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KAREN WILCOX[*]
Each Monday, in each of four regions across Tasmania, a senior, specially-trained police officer meets with prosecutors, state-funded adult counsellors, children’s counsellors, legal aid, court support and child protection workers. Details of every domestic violence incident in the region since the previous week’s meeting are discussed. Relevant case material is added and referrals are taken. Problems in policing will be identified here, and will be addressed at station level by the supervising sergeant. Any systemic, protocol or policy issues which arise are conveyed to regional and statewide interdepartmental committees, which also meet weekly to resolve program-related issues. Meetings are focussed and outcome oriented. This remarkable integrated system is the product of a revolutionary response to domestic violence — the Safe at Home program.[1]
The Tasmanian Safe at Home program was enabled by the Tasmanian Family Violence Act 2004. Proclaimed in March 2005 and accompanied by an extensive community education campaign, the new laws have propelled significant changes to policing of domestic violence and have been accompanied by the funding and establishment of impressive support services, which are integrated within the program. Safe At Home is arguably the strongest, and potentially the most effective criminal-justice response to domestic violence yet seen in Australia.
Commentary on this new system and its accompanying legislation has been scant outside of Tasmania. This article addresses this sparsity of information by reviewing some of the key features (and controversies) of Safe at Home and the Family Violence Act 2004. These features include the Act’s scope, definitions, new offences, new orders, bail provisions and enhanced police powers. Each of these will be examined in turn.
The Tasmanian initiative provides inspiration to those on the mainland interested in seeing improvements in the effectiveness of state and territory domestic violence legislation, alongside coordinated local service integration.
The Safe at Home program emerged from significant political and public sector commitment and has been designed with great attention to detail. Planning was based on the successes of the Duluth (US) and Hamilton (NZ) integration models[2] and the program was resourced with substantial ‘new money’. The program synchronises comprehensive law reform with substantial changes to police practice and a coordinated structure of other supportive interventions designed to respond to the needs of victims. Crisis and court support, policing, Legal Aid, counselling, offender rehabilitation and child protection are integrated within the program, and data are shared between agencies using a single information management system.
The Tasmanian Family Violence Act 2004 is the linchpin of the Safe at Home system. The Act reflects a ‘two-pronged’ approach to legal intervention, namely a criminal and quasi-civil/injunctive framework for protection of victims of domestic violence, which is integrated both within the legislation and in its implementation by police. The Family Violence Act 2004 is concise, yet contains a number of innovations, such as new offences, new restraining orders, new bail provisions and amendments to related legislation, including criminal, sentencing, evidence, tenancy and child protection laws (s 44). The objects of the Act acknowledge the importance of the psychological wellbeing of victims and their children, as well as their safety and interests. Hence, the Tasmanian legislation provides a unique framework for guiding interpretation that prioritises victims. This is of particular significance where there may be potential conflict with the rights and interests of perpetrators, as is often the case in the determination of orders.
The definition of family violence in s 7 of the Family Violence Act incorporates a broad range of behaviours used by perpetrators to sustain power and control in relationships. It is therefore a conduct-based definition, but the range of conduct in the Act is broad enough to include many elements of abuse missing from definitions in other jurisdictions. The definition includes non-physical abuse, such as verbal abuse, intimidation, coercion, stalking, threats, abduction, emotional abuse and economic abuse. The inclusion of economic abuse in a definition of family violence is an Australian first.[3] It incorporates the withholding of financial support, maintenance and money for household expenses, coercion to sign over assets, exclusion from financial decision making and disposal of property (s 8).
The Family Violence Act is also the only Australian domestic violence legislation which includes sexual assault in its definition of domestic/family violence.[4] As the authors of the recent Victorian Law Reform Commission Report note, this enables victims of sexual assault to apply for protection orders, hence unifying responses to sexual and domestic abuse in relationships.[5]
The Family Violence Act applies to those in partnership relationships and ‘affected’ children. Key provisions of the Act apply to a person’s ‘spouse or partner’, which is subsequently defined as ‘a person with whom the person is, or has been, in a family relationship’ (s 4), which, for non-marriage relationships, is defined using the definition of ‘significant relationship’ in the Relationships Act 2003.[6]This circuitous definition of persons covered by the Act reflects a traditional understanding of domestic violence, although it does extend to same-sex relationships and ex-partners. Kinship and family relationships in Indigenous communities, non-partner ‘elder abuse’ (including child to parent abuse), and child abuse[7] are not covered by the Act, and this is arguably a weakness.[8] In addition, relationships such as those of dating couples are not defined as ‘significant’ under the Relationships Act, so victims (who are usually women[9]) subjected to abuse in these relationships,[10] are not protected under the new legislation. The exclusion of these relationships from the provisions of the Act constitutes a potential shortcoming.
