Does the Australian Family Law System Do Enough to Respond to Family Violence - Coursework Example

Running head: AUSTRALIAN FAMILY LAW Australian Family Law [Writer’s name] [Institution’s name] Australian Family Law Domestic violence has always been a serious issue in Australian society, there has been a lot of attempts to resolve the issue by many different kinds of laws. The legal system seems to be ineffectively looking into issues of domestic violence; as there are limitations to the family court and method that might be barrier for it and is no successful in reducing domestic violence. The lack of efficiency by the laws, results in an ineffective system as the laws might not necessarily be fulfilling the requirements. Nevertheless the legal system efficiently solve domestic violence in many ways, people now are fully aware of domestic violence and the laws which can be implemented on it. Many other legislations have been designed to fulfil all requirements of different areas of domestic violence. The lack of efficiency by the family court law has long been the limitations towards solving domestic violence, because of the lack of funding; many staff that is handling emotionally abused victims is not well trained. Victims often report that when they have approached services for assistance, they have felt blames, or that their experience has not been taken seriously. 'The Domestic Violence (Family Protection) Act 1989' States that Under the Act, the victim, a police officer or authorised representative such as a solicitor may apply for a Protection Order to protect against future acts of domestic violence1. Many services do not have the appropriate equipment to properly register for an AVO (Apprehended Violence Order) there are only a few service which provides free legal advice and representation to obtain the order (AVO). The number of women that the service has the capacity to cater for is diminutive, not only does this apply towards legal advice and representation, but also refuge centres. There has been 15000 places available in a refuge centre in 1991 and 30000 women who was in potential danger was rejected due to the lack of space and funding2. Domestic Violence is an offence. It is should be handled by legal intervention like violence is between strangers the most important issue regarding a woman who has been, is being, or is about to be, assaulted is immediate protection3.. By turning woman down from refuge centre they have the potential to be assaulted again, if not killed. Many woman has fear of retribution by their partner, often a violent man will threaten to kill the victim love once if she leaves or seek help, this fear often becomes a reality, thus, the victim often risk been killed or brutally abused when she seeks help or refuge. The lack of importance given by the family court make it impossible for the woman to escape from their partner or find help, when all else fail they are forced to return to their partner, where they are often assaulted or at extreme cases killed. Homicide statistics shows that of 150 killings between adults in intimate relationships, 121 victims were of female, who has seek help or has intention to seek help in the future. This lack of appropriate service not only derives from services outsider law reinforcements, but also within the police force. The Domestic Violence (Family Protection) Act 1989 gave police considerable powers to take action in domestic violence situations, the act states: "Police have a duty to investigate reported complaints of domestic violence"4. This duty is often not carried out, in the case exposed in 'today tonight' on the 1st of June, a woman name Sonja has been abused by her partner and trapped insider her house, when she escaped to the police station, the police refuse to hear her complaints and file a report, when Sonja's partner discover Sonja was missing, he went to the police station and retain her, the police had no objection to Sonja been taken back to her home by her abusive partner. The police drove Sonja and her partner home, when the police walked back towards the car from Sonja's home, they heard screaming, they broke into the house, only to find Sonja been held with a gun to her head and they fled, Sonja was killed. This report clearly shows the consequences of a domestic violence case not been properly handled. The police in this report have not fulfilled their duty, not only this, but they fled at the sight of a gun, leaving the innocent to die. This is just one of the many cases which show the limitations of the legal system to effectively address domestic violence. This revelation of police force as an unreliable means of achieving justice even more For some NESB communities, contact with the police and the legal system has been extremely negative... in their contact with the Australian Legal system they may have experience racism and hostility The legal system has effectively and efficiently solve many Domestic Violence related issue, however development and improvement is still needed towards the funding for particular woman organizations and refuges. There is a need for reform in the police department where officers must be trained to deal with domestic violence or there must be more DVLO for the increasing demands. The increasing awareness about Domestic Violence through campaigns, media and organization in communities act as a mechanism itself that encourage community involvement in Domestic violence, this involvement brought changes such as a DVLO introduced to be specialized at dealing with domestic violence, more organization developed by woman in the community who wishes to be actively participating involving Domestic violence. Thus developments are still being made to effectively address Domestic Violence. In the amendment of 1981 to the Crimes Act 1900 (NSW), the legal system worked to prevent marriage rape, it stated that there was no 'acceptable way' to force the spouse to have in course if he or she did not want to which meant that forced intercourse would be considered as rape and thus a form of domestic violence. In an other such law the Family Law Act 1975 (Cwlth), both spouses have to respect and support each other which means no mental