Accurately identifying the “person most in need of protection” in domestic and family violence law
By Heather Nancarrow, Kate Thomas, Valerie Ringland, Tanya Modini
When police are called to an incident of domestic and family violence (DFV), one of their tasks under DFV law is to determine whether a party is in need of protection from future harm. A concern that has arisen out of the application of DFV law is the inappropriate use of legal sanctions, in particular protection orders, against women who use violence in response to violence perpetrated against them. This often occurs where there are conflicting claims of abuse and can result in cross-applications and cross-orders for protection.
This research project focused on identifying areas of improvement in police and court practice in relation to identifying the person most in need of protection, taking account of an ongoing pattern of abuse characterised by coercive control.
Key findings:
Women—especially Aboriginal and Torres Strait Islander women—are being misidentified as perpetrators on protection orders and the effects of this are far-reaching.
Police culture impacts on the accurate identification of the aggrieved/respondent, for example, through pervasive, stereotypical assumptions about victim behaviour. Police practice also focuses on single incidents of visible or physical violence, which compromises the intent of DFV legislation to provide protection from future harm (by identifying patterns of coercive control).
Police sometimes err on the side of caution in making applications, deferring to the magistrate to determine if an order is warranted. However, magistrates in turn may rely on the initial assessments made by police, as may prosecutors. This can create a pinball effect where each decision-maker defers to another’s assessment of the appropriateness of an order. Accordingly, this means that accountability for that assessment is unclear.
Perpetrators use a range of tactics of systems abuse, such as making false allegations, which can result in inaccurate identification of the person most in need of protection. Once a woman has been identified as a perpetrator, this can then also be used a tool for systems abuse by perpetrators (for example, through threats to call the police).
Key recommendations:
Create guidance for police on identifying patterns of coercive control.
Improve processes of decision-making and accountability between police and courts.
Create guidance for magistrates on how and when they can dismiss inappropriate applications and/or orders
Sydney: ANROWS, Australia’s National Research Organisation for Women’s Safety 2020. 134p.