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Discrimination challenge on DVO laws.

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Does anyone know of any attempts or successes in challenging State DVO/AVO laws or application as discriminatory?

I am curious if anyone knows of any attempts at taking State Governments/Police to task over the discriminatory way in which Apprehended/Domestic Violence Orders are undertaken. I know at one point something happened in Tasmania, but the wheels fell off that. Has anyone else tried, or even more broadly against the Government over discrimination.

Please do not post any all men are evil or all women are evil messages, as I don't believe that, and it wastes everyone's time. There are plenty of other threads to vent your spleen. I am after constructive information as that is the only way forward. The constant parading of negative stereotypes does nothing for anyone's cause. But if you want change it is best to use the tools available and do it peacefully.
Lesley you'd probably need to consult a lawyer about the possibility of any law suite. The government generally are protected from law suites by legislation.

If you are implying DVO's ect are discriminatory based on gender, then that might be hard to prove given that 36% (in some states) are taken out by a man against a women.

That stat is a 2009 statistic, many think the % of males taking them out, has possibly increased. The government stopped releasing DVO gender information after 2009, when the high % of males needing protection sparked alot of interest and got people asking questions many found uncomfortable.

If an individual was discriminated against because of gender in a specific DVO case, then maybe a complaint to human rights could help, but whether they would have any right to get involved in a specific court matter is doubtful.

In the UK, there is some human rights interest/involvement in their gender biased violence legislation. Would be interesting to get their take on gillards new laws here, as from the so far limited research i've done, her legislation is similar to that coming under heavy fire in the UK.
This attempt at discrediting new laws and processes to better protect women from violent men is pathetic. Good luck with the trumped up gender discrimination tactic - thankfully noone but the loonies believe you - in the face of real evidence and stats on escalating family violence, better trained police and police response which means women are now more likely to report family violence as they are now finally being believed and are now finally getting the help and protection they need.

 
And maybe if we did actually have better trained in non-gender specific dv situations police, then maybe more men would be inclined to ask for help.

Samba, you only seem to state that women need to be protected from violent women, and are unwilling to acknowledge anything different.

As the victim of a violent mother, I am sick to the back teeth of you and your ilk who are determined in their one eyed, it's my way or the highway rhetoric, that violence is only inflicted by men on women and childre.
Obviously I meant women needed to be protected from violent men - sorry wasn't able to correct post - Boots
What Samba doesn't seem able to grasp, is that the legislation does not just discriminate against male victims but also women perpetrators.

Why are women perpetrators not able to access adequate treatment services? Even the police themselves admit to being frustrated that there is no treatment for the 1000's of women they charge for DV offenses ever year.

It should not matter the prevalence of the sex of the perpetrator/victim anyway. It is no different to saying we will provide adequate services for white people but leave out indigenous ones because they are in the minority.

Samba just doesn't want to give up her exclusive victim status…even if she is supporting legislation that makes violent women miss out on treatment.
I did ask specifically if anything had been done rather than arguing women v men. I am guesing the answer is no.
Samba, unlike you I am interested in protecting ALL people from violence. My work history is full of examples where I have supported women through a violent situation.
I have supported women's refuges to maintain funding and advocated for the women there. I have been on Domestic Violence Action Groups. I have developed programs to support young women to maintain positive and healthy lifestyles. I have helped women to get on track after the devastation of separation, coming back from suicide attempts, which in other posts you gloss over. I have done this professionally and privately. I am currently supporting a Mother who has lost her children due to a strong and unethical bias by a Court Reporter, supported by a Magistrate unwilling to consider evidence. The Father's behaviour has been appalling and yet he has got away with it.
 
Before you bristle indignantly and prepare your next barrage of repetitive criticism, consider that a system that is gender blind, may in fact look at all the facts of each particular case more closely and make decisions not based on, he is a big male, she is female he must have done it, or women are doing this all the time, it mustn't be true. Consider that such a system may in fact make more informed and correct decisions, so that those women AND men who are ignored are heard, in their defense or prosecution.
The danger of course is that if a bias continues the pendulum will swing the other way. History shows us it always does unless you have a Nelson Mandela in your company, but I feel his ilk is exceedingly rare. When it swings women's claims will be readily discounted and more women will suffer again. You will be part of that, unless you seek fairness. I already know of women that did not receive the "protection" that you claim is now readily available.
I have said before, standing up for fairness and equality goes both ways. If you consider yourself to be fair and promote equality,then I suggest you let go of the very shackles that you are fighting against, that being closed minded assumptions that you can group everyone of a particular race, gender or creed as behaving in a set way.
All I can say is having worked with Police, Human Services, Health, and NGO's I know what instructions they receive and how training is provided.
Also when a friend who is a Police Officer serves you with an AVO and says, "You know its rubbish, I know its rubbish, but the boss says we always have to take these out" I am left with the question, Why? Especially when what I have previously informed the Police had happened to me was considerably worse than any accusation made against me.
Before you judge, I have never, nor have I been accused of raising a hand in anger against anyone in my life. I have been brought up, and strongly adhere to treating everyone on their merits without prejudiced assumptions.
So again. Has no-one, no matter how ill-informed or anti-female/anti-male etc taken court action for discrimination against a government?
Lesley said
I am curious if anyone knows of any attempts at taking State Governments/Police to task over the discriminatory way in which Apprehended/Domestic Violence Orders are undertaken. I know at one point something happened in Tasmania, but the wheels fell off that. Has anyone else tried, or even more broadly against the Government over discrimination.

