Striking a balance on violence orders
The Australian
Wednesday 29 December 1999.
[Eds note: There's plenty of opportunities to respond to this editorial about
the incorrect assumption that only women and children are victims of domestic
violence. The Australian is trying to create further discussion - so please
write in to Post GPO Box 4162 Sydney NSW 2001or
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Few legal issues create as much contention as the issuing of apprehended violence orders. Across Australia striking the balance between the very real need to intervene to halt or prevent specific instances of domestic violence and awareness that in some cases such order are sought for malicious reasons is proving extraordinarily difficult. There is a growing awareness that the system is being abused. In NSW most of the concern seems to be about so-called "personal" violence orders, involving neighbours or work colleagues, rather than the more familiar "domestic" violence orders. The debate, of course, is coloured by emotions raised by domestic violence, particularly on women and children, and the argument that the legal system is weighted against women.
It is well accepted that the introduction of apprehended violence orders was a very necessary law reform. The classic situation is where a woman with every reason to fear violence from her partner need swift and effective means to keep him away from her and her children. Basically, orders allow a complainant to be legally protected from personal violence, harassment or molestation, intimidation or stalking. There are heavy penalties (up to a $5000 fine and/or two years imprisonment in NSW) for breaches. It is however, argued by concerned legal practitioners that the level of proof that support a complaint is insufficiently high considering the penalties a defaulter faces. This is particularly so when orders are sought for fear of personal violence which may stem from neighbour disputes over such issues as excessive noise or the keeping of dogs.
Some legal practitioners are concerned also that orders are being sought not because of a real fear of violence or intimidation but merely to gain an advantage over a defendant. The orders, it is claimed, have significant potential to maliciously disrupt the life of a defendant either through actions that aid and abet the defendant in breaching an order or using the order to make false complaints.
It is a problem of existing legislation that magistrates lack the ability to knock out what seem likely to be frivolous, false or misleading claims at an early stage of the process. The NSW Government is now considering reform that would give magistrates this power, at least in relation to personal violence orders.
Another issue raised in the NSW Law Society Journal by a Queensland practitioner, Michael McMillan, is worth considering. It arises from the difficulty of bringing an order to an end. He suggests the other states look to Western Australia which provides a defence for someone who has breached an order with the approval of the person supposedly in need of protection. Such reforms of the system should not be seen as an attempt to undermine apprehended violence orders. Indeed, unless the system is protected from abuse, its enforcement will suffer, as will the interests of the vulnerable people it is supposed to serve.