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As the NSW parliament debates amendments to family violence legislation, new research shows that some victim-survivors are being charged as offenders instead, while children are not being protected by apprehended violence orders. By Rick Morton.

Policing family violence in NSW

The chief executive of Women’s Safety NSW, Hayley Foster.
Credit: Supplied

Natalie Fletcher* woke to her former partner’s hands around her throat. Just a day after being released from an acute psychiatric ward, in early March 2015, the man broke into her house while she and her three children slept. Before that night there had been 12 officially logged domestic violence “events” with the New South Wales Police Force – plus many more that went unreported – but authorities had been repeatedly unable or unwilling to help.

“I believed I was going to die that night,” Fletcher tells me. “I was like, ‘Oh my god, I’m going to become a statistic.’ ”

Of course, in almost every way, Fletcher was already a product of the family violence data. Her experience maps completely two position papers released by Women’s Safety NSW this weekend – probably the most detailed front-line research conducted in the state.

Women’s Safety NSW chief executive Hayley Foster says the papers are drawn from multiple surveys of family violence workers, who themselves support 50,000 women each year in the state. Crucially, they also contain the testimony of 59 survivors.

“I think it’s the first time we’ve actually seen this level of feedback,” Foster says. “If we want to increase people’s confidence in the policing and courts systems, increase the rate of reporting and reduce the re-traumatisation that happens when we get it wrong, then we really need to make some significant reforms.”

A small number of those reforms are, at last, being addressed in NSW. This week, an amendment bill introduced by NSW Attorney-General and Minister for the Prevention of Domestic Violence Mark Speakman is due to be debated in state parliament.

The bill would allow survivors to give evidence by audiovisual link and also clarify that a delay in reporting allegations is not an indication that the allegations might not be true.

The draft legislation also extends the definition of intimidation in domestic violence to the harm of an animal that “belongs or belonged to” the intended victim, and fortifies some of the conditions around the granting of apprehended violence orders.

What is more difficult to do, however, is to provoke sweeping cultural change inside both the judicial and police systems. It is here that victims of family violence – overwhelmingly women and their children – are subjected to the abuse of institutions.

Almost three-quarters of front-line workers surveyed by Women’s Safety NSW “expressed that they had encountered the misidentification of the primary aggressor in some way”. Of the victims, 11 per cent said they had experienced “police misidentifying them as a person of interest for an [apprehended domestic violence order] or charging them as the offender notwithstanding the fact that they were the primary victim”. In other words, an order might be made against a woman when she is the one being abused.

In these cases, the research indicates police – and later, the courts – are hamstrung by the rigidity of the law and a superficial understanding at best of what family violence looks like.

The NSW Bureau of Crime Statistics and Research reported an increase in the proportion of women being identified as domestic violence offenders from 10 per cent of offenders in 2001 to 18 per cent of offenders in 2012.

Last year, 22 per cent of people against whom there were proceedings for domestic assault in NSW were women. These figures represent the outcome of a good idea – proactive policing, which encourages officers to arrest, investigate and prosecute in domestic violence matters – meeting bad practice.

Women who fight back in a single incident often do so in self-defence and they will admit to doing it. In these instances, they are often charged where their male partner is not.

“We have a really incident-based framework for addressing domestic and family violence,” Foster says.

“Some of those can look at a pattern of behaviour over time, like stalking and intimidation, but there are many, many aspects of domestic and family violence and abuse related to coercive control that cannot be picked up by those intimidation and stalking offences.

“And what we find is that many of the clients will have a whole raft of information and evidence around their experience of abuse over time but the police have kind of got one hand tied behind their back because it is not admissible evidence.”

A more pernicious cultural problem persists in how apprehended domestic violence orders are granted and enforced. The Women’s Safety NSW research shows that almost 90 per cent of front-line workers had encountered issues with police refusing to include children as “protected persons” on apprehended violence orders. “Of particular concern,” the research says, “were the 26 per cent of participants who expressed that these issues were encountered either ‘always’ or ‘usually’.”