Other provisions within the Act (including protection order eligibility and financial interests under the economic abuse provisions) also apply to ‘affected’ children. In determining whether children are ‘affected’, the child’s psychological wellbeing and interests, as well as safety, are considered (s 4). Domestic violence may not always be visible to children, but the atmosphere of fear and trauma within the family may nonetheless impact on their wellbeing. The Tasmanian legislation provides children with enhanced access to protection orders than is available in other states, where, for example, orders may be obtained for children who experience, see or hear violence[11], but where this wellbeing in regard to domestic violence is not considered.
Also noteworthy for mainland domestic violence law reformers are the three additional offences created by the Act. These are:
• economic abuse (s 8)
• emotional abuse and intimidation (s 9) and
• assault on a pregnant woman (s 44).[12]
Economic abuse is included both in the definition of violence, noted above, and as a specific offence. It carries a comparatively substantial penalty of 40 penalty units or up to 2 years imprisonment, the severity of which has been the subject of criticism by the Tasmanian DPP.[13] The definition of the offence contains a comprehensive list of proscribed conduct (s 8).
Nonetheless, prosecution of this offence may prove to be difficult, as the definition also refers to offender intent to unreasonably control, intimidate or cause mental harm, apprehension or fear. There have been no published cases to date under this section, although at the time of writing, a matter was before the court.
The offence of emotional abuse also carries the abovementioned penalty, and proving the offence requires demonstrating that the person ‘know or ought to know’ that the conduct is likely to ‘have the effect of unreasonably controlling or intimidating, or causing mental harm, apprehension or fear’ (s 9). Again, there have been no successful prosecutions published. Although this test is also subjective, Tasmanian experience with prosecution of stalking, the definition of which uses similar language (ie, that the offender ‘ought to know’ of the effect on the victim)[14], may provide police with practice guidelines in this regard[15]. However, the difficulties which beset stalking prosecutions in all jurisdictions may similarly hinder successful prosecution in regard to both these new offences[16].
A separate charge for assaults on pregnant women is also now available. The effectiveness of this amendment in enhancing women’s safety will largely rest on its application by the courts. Several charges have already been heard, although all offenders received suspended sentences[17] and only one was fined additionally.[18] In one matter, the offender had two prior convictions for assault and was also charged with two counts of assault for this incident. The Chief Justice’s comments on passing sentence suggest that the victim’s desire to resume the relationship was an important factor in suspending the sentence, in spite of the seriousness of the violence.[19] This demonstrates that there are still factors in Tasmania which impact on the successful prioritising of risk and safety under Safe at Home, as will be discussed later.
Other significant offences are breach of protection orders (s 35), with a sliding scale of penalties contingent on the number of breaches that have occurred,[20] and contravention of Rehabilitation Program orders (available under s 44).[21]
Several features of the protection order provisions of the Act demonstrate its groundbreaking nature. The creation of the new Police Family Violence Order (PFVO) is unique to Tasmania[22]. In Western Australia, currently the only other state with police-issued orders, such orders are temporary in nature and are intended to function as emergency orders, with a limited duration of 72 hours at most.[23] In contrast, the Tasmanian PFVOs may operate for up to 12 months.
Police Family Violence Orders (PFVOs) can be issued by officers of Sergeant or higher ranking, or by other police with the Commissioner’s delegated authority[24] (for example, in rural or remote areas), if they are satisfied that a family violence offence has been, or is likely to be, committed.[25] These orders have been contentious. For example, the President of the Tasmanian Law Society, at the time the Act was introduced, argued that the orders ‘will be a usurpation or impermissible interference with the judicial power by the Parliament…(and) will be the subject of a challenge in the court’.[26] Such a challenge has not yet eventuated. However, it is the opinion of this author that PFVOs are not unique in creating quasi-judicial powers, as there are administratively determined injunctions and orders available in many other areas of law, including tenancy and traffic laws. PFVOs are an important component of a legal framework aiming to enhance victim safety and wellbeing. They provide immediate protection for victims and remove the necessity for court appearances, which often present practical difficulties for victims with childcare, cultural or financial needs. PFVOs also reduce the impact of the program on court lists, so that more serious matters may be dealt with expeditiously. Applications for variation or revocation may be made to the court, and this provides a safety-net for defendants.
