the 1980s about the value of protection orders, in which Jocelynne Scutt and others argued strongly that the protection order regime was ineffective because it permitted the first violent incident to occur and only came into effect for subsequent acts of violence.[20] This is unacceptable and is at odds with the preventive function of the order. It also risks a return to previous poor police practice where those experiencing domestic violence were commonly told nothing could be done until the perpetrator actually carried out an act of violence.

Clause 4(1) additionally requires proof that the defendant, if not restrained, is likely to carry out a threat or commit another act of domestic violence. This represents a significant hurdle for complainants, particularly those who, in order to ensure their safety, have separated from their violent partner. Some magistrates have difficulty understanding why women might remain fearful after separation when, as they see it, the parties are unlikely to have any future contact with each other (ignoring the fact that a perpetrator may continue his abuse by initiating contact or engaging in harassing behaviour).[21] Further, the lapse of time since the last incident of physical violence has also been erected as a barrier to proof, since it is considered by magistrates to reduce the likelihood of repetition of the violence. As noted earlier, studies indicate that the majority of aggrieved persons have already experienced repeated violence when they come to apply for an order. In this context, the requirement to prove likelihood of future violence seems otiose.

The current NSW and South Australian provisions require reasonable apprehension or fear on the part of the protected person in order for a protection order to be made. This has some advantages over that proposed in the Model. Although we acknowledge this focuses on the emotions of the aggrieved person, which the Discussion Paper found problematic on the basis that the courageous or stoic victim might be disadvantaged, this approach is preferable in that it does not require waiting for a violent act to occur before an order can be made, and is in line with the preventive function of the protection order.

Two other elements of cl.4 of the Model deserve mention. First, once an act of domestic violence and the likelihood of repetition or the carrying out of a threat are established, the proposed section confers on the court a residual discretion as to whether to grant an order or not (‘The court may make a protection order . . . ’). The existence of the discretion potentially undermines the aim of the legislation to ensure the safety of protected persons. Second, cl.4(2) reposes absolute discretion in the court as to the terms of any order it grants. Women who have been targets of violence experience intervention order proceedings as disempowering and out of their control, much like their relationship with the defendant. This is an area in which aggrieved persons need to be empowered by being actually consulted as to the terms they want in the order, and the legislation should specifically require this. For similar reasons the aggrieved person should also be consulted about the duration of any order.

Restrictions imposed by protection orders

While the courts have absolute discretion with respect to the restrictions to be imposed as part of an order, the Discussion Paper includes a list of possible restrictions. Although it is not intended to limit the exercise of the courts’ discretion, it is likely that in use the list would come to be seen as a checklist or standard against which orders might be measured. It is crucial, therefore, that the list presented is adequate. The proposed list is limited, for example, in making no mention of stalking, or of possible restrictions on access to premises frequented by children who might be in need of protection (such as schools or childcare centres).[22]

Strangely too, the list includes a possible recommendation (rather than a requirement or direction) to attend counselling. The inclusion of a recommendation within a list of restrictions or prohibitions is troubling and likely to send out mixed messages to the complainant, defendant and police about the nature of a protection order. Police report that imprecise orders make it difficult for them to determine when a breach has occurred. The inclusion of a recommendation may make enforcement of breaches somewhat more difficult at a time when it is already evident that, at least in NSW, police fail to act on the majority of breaches reported to them.[23] Further, as acknowledged in the Discussion Paper, the value of counselling in domestic violence matters remains controversial. In addition to doubts about the efficacy of counselling for violent men, it is also evident from the literature that counselling of couples where violence has occurred may put the victims of violence at particular risk. No person seeking a protection order should be required to participate in counselling (or mediation) with the perpetrator since to do so may actually compromise her safety.[24] Listing counselling among the restrictions may act to encourage magistrates to order/recommend counselling without due consideration to the possible risks attached. It is preferable that counselling not be included in the proposed list of restrictions.

