DVOs and the Abuse of Justice

For years fathers’ groups have complained that unscrupulous pseudo-victims and overzealous courts abuse DVOs, which should be used as a shield against real instances of domestic violence.

Indeed, many cases of domestic violence have ended up in our courts, where allegations have been entirely disproved — sometimes many years after the alleged offenders found themselves arbitrarily evicted from their homes, alienated from their children, arrested unjustly and  suffering immense damage to their personal and professional reputations. Financial ruin after huge court costs is all too often a given.

It is common knowledge that false accusers are almost never punished. For example, a survey of 68 families by Dr Sotirious Sarantakos, associate professor of sociology at Charles Sturt University, reveals an alarming number of allegations are either false or unsubstantiated. Accordingly,

‘the initial allegations of DV were modified considerably …  particularly when  faced with the accounts of their children and mothers, admitting in the end that they were neither victims of violence nor acting in self-defence’.

And it’s not as  if those who preside in our courts aren’t aware of the abuse. A survey of 38 magistrates in Queensland found 74 per cent agree that DVOs are often used for tactical purposes. Likewise, another survey of 68 NSW magistrates indicates 90 per cent agree DVOs are commonly sought as ‘tactical devices’ to aid applicants with court disputes and/or to deprive former partners of contact with their biological children.

Offenses for breaches of these orders are dealt with by state and territory criminal courts. Some 47 per cent of all civil cases filed in the Magistrates’ Courts in 2022-23 involved applications for DVOs — a staggering total of 133,000 cases. The Northern Territory, at an incredible 97 per cent, saw the highest number of cases.

Such allegations often results in good fathers having to pay for supervised contact to see their children, and most end up losing contact.

Yet, incredibly, natural justice is often rejected by those who should be its frontline defenders. This quote from former WA Police Minister Lisa Harvey captures the attitude in a few words:

We’re sending a message to the courts that we would prefer them to err on the side of the victim and err on the side of granting one of the violence restraining orders in these scenarios because they do protect women.

It need not be said how important it is to protect women, but this should never be done by disregarding legal protections to ensure fair treatment for the accused. Because an interim violence restraining order can be made on the uncorroborated evidence of the applicant, the potential for abuse is very real.

The definition of “domestic violence” is now used in a broader sense to cover all sorts of behaviour. No evidence of physical violence is required to make such an allegation. Any experience of “emotional abuse” or an alleged and entirely subjective fear of violence is enough to set the ball rolling, with the “victim” eligible for the truckload of financial payouts, cheap services, and support.

What follows are first-person accounts of the human damage inflicted first by the abuse of DVOs and further compounded by enforcement policies and police actions that entirely reject the presumption of innocence:

I have undergone a soul-destroying experience over the past two years — a Magistrate Court action alleging domestic violence linked to a Family Court action furiously fought against me on a misconceived notion of my personal wealth. I am 78 years of age, though I used to look younger before undergoing two spinal operations in recent years. A former Australian diplomat and ministerial adviser, senior law academic, company director, and a regular contributor to numerous public policy organs.

Concurrently with a Family Court action, my former wife, 14 years younger, obviously seeking a change of circumstances, applied 16 months ago for an interim domestic violence order in a magistrates’ court when I was away from home, which had me met by police on my return and given 15 minutes to leave the house with nowhere to go or no other option.

I have not been allowed free access to my house since. At the same time she has pursued a misconceived Family Court action which after all this time has now been mediated, with combined legal costs of some $750,000 to be paid from the sale of our home after discharge of a $750,000 mortgage.

At no time over a year or more did I had a realistic opportunity to contest the allegations, either because the applicant contrived not to be present and on the last occasion, with all this going on (her lawyer frequently engaging in unprofessional theatrics), the Magistrate stated that she was minded to grant the Order without hearing either party. My barrister advised me that in the circumstances my chances of succeeding regardless of how well I presented was as low as 10 per cent and I would be better off letting the interim Order stand….

The real culprit is the poor and very lose drafting of the legislation which allows relatively trivial acts being deemed as violent. Meanwhile absolute basic legal rights and safeguards of the citizen are open to abuse and denial by a flawed process. As a qualified lawyer I find such a reduction of circumstances, as I have experienced, a greater violation of our legal values and supposed rights than whatever it is that such laws and their administration are intended to protect. I would be happy to elaborate further on my experience should you be interested. – J.P.

Four years after my separation and around the time I started dating my current wife, my relationship with my ex-wife deteriorated sharply. One day, upon returning from work, I saw a card stuck in my door. It informed me that police had been to visit and I should attend upon the local police station. When I did so, I was served with a VRO.

Three days earlier my ex made an ex-parte application for VRO in the Magistrate’s Court. Two days later she would make an application in the Family Court seeking sole custody of our children – once again ex-parte. The aim of the VRO was clearly tactical and it was a tactic that worked wonders for her. While the VRO was in force, she filed over half a dozen complaints against me for alleged breach of VRO.

I was arrested twice and locked up in the back of a paddy wagon. Once for a spam message accidentally sent via LinkedIn to my entire email contact list (including her).

Another time for attending my church with my new family in a location where 24 hours later my daughter (the ‘protected person’) would be within its vicinity… The interim VRO was in force for over two years.

Once, after a year or so, my daughter snuck a phone call to wish me a happy birthday. It went straight to voicemail. There was nothing in the world I wanted more than hearing my daughter’s voice but doing so would have sent me to jail.