What is the evidence that you have in relation to "the discriminatory way in which Apprehended/Domestic Violence Orders are undertaken". I have dealt with large numbers of cases and where there is at least some merit the Police or the Chamber Registrar will make the application and leave it to the court to determine the real issues.

Can you be more specific about which part of the process is problematic and of concern to you and which State legislation you are referring to? Is it the application process? The forms? The Court Process?

The real concern we have currently is that there is an increasing trend in ADVO  / AVO applications.

Related to this is a rapidly increasing trend to refuse all contact with children at early stages of separation and usually when there has been a refusal of contact with children, heated exchanges result in an AVO Application. Also once the application is made it raises the anti in any separation with often increased animosity and ill feeling by the other parent.

There is also a view that State legislation will catch up at some stage with the new definition of Domestic Violence that is due to commence in June 2012. Once that happens there will be a uniform definition across all states and possibly WA.

The new definition casts a large fishing net over a vastly increased number of reasons that now meet the definition,  so we will presumably see more applications in due course, which in turn raises costs of separation, levels of angst and makes mediated settlements even more complex and entrenched than ever.

New subsection 4AB(1) defines 'family violence' as violent, threatening or any other type of behaviour that coerces or controls a family member or which causes the family member to be fearful. Behaviour that fits within the general characterisation set out in the definition will be captured.  The definition is intended to cover a wide range of behaviour including assault, sexual assault or other sexually abusive behaviour, stalking, emotional and psychological abuse, and economic abuse.  The definition encompasses patterns of family violence and single violent events.

New subsection 4AB(2) provides a non-exhaustive list of examples that fit within the definition of 'family violence'.  The examples recognise the wider range of behaviour experienced by victims of family violence.  The inclusion of examples will not exclude any behaviour that is within the general characterisation set out in  subsection 4AB(1).  For example, threats of suicide and self-harm are not mentioned in the definition or examples of 'family violence', but will be captured by the definition where the threat coerces, controls or causes a family member to be fearful.

New subsection 4AB(3) defines the term 'exposed'.  This new term provides that a child is 'exposed' to family violence if the child sees or hears or otherwise experiences the effects of family violence.

Proposed subsection 4AB(4) provides a non-exhaustive list of example situations where a child may be exposed to family violence.  The examples clarify that there does not have to be intent for a child to hear, witness or otherwise be exposed to family violence.

4AB Definition of family violence.

(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the persons family (the family member), or causes
the family member to be fearful.

(2) Examples of behaviour that may constitute family violence include (but are not limited to):
  (a) an assault; or
  (b) a sexual assault or other sexually abusive behaviour; or
  (c ) stalking; or
  (d) repeated derogatory taunts; or
  (e) intentionally damaging or destroying property; or
  (f) intentionally causing death or injury to an animal; or
  (g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
  (h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support;
or
  (i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
  (j) unlawfully depriving the family member, or any member of the family members family, of his or her liberty.

(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.

(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
  (a) overhearing threats of death or personal injury by a member of the childs family towards another member of the childs family; or
  (b) seeing or hearing an assault of a member of the childs family by another member of the childs family; or
  (c ) comforting or providing assistance to a member of the childs family who has been assaulted by another member of the childs family; or
  (d) cleaning up a site after a member of the childs family has intentionally damaged property of another member of the childs family; or
  (e) being present when police or ambulance officers attend an incident involving the assault of a member of the childs family by another member of the childs family.
We will be testing 2 (i) preventing the family member from making or keeping connections with his or her family, friends or culture; once the definition comes into State laws as this clearly applies to one parent restricting children contact from the other parent.

You can read the detailed list of changes in the legislation

What will be of interest to readers / members here is the change to Paragraph 60CC(3)(k)

Item 19 deletes paragraph 60CC(3)(k) and replaces it with a similar provision which removes the requirement that a family violence order must be final or contested.  

The effect of this new paragraph is the courts must NOW have regard to any family violence order made including interim, non-contested and police issued order and give appropriate weight to these orders.  The definition of 'family violence order' in subsection 4(1) of the Act remains unchanged.  This definition draws on orders made under prescribed state and territory legislation. (It will now therefore be critical that parents who are before the courts in respect to AVO proceedings do not accept AVO's without admission and should contest AVO's where ever possible as these sorts of orders will now have a much more weighty and significant impact on any Families Court hearing either interim or final.

Also now the proposed amendments to paragraph 60CC(3)(k) are not intended to restrict the matters to which the court may have regard under paragraph 60CC(3)(m).

We believe that with this particular change it will almost be certain that parties will lodge ADVO / AVO and Protection orders to gain an advantage early on in hearings.

