Access to justice for survivors of family and domestic violence means

ACCESS TO JUSTICE FOR SURVIVORS OF FAMILY AND DOMESTIC VIOLENCE MEANS GETTING THE FIRST RESPONSE RIGHT, EVERY TIME

DR SARAH MOULDS, SENIOR LECTURER IN LAW, UNISA

It’s easy for lawyers to think about ‘access to justice’ as something that starts when a person needs a lawyer. But for many people who have experienced domestic or family violence, the path to justice starts – and sadly sometimes ends – way before instructions are given or legal advice taken. ‘Access to justice’ for survivors means being seen and heard when they report abuse or violence at a police station, GP surgery or school front desk, or when police or other authorities are called to attend an incident at their homes. ‘Access to justice’ means empowerment and control right from the beginning – and this demands a rethink of how we train first responders and others in the system that are likely to interact with survivors.

This is one of the key findings from a recent collaborative research project called Powerful Interventions. The project was undertaken by Uniting Communities and UniSA, funded by the Law Foundation of South Australia’s Brian Withers Grant and supported by an expert Advisory Group of legal practitioners and other service providers. It focuses on the legal framework governing access to, use and enforcement of orders made under the Intervention Orders (Prevention of Abuse) Act 2009 (SA) in South Australia.

Past efforts to improve the effectiveness of legal interventions to address family and domestic violence have focused on data produced and published by the courts and the South Australian Police. However, this information does not always uncover the legal, social, cultural and other barriers to the effectiveness of this legal framework in South Australia.

The Powerful Interventions project aimed to centre the voice of those with lived experience of the Intervention Orders regime. It considered 63 anonymous survey responses from people with lived experience of domestic and family violence, as well as service providers including lawyers, social workers and court officials. Researchers also conducted nineteen individual interviews and four focus groups, including two with Aboriginal organisations.

When taken together, the data reveals a system under acute pressure that is failing to meet the needs of those it is designed to protect. Research participants explained that there are many hard-working police officers, public servants, court officials and specialist lawyers, social workers and other support services dedicated to ensuring the Intervention Order system provides meaningful protection for those experiencing, or at risk of, family and domestic violence. However, participants also said that these positive initiatives and genuine individual efforts are not enough to address the structural problems and cultural deficits evident within both the legal framework governing Intervention Orders and the practical implementation of these legal tools.

Those with lived experience accessing or engaging with the Intervention Orders system told the researchers that they want changes to the system so that they can access these legal tools in a way that gives them back control over their own lives. They want to be put at the centre of the system. They want to be believed, respected and empowered when they report violence and abuse – that first encounter can determine the nature of their experience with the rest of the legal system. As one service provider said:

Being told that your abuse is ‘not serious enough’ or there is no abuse identified is one of the most damaging things that can happen. It can impact the relationship of trust going forward. It is therefore critical first responders are adequately trained in trauma-informed care and practice, and have training in best practice responses to domestic violence, so that the survivor can also be referred to suitable support services.

If that first response (by police, for example) is dismissive or re-traumatising, it can leave survivors vulnerable to ongoing violence and harm, and distrustful of the legal system. As one survivor said:

I didn’t feel like I was taken seriously or believed. [I was] made to feel like I was being judged as hysterical, ridiculous and time wasting. This made me feel unsafe to approach police again which was fairly scary, because they were the place I was supposed to be able to count on to help, and I wasn’t sure where else I could go.

A mishandled fi rst response can reinforce narcissistic or controlling behaviour by perpetrators, who use these experiences as evidence of their own power. One interviewee said:

The system that is being built to protect women from this type of abuse can be turned into a weapon in the hands of those men that are seeking to perpetuate control against their partner or their family.

Survivors also want to be kept in the loop about any changes or variations that might be made to Intervention Orders by the courts or the police, and they want a say in the design and delivery of appropriate penalties and behavioural change programs. They want the chance to collect and present evidence of the harm they have experienced – including nonphysical harm – in a supported, trauma informed environment. This means engaging professionals to help the survivor confront the perpetrator with the broader health, fi nancial and social impacts of their behaviour. As one service provider said:

With this support team, the survivor could be encouraged to develop a strong recorded, accumulative evidence case. And these other professionals could be empowered to confront the defendant about the harm that he is causing to his partner, and in many cases also to his children.

Survivors also said they want greater focus on perpetrator accountability by exposing the true impact of the violence on the lives of others, not just the aspects of the behaviour leading to criminal offences or breaches of the law.

Access to justice for survivors of domestic and family violence also means access to practical support to help recover and rebuild– and this includes fi nancial support, housing options, employment opportunities and mental health care. As one participant said:

I’d really like to see some kind of focal point, resources for [domestic violence] survivors. To support people to rebuild their lives. Getting the universities and tertiary institutions to help with retraining and teaching, employment. Somewhere where people can break back in. Including social life, as well as fi nancial security and employment.

Aboriginal communities want the right to determine their own strategies to response to domestic and family violence, and access to culturally-safe prevention strategies that focus on meeting the health, housing and employment needs of families – as well as locally-informed risk assessment strategies to protect against violence and abuse.

These changes – rather than amendments to legal tests or increases in maximum penalties for breaches of orders – are top priorities for those with lived experience of the system.

These priorities are unpacked in further detail in the Key Findings and Recommendations contained in the Report, which aims to equip lawmakers and policy makers with the best available information as they seek to give effect to a shared commitment to reduce the prevalence of family and domestic violence in our community. So far, the fi ndings have been welcomed by the South Australian Government, with some recommendations already implemented, including the removal of fi ling fees for the lodgement of private Intervention Order applications. Other recommendations, including those suggesting legislative changes and mandatory trauma-informed training for all fi rst responders, remain under active consideration.

The researchers would like to thank all individuals who participated in the qualitative interviews and surveys conducted as part of this research. Their generosity, resilience and determination to improve the Intervention Order system for others is truly inspiring. As one research participant said:

No legislation is good enough until people with lived experience have been consulted […] All these people with lived experience are not being heard. They are the ones that have the knowledge. Every time you don’t go to the coal face you miss the point.

You can read a full copy of the Report here. B October 2022 THE BULLETIN 37

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