Domestic Violence Specialist Courts - A Modern Solution to an Ancient Problem

Domestic violence (‘DV’) is an issue of growing concern in Australia and around the world, which has led governments to implement policies aimed at reducing its prevalence and adverse outcomes (ALRC, 2010, 19-24). One policy has been the implementation of experimental domestic violence specialist courts (‘DVSC’s) which aim to improve victim outcomes, offender accountability and efficiency (Pinchevsky, 2017, 557-600). This paper will explore traditional legal approaches to DV and compare them to outcomes observed in DVSCs in Southport and Western Australia.

Domestic Violence – An Escalating Concern in Australia

While women’s rights to equal pay, social participation and liberty continue to expand (Stockstill, 2014, 2-3), Men’s Rights Activists (MRA’s) have sought to undermine the feminist agenda, proposing that this expansion has resulted in a damaging contraction of men’s rights and vilification of masculinity (Salter, 2016, 3-4). Feminist scholars have asserted that, because of the expansion of women’s rights in the public domain and the failure of MRA’s to contain them, DV has increasingly been utilised by men in the private confines of the home to reassert patriarchal power, control, and dominance over women (Katz, 2015). Thus, while the gendered power struggle for equal rights has substantially improved women’s position in society, the subsequent reaction of some men, who desperately cling to their power and ideological construction of masculinity, has served to perpetuate a ‘private’ domination and control of women’s liberty, position and self-actualisation through DV (Stubbs, 2010, 973-5).

DV is broadly defined in Queensland, at law, in the Domestic Violence and Family Protection Act 2012 (QLD) (‘DV Act’) s 11 to include, inter alia, emotional, sexual, physical and financial abuse. These catch-all provisions in the DV Act represent a legislative reaction, first recommended by the Australian Law Reform Commission (‘ALRC’) (2010, 15-19), to increasing community and departmental concern about domestic violence against women (see, for example, the DV Act Explanatory Note 2012, 1-3). When it is considered that from the age of 15 one in five women experience sexual violence and one in four women experience emotional abuse (ABS, 2017), these concerns were more than justified. Moreover, the effects of DV on victims are devastating and have severe impacts on victims’ financial position, mental health, physical health, and social engagement (Theobald, Murray & Smart, 2017). In 2016-17 one in three hospitalisations for assault injuries were the result of domestic and family violence (AIHW, 2018); in 2017-18 121,000 clients assisted by homelessness services were victims of domestic or family violence and from 2014 to 2016 one woman was killed every nine days by an intimate partner (AIC, 2017). Thus, the Government has been forced to squarely confront DV and instigate legislative and policy-based change to mitigate its effects and reduce its prevalence (Theobald, Murray & Smart, 2017).

Australia’s Outdated Legal Response to DV

The traditional legal response to DV in Australia, although differing slightly from state to state, comprises of four separate jurisdictions (Zhang, 2016, 40-1). Firstly, civil, where applicants may obtain domestic violence orders (‘DVO’s), or interim DVOs while criminal proceedings are stayed (eg the DV ACT). Secondly, criminal, as breaching a DVO amounts to a criminal offense and often DV involves other criminal offenses like grievous bodily harm, assault, rape, fraud, stealing or murder/manslaughter (see for example the Criminal Code Act 1899 (Qld)). Thirdly, care and protection of children who are victims of family violence, which is usually governed by a separate court supported by an inquisitorial fact-finding body (see, for example, the Children and Young People Act 2008 (ACT)). Lastly, the Federal Circuit Court and Family Law Court exercise jurisdiction over property disputes on separation, child custody arrangements, and family dispute resolution (see, for example, the Family Law Act 1975 (Cth) ss 60CF, 60CG, 60J, 67ZBB). This existing framework of late-stage management of DV and related issues, while substantive, is disjointed, clunky and inefficient due to the separation of jurisdictions and lack of integration and information sharing between courts (ALRC, 2010, 19). To deal with these challenges, the ALRC (2010, 19-24) recommended the functions of each of these jurisdictions be combined into a ‘one court’ approach, otherwise known as a ‘domestic violence specialist court’ (‘DVSC’), which, aim to support victims and improve outcomes.

An Experimental Modern Approach – the DVSC

Searching for a Common Purpose

The first DVSCs were established in the late 1990s as a response to an influx of domestic violence cases flooding western criminal justice systems and to tackle criticism regarding the traditional court’s ability to effectively manage perpetrators of DV and respond to the needs of victims (Pinchevsky, 2017, 559). As of this year, there are over 250 DVSCs in western common law countries striving to approach and manage DV in a more efficient modern way (Holder 2019, 1-2). However, these modern DVSCs vary greatly in their aims, approach to managing DV, and functions and services offered (Labriola et al., 2009; Cissner, Labriola, & Rempel, 2013). Also, evaluations of the outcomes achieved by these courts are scarce (Pinchevsky, 2017, 559-600). Governmental research papers and professional studies that do explore these outcomes generally do so by comparing DVSCs with that of traditional courts (see, for example, Department of the Attorney General (‘DOAG’) 2014; Bond, Holder, Jeffries & Fleming, 2017), omitting explorations of differential outcomes for offenders and victims based on the structure, policies and services offered by separate DVSCs (however, see Cissner, Labriola & Rempel, 2013). This omission is critical, as the differing approaches between DVSCs may impact victim and offender outcomes (Mitchell, Wilson, Eggers, & MacKenzie, 2012; Pinchevsky, 2017, 559-600). Pinchesky (2017, 571-2) compared two specialist DVSCs, finding on the quantitative data that offenders before both courts had substantially similar rates of recidivism. However, Pinchevsky (2017, 573) conceded that qualitative data from victims and offenders may serve to identify the beneficial social and communal outcomes DVSCs can provide.

