25 YEARS OF ACTING FOR SURVIVORS OF DOMESTIC VIOLENCE
By Stephen Page
Harrington Family Lawyers
Phone: (07) 3221 9544
I want to acknowledge the traditional owners, the Turrbul people.
Unlike some people in this room, I was never the subject of domestic violence. My parents, until my father’s death some years ago, had a very happy marriage.
When I was thrust upon the world at the beginning of 1985 as a very green legal graduate, I must admit that I had never intended to practise in family law let alone act in domestic violence cases. If we turn our minds back to 1985, the term “domestic violence” was not known, except in limited circles of women’s refuges which had in any case been operating in Australia for only about 10 years. It was possible to obtain injunctions for violence between husbands and wives under the Family Law Act but there was no Domestic Violence and Family Protection Act. That Act was not enacted until 1989 and did not come into effect from recollection until late 1990. In those days if you were in a de facto relationship and subject to violence, you missed out. You might have sought relief under the Peace and Good Behaviour Act, a little known piece of legislation which in many respects is largely toothless and was recognised as toothless 21 years ago.
Before my admission as a solicitor in 1987, I spent two years assisting lawyers (I was then an articled clerk, now known as a trainee) in Family Court cases. Those cases often involved domestic violence.
There was a lack of resources and knowledge of domestic violence in the Family Court in those days. It was known that to commit domestic violence in front of the children was wrong, but seriously argued that children were not harmed when physical violence between their parents did not occur in the children’s presence.
In the days before Pearl Watson, the wife of the then Family Court Judge Ray Watson was murdered with a bomb at her front door and in the days before there was a murder at the Parramatta Registry of the Family Court, there was no security at the Family Court. Everyone crowded in next to everyone else, including perpetrators and survivors within a metre of each other. Those days are long gone.
From 1985 until now, I have acted for many women whose heroism was in continuing, day after day, to live in relationships where the violence was brutal, overpowering, and occurred on unpredictable occasions, thereby strengthening the hand of the perpetrator and weakening that of the survivor.
In 1988 the then Ahern (National Party) government commissioned a task force to report about domestic violence and its report “Beyond These Walls” was a defining event, an excellent report that led to an enactment of what is now called the Domestic and Family Violence Protection Act 1989.
That Act had not come into power when in 1990 I returned to work in Beenleigh. On my first day of work in a new firm a new client came into my office, describing extreme violence in her relationship. She said how her husband had trashed the house including smashing pot plants and mirrors, overturning the fridge so that the meat was rotten and stank the house out. She said that he had rifled through her clothes and made sure he had cut up the middle all of her underwear. I saw that the cutting of the underwear was to show how that she was a mere sexual being, merely a woman, someone who was inferior to him. That day I obtained an injunction for my client under the Family Law Act.
The following day another woman came in with a similar tale of woe and I obtained an injunction for her.
On day 3 yet another woman came in describing the violence from her husband and I obtained yet another injunction for her.
It was at this point that I became more enlivened to the issue of domestic violence and have tried to do what I can to end it.
In late 1990 the Domestic and Family Violence Protection Act (as it is now called) came into effect and suddenly there was an upsurge of applications for women (and a very few men) seeking protection from their spouses. The philosophy of that Act is the same as an American court described its domestic violence legislation:
The purpose of the domestic abuse statute is to protect and "aid victims of
domestic abuse by providing an immediate and effective" remedy. The statute
provides for a wide variety and scope of available remedies designed to separate the
parties and avoid future abuse. Thus, the primary goals of the statute are
preventive, protective and remedial, not punitive. The legislature did not design the statute as punishment for past conduct; it was instead intended to prevent further
harm to the victim.
I have acted for thousands of clients who are survivors of domestic violence.
Make no mistake. The vast majority of those clients have been women subjected to violence by their husbands, former husbands or partners. I am sad to say that men do not have a monopoly as perpetrators of violence and abuse. I have acted for men subjected to violence by their wives or former partners, mothers subjected to violence by their sons, gay men who have been subjected to violence by their former partners, lesbians who have been subject to violence by their former partners, and in one case a pre‑operation male to female transsexual who had a heterosexual relationship with a woman which then became a lesbian-like relationship in which the woman had been violent to my client (who was a man at work and a woman at home).
During the course of my practice, I have had the privilege to talk to my clients about matters that make them tick.
I will give you 2 examples.