Court issued orders, Family Violence Orders (FVOs), are also available under the Family Violence Act, and these include many of the progressive protection order features found in other jurisdictions, such as ex parte orders, granting of orders by the court at hearings for an offence and presumed service.[27] The granting of FVOs is based on the court’s satisfaction, on the balance of probabilities, that:
(a) a person has committed family violence; and
(b) that person may again commit family violence
Orders are granted on the basis of the perpetrator’s past and probable future conduct. This test for orders is therefore comparatively narrow and contrasts with the victim-focussed fear test for the granting of orders, which is found in NSW, WA and SA legislation.[29]Tasmania appears to have adopted an expanded definition of violence to improve availability of orders, rather than a broader test. This has some advantages, as a victim’s emotional condition does not become a matter for the court, and consent by the victim to the order is not required. Rather, the court is directed to focus on the perpetrator.[30] This reflects the Safe At Home philosophy — that criminal justice intervention should not depend upon the victim’s wishes, but rather on management of risk and safety.[31] However, this approach is not without problems. Hunter and Stubbs note that a requirement to establish that the defendant is
likely to carry out a threat or commit another act of domestic violence… represents a significant hurdle for complainants, particularly those who, in order to ensure their safety, have separated. … Further, the lapse of time since the last incident … has also been erected as a barrier to proof.[32]
This hurdle becomes particularly important during applications to extend orders (necessary when magistrates do not exercise their option under s 19 (b) to grant orders without time-limits). An order that effectively deters a perpetrator will prevent incidents of violence, but at the same time this effectiveness exposes victims to the prospect that the test for the order will not be met. It is hoped that the risk assessment process (see below) addresses this hurdle.
The types of orders available vary between police and court issued orders, with court issued orders (FVOs) providing a greater range of possible conditions. Both PFVOs and FVOs allow for conditions requiring the surrendering of weapons, the vacating of premises (regardless of possession of any interest in the property), and that the defendant refrain from contacting, harassing, assaulting, or verbally abusing the affected person (ss 14, 16). FVOs may also include ‘such conditions as the court considers are necessary or desirable to prevent the commission of family violence’ (s 16 (2)). This paves the way for tailor-made orders to facilitate victim safety.
Exclusion or ouster orders, which include conditions that remove the perpetrator rather than the victim from the family home, are of topical interest within the sector and it is the author’s belief that Tasmanian legislation provides an Australian benchmark in this regard. These conditions are available under both PFVOs and court-issued FVOs. In addition, changes to the Residential Tenancy Act 1997 within the Family Violence Act enhance the practicality of these orders, as they allow the court to terminate a tenancy agreement in the name of the person against whom the FVO has been made and replace it with a new agreement for the benefit of the affected person (s 17 (1)). This provision enhances the promotion of victim safety and wellbeing. If risk can be managed by the victim remaining ‘at home’, then this is preferable to the disruption and ongoing stress experienced by victims and affected children through homelessness and relocation. Amendments to the Act contained within amendments to tenancy laws, which allow the courts to transfer a rental bond to the new tenant (victim) and to limit the victim’s liability during FVO proceedings, have been passed but not commenced.[33] These amendments will further enhance the practicality of exclusion orders.
Immediate protection and safety is also enhanced by a lesser test for the granting of Interim Orders. In making an Interim Order, the magistrate need not be satisfied that the test for final orders has been met (s 23). The Supreme Court has interpreted this broadly, with Tennent J noting ‘the discretion thereby granted [to the court] is obviously very wide and should perhaps be constrained only by the object of the Act’.[34] Given the focus on safety and psychological wellbeing enshrined in those objects, the Tasmanian law provides a good example of laws that facilitate the prioritising of victims’ wellbeing.
The range of persons eligible to lodge protection order applications is also more extensive than that found in mainland legislation. Applications for a Family Violence Order may be lodged by police or by affected persons, including children affected by ‘family violence’ (as defined in the Act), if the court is satisfied that the child is capable of understanding the proceedings (s 15 (2)). In enabling direct applications by children, the legislature has recognised the importance of empowering children to facilitate their own protection from exposure to domestic violence. This is consistent with other unique features of the Safe at Home program which prioritise the needs of affected children, such as the statewide, government-funded children’s counselling service.
