Wilcox, Karen; McFerran, Ludo --- "Staying home, staying safe: the value of domestic violence protection order provisions in homelessness strategies" [2009] ALRCRefJl 34; (2009) 94 Australian Law Reform Commission Reform Journal 24

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Reform Issue 94 Summer 2009

This article appears on pages 24–26 of the original journal.

Staying home, staying safe

The value of domestic violence protection order provisions in homelessness strategies

By Karen Wilcox* and Ludo McFerran*

Studies have shown that domestic violence—also known as family violence and intimate partner violence—is a leading cause of homelessness for women and children in Australia.^[1]

On any given week, victims of domestic violence flee their homes to sleep rough: in cars, on friends’ floors or, if they are fortunate, in refuges. For this reason, there has been a rising tide of policy development and activism in the past decade aimed at containing and remedying homelessness for victims of domestic violence. This has led to legal and policy responses which provide a framework for victims to remain safe while residing in their own homes.

The legal framework

Domestic violence protection orders are a key feature of Australia’s legal response to domestic violence.^[2] They offer protection against violence through court orders restraining the future conduct of an individual towards one or several victims. Domestic violence protection orders can be tailor-made to suit the needs of individual victims by way of particular restraints imposed through the provisions, or conditions, of the order. In all states and territories, these orders have a degree of open-endedness in relation to proscribed behaviours, to ensure individualised outcomes can be determined by the court.^[3] Nonetheless, two specific provisions in protection order laws have the direct potential to impact on homelessness. These are the so-called ‘exclusion’ or ‘ouster’ orders, which contain conditions preventing perpetrators of violence from approaching or coming into the home where the victim lives; and court-ordered changes to residential tenancy agreements, often required to make exclusion orders effective if victims have shared rented accommodation with defendants who are the leaseholders. These provisions will be considered in this article.

The first specific domestic violence protection order legislation in Australia was the New South Wales Crimes (Domestic Violence) Amendment Act 1982 (NSW). It was possible for victims of domestic violence to obtain an ‘exclusion’ condition under this Act, but by 1987 only 3.2% of orders made in NSW included such conditions.^[4] Research has shown a low utilisation of exclusion conditions in protection orders.^[5]

The reasons for this are likely to be complex. For some victims of domestic violence, remaining in the relationship is desirable or necessary (for financial or other reasons), so protection from future violence is best provided by a ‘basic’ protection order prohibiting future violent conduct, but permitting ongoing contact. For example, under s 36 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), every order prohibits the defendant from:

assaulting, molesting, harassing, threatening or otherwise interfering with the protected person or a person with whom the protected person has a domestic relationship.

For other victims of domestic violence at high risk, safety can only be found by escaping into hiding and ensuring the offender does not know their whereabouts.

However, for the victims of domestic violence who would find it best to stay in their own home and ‘have the violence leave’, exclusion orders with appropriate practical supports offer a sound protective strategy. The fact that courts may not be issuing such orders in these situations reflects a complex web of community and judicial unease, with concern for the hardship for defendants leading to the conditions being seen as controversial.^[6] Concern for the property rights and accommodation needs of the defendant, deferral of occupancy issues to property settlements under family law, or a belief that exclusion is only warranted when the violence was physical, has at times underpinned judicial decision making.^[7] Community beliefs about ‘rights’ to real property has complicated the issue further: ‘a man’s home is his castle’.^[8] In its 2006 report, the Victorian Law Reform Commission noted,

despite the legislation being relatively clear, there seems to be a hesitation in removing a person from ‘his’ home with a related failure to acknowledge that this is exactly where the violence occurs.^[9]

The legislation itself in some states and territories has, in practice, discouraged the use of exclusion conditions. For example, if the option is not explicitly mentioned in an Act, it can be ‘invisible’ to lawyers or police prosecutors when seeking orders on behalf of victims.^[10] Similarly, where equal priority is given to the accommodation needs of both the complainant and the defendant, this makes it difficult for exclusion orders to be made.^[11]

Some governments in recent years have passed laws to increase the visibility of exclusion orders in their legislation, and to prioritise the victim’s accommodation needs in any determination. In Tasmania, the court may require the person against whom the order is made ‘to vacate premises ... whether or not that person has a legal or equitable interest in the premises’.^[12]

Recent law reform activity in some jurisdictions has further strengthened exclusion order provisions, with courts now directed to consider them in certain circumstances. In the Northern Territory, this applies to matters where a child is involved:

