Domestic violence: How does a magistrate decide who needs protection?

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The ABC is invited into a usually closed domestic violence court, and meets a magistrate charged with deciding who is telling the truth.

Outside the doors of a special domestic violence court you could spend a lot of time trying to guess the relationships between people in the foyer. It's not always clear who is up against whom. It's crowded, chaotic; tense and intense.

The people here are not just women taking out orders against their boyfriends and husbands; all sorts of relationships are represented. Adult children take out orders against their parents and vice versa. Siblings are up against siblings.

These are civil court matters but disobeying the orders can quickly cross the line into criminal offences with the possibility of jail time.

People generally come here to seek court orders for no contact - physical, telephonic or written - or to enforce good behaviour towards each other. One side will take out an order and the other side will respond with a counter claim.

There are strict rules around how the media can report on domestic and family violence. We can't use names, or descriptions of people or their circumstances that might identify them.

Outside, the social worker is congratulating her, but not far away, so too is his legal team congratulating him.

Journalists are not usually allowed into the domestic violence courts for the more revealing hearings but suburban Holland Park Magistrates Court in Brisbane allowed the ABC to attend three sessions.

A man intimidates a woman in the foyer but then when they enter the courtroom, the behaviour changes. He offers up apologies and attempts a kind of conspiratorial, 'we're both men, and we know what women are like' camaraderie to the male magistrate.

On the front lines of domestic violence This is the third article in a three-part series covering the experiences and perspectives of workers on the front line of Australia's fight against domestic violence. Part 1, 'Has he hit you?' : Meet the phone counsellors who help get women out of dangerous situations.

Meet the phone counsellors who help get women out of dangerous situations. Part 2, 'Most of your shift': How police tackle the intimate, dangerous world of domestic violence This is the third article in a three-part series covering the experiences and perspectives of workers on the front line of Australia's fight against domestic violence.

The hardest to observe are women who are clearly afraid. Or the women that seem really afraid and then proceed to ask for an order to be softened so they can have some contact with a violent partner, often so they can begin to sort out their shared lives.

"Some tremble, cry, are extremely nervous, just totally intimidated," says the presiding magistrate, Colin Strofield.

"You'll get men who'll say: 'She's alright, she doesn't need this. I'll look after her, it won't happen again.' The feeling you get is it's not quite like that coming from the aggrieved - it's a completely different story."

Strofield tries to cut through contradictory testimonies by observing how the parties behave towards each other while they're in the courtroom.

Counter orders

The severity of each story differs, as does the gender and age of the victims. There are men alleging domestic violence in here, although most I observe are orders in response to ones made by their female spouses.

There's a family in the foyer: mum, dad and two daughters. The father talks animatedly to everyone around as he runs around after the children, more at their energy level than their mum, who looks exhausted when she responds to their questions or his. It's not clear why they're here; they arrived together and are sitting together.

The kids go in with their parents and through the glass window there's chaos in the courtroom. One of the girls is running around, screaming into the court's microphones. She's carried out by the court's female security guard, followed by her sister. They go into a room off to the side of the foyer, drawn with the promise of biscuits.

After about 10 minutes their parents withdraw from the court. The father takes the daughters outside while the mother sits down to wait for court documents and opens up a novel to the first page. It's the bestselling book infamous for its sadomasochistic sex scenes, Fifty Shades of Grey.

The magistrate, Colin Strofield, tells us later that they both had applications for domestic violence orders against each other. She alleged that he had beaten her and had tried to suffocate her during an argument, and he had alleged violent behaviour from her too.

"They wanted to withdraw their applications and didn't want anything at all against either of them. I didn't accept that ... I made orders against both of them.

"They were both to have good behaviour towards each other and not commit domestic violence."

The orders are not always as you would expect. The magistrate has not ordered one party to keep a prescribed distance from the other. Acknowledging the challenges of raising children separately, he's just tried to create some kind of barrier to violence.

"Anyone who is in fear should be afforded protection. They should be given the opportunity to feel safer than what they did before they made the application," Strofield says.

If the parties don't comply, they can be charged with offences.

Many orders can be processed this way, and many people accept orders made against them without admitting guilt.