By then I knew the Restraining Orders Act 1997 back-to-front. I knew there is no defence for accident and I knew of the ludicrous provision (s61B of the Act) which states ‘In the sentencing of a bound person … any aiding of the breach of the order by the protected person is not a mitigating factor.’ I now wonder whether that phone call was a honey trap, part of my ex’s plan.

Over six and a half years have passed since the day I was served with that VRO. Over six and a half years have passed since I have last seen my children. – D.B.

I understand (from my work in life insurance) that around every four hours a suicide happens and that many of these are related to the destruction of the lives of great guys…

We seem sadly ineffective at changing this. I think the one area you missed is the wonders of the ADVO where a woman can simply decide she doesn’t want the guy anymore, duck down the local police station and, as my ex father-in-law put it, ‘The truth doesn’t matter. All she has to do is say she’s scared’.  In my case she’d pretended she had an AVO the week before and when she found out I’d discovered it was a pack of lies, seen the police and a lawyer and was legally coming home, she (within an hour) ducked down to local police where a 23-year old constable simply took her word for everything…

During this time I was hospitalised, treated like a criminal and locked out of my house and kids’ lives.  This gave her in effect the house (which she refuses to pay the loan on) and a ‘default’ interim custody arrangement.  As a (to quote a family court qualified psychologist) ‘stable, caring person who loves his three daughters dearly and is dedicated to their emotional, physical and psychological wellbeing.’

I can prove she committed perjury in the AVO hearing but have been advised that clearing my name could result in the relationship being described as ‘high conflict’ and I might therefore lose my kids. Run that by me again… she organises what the police describe as intimidation, commits perjury and hospitalises me and if I prove it I lose my kids! – B.C.

My brother and his wife divorced about five years ago and my brother has had access to his children on every second weekend for only one day. My brother has recently found love again with a beautiful lady who also has three children of her own and shares custody equally with her ex-husband. In January they became engaged. My brother recently decided to apply for mediation so that he could ask his ex-wife for shared custody, as with the help of his fiancée he would now be able to make sure that they would be supervised properly.

His ex-wife refused to attend both sessions of mediation, and was served with court papers so that this issue could be addressed by a judge. As a result she has now filed domestic violence orders against my brother and as a result he has lost access to them until the matter can be heard in court.

The accusations levelled at him and his fiancee in regards to domestic violence are utterly false. The claims his ex has made cannot be substantiated, and the only witnesses she can provide are the children themselves, which she has sole access to until the court hearing. These charges were levelled without any form of proof whatsoever…

Not only is my brother not allowed access, he is not allowed to phone them, if he is granted supervised visits, he must pay $80 an hour for someone to be there [to supervise], he was served the papers whilst at work in the middle of a shopping centre … not only that but the police contacted his employer prior to serving the papers…

He lost his home, his family and his dignity after she proceeded to lie to all their friends about the circumstances of their separation. This is not only affecting my brother, but his fiancée and her children who miss not being able to see his children, my mother who makes a point of seeing them every time they are with my brother and me and my children. She has taken Family Violence Orders against my brother and on the last occasion that she applied a judge refused to grant it on the grounds that she was not telling the truth and warned her against using this tactic to seek revenge on my brother.  – A.M.

On March 5, 2013, my mother, children and I were attacked in my home, my $17,000 boat was smashed up and I ended up in an emergency ward.

To cover up this and gain access to my home and pervert justice in the family court, a DVO was issued by the perpetrator and I lost access to my home, children and belongings based on what the police now admit were false allegations and perjury. I lost my home and over half a million dollars as a result of this demonstrable fraud.

A three-year wait to get to the Family Court meant the arrangement put in place then became default. What has destroyed my life has now been proven false, based on hard evidence. Police have stated I was the victim of criminal intimidation. Perversely I was given no change to present evidence and I faced court three months later in a state of absolute shock and barely coherent.

I spent over $300,000 in legal fees, lost another $135,00 through fraud and have lost hundreds of thousands in lost income simply trying to get access to my own children back. The system is taking children from and driving innocent dads to their deaths whilst tolerating women diverting crucial resources from real victims…

I did nothing more than marry the wrong woman and try to be a good dad. – B.C.

I had two beautiful boys with the women of my dreams which turned into a nightmare. I struggle to see my children, I jump through every hoop the court and my ex-partner place on me. I am currently facing my second malicious VRO. I don’t know where to go and what to do.

My ex-wife suffers from borderline personality disorder and was admitted twice in her youth to mental institutes. She has threatened attempted suicide with my children in the car on an occasion. I fear to fight against her too hard in case of her hurting herself or my children so I try to maintain peace, yet the conditions she wants me to live with are unhealthy and abusive in many ways and any time I try to claim my rights back the system is used against me. – A.H.

 

Conclusion: Domestic violence is a grave issue and initiating this kind of conversation by no means implies going soft on this serious problem; and quite to the contrary. However, the sympathy due to those who live in fear of violence should be extended to those who are the victims of false allegations, which, arguably, is in itself a form of domestic violence.

Under the existing laws it might not even be necessary to demonstrate that violence has occurred. Action can be taken before that point, simply on the basis that someone fears that the alleged control or intimidation could escalate into violence. This is an extraordinary shift, undermining one of the most sacrosanct elements of the rule of law, namely that one is innocent until proven guilty.

Prof. Augusto Zimmermann PhD, LLM, LLB, CIArb is a former member of the Law Reform Commission in Western Australia and a former associate dean (research) at Murdoch University, School of Law. This is a version of the paper presented by him at “Restoring the Presumption of Innocence”, a conference held in Sydney on August 31, 2024. Details at https://www.presumptionofinnocence.au/