or physical torture. Even when it seems that the following law is difficult, the courts can impose it, as it was exhibited in Eliades v Eliades5. To protect spouses from domestic violence apprehended domestic violence orders have been developed, although there has been some criticism at how effective an ADVO is after the deaths of Andrea Patrick in 1983, Jean Lennon in 1996 and Irene Davis in 1997, by men they had issued ADVO's against6. These cases show how ineffective laws are if certain people choose not to comply. Jean Lennon was shot out the from of the family court while awaiting a custody hearing, by her husband with a gun he had no licence for. After each death there was a push for state government to review the laws on domestic violence to provide more effective protection. Women over 16 can now also obtain an Apprehensive Violence Order (AVO) if she can prove that, on the balance of probabilities, that she fears violence or harassment by the defendant. Victim's rights have also been progressively more recognised by the law and can help women who are threatened with violence. Counselling services in areas of sexual assault and domestic violence have also been introduced. The violence against women (family violence) is an enormous global issue, which is hindered by lack of knowledge, lack of prohibitive laws and the disregard by authorities (public) for example the police, to enforce the existing laws, which are themselves flawed law reform can never be expected to do the job - for the so-called reformers are all men; women hold no positions of power in the law-making process. Family violence also includes not only violence towards the spouse (women) but also includes violence towards siblings by the dominant partner in most cases the male. Under the Australian legal system a person who is a victim of domestic violence or any other kind of victim does not automatically have the right to a lawyer. Though, there is widespread recognition that in a criminal trial a person without legal representation is unlikely to receive a fair trial. To try and overcome this problem, legal aid has been established. The New South Wales legal aid commission provides advice and representation to victims of domestic violence who cannot afford their own lawyer. The legal aid commission provides basic legal advice in which the first 15 minutes is available free of charge to any individual. Before a person can be represented by the legal aid commission they must: Have a reasonable chance of winning the case, this is known as the merit test, the merit test applies to civil cases and criminal appeals. The person must have a criminal or family law matters (though matters such as discrimination and civil liberties may be accepted.) The individual must also pass the mean test to Asses whether the person can really afford to pay for there own legal representation. Under the current regime, the Court only makes orders removing parental responsibility when it considers that it is not in the child's best interests that a parent continue to have responsibility for the child (for e.g. in cases of suspected family violence, such as Re David 1997. The Family Court does not deal with initial breaches of parenting orders, but it does refer these to the counsellor division of the Family Court so that the dispute can be dealt with. If there are continued breaches of an order the parent can be held in contempt and this could result in fines, restitution or imprisonment. Similarly, another report by the Australian Institute of Criminology (that focused on the impact domestic violence was having on young Australians found that there were high-risk pockets of the community that deserved priority in assistance7. These were found to be Indigenous communities, wherein the level of family violence was described as high and "endemic". Whilst removal from immediate danger is obviously a key factor in protecting young Australians, it would perhaps need to be on a provision of removal to the closest non-violent person in the child's life, or to ensure that siblings were not removed from each other. But in a turbulent environment such as a violent home, the relationships between siblings would perhaps be too important for the child to break. The Western Australian amendments broaden the definition of “family and domestic relationship” and the grounds on which an order can be made. As in Tasmania, the Act now includes the new ground of “ongoing emotionally abusive behaviour” and allows for an order to be obtained protecting a child from exposure to domestic violence. It is no longer necessary to prove that it is likely that a person will be directly violent towards a child8. The Federal Magistrates Court was set up also in an attempt to reduce Family Court matters such as domestic violence and provide a quicker and more simplified system of access to the federal jurisdiction9. Before this court was set up, the Family Court was overrun with a lot of cases that did not need to be resolved by this court causing further delays. Lengthy delays create additional costs and stress for those involved and make it difficult for them to get on with their lives. Delay minimization programs undertaken by the Court can help in the short term. The family court is also the first step for the victims of domestic violence. They rely on law enforcement, courtrooms, and other legal agencies to help them receive the help that they need to either reconcile their relationships with their abusive partners or to escape those relationships altogether. By providing offender treatment options those seeking to reconcile may find it easier to do so and those seeking escape will find it helpful because they won't have to worry about retaliation from the offender. By fully aware of what domestic violence is the Australian family justice system can successfully fulfil legal needs of the victims as well as the perpetrator and assist in making such laws that people realize that domestic violence is an essential issue10. The courts of family law should be fully aware of symptoms exhibited by domestic abuse victims, the reasons behind it, and recommend laws by which that victim can be helped and also give therapy to the