· In 1994 I acted for a client who was the ex of an Australia Post employee. He beat her mercilessly. What is amazing is that he did not break any bones. She was in every sense a battered wife. He also called her horrible, despicable, nasty names which I recall but I won’t repeat here because to do so may give him some dignity which he doesn’t deserve. He kept their 3 year old daughter, insisting on a week about arrangement. We had to take a custody fight to the Family Court. My client was successful. The husband denied the violence but we had overwhelming evidence of it.
After the trial, my client seemed relieved and full of joy. She had re-partnered and seemed happy. I then asked her: “Which was worse, the physical assaults or the words that he used?” She replied: “The words – because the pain doesn’t go away.”
· Client No 2 – Three years ago out of the blue an old client whom I had acted for 7 years before tracked me down, phoned me to thank me for what I had done all those years before. She was an Aboriginal woman who was beaten mercilessly by her husband. On separation he had persuaded their 2 teenage boys to assist in the assault of their mother and the 3 of them had thrown her across the bonnet of their car. Somehow she managed to escape, covered in blood, to the local GP clinic. Nurses at the clinic called the police who then took her to a refuge. The police were obliged by law to apply for a protection order, but they didn’t. She sought that police charge the husband with assault, but they didn’t.
My client, with my help, then obtained a protection order against the husband. My client, with my help, then made a complaint against the police. The husband was then charged. He was convicted of assault but not imprisoned.
The husband made sure that when my client sought to see the boys that they refused to see her. A report by a social worker in Family Court proceedings said it was clear that the boys were under the influence of their father but unequivocal that they did not want to see my client. My client then gave up.
So 7 years after the event my client phones me and thanks me. I said I didn’t know what she was thanking me for because we got a protection order and that was good so far as it went, and we got him charged, but he didn’t go to jail, but on a key point she had not been able to see her boys and I knew how devastating that was for her. My client told me that she had now married a gentle man who did not have a problem with alcohol. She said her boys were now living with her and above all she said she rang to thank me because at that time and place, when she was at the lowest of the low, I was the only person who believed in her – she did not even believe in herself, and my belief in her had been life changing.
I have had danger thrust upon me at times because of the nature of my work. Threats have been made by perpetrators of violence who are opposed to a protection order being made against them, but more likely did not want to pay my client the money that my client was after or wanted a different arrangement for the children than my client proposed.
The dangers included acting for the former partner of the president of an outlaw motorcycle gang who had the clear and demonstrated ability to kill me if he so desired, but the greater danger I have found over the years is dealing with the loner – he who has kept his wife or partner in isolation by various threats and has made the threat against me. One of those occasions 11 and 12 years ago:
· Resulted in the longest domestic violence trial in Queensland’s history – 7 days. It still holds the record as far as I am aware.
· I was stalked by the husband (I acted for the wife).
· He was dangerous. He illegally searched my car registration records, finding out where I lived when he lived a mile down the road from me and had secreted guns. He had previously chased my client and her children around the house with a loaded shotgun, as well as other extreme violence.
· My client was more concerned for my safety than her own, as repeated threats to kill me had been made by the husband.
· This required me to change house and I had to tell my then wife on her birthday of the nature of the threat.
· This man confronted me, my then wife and our children in a car park making threats.
· I gave evidence for 4 hours and was added to the protection order. The Magistrate believed me absolutely, which has remained the sweetest victory of all.
Drugs and alcohol
I once believed mistakenly that alcohol and drugs were the cause of violence. Often there is a strong connection between these disinhibitors and domestic violence. There can be strong correlations between domestic violence and, for example, heavy marijuana or alcohol use, or the use of speed or ice.
Survivors of violence and their children need to be safe and feel safe. It is not healthy to be constantly afraid. A holistic approach ought to be taken to achieve safety. It is important to engage first in a thorough risk assessment, and then undertake a thorough safety plan.
To focus alone on getting a protection order, and not a holistic approach, is to miss the point of maximising safety and minimising fear, and may place the client and the client’s children in danger.
Comparison between Indigenous and non-indigenous domestic violence
From the little I have seen of domestic violence occurring in indigenous as opposed to non‑indigenous relationships, that occurring in indigenous relationships is often much worse, with a higher level of violence, as compared to relationships of non‑indigenous people.