The paper says that “failing to include children as protected persons creates a loophole wherein the perpetrator can retain access to the victim”.

Under the NSW Crimes Act, police are the only authority that can make the application for children to be listed on a violence order as a protected person. In doing so, they have the power within the Family Law Act to “override, suspend or vary an existing parenting order”.

However, police appear anxious not to contradict Family Court rulings or to deal with their complexity. The report says that “reluctance to do so can be correlated with cultural factors and inherent beliefs surrounding a father’s right to their children”.

 

Natalie Fletcher was with her former partner for only 11 months. She had two children prior to the relationship, and a third with him. None of them were ever added to an apprehended domestic violence order, despite her requests.

The first order she was able to get was only after her partner broke her finger during a fight.

“He did breach that multiple times and he was never, never charged for any of the breaches,” she says. “It got to the stage where the police were getting sick of me calling them. He’d call constantly but because it was a private number they said, ‘Oh, we don’t know it’s him.’ ” The stalking escalated: “Multiple text messages. He’d come around and mess with my car, break into my house and steal things.”

The man had multiple orders made to protect a previous partner of his, who later died by suicide. Neighbours had also taken out apprehended violence orders. He was eventually charged with one breach of the violence order Natalie had, after the night he tried to kill her.

“So I was asleep and I woke up to being strangled,” she says of that night. “And he was yelling at me. I remember just trying to get away from him. He punched me a few times, got off me, picked up the mattress with me on it and just threw it across the room.”

Then the frenzy began. Kicking, punching, spitting. “I believe I got knocked out once or twice,” she says. “He grabbed a knife and attempted to stab me. Thankfully he stabbed the mattress and the knife snapped. I lost count of the number of times I crawled under the bed to escape him and he pulled me out.”

Her three children witnessed the entire attack. The intimidation continued from jail, where he served a four-month sentence on downgraded charges. She begged the prison to ban him from writing her letters, which they did but only eventually. He wrote them to his family instead and they put them in her mailbox. Initially, he was paroled to a location “six or seven hours” away.

“Then somehow, I don’t know how,” Fletcher says, “he managed to have that changed to an address close to where I lived.”

 

In NSW it is still the case that family violence perpetrators can end up without representation and, in the lower courts, cross-examine their victims. This matter isn’t addressed in amendments to be debated this week but Hayley Foster says there is some hope changes may be introduced next year.

Mark Speakman told The Saturday Paper: “The government is actively considering whether the prohibition on cross-examination of complainants by their alleged attackers should be extended from sexual assault matters to domestic and family violence proceedings.”

There are also backlogs in courtrooms with which to contend.

Almost 30 per cent of surveyed victim-survivors who attended court for a mention reported waiting in court for three to four hours before their matter was called, and 8 per cent reported waiting for five to six hours, the courts position paper says.

Further, 3 per cent of survivors waited in court for more than six hours before their matter was called for mention.

The answer, Foster says, is in training, specialisation of magistrates and police, and prioritising the system for survivors who are so often defeated by its grinding, uncaring apparatus.

“It really is a matter of pot luck sometimes which magistrate you’re going to have your matter heard by, or who turns up when you call the police, and it shouldn’t be that way,” she says.

Any changes to laws, Foster says, must come with wholesale system reform. Otherwise, the same old problems will rear their heads.

For Natalie Fletcher, it begins with belief. “For every service they need to know that the woman coming in is the expert, she knows him better than anybody,” she says. “She’s been living it.”

Natalie has moved six times and changed her name to escape her violent ex-partner. The trauma has a long tail. It was eight years before she trusted another man.

“We’ve been together for a year now but we don’t live together or anything like that. He’s the complete opposite of any violent man, doesn’t even raise his voice and treats me like a princess,” she said. “He was very patient. We’re taking it very, very slow.”

* Name has been changed.

National Sexual Assault, Domestic and Family Violence Counselling Service 1800 737 732

This article was first published in the print edition of The Saturday Paper on Nov 7, 2020 as "Out of order".

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Rick Morton is The Saturday Paper’s senior reporter.