If the respondent (or perpetrator) doesn't accept what the aggrieved (or victim) has said about their behaviour, then they can ask for a hearing. That step will require evidence be heard and sworn statements taken from witnesses.

There are allegations of her being violent towards their children and threatening the family.

In the courtroom, a British man stands at the bar without legal representation. He describes a domestic violence allegation against him as a "total fabrication", saying his former partner hit him and that she's "playing the victim" in order for him to be booted out of the country.

Once again, it's not clear what the allegations are, but he denies any wrongdoing. All the men in this court today do the same. It's her word against his word and high emotion and apparently everyone's lying.

The magistrate says the only acceptable evidence submitted during these domestic violence court days is the statement of the aggrieved, and that rules over whatever the respondent says in the court, unless they're willing to testify under oath at a hearing.

In this case, Strofield keeps the temporary protection order in place until the court has time for a hearing. Then their stories will be weighed up through a more rigorous process.

After watching a parade of domestic violence orders being issued, with very little detail exposed during the process (most of the evidence is written down and the magistrate does not read it out loud), I get invited to observe that next step - domestic violence hearings.

One of the days I observe, the bus has arrived from the prison and it's the first time I've seen the cordoned-off area on the far left of the courtroom used. A man in his late twenties has been put in jail after a domestic violence incident. His lawyer argues he doesn't have any prior conviction but bail is still refused and he'll be returning to jail on the bus that afternoon.

A woman steps up to the bar table, standing a few metres from her estranged ex-husband. He has a lawyer, she does not. She is supported that day by her elderly mother, sitting in the public area, and a social worker who clearly knows little of the legal process.

It's not a fair fight, with an experienced lawyer up against a woman for whom English is a second language. The magistrate keeps suspending proceedings so the aggrieved can read through the submissions the lawyer has made.

The woman is trying to extend a domestic violence order against her ex, who she said threatened her and her mother when they were living with him in another state.

His lawyer argues that he hasn't had any contact at all since the last domestic violence order was made, so why does it need to be extended?

Eventually, the magistrate suggests the man accept an order without admission of guilt, and both parties agree. The woman seems relieved. Another two years of a protection order granted.

Outside, the social worker is congratulating her, but not far away, so too is his legal team congratulating him.

In one case a wife is responding to domestic violence orders from her husband. Both sides have lawyers and seem well-off. There are allegations of her being violent towards their children and threatening the family. It's a messy custody battle and her lawyers play on that, arguing all of these allegations should be heard in the family court rather than in this court.

The magistrate encourages them to come to an agreement and they negotiate behind closed doors. They won't go through with the full hearing.

Are orders effective?

There is considerable community debate about whether domestic violence orders are helping to stop domestic violence.

A recent meeting of all the state and territory leaders committed to a nationwide response to domestic violence so that orders could be transferrable across all jurisdictions. Urban Queensland at least has some dedicated domestic violence courts, something that does not happen throughout Australia.

As it stands, the orders are as diverse as the states themselves, with varying names and definitions used around the country. This means victims often have to apply for new court orders again if they move to a different state.

Orders Victim Perpetrator Qld domestic violence order (DVO) aggrieved respondent NSW apprehended domestic violence order (ADVO) protected person defendant SA intervention order complainant defendant Tas family violence order (FVO) or police family violence order (PFVO) affected person respondent Vic family violence intervention order (FVIO) protected person respondent WA violence restraining order (VRO) protected person respondent ACT domestic violence orders (DVO) aggrieved person respondent NT domestic violence order (DVO) protected person defendant

In Queensland alone, there were 24,000 domestic violence applications made by the police and the public in the 12 months to June 2014. In that same period there were 15,000 reported breaches of orders.

It is not fair to say that means 60 per cent of orders are breached - because orders can be made for up to two years, so some breaches that occurred in 2014 would relate to an order made previously.

However, they still paint an alarming picture of a high number of breaches.

Although the orders are not perfect, respondents in Strofield's court are chastened, the aggrieved are heard and orders get the alleged abuse on the record with clear legal boundaries set for warring families and spouses.

If you’re in an abusive situation or know someone who is, call 1800 RESPECT. If it's an emergency, call triple-0. You can also call Lifeline on 13 11 14 or contact the Safe Futures Foundation.

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Topics: domestic-violence, courts-and-trials, brisbane-4000

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