Third parties, such as domestic violence workers, teachers or relatives, may also apply for orders on a victim’s behalf, if granted leave by the court to do so (s 15 (1)). This provision is likely to be of great value in situations where fear levels are high, or where the victim has complex needs, children are involved or the perpetrator is high-profile or working within the justice system. In a recent decision, the Supreme Court examined this provision and determined that the seeking of leave by a third party could be imputed from the lodging of an application for the order, circumventing the requirement for a separate application for leave.[35] Whilst the Act does not outline the issues to be considered by the court in granting leave for third parties, Tennent J has noted that in determining this, the court:
should consider the position of the person seeking leave, their relationship to the affected person and whether they may have acquired knowledge of the matters the subject of the application’.[36]
In doing this, she also dealt with possible hearsay questions arising from applications by a third party (in this case, the manager of a court support service). She ruled that exceptions to the hearsay rule applied to this matter, as long as the source of information is ‘obvious’, if not directly stated.[37]
Police also have standing to appear in revocation or variation matters, which is crucial to implementation of a ‘risk and safety’, as opposed to a ‘victim choice’, protection order regime. Following a controversial interpretation of the original Family Violence Act[38], the Act was amended to clarify the right of police to submit evidence regarding risk in situations such as those where a victim claims they are no longer in fear of the perpetrator.[39]
There have been fundamental changes to bail assessment under the Act. These changes reflect pro-safety law reform as well as recognition of the distinguishing features of domestic, compared with public, violence. In regard to family violence offences, bail can only be granted if the court or police officer is satisfied that its granting would not ‘be likely to adversely affect the safety, wellbeing and interests of an affected person or affected child’, and consideration of this must include risk screening, the offender’s demeanour and the availability of accommodation for the victim and their children (s 12).
The bail provisions have been controversial in Tasmania, having been criticised for establishing a presumption against bail which, critics argue, equates to an overturning of the principle of the presumption of innocence.[40] Justice Slicer has discussed the complexities and contradictions inherent in determining bail in family violence matters, noting the ‘conditional’ nature of bail as well as the court’s need for reliable material, so that they may quickly assess applications.[41] In this way, the opposing policies of personal liberty and protection might be incorporated within judicial decision-making. It is also the author’s opinion that the presumption of innocence has always been subject to limitations on the so-called ‘right’ to be bailed, which arise from public safety or public interest concerns. For this reason, limitations on bail are not unique to the Family Violence Act and can be found, for example, in regard to drug offences. ACT and NSW legislation also contain some limitations to bail for certain domestic violence offences.[42] In enshrining a consideration of victim wellbeing (and accommodation options) within bail provisions, the legislation recognises the practical difficulties that characterise domestic violence matters.
The legislation also includes extension of police powers to enable detention of persons suspected of committing a family violence offence for a period ‘reasonably’ required to assess risk and safety and implement necessary measures, determine charges or make an order (s 11(4)). This provision allows police to prioritise safety at the scene of situations deemed volatile, and is of great value to victims and children at high risk of escalating violence. What might constitute a ‘reasonable’ holding period has not been defined judicially, however the clear conditions required in the exercise of these powers under s 11(4) ought to allay community fears that have arisen in regard to holding powers granted under, say, anti-terrorist laws.
Prior to the introduction of Safe at Home, the Tasmanian coroner had delivered a scathing condemnation of policing in regard to a domestic homicide[43]. Changes in policing practice when responding to family violence have been rolled-out, supported by procedural detail and training, and most importantly, subject to ongoing accountability mechanisms across the state, including the weekly case coordination meetings described at the beginning of this article.[44] The practical value of this should not be underestimated, as locally-driven ‘integration programs’ on the mainland have often been undermined because of the absence of this key component.
The Safe at Home program, consistent with its criminal justice focus, also encompasses substantial policing practice changes, police training, specialist police Victim Safety Response Teams (VSRT) and regional VSRT Sergeants, who are required to oversee every incident response. As well as these practical measures, the Act itself creates a stronger policing response to domestic violence by enhancing police powers in regard to arrest (without warrant), entry, and search and seizure (ss 10, 11), as noted above.