The issuing authority must presume that the protection of the protected person and child is best achieved by them living at home.^[13]

Similarly, the new Domestic Violence and Protection Orders Act 2008 (ACT) states that in deciding the application for a final order, the court must consider:

The accommodation needs of the aggrieved person, each child of the aggrieved person, and each child of the respondent.^[14]

In Victoria, under s 82 of the Family Violence Protection Act 2008 (Vic), the court must consider whether to include an exclusion condition, whether or not a child is involved. This means that the court must make a decision as to whether the perpetrator should be excluded from the premises occupied by the aggrieved person and child; it cannot simply avoid this question. Furthermore, it must take into account the ‘desirability of minimising disruption’ to the aggrieved person and child. This has the potential to address homelessness for families already facing the hardship of violence.

Some domestic violence laws have been drafted to recognise that exclusion orders are unworkable where there is a lease for the home in the defendant’s name. In Queensland, s 62A of the Domestic and Family Violence Protection Act 1989 (Qld) allows the court to consider a sole tenancy application at the same time as it considers the protection order. Section 150 of the Residential Tenancies Act 1994 (Qld) also allows a tenancy tribunal to grant sole tenancy to the person experiencing violence. Changes to residential tenancy laws in Victoria contained within the Family Violence Protection Act 2008 (Vic) provide an avenue for victims to apply for changes to leases with the state’s tenancy tribunal.^[15]

Two jurisdictions fast-track this process by providing for concurrent alteration of tenancy agreements at the protection order determinations. The Family Violence Act 2004 (Tas) gives the court the power to terminate a tenancy agreement and establish a new one benefiting the ‘affected person’.^[16] Tenancy agreements can be redrafted in the victims’ name, even where they previously may not have been a party to it. A similar provision is also available in the NT and is before the SA Parliament at the time of publication of this article.^[17]

Other provisions in domestic violence laws have also been of value in preventing homelessness for victims. Police holding powers (available in all states and territories), bail provisions and ‘cooling-off’ police orders also provide potential for short-term removal of perpetrators at times of high risk, so that victims are less compelled to flee in emergencies. For example, under the Family Violence Act 2004 (Tas), the court can require a violent person to vacate premises^[18] and a police officer may detain a person without charge for a period ‘reasonably’ required to secure the safety of the victim.^[19] Where there has been an arrest, bail is only available where the release of the offender would not ‘adversely affect the safety, wellbeing and interests of an aggrieved person’.^[20] In the NT, Western Australia and Victoria, police can directly issue short-term ‘cooling-off’ orders or notices which require the perpetrator of violence to remain away from the victim for up to 72 hours.^[21]

The need for a supportive service system

In order for exclusion orders to be effective in keeping victims safe as well as out of homelessness, a range of other factors needs to be addressed. These include the availability of funding for security alarms, new locks and security upgrades; risk assessment and safety planning; case tracking; enhanced policing responses; and outreach support and counselling. In addition, victims of violence need sufficient financial security to pay for their mortgage or rent, which may be difficult under current social security, child support and family law property arrangements. As many victims of violence remain concerned about the potential homelessness of their partner, an adequate system supporting exclusion orders would also contain targeted shelter beds for removed perpetrators.

The need for support to enhance the practicality of exclusion orders was recognised and embraced by the first system-wide ‘integrated response’ to domestic violence, the ACT Family Violence Intervention Project (FVIP), whereby crisis support workers work with police during or after domestic violence call-outs. Between 2000 and 2006, the proportion of domestic violence victims having to seek refuge accommodation in the ACT was reduced from 13% to 4%, and offenders remaining at home fell from 38% to 25%.^[22]

In the ACT, a specialist domestic violence court bolsters the system of protection orders available under the law. In this court, a specially trained and experienced magistrate hears protection order matters, and arguably, this leads to enhanced understanding of the complexities of victims’ needs and, presumably, better outcomes.

The Tasmanian Government has built on the successes of the FVIP in the ACT with its integrated whole-of-government response to domestic violence, known as ‘Safe at Home’.^[23] The Safe at Home response has included practical support systems, such as safety planning, security patrols, and funding for security upgrades, transport and emergency perpetrator accommodation, in addition to the law reforms noted above. Since its introduction, there has been a decrease in the proportion of shelter residents seeking accommodation because of domestic violence.^[24]

In NSW, a pilot program known as ‘Staying Home, Leaving Violence’ has been expanded to additional regions across the state. This program supports exclusion orders by providing easier access to lock changes, security upgrades and safety plans for escape in the event of a critical incident.