Where an order is proposed to be made restricting the defendant’s access to any premises, the Discussion Paper would require the court first to have due regard to the accommodation needs of all persons (cl.5(2)(c)). Concerns have been expressed by workers in NSW that the inclusion of this section can work to the detriment of complainants, especially where a complainant and her children are housed in a women’s refuge. It should be recognised that a refuge is short-term emergency housing and that access to a refuge should not undermine the complainant’s right to remain in her own home where possible. Other workers have found that a provision drawing attention to the accommodation needs of all parties can be a useful device to have magistrates consider making exclusion orders where necessary. Careful consideration needs to be given to the inclusion of such a provision, which should in any case be accompanied by a requirement that courts give priority to the need to ensure the ongoing safety of the protected person(s) (as is currently the case in Victoria). The requirement that magistrates document their reasons for not restricting access by a defendant to any premises or place, which exists in some States, has also been useful in drawing the significance of the issue to the attention of magistrates. It should be included in the Model.

Complaints for protection orders

The Model’s proposals concerning complaints for protection orders offer a number of potential problems. First, the Model provides that police may apply for an order, negating the existing requirement in NSW that they must apply for an order other than in certain circumstances. The extent to which police apply for orders in NSW has increased markedly in recent years and is much higher than in Victoria. In NSW police initiated 52% of approximately 22,000 complaints seeking domestic violence-related apprehended violence orders during 1995.[25] By comparison, in Victoria during 1994/95 police laid only 16% of the 14,205 complaints seeking intervention orders.[26] Police involvement in initiating protection orders has the potential to offer a number of benefits to the victim: police typically ensure the service of process; the police prosecutor normally represents the victim which removes the need for her to seek legal representation; and the fact the matter is seen as police initiated may also protect a victim from possible reprisals.

In addition, the Model empowers courts to make an order on their own initiative where there is a reason to believe the protected person may be at risk of future violence. If the rationale for a protection order is to protect a person from future violence, then courts should be required and not just empowered to make an order.

Evidentiary issues

The Model proposes a complaint for an interim protection order must be supported by oral evidence. This seems unnecessary. At the point of applying for an interim order, victims are often in crisis, having just suffered a severe episode of violence and/or left the perpetrator. Court observations in Victoria indicate the oral evidence taken from the aggrieved person is usually extremely brief, involving simple affirmation that the statement in her application is true. The ‘hearing’ lasts no more than a minute. Thus, enabling the court to act on affidavit evidence would make no difference to the amount or quality of evidence adduced, and would allow the court to operate more efficiently, as well as making the process more considerate of victims.

The Discussion Paper proposes that the court should have the power to admit and act on hearsay evidence. Rather than making an exception for hearsay, we would prefer a broader provision that the court may inform itself in any manner it thinks fit when considering making a protection order. Similar provisions exist in Victoria and Queensland. We are concerned that evidentiary rules should also prevent children from having to give evidence in protection order applications, unless they are a party to the application.

Contested applications

Research indicates a substantial proportion of defendants do not come to court on the return date.[27] The problem in this context, repeatedly identified by interviewees, was that the complainant does not know in advance whether the defendant is going to turn up and contest the case, and therefore does not know whether she needs to get a lawyer, apply for legal aid, obtain medical reports, arrange for witnesses to be present, or not. If the defendant does appear and threatens to contest the application, the complainant may be forced to compromise in order to obtain an order that day. In order to prevent this ambush situation from continuing to occur, the defendant should be required to give notice before the scheduled hearing date as to whether he intends to consent to the order being made final or to contest the application. Having such notice would also be more efficient for the court. Such a provision would not be appropriate if it meant prolonging the period of time during which an aggrieved person remained unprotected, but it would work well in conjunction with a system of ex parte or rapidly available interim orders. Alternatively, the Western Australian process described in the Discussion Paper (pp.31-33) has considerable merit. In this, the defendant is given a period of time after service of the interim order to decide whether to object to the order. If there is no objection the order becomes final (which is what would happen if the defendant failed to appear, or consented to the order, but would save parties an additional court appearance), and if there is an objection it is set down for hearing. The possible disadvantage, that the defendant might not understand the seriousness of the order, could be overcome by requiring police to explain the defendant’s options and the consequences of a breach when serving the interim order.