Emerging Common Goals of DCSCs

Nevertheless, while the objectives of different DVSCs may differ, a growing body of literature is emerging which outlines some key policy objectives of DVSCs  (see, for example, Gilligan & Lee, 2005; Holder, 2016; Ministry of Justice, 2014; Moore, 2009; Westmarland & Kelly, 2012). One critical objective for DVSCs is the role of the victim in the dispute resolution process, beyond merely providing support (Blagg, 2008, 15).

Offender Accountability

While increasing offender accountability is typically associated with more severe sanctions, swift responses to breaches of DVOs, and a greater number of arrests (Moore, 2009), another more preferable definition centers on the offenders’ response and capacity to accept responsibility for their wrongdoing (Gilligan & Lee, 2005). According to Daly (2016), offenders ‘owning up’ to their actions is a key goal for victims of DV. Holder (2018) argues that offender accountability consists of the offender admitting culpability, recognising their wrongful behavior and showing an intention to change it. Arguably, DVSCs are more equipped than traditional courts to give effect to offender accountability due to the wide range of orders available to them from both civil and criminal jurisdictions (Bond et al., 2017, 14-5). Moreover, from the perspective of stakeholders at the Southport DVSC, specialist Magistrates are uniquely able to maximise offender accountability due to their expert knowledge and ability to case manage offenders (Bond et al., 2017, 81). Therefore, victims are likely to have a higher chance of offenders owning up to their actions, and perhaps even atoning for them, if their case is run through a DVSC, allowing them to ‘put their abuse behind them’ and move towards overcoming it (Miller, 2011).

Safety of Victims

The majority of DVSCs aim to improve the safety of victims (Daly, 2016). The concept of victim safety can be split into two distinct types: short-term safety of victims in and outside of the court and long-term safety from future DV (Bond et al., 2017, 15). DVSCs manage short-term safety by providing support services, security, and the opportunity to minimise retraumatisation of victims through their combined jurisdiction and information transparency/ sharing (Zhang, 2016, 42-3).  While Johnson (2010, 11) asserts that courts have limited ability to impact victims’ long-term safety, DVSCs are uniquely equipped to provide the financial advisory services, counselling, rehabilitation programs and remedial orders required to provide victims with security and the ability/ tools to escape future DV (Minaker, 2001).

Administrative Fairness and Efficiency

Lastly, most DVSCs aim to afford victims and offenders procedural fairness, while also maximising the efficiency of processing cases (Bond et al., 15, 2017). This is effectively achieved by merging all jurisdictions relating to DV and family violence mentioned above into one court, greatly improving information sharing, the victims’ sense of fairness of outcome, and the speed of processing matters (Bond et al., 45, 2017). However, this invariably must be weighed-up against the higher cost compared to traditional courts required to maintain the specialist magistrates, support staff and services (see, for example, Bond et al., 2017; DOAG 2014).

Case Study – Western Australian DVSCs vs Southport DVSC

The DVSCs in Western Australia (‘WA’) offered case management of matters, rehabilitation programs. advocacy assistance, and victim support services (DOAG, 2014, 3). However, the court staff, police prosecutors and legal practitioners were not dedicated to DV matters while the Magistrates worked part-time in the DVSC and part-time in the Magistrates Court (DOAG, 2014, 6). The DOAG (2014,) found, that these DVSCs had a substantially higher cost per matter heard than traditional courts, while simultaneously increasing the risks of recidivism, leading to the DOAG recommending the DVSCs to be re-developed. In their examination of the Southport DVSC, Bond et al (2017, 55-65) identified that specialist staff are critical the success of DVSCs as these staff have more developed knowledge of DV and related issues, more time to allocate to case management and better rapport with victims (Labriola et al., 2012). Despite the lack of specialist staff, however, the DOAG (2014, 14-15) identified through qualitative interviews and surveys that victims were extremely satisfied by the service they received through the WA DVSCs. The interviewees particularly highlighted the benefits of the courts case management, safety procedures, the emotional support they received and a sense of empowerment throughout the process (DOAG, 2014, 15), suggesting that, although these DVSC’s failed to reduce reoffending, they made the process substantially less traumatic for victims (Law Reform Commission of WA, 2008, 132-33).

The DVSC in Southport provides substantially similar services to its WA counterparts. However, relevantly for victims, their support services include full-time counsellors, financial advisor’s legal assistance, magistrates and other support services (Bond et al., 2017, 32, 60-9, 149-150). While data on recidivism from the Southport court is not available, Bond et al (2017, 77-80) found that the process and outcomes resulted in superior outcomes for victims. Surveys of victims who utilised the Southport DCSC reported that 92.5% of victims believed they were treated with respect, 85.2% of victims viewed the process as fair, and 69.8% had no concerns about their safety coming into court (C.F just 56.3% responding with the same for the Ipswich Magistrates Court). From the perpetrator’s perspective, Bond et al (2017, 82) found that 54% of perpetrators processed by the Southport DVSC understood that their behavior needed to change compared with just 22.2% in Ipswich. Quantitative data also suggested that the specialist magistrate’s ability to tailor sentences through expert knowledge and case management greatly contributed to offender accountability. This suggests that a full-time DVSC will produce the best outcomes for victims.

Conclusion

With victims who pursue case under the traditional court system, there is high risk of retraumatization and onerous legal costs with no guarantee of a positive outcome. Whereas, if victims pursued their claims against Offenders in a DVSC like Southport, where they can obtain specialist support services to manage their economic, social and psychological wellbeing, they are far more likely to have a positive outcome. Thus, while not guaranteeing a positive experience, a Southport style DVSC will give Victims the best chance of settling their dispute, allowing them to ‘move on from their abuse at a lower cost than the traditional approach.

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