offender. They need to join hand implement laws in which offenders are not only sentenced to jail but are also given treatment for their aggressive behaviour. The legal system should have their own programs in a given area for providing domestic violence treatment to offenders along with their families. The Domestic Violence, Crime and Victims Act 2004 was introduced to increase the protection, support and rights of victims and witnesses 11. It also gives the police and other agencies the equipment they require to get to the root of the problem. Another important law in Australia pertaining to domestic violence is the domestic violence and protection orders amendment bill 2004: “The amendments were undertaken in response to a legal requirement to examine the Territory’s domestic violence and protection orders legislation for consistency with Model Domestic Violence Laws, and review the operation of the provisions relating to domestic violence and personal protection orders.12” The family law in Australia charges offenders with domestic abuse and sentence them to probation. However the courts know which sentence to reduce which to increase. Some offenders get away by just paying fines and some are put under strict electronic monitoring, this is similar to house arrests” The Australian family court knows that if action is taken against domestic violence the offender might hurt the victim again , still a lot of sanctions which the Australian family court uses are not enough to protect the victims from further harm 13. Due to this, it is very important to give support for the victims if they have finally made a decision to leave their abusive spouse. The court has avoided any kind of support services for victims and thus there is no intervention or treatment programs specially provided by the courts. The victim has to look for such services on his own. Currently, Australian Family laws are not strong enough and supportive to minimize or reduce domestic violence, they do not even have treatment options for the offender but with any luck, the law will be improved as the public feels the need to reduce domestic violence. Conclusion Domestic violence is a scarily prevalent aspect of contemporary society, and while the governments have implemented various laws to combat it, there still lies the figure of 80% of abused women who will never admit they need help14. Domestic violence is not to be taken lightly as it may lead to murder or even rape. Crimes with huge consequences is what domestic violence is . The Australian family court should realize that it a about time they made sure that the abuser gets severely punished so that and example an be set. Marriage or intimate relationships are meant to be respected not abused and those who abuse them should be punished. The law should implement sanctions on such people. They should make the system easy and comfortable one so that the victim can easily approach the legal system for help. Domestic violence is serious issue. The Australian family courts should it seriously. They should make more laws which are stricter in nature. So that the abuser think twice before lifting hand on his spouse. The important thing is to not draw lines where the law has drawn lines – the law should be ready to help any victim of domestic violence without considering of their culture or religion. A truly strong family law system does not draw neither does not have any limitations to what it can do, it can make new laws and discard the old one, which the government had implemented. Likewise, the law should be strong enough to support the victims no matter the family court should promote safety campaign, like Indigenous communities, rural Australians as they get the lowest priority regarding to the Domestic Violence initiative). The laws have started to change a lot but the problem seems to remain the same. The laws should tackle the basic injustice to be dealt with in terms of domestic violence in Australia, how it is perceived and dealt with, and how it is stopped. The family law has to implement the treatment of these aggressive persons to finish high rates of recidivism so that victims in the near future can be protected from domestic violence. References Books: Alexander, R. (2002). Domestic violence in Australia. Melbourne: The Federation Press. Alexander, R. (2006). Family law changes: Privatising family violence. DVIRC Quarterly, 2(winter), 6-10. Eekelaar, J., Maclean, M., & Beinart, S. (2000). Family lawyers. Oxford: Hart Publishing Behrens, J. (2006). Barriers to meeting the needs of victims of domestic violence in the family law system. In B. Smyth, N. Richardson, & G. Soriano (Eds.), Proceedings of the International Forum on Family Transitions (pp. 231-234). Melbourne: Australian Institute of Family Studies Cohen, H. (1980). You can negotiate anything. New Jersey: Lyle Stuart. John Dewar, Stephen Parker (2003); Family law: processes, practices, pressures: proceedings of the Tenth World Conference of the International Society of Family Law Hart Publishing Renata Alexander (2002); Domestic Violence in Australia The legal response 3rd edition The Federation Press Journals: Behrens, J. (1995). Violence in the home and family law: An update. Australian Journal of Family Law, 9(1), 70-75 Cleak, H., Bickerdike, J., & Moloney, L. (2006). Family mediation and women's services: Towards effective referral. Journal of Family Studies, 12(2), 185-202. Conley Tyler, M., & McPherson, M. (2006). Online dispute resolution and family law mediation. Journal of Family Studies, 12(2), 165-183. Fogarty, J. (2006). Unacceptable risk: A return to basics. Australian Journal of Family Law, 20(3), 249-295 . Websites: Australian Capital Territory Bills Explanatory Statements (2004); Domestic Violence and Protection Orders Amendment Bill 2004 retrieved from http://www.austlii.edu.au/au/legis/act/bill_es/dvapoab2004482/dvapoab2004482.html on April 6, 2009 Family Law Update (2005); Changes to Federal Family Law and State Domestic Violence Legislation, Retrieved from http://aifs.org.au/institute/pubs/fm2005/fm70/cc.pd on April 6, 2009 Henley law (2009) Domestic Abuse retrieved from http://www.henleylaw.co.uk/DomesticAbusePage.html on April 6, 2009 Read More