The role of consent

Research suggests some form of consent order is the most likely outcome if a defendant attends court on the return date following the service of a summons or an interim order. However, current consent procedures pose several problems. First, while the defendant may be encouraged to consent to an order, the aggrieved person’s consent is rarely, if ever, sought. The Model should require the court to be satisfied the aggrieved protected person as well as the defendant has consented to the proposed order; together with a definition of consent as free agreement.

Second, in some cases the defendant consents to an order being made against him on condition the complainant also consents to an order being made against her. Mutual orders allow defendants to obtain orders on grounds that would not be entertained in an original complaint, trivialise the defendant’s violence and ignore the power relationship between the parties, compound the manipulation and abuse of the complainant, and expose her to the risk of being prosecuted for a breach. In order to discourage the making of mutual consent orders, the Model should provide that a person may not consent to an order being made against them unless a formal complaint for the order has been made, and the court may not make mutual consent orders unless satisfied both complaints disclose sufficient grounds for an order.[28]

The Discussion Paper asks whether consent to a breach by the protected person should constitute a defence (p.77). This would be a retrograde step. It fails to recognise such ‘consent’ may be a response to fear or threat, or is likely to have been negotiated on unequal terms against a background of violence. It also risks representing the order as binding on both parties rather than as the responsibility of the perpetrator. Research evidence indicates the greatest concern with respect to breaches is the failure of police to act on breaches reported to them. Trimboli and Bonney found in NSW that 73% of breaches reported to police were not acted upon.[29] The introduction of a defence of consent is likely to offer yet another obstacle to victims of domestic violence seeking to have their orders enforced. Rather, the Model should make clear to all parties the mechanisms available to vary orders, and procedures should be put in place to facilitate the variation of orders in as timely a fashion as possible.

Conclusion

It is regrettable the Model Domestic Violence Laws proposed in the Discussion Paper seem to be predicated on a concern simply to resolve inconsistencies between existing State/Territory laws concerning protection orders, without reference either to evidence of the need for or implementation of those laws, or to the broader context within which they operate. A less technical vision of Model Domestic Violence Laws might instead have sought to produce a model of best practice designed to ensure consistent, coordinated policy and practice across the range of criminal justice and other agencies which have a role in the implementation of laws and policies in the area of domestic violence. This has been a missed opportunity.