Tasmanian police now assess risk for every family violence incident, using a specially designed risk assessment tool, known as the RAST (Risk Assessment Screening Tool).[45] RAST scores are used in determining the police response, and in variation applications and bail determination (s 12). Given that one of the pivotal tests for the protection orders is the likelihood of future violence, assessment of risk seems of greater relevance in determining this than other criteria such as character or employment history. However, the use of the RAST has led to some controversy, particularly in instances where the defendant has not had access to RAST documents. The Chief Justice of the Supreme Court has criticised the use of the RAST in this way as ‘contrary to the rules of natural justice’.[46] It may be that policy changes are required, in regard to the defendant’s access to RAST scores, in light of the Chief Justice’s argument.
The Family Violence Act has created a holistic response to domestic violence based on the management of risk and safety. However, some features of Safe at Home may warrant adjustment in order to remain consistent with this goal. These areas include dual accountability, the absence of a specialist court, the use of child witnesses and reliance on mainstreaming.
Under Tasmanian law, victims who consent to or initiate contact with perpetrators are held responsible for the breach and charged (instigation of a simple offence, Justices Act 1959 s 73). The philosophy of ‘dual accountability’ for compliance with orders, which underpins this practice, is controversial. It ignores the complexity of power in abusive relationships and appears to contradict Safe at Home program goals, which focus on offender accountability. The recent Victorian Law Reform Commission’s report notes that this also potentially re-victimises those who have experienced family violence.[47] A further issue is the concern that victims will be held accountable for the child protection implications of returning to (or not leaving) a relationship with an abuser. This may affect the willingness of victims to report domestic violence to police.[48]The complex factors that influence people in their decision-making, including their own assessment of risk, must be recognised in the development of law and policy at the intersection of domestic violence protection and child protection. Anything that might deter someone from reporting to the police an offence, or a breach of an order, undermines the program goals of enhancing safety. There is a need for tailor-made, and easily varied, orders to accommodate changes in victim’s circumstances.
The Safe at Home program coordinates and integrates all major players in the criminal justice system, with the exception of the DPP and the courts. The absence of a specialist court in Tasmania, such as that available in the ACT or Victoria, is a disappointing omission. Effectively resourced specialist domestic violence courts enable the greater achievement of legislative goals[49], due to enhanced training for magistrates and court staff, victim-friendly practices, defendant and victim legal representation and the exercising of concurrent jurisdiction in, say, family law. Specialist courts hearing civil and criminal matters concurrently enhance integration of these responses under a ‘dual-pronged’ approach to domestic violence.
The pro-prosecution policy introduced under Safe at Home increases the likelihood that witnesses, including children, will be compelled to provide evidence, which raises concerns regarding the vulnerability of children exposed to the further trauma of court. In contrast, in NSW, the domestic violence legislation specifies that children not be called as witnesses.[50]
As a mainstream response, the Family Violence Act does not allow room for discretionary application in response to the needs of a culturally diverse community. Nancarrow has suggested that the strong criminal-justice response to domestic violence preferred by non-Indigenous feminists may not reflect the preferences of many Indigenous women, who for many reasons may not be supportive of strong policing, or of the overriding of victim choice.[51] Indeed, there are many victims of domestic violence who have had negative experiences with the police, either in Australia or under regimes from which they seek asylum. They may prefer greater accessibility and support for privately initiated protection order applications. Victims in Tasmania have the option to apply for orders themselves, as noted above, but in doing so, remain outside the Safe at Home system, and this has implications in regard to costs, access to legal advice and representation and access to other advantages of the integrated system, such as counselling and case coordination.[52] The issue of victim choice in regard to legal responses to domestic violence requires further investigation, as this is an issue of some controversy within the domestic violence sector.
Although these issues may impact on the effectiveness of the legislation, the Safe At Home program pivots upon a capacity for responsiveness to issues and a fundamental belief in the value of such responsiveness. The Family Violence Act itself reflects this, with an evaluation requirement embedded in the legislation (s 43), and this provides scope for redressing emerging issues.