Too often we don’t ask the right questions, or any questions. I have seen many clients who have been the subject of both sexual and physical violence where other professionals who have dealt with my clients before me have not asked about sexual violence or abuse. In one case my client had seen a very experienced domestic violence counsellor for some months before seeing me. When I asked my client on our first meeting why she had not told her counsellor about the sexual violence, my client replied: “Because I wasn’t asked.”
Agents of change
We all have within us the ability to change things – to make our society a safer, better and fairer place. We all say we don’t have the ability to change things but the reality is that we can. It is the power of this positive message of change which is why I am involved with Australia’s CEO Challenge. It demonstrates how things can change. In August I had the privilege as a White Ribbon ambassador to meet other White Ribbon ambassadors in Sydney. All were men. As a man opposed to the use of violence within relationships, it was refreshing and empowering meeting other men who held similar views.
I want to give 2 examples of where by simple actions I managed to change things for the better.
1. Amendments to the Domestic and Family Violence Protection Act
When the Act was originally enacted in 1989 it was never envisaged that parents would drag their young children along as witnesses. Who would ever contemplate such an obscene act? Nevertheless, that’s what happened. I found, for example, one case in which I was involved that the other side were criticising my client for not dragging her 13 year old daughter along to give evidence in the domestic violence proceedings.
Then in the case in which I was stalked, the husband had a process server serve a summons on his 14 year old son to give evidence. The Magistrate was hamstrung because there was no prohibition on doing that. The son had to give evidence (twice). I complained to the bureaucracy to change the Act to protect children, but nothing happened.
Then in one case the Magistrate refused to allow an 8 year old boy to be added to a protection order if he was not available to give evidence. This so enraged me that I contacted everyone whom I thought could have any influence upon government authority so that the Act would be amended to reflect similar provisions to the Family Law Act so that children would not be dragged into the parents’ domestic violence court fight without permission from the Court first. Then Minister Anna Bligh agreed to those changes. I was very pleased when those amendments came into effect in 2003.
2. Migration Regulation changes
About 2 years ago the Howard Government changed the tests under the Migration Regulations as to what constituted domestic violence so that if there were not a protection order after a trial, then the person seeking to remain in Australia under the Migration Regulations who alleged that they had been subject to domestic violence, would have to talk to a Centrelink social worker. The social worker would assess if there had been domestic violence. What struck me about this process was that it was potentially arbitrary and dependent on the professional opinion of a social worker employed by a government department, and not based on any objective evidence such as the obtaining of a protection order. What particularly concerned me about the change was that it meant those who had been subject to violence and had brought an application for a protection order might have to run those applications through to trial rather than the common way of resolving them, either by default orders or by consents without admission. I felt that the change interfered in the Queensland judicial system and imposed a burden upon survivors of violence and the justice system which should not have to be borne. I wrote to the Howard Government and said that. I was pleased to get a response from the government that there was no intention of interfering with the Queensland judicial system and default orders or orders made by consent without admission were fine. Government officials were directed accordingly.
A change for the better
When we talk about domestic violence often we talk about the horror or at times what has been described as domestic terrorism. We often discuss the shortcomings of government, of police and the community, of courts and of lawyers. We talk not in positive tones about what has happened. I can bore you for longer and tell you what I think are some of the shortcomings in society’s response to domestic violence but with one exception I won’t. What I have observed over the last quarter century are these things:
· We now name violence much more.
· Perpetrators of domestic violence are often held more accountable.
· In contested cases it is often much easier to obtain protection orders than before.
· Family members, carers and people in same sex relationships can now be protected.
· The Family and Federal Magistrates Courts are now more willing to deal with the issue of violence than before.
· Police, the three levels of government and the community are much less willing to tolerate the level of violence that has been there and are willing to have an open and frank discussion to stop it.
“Beyond These Walls” stated in 1988:
On face value one could argue that current Queensland criminal law can or does
deal with domestic violence. The Queensland criminal law as set out in the
Criminal Code and other specific statutes constitutes as offences, a range of
behaviours including the kinds of physical assaults experienced by victims of
domestic violence … the punching, kicking, biting, whipping and stabbing, as
well as the burns, attempted strangulations and deprivation of liberty reported
by victims are all covered by the current criminal law. What is clear,
however, is that the majority of spouses who abuse their partners in these ways
are not being charged with criminal offences – their behaviour has not been
subject to the processes of the criminal law.
Unfortunately, 21 years later these words remain true. More needs to be done.
 Coburn v. Coburn (1996) 342 Md.244; 674 A.2d. 951 (Maryland Court of Appeals)