Previous Topic

Next Topic

Book Contents

Book Index

5.6.4 - Barriers to reporting family violence

A range of barriers inhibit the ability of people from CALD backgrounds to access the family violence system. Such barriers include:

[InTouch Multicultural Centre Against Family Violence (2010), Barriers to the Justice System Faced by CALD Women Experiencing Family Violence, Melbourne]

InTouch’s report noted that the primary motivation for some CALD women who seek help is support rather than legal intervention. A tendency to underreport, probably due to barriers to using the justice system, means that CALD women may wait until a crisis point before they seek help. The report warned that:

Safety must always be the priority, but services should be sensitive to all the women’s concerns about the consequences of taking legal action.

[InTouch Multicultural Centre Against Family Violence (2010), Barriers to the Justice System Faced by CALD Women Experiencing Family Violence, Melbourne, p25]

The above barriers, as well as ways in which judicial officers can respond to them, are discussed in the following sections.

 A misunderstanding of the concept of family violence

InTouch reported that:

A reluctance to report family violence may reflect a failure on the part of the victim to recognise that what she is experiencing is a crime in Australia. In some CALD communities, their understanding of crime is synonymous with grave physical assault or murder…

Our research highlights that the women interviewed did not have a broader understanding of what constitutes family violence in Victoria. Even though women could identify physical violence as a form of family violence, other forms of abuse such as verbal, emotional, financial, sexual and controlling behaviours were not understood as family violence.

[InTouch Multicultural Centre Against Family Violence (2010), Barriers to the Justice System Faced by CALD Women Experiencing Family Violence, Melbourne, p15]

This indicates that women from CALD communities may be unaware of the broad definition of family violence in the FVPA; see 1.1 - Family violence.

The InTouch finding is similar to those contained in a VicHealth report, which found that the selected CALD survey respondents were less likely than the wider community to view a range of behaviours such as yelling, criticising or forcing the partner to have sex, as ‘always’ constituting domestic violence.

[VicHealth (2009), National Survey on Community Attitudes to Violence Against Women, Melbourne]

This point was also noted by the Victorian Law Reform Commission, which observed that migrants may come from countries where family violence is seen as acceptable by authorities or is not penalised by the criminal law.

[Victorian Law Reform Commission (2006), Review of Family Violence Laws: Final Report, Melbourne, at 2.82]

 

Judicial Observation

When talking with people from culturally and linguistically diverse backgrounds – where women’s autonomy might not be respected – it can be useful to talk about family violence in terms of human rights. For example:

"It is a fundamental human right for all women and children to live safely in their homes. It does not matter what culture or religion they are from, it is a fundamental human right to live free from family violence."

[Magistrate Pauline Spencer, October 2010]

Lack of knowledge of Australian law and available services

People from CALD communities, particularly new and emerging communities, often lack knowledge of their legal rights and how to access legal services in Australia. The Australian Human Rights Commission’s study of African Australians found that lack of legal literacy is a critical barrier preventing engagement with the legal system.

This conclusion is supported by the experiences of participants in a 2005 study on migrant and refugee women’s experiences of accessing legal services in Australia conducted by Women’s Legal Services NSW. Those participants noted:

I have no idea what the legal system is in Australia and what kind of legal services they have.

We don’t know where to start, that is the problem

[Women’s Legal Services NSW (2007), A Long Way to Equal: An Update of “Quarter Way to Equal: A Report on Barriers to Access to Legal Services for Migrant Women”, Lidcombe, p19]

This lack of knowledge means that some women are not aware that exclusion orders under the FVPA mean that a protected person can remain in their home (see s82 FVPA). Without this knowledge, women fear that addressing family violence carries with it a risk of housing instability and homelessness.

[InTouch Multicultural Centre Against Family Violence (2010), Barriers to the Justice System Faced by CALD Women Experiencing Family Violence, Melbourne, p16]

Women’s lack of knowledge about their rights and the way the legal system works is compounded by:

While information about legal rights is available through community organisations, police stations and courts, women in violent relationships find it extremely difficult to visit these locations without their violent partner knowing.