The Family Violence Act was the outcome of a unique constellation of political will and passion to do something about violence in the home — particularly against women and children — and it provides an inspiring framework for domestic violence law reformers. It has become an important part of the policing and social policy landscape in Tasmania. While some issues for improvement have been noted, the Tasmanian domestic violence legislation provides many benchmark features to inspire mainland law reformers. These include the safety-focussed bail provisions, broadened definition of family violence, use of risk assessment processes in determination of matters and the Police Family Violence Orders. Early indications suggest positive outcomes, namely that the introduction of the Act has led to an increase in reporting and applications for orders, as well as increased arrests.[53]
With domestic violence legislation in various stages of revision in Victoria, South Australia, NSW and the NT, mainland consideration of the development of a Tasmanian-style legal framework and authentic whole-of-government strategy for domestic violence is timely.
Since the writing of this article, the new Domestic and Family Violence Bill 2007 (Serial 120) before the Northern Territory Parliament has adopted some of the innovations contained in the Tasmanian Family Violence Act, namely recognition of economic abuse (s 8), acknowledgment of the significance of children’s “wellbeing” in the context of exposure to domestic violence (s 28), and replacement tenancy provisions (s 23).
[*] KAREN WILCOX has worked in the community sector and higher education sectors. She has degrees in politics and law and is currently employed with the Australian Domestic & Family Violence Clearinghouse.
© 2007 Karen Wilcox
Observations, interviews and information received during a study tour by the author inform this article. The author wishes to acknowledge the contribution of Julie Stewart to this research. The author also wishes to gratefully acknowledge the many Safe At Home service providers, Safe At Home managers, librarians and NGOs who provided information and time, as well as the research assistance of Judy O’Rourke. However, any opinions expressed in the article are those of the author.
[1] For further information about the details of the program, including structure and governance see <www.safeathome.tas.gov.au>; Karen Wilcox, ‘Tasmania’s Safe at Home: A whole of government response to domestic violence’ (2006) 26 Australian Domestic and Family Violence Clearinghouse Newsletter 5–8.
[2] For details of the evidentiary basis to the program, see Department of Justice (Tasmania), ‘Safe at Home Options Paper’ (2003) 25.
[3] Although the Domestic and Family Violence Protection Act 1989 (Qld) s 11(1)(c) gives an example of economic coercion of an aged parent as an example of ‘intimidation and harassment’.
[4] Victorian Law Reform Commission, Review of Family Violence Laws: Report (2006) 103.
[5] Ibid.
[6] Relationships Act 2003 (Tas) s 4.
[7] With potential exceptions noted below.
[8] Cf Crimes Act 1900 (NSW) s 562B(h), Domestic and Family Violence Protection Act 1989 (Qld) s 12B, Crimes (Family Violence Act) 1987 (Vic) pt 1 s 3.
[9] See Jane Mulroney and Carrie Chan, ‘Men as Victims of Domestic Violence’ (2005) Australian Domestic and Family Violence Clearinghouse Topic Paper.
[10] See, eg, Rosemary Hunter and Julie Stubbs, ‘Model Laws or Missed Opportunity’ (1999) 24 (1) Alternative Law Journal 13.
[11] eg, Crimes (Family Violence) Act 1987 (Vic) s 4A.
[12] Criminal Code Act 1924 (Tas) s 184A. The new Domestic and Family Violence Bill (Serial 70) (NT) s 8, has included economic abuse in its definition of domestic violence.
[13] Tim Ellis, ‘Letter to the Editor’, The Hobart Mercury, 11 September 2004. The new Domestic and Family Violence Bill (Serial 70) (NT) s 8, has included economic abuse in its definition of domestic violence.
[14] Criminal Code 1924 (Tas) s 192(2).
[15] See Allen v Tasmania Police [2004] TASSC 30 (Unreported, Underwood J, 6 April 2004).
[16] See, eg, Sally Kift, ‘Stalking in Queensland: From the Nineties to Y2K’ [1999] BondLawRw 8; (1999) 11(1) Bond Law Review 144.
[17] eg, Comments on Passing Sentence, Tasmania v Bradley Holton-Crane (Supreme Court of Tasmania, Slicer J, 17 August 2005); Comments on Passing Sentence, Tasmania v Curtis Roydon (Supreme Court of Tasmania, Underwood CJ, 28 July 2006).
[18] Comments on Passing Sentence, Tasmania v Jade Curtis Smith (Supreme Court of Tasmania, Evans J, 13 September 2006).
[19] Tasmania v Curtis Roydon, above n 17.
[20] Sentencing Act 1997 (Tas) ss 4, 7, 8.