It also worries us that Family Court hearings will become "bogged down" in dealing with fanciful claims of violence dealt with in Magistrates Courts where orders are made through lack of attendance or understanding of the implications of making such orders and often where there is little time afforded to get to the crux of matters.

What is certain in all of this is that general practitioners who are representing clients in local Magistrate Court hearings must now take a much more proactive role to ensure clients well understand the full impact and longer term implications relating to any matters proceeding to the Family Courts through the making of any ADVO/AVO or intervention order.


Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
Secretary SPCA, you mention the increase in the number of DVO/AVO applications.  I agree there are people who try to gain a tactical advantage by obtaining one, but there is another problem.  The police routinely advise people to apply for them.  I have spoken to the police for advice in the past and their standard answer is apply to the Mag court for an intervention order.  They haven't got the resouces to deal with these issues unless there is physical evidence.  Perhaps a brief call from the police when things start getting heated would stop things getting to the stage of a DVO/AVO.
April said
 Perhaps a brief call from the police when things start getting heated would stop things getting to the stage of a DVO/AVO.
 
Yes,perhaps it would. IT would be an example of an intervention designed to prevent escalation, rather than a response to a post-crisis consequence.
Secretary SPCA I had hoped you may have had knowledge of any attempts down that path and what happened. I am somewhat surprised no-one appears to have tried it, especially given the number of people protesting about such discrimination.
My question was not meant to assert that it was discriminatory, but if anyone had taken that tact. Whilst my feeling is that discrimination is present, I am more than happy to have that challenged. However until I can see that a man's word is taken on par with a woman's word, and that a man's fear is acknowledged as readily as a woman's fear, then I am at a loss to see how this does not reflect discrimination.
Even the percentages of AVO's taken out do not reflect the population, as we know that men are more likley to be victims of violence and yet receive less protection. Government services regularly screen women for domestic violence but not boys and men. The same questions should apply, however it does not happen.
Government services training highlight women as the victims and how to support them. It does not cover supporting male victims. Any male staff member that questions this is met with derision and jokes about men. That is in the health service as well. With this knowledge, which appears to be well known, I felt sure that someone somewhere would have made a stand. Naturally I would expect it to fail, but at least tried.
April and Craigo, I begged the Police to make a call to my ex early on to talk to her and get it to stop. They refused. It went on for another 6 years and now I have walked away from my children to protect them and myself.
I can't help but think if the "helping" services had done what I asked, which was to just label what she was doing and ask her to stop, none of what followed would have occurred and the children wouldn't have suffered in the way they have.
Lesley I know our laws differ from California but over there 4 men and a daughter of one them took on the state on the grounds that: a number of the states statutory provisions had gender-based classifications. In particular, they challenged that DV programs provided benefits for women and their children, but ignored men and their children. They contended these gender-based classifications violated equal protection - they won the case.
http://ncfm.org/wp-con...ry-published-decision.pdf


Don't know if it could be done here, needs to be. What is interesting is California pre this 2009 judgment used Gillards term, 'Women and their children' in their legislation.
Lesley said
Secretary SPCA I had hoped you may have had knowledge of any attempts down that path and what happened.
Lesley said
I am curious if anyone knows of any attempts at taking State Governments/Police to task over the discriminatory way in which Apprehended/Domestic Violence Orders are undertaken. I know at one point something happened in Tasmania, but the wheels fell off that. Has anyone else tried, or even more broadly against the Government over discrimination.
I am still unsure what the specific claim is that you wish State Governments be taken to task on.
Lesley said
However until I can see that a man's word is taken on par with a woman's word, and that a man's fear is acknowledged as readily as a woman's fear, then I am at a loss to see how this does not reflect discrimination.
The question is not a persons word but does the complaint meet the legislative requirements. If it does then an interim order is held and issued until a court looks at things.
Lesley said
..I begged the Police to make a call to my ex early on to talk to her and get it to stop. They refused. It went on for another 6 years and now I have walked away from my children to protect them and myself.
Whatever it was going on could not have been enough to warrant interventions however the legislation has changed significantly in six years in both the NSW State Act and the Family Law Act. The early intervention services are now the FRC's and they have only been established since 2006 very late 2006 and into 2007.



Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
What I reported was far worse than anything subsequently claimed against me. However I am not going to plead my case in this public forum. I just know that many men have claimed that there is discrimination which has cost them dearly and I am curious if anyone has done anything about it. It appears in Australia no-one has. You can't tell me that there aren't men in Australia that haven't shared the experiences of those men referred to by Frenzy. I know for a fact that a man who lives in a town where I used to work often slept in the park. Police often gave him a blanket. He stayed there because he knew if he had a few drinks and went home he would get bashed up. Health services knew it, the Police knew it, nobody stopped it.

My belief is that as one Judge openly stated, "Family Law cases are first fought in the local courts". Therefore to get a fair hearing at Family Court it is important to remove unfair hearings at the local level. If a message can be sent prior to Family Law proceedings that false claims will be strongly rejected, and real claims will be strongly supported, then potentially a great deal of heat may be taken out of Family Law Cases.

Also people such as myself, who have been worn down by ongoing false accusations, as service provider after service provider refuse to check the validity of claims, these parents are more likely to stay in their children's lives.



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