How Victoria's family violence system fails some victims – by assuming they're perpetrators

In 2016, the Victorian Royal Commission into Family Violence revealed a series of gaps in the state’s approach to family violence, making 227 recommendations for systematic change.

While the royal commission, in accordance with the gendered nature of family violence, mainly focused on men as perpetrators, and women and children as victims, it raised important questions about female perpetrators and the effectiveness of family violence intervention orders.

An issue raised in the report was Victoria Police misidentifying women as primary aggressors in family violence incidents. The family violence intervention order system is Victoria’s primary tool for protecting victims of family violence. Other jurisdictions, internationally and domestically, have raised concerns about this issue, especially where the woman is in fact a victim of family violence.

My recently completed research explores the experiences of female respondents to family violence intervention orders through the perceptions of eight Melbourne-based family violence lawyers. The research highlights significant shortcomings with how the system operates.

Male perpetrators are committing ‘systems abuse’

The research found a proliferation of “systems abuse” by male perpetrators of family violence. This refers to the manipulation of the legal system by perpetrators of family violence. The National Domestic and Family Violence Bench Book recently identified this as a form of family violence.

Participants suggested there was a strong link between police misidentifying women as primary aggressors and male perpetrators manipulating the intervention order system. This can occur when police responding to a family violence incident are misled by the genuine perpetrator to believe that the woman has committed family violence and an intervention order should be taken out against her.

Read more: Victorian courts should expand their supervision of family violence offenders

Participants identified certain risk factors that may make female victims more likely to be incorrectly captured as a perpetrator. These include the use of self-defence, substance abuse, the woman’s cultural background and mental illness.

It was believed these characteristics may limit a genuine victim’s ability to communicate with responding officers and properly articulate their victimhood. It was particularly relevant for women from non-English-speaking backgrounds, and where police interpreter resources are scarce.

Participants also believed these risk factors presented a counter-narrative to how some police believe a victim of family violence should behave. If a female victim acted aggressively, possibly as a direct result of her own victimisation, police may be more inclined to believe she is the aggressor.

It was argued that some police officers believe that a woman who retaliates cannot also be a real victim, as if the two behaviours are mutually exclusive.

When victims consent to orders against them

After a victim of family violence has been misidentified as a primary aggressor and an intervention order has been applied for against her, she is likely to be encouraged to consent to the order. Reflecting Victoria’s court system generally, the intervention order system is “backed up”, so a contested hearing might not take place for at least six months.

Duty lawyers are also given minimal time with clients. As a result, their ability to articulate the respondent’s own victimhood to the magistrate is limited.

Participants suggested that even when they knew their client was a victim of family violence, consenting to the intervention order was often the least traumatic option for that victim.

Read more: Victoria leads the way on family violence, but Canberra needs to lift its game

When the system operates in this way, there is a huge accountability problem. When lawyers and police prosecutors know a mistake has been made but continue with the intervention order application, the perpetrator is not held accountable for their actions. Similarly, the genuine victim is denied access to appropriate victim services.

The greatest concern for participants in my research was that the intervention order may result in the woman temporarily losing custody of her children and increase the risk of homelessness. Additionally, if that order is breached, there is a risk of criminal charges.

Consistent family violence training is the way forward

This is not to suggest that the intervention order system is broken. But it needs to be improved.

Police, magistrates and lawyers do not have a shared understanding of the nature of family violence. While some practitioners have a deep understanding of coercive and controlling violence, and the complex dynamics of family violence, others still frame it as incident-based and strictly about physical acts.

Improved and more consistent family violence training is needed. Problems in the current system extend beyond improving police responses when trying to identify primary aggressors.

The difficulty of the policing task should not be underestimated. Without specialised training, the gatekeepers of the intervention order system are ill-equipped to navigate the complexities of family violence. Equally, a greater willingness among police prosecutors, lawyers and magistrates to recognise when a mistake has been made would ensure that the intervention order application does not go ahead in such cases.

Improvements at the policing stage would make it more difficult for perpetrators of family violence to commit systems abuse against a current or former partner. Importantly, change is needed to create a system that victims can view as a reliable tool to protect them from an abuser.