Several developments in Victoria have also complemented the new legal framework. These include the specialist Magistrates’ Court pilot, where protection order, criminal, victim compensation and family law issues can be resolved concurrently in the one court, providing an opportunity for the court to address inconsistent outcomes, such as those which arise when there is a conflict between state protection orders and federal family law decisions.^[25] In addition, the Victoria Police Code of Practice aims to ‘support aggrieved family members to stay safely in their own homes’.^[26]

Conclusion

The ‘exclusion order’ approach to tackling the problem of domestic violence-related homelessness is relatively new, but is gaining ground through law reforms and policy developments across the country. This solution is in keeping with our current understanding of human rights^[27] and accords with notions of fairness and justice, insofar as those already suffering abuse are prevented from enduring additional suffering through homelessness. While exclusion orders are not the solution in every case, the promotion of this option should be considered an important strategy in any homelessness policy.

* Karen Wilcox (BA (Hons) LLB) is the Good Practice Officer at the Australian Domestic and Family Violence Clearinghouse at the University of NSW.

* Ludo McFerran (B Soc Sc (Hons)) is a project officer at the Australian Domestic and Family Violence Clearinghouse at the University of New South Wales.

The authors have worked in tertiary education, non-government organisations and as consultants to government and the community sector for more than 20 years. They thank Dom Wilcox-Watson, Smith’s Hill High School, for research assistance.

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[1] Department of Families, Housing, Community Services and Indigenous Affairs, The Road Home: A National Approach to Reducing Homelessness (2008); S Murray, Somewhere Safe to Call Home: Violence Against Women During Homelessness (2009).

[2] Various names are used in each jurisdiction (eg, apprehended domestic violence order (ADVO), intervention order, restraining order, family violence order), so the generic term ‘protection order’ is used in this article.

[3] In some states and territories similar orders are also available to prevent workplace, neighbour and street violence.

[4] L McFerran, Taking Back the Castle: How Australia is Making the Home Safer for Women and Children (2006), 2.

[5] Ibid. ACT commentators, however, suggest that exclusion orders have been well-used in ACT courts.

[6] Ibid; Victorian Law Reform Commission, Review of Family Violence Laws (2006), 320–324.

[7] L McFerran, Taking Back the Castle: How Australia is Making the Home Safer for Women and Children (2006), 2.

[8] Ibid.

[9] Victorian Law Reform Commission, Review of Family Violence Laws (2006), 321.

[10] For example, the Restraining Orders Act 1997 (WA) provides a general condition preventing approach to the victim’s residence (s 13) but does not have specific ouster provisions. See also Victorian Law Reform Commission, Review of Family Violence Laws (2006), 323.

[11] For example, s 12(d) of the Restraining Orders Act 1997 (WA) states that the court is to have regard to ‘the accommodation needs of the respondent and the person seeking to be protected’.

[12] Family Violence Act 2004 (Tas) s 16(3) (emphasis added).

[13] Domestic and Family Violence Act 2007 (NT) s 20.

[14] Domestic Violence and Protection Orders Act 2008 (ACT) s 47.

[15] Family Violence Protection Act 2008 (Vic) s 262.

[16] Family Violence Act 2004 (Tas) s 17.

[17] Intervention Orders (Prevention of Abuse) Bill SA 2009.

[18] Family Violence Act 2004 (Tas) s 16(3).

[19] Ibid s 11(1).

[20] Ibid s 12(1).

[21] Restraining Orders Act 1997 (WA) s 3A; Domestic and Family Violence Protection Act 2007 (NT) pt 2.6; Family Violence Protection Act 2008 (Vic) pt 3 div 2.

[22] R Holder and J Caruana, Criminal Justice Intervention in Family Violence in the ACT (2006), 59.

[23] This is not to be confused with the evaluation project being undertaken in Victoria which uses the same name.

[24] L McFerran, Taking Back the Castle: How Australia is Making the Home Safer for Women and Children (2006).

[25] Problems arise for victims of violence where they have a protection order preventing contact by the perpetrator, but family court arrangements requiring a degree of shared parenting. In Victoria, the capacity to resolve this is bolstered by s 90 of the new Family Violence Protection Act 2008 (Vic).

[26] Victoria Police, Code of Practice for the Investigation of Family Violence (2004), [1.2].

[27] Victorian Law Reform Commission, Review of Family Violence Laws (2006), 324.