[22] Family Violence Act 2004 (Tas) pt 4.
[23] Restraining Orders Act 1997 (WA) div 3A.
[24] Family Violence Act 2004 (Tas) s 14(1).
[25] Ibid.
[26] Daniel Zeeman, ‘Letter to the Attorney General, re: Family Violence Bill’, 16 November 2004 <http://www.taslawsociety.asn.au/news/AGLetter.pdf> at 9 November 2007.
[27] Family Violence Act 2004 (Tas) ss 36, 23(4), 25(1).
[28] Although this test appears easier to meet than the test for PFVOs under s 14(1) (which requires commission or likelihood of commission of an offence) in practice, both orders require the satisfaction of similar requisites, with PFVOs used where risk is lower.
[29] Crimes Act 1900 (NSW) s 562AE; Restraining Orders Act 1997 (WA); Domestic Violence Act 1994 (SA) s 4.
[30] Recent amendments in NSW allow the court to circumvent some of the difficulties caused by reluctant victims. See Crimes Amendment (Apprehended Violence) Act 2006 (NSW), amending Crimes Act 1900 s 562G (2).
[31] Department of Justice (Tasmania), above n 2, 25.
[32] Hunter and Stubbs, above n 10, 14.
[33] Residential Tenancy Amendment Act 2005 (Tas) s 16.
[34] Remess v Rabe [2006] TASSC 105, (Unreported, Tennent J, 4 December 2006) [28].
[35] Ibid.
[36] Ibid [15].
[37] Ibid [24–27]; Evidence Act 2001 (Tas) s 75.
[38] Tennent J, in McLean v Kemp [2005] TASSC 100 (Unreported, Tennent J, 18 August 2005) found that the magistrate had erred in admitting police evidence in a complainant’s application to have the FVO revoked.
[39] Family Violence Amendment Act 2005 (Tas).
[40] Daniel Zeeman above n 26; Daniel Zeeman in Gavin Lower, ‘Judge slams family laws’, The Hobart Mercury, May 21 2005; and Daniel Zeeman ‘President’s Report to the Annual General Meeting of the Law Society of Tasmania’ (2005), Annual Report 2004–2005 <http//www.taslawsociety.asn.au> at December 30 2006; Leanne Topfer ‘Clarification of Family Violence Act Needed’, Media Release, The Law Society of Tasmania, October 19 2005, <http://www.taslawsociety.asn.au/news/MRFamilyViolenceAct.pdf> at 9 November 2007.
[41] Re S [TASSC] 89 (Slicer J, 19 September 2005).
[42] Bail Act 1992 (ACT) ss 14, 9A; Bail Act 1978 (NSW) s 9A.
[43] Record of Investigation into Death of Sonia Anne Mercer and Darren William Batchelor [2004] TASCD (Unreported, Coroner Wilson, 12 February 2004).
[44] For further information on the VSRT and case coordination, see K Wilcox, above n 1.
[45] For more information on the RAST and the validation of it, see R Winter, ‘Researching Family Violence’, TILES Briefing Paper 2 (2006) and M Robson, M & J Arnold, ‘Safe at Home’ in K Mc Master (ed) Will They Do It Again? (2006) 83.
[46] Olsen v State of Tasmania [2005] TASSC 40 (Unreported, Underwood CJ, 13 May 2005). See also D Zeeman (2004) above n 26 and Gill Vowles, ‘It’s not Safe at Home’, Sunday Tasmanian (Hobart ) 28 January 2007, 12–13.
[47] Victorian Law Reform Commission, above n 4, 162.
[48] Or to anyone else, if the controversial s 38 of the Act, which establishes mandatory reporting of domestic violence for health and other professionals, is ever proclaimed.
[49] J Stewart, ‘Specialist domestic/family violence courts within the Australian context’ (2005) Australian Domestic and Family Violence Clearinghouse, Issues Paper 10.
[50] Crimes Act 1900 (NSW) s 562ZH.
[51] Heather Nancarrow, ‘In search of justice for domestic and family violence: indigenous and non-indigenous women’s perspectives’ (2006) 10 Theoretical Criminology 87–106.
[52] Program policy is that services are available to clients of the Safe At Home ‘system’, which means those on the shared database.
[53] See Safe at Home <http://www.adfvc.unsw.edu.au/gp_simple.htm>
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