References

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[1] Domestic Violence Legislation Working Group, Model Domestic Violence Laws: Discussion Paper, November 1997.
[2] See Family Law Act 1975 (Cth), s.68T, which empowers magistrates in the course of family violence protection order proceedings to make, vary, discharge or suspend a family law contact order.
[3] Relevant criminal offences are discussed in other Model Criminal Code discussion papers, but there is no explicit linkage between the discussion papers. See, for example, Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, Model Criminal Code: Non Fatal Offences Against the Person: Discussion Paper, August 1996, Model Criminal Code: Fatal Offences Against the Person: Discussion Paper, June 1998.
[4] The article is also informed by empirical research undertaken by Rosemary Hunter in Victoria and by Julie Stubbs in NSW.
[5] For instance, in 1994 the US National Council of Juvenile and Family Court Judges (NCJFCJ) produced a Model State Code on Domestic and Family Violence, including draft legislation, which has a focus on preventing violence, protecting victims and holding officials accountable. Subsequently the NCJFCJ and the American Prosecutors Research Institute produced a manual to facilitate the work of coordinating councils to ensure ongoing and effective integrated responses to domestic violence: American Prosecutors Research Institute and National Council of Juvenile and Family Court Judges, Confronting Violence Against Women, 1998. See also: Busch, R., ‘“Ain’t no mountain high enough (to keep me from getting to you)”: An analysis of the Hamilton Abuse Intervention Pilot Project’, in Stubbs, J. (ed.), Women, Male Violence and the Law, Institute of Criminology, Sydney, 1994; Pence, E., ‘The Duluth Domestic Abuse Intervention Project’, (1983) 6 Hamline LR 247; Ursel, E.J., ‘The Possibilities of Criminal Justice Intervention in Domestic Violence: A Canadian Case Study’, (1997) 8(3) Current Issues in Criminal Justice; Wearing, R., Monitoring the Impact of the Crimes (Family Violence) Act 1987, 1992, and Monitoring the Impact of the Crimes (Family Violence) Act 1987: A Study of those who Do not Proceed, 1996.
[6] For this reason, this article generally refers to aggrieved persons as ‘she’ and defendants as ‘he’.
[7] ACT Community Law Reform Committee, Report No. 11, Domestic Violence — Civil Issues, September 1996, recommendation 11.
[8] Earle, J., ‘Submission on Model Domestic Violence Laws’, WESNET, 1998.
[9] Wearing, 1996, above, 133; Trimboli, L. and Bonney, R., An Evaluation of the NSW Apprehended Violence Order Scheme, NSW Bureau of Crime Statistics and Research, Sydney, 1997, 30; Stubbs, J. and Powell, D., Domestic Violence: Impact of Legal Reform in NSW, NSW Bureau of Crime Statistics and Research, Sydney, 1989, p.43.
[10] ALRC, Report No. 69: Equality before the Law, Part I, 1994; Women’s Legal Resources Centre, A Quarter Way to Equal: A Report on Barriers to Access to Legal Services for Migrant Women, 1994.
[11] See Wearing 1996, above, especially pp.234-8.
[12] For example, of the 74 returns observed by the first author in Victorian courts, more than one-third (27) involved no appearance by the defendant. The same number of cases was disposed of by consent. Only 14 cases were contested (in the remaining six cases the interim order was extended since the defendant had not yet been served).
[13] In court observations undertaken by the first author it was found that some women were fearful after separating from the defendant because he had threatened to take the children, or kill himself, if they ever did so. In one case, the complainant alleged that the defendant had abducted the children after a previous separation and used them to coerce her to reconcile: if she wanted them back, she would have to take him back. This behaviour ought to be included within the definition of ‘domestic violence’ giving grounds for a protection order.
[14] Trimboli, L. and Bonney, R., above, pp.38, 44, 49. See also Busch, R. and Robertson, N., ‘What’s love got to do with it’, (1993) 1 Waikato LR 109.
[15] These words are included in the California Code of Civil Procedure, s.5276 (definition of stalking).
[16] See Spowart, H. and Neil, R., ‘Stop in the Name of Love’, (1997) 22 Alternative Law Journal 81, 83.
[17] Domestic Violence Act 1994 (SA), s.4(2).
[18] See generally Renzetti, C. and Lee, R. (eds), Violence in Gay and Lesbian Partnerships, Harrington Press, New York, 1996.
[19] Scheppele, K.L., ‘Manners of imagining the real’, (1994) 19 Law and Social Inquiry 995, 1014-5.
[20] Scutt, J., ‘Going Backwards: Law Reform and Women Bashing’, (1986) 9(1) Women’s Studies International Forum, 49-55.
[21] This is also at odds with research concerning homicide which has demonstrated that separation may be a time of considerable risk for some women: Wallace, A., Homicide: The Social Reality, NSW Bureau of Crime Statistics and Research, Sydney, 1986; see also Mahoney, M., ‘Legal Images of Battered Women: Redefining the Issue of Separation’, (1991) 90 Michigan LR 1.
[22] Earle, above, p.7.
[23] Trimboli and Bonney, above.
[24] Astor, H., ‘Swimming against the Tide: Keeping Violent Men out of Mediation’, in Stubbs, J. (ed) Women, Male Violence and the Law, above, p.147. See also, for example, Family Court of Australia, Chief Justice’s Direction as to the Management of Cases involving Family Violence, in (1994) 2 Australian Feminist LJ 197.
[25] Data provided by Strategic Services Unit, NSW Attorney-General’s Department.
[26] Department of Justice (Vic.), Crimes Family Violence Act: 1994-95 Monitoring Report, 1995.
[27] 40% in the first author’s study in Victoria.
[28] See, for example, the Violence against Women Act 1994, s.2265(US).
[29] Trimboli and Bonney, above, p.59.