[InTouch Multicultural Centre Against Family Violence (2010), Barriers to the Justice System Faced by CALD Women Experiencing Family Violence, Melbourne, p16]

Language and literacy issues

Low levels of English proficiency among people from CALD backgrounds, and issues regarding the availability, quality, confidentiality and cost of interpreting services are further barriers to CALD communities accessing the justice system.

Limited translated legal material means that legal information is not readily accessible to members of CALD communities. Accordingly, CALD community members with limited English-language skills frequently rely on their children (who often speak better English) or other community members to provide them with legal information. However, this information may be misinformed, or victims of family violence may be unwilling to disclose the abuse to their children or other community members.

Some CALD victims of family violence are also reluctant to disclose abuse to an independent interpreter for fear that the interpreter will not maintain confidentiality (particularly in some of the newer communities).

[Women’s Legal Service NSW (2007), A Long Way to Equal: An Update of “Quarter Way to Equal: A Report on Barriers to Access to Legal Services for Migrant Women”, Lidcombe; Australian Human Rights Commission (2010), In Our Own Words – African Australians: A Review of Human Rights and Social Inclusion Issues, Sydney]

Cultural and religious issues

Social and cultural changes associated with resettlement can negatively affect women and increase their vulnerability to violence. Migrants and refugees often experience changes in gender roles and power dynamics within families following settlement in Australia.

Poljski has noted that men from CALD backgrounds may perceive these changes as a challenge to their traditional role as head of the family and attempt to assert their authority through controlling behaviour and violence.

[Poljski, C (2011), On Her Way: Primary Prevention of Violence against Immigrant and Refugee Women in Australia, Multicultural Centre for Women’s Health, Melbourne, p20]

Cultural norms may discourage victims from seeking help from outside the community, thus preventing them from seeking assistance from police or the legal profession. CALD communities may view family violence as a private matter that should be resolved with assistance from extended family and community or religious leaders.

Fear and/or mistrust of government and law enforcement agencies

Another documented barrier to reporting family violence or seeking assistance is fear and distrust of government and law enforcement agencies. This fear is based on CALD community members’ past negative experiences of such bodies in their country of origin. For example, a participant in the Australian Human Rights Commission’s consultations with African Australians commented that:

[T]rust is probably not there for a number of reasons, including the fact that a lot of Africans have come from countries where the legal systems and police were corrupt.

[Australian Human Rights Commission (2010), In Our Own Words – African Australians: A Review of Human Rights and Social Inclusion Issues, Sydney, p30]

Social isolation

Social isolation and fear of being ostracised from their families and communities can be a powerful barrier to reporting family violence or taking legal action.

Many newly arrived members of CALD communities find resettlement a lonely experience and do not have established social networks to provide support in their new country of residence. These factors contribute to a sense of social isolation, which is compounded by:

 [Pittaway, E. & Muli, C. (2009), The Settlement Experiences of Refugees and Migrants from the Horn of Africa, Centre for Refugee Research, UNSW, Sydney; Reiner, A (2010), Background Paper for African Australians: A Review of Human rights and Social Inclusion Issues – Literature Review, Australian Human Rights Commission, Sydney; Australian Human Rights Commission (2010), In Our Own Words – African Australians: A Review of Human Rights and Social Inclusion Issues, Sydney]

In their research, InTouch found that CALD women who report family violence may face ostracism from their families and communities. Among comments from CALD women surveyed:

[InTouch Multicultural Centre Against Family Violence (2010), Barriers to the Justice System Faced by CALD Women Experiencing Family Violence, Melbourne, p16]

This fear of social isolation and ostracism is compounded in rural communities.

InTouch also found that some communities believe that conflict resolution is best achieved outside the law through mediation. This usually includes the man’s family, disempowering the woman in the process. Religious leaders would also often discourage women from separating or ‘breaking up’ the home.

 

Judicial consideration

The pressures on women in CALD communities to settle matters without using the courts can continue to operate within the court system. Especially in smaller and emerging communities, it is important to ensure that any interpreter is a professional who is independent of the parties. The interpreter’s role must be to directly translate for the court. They must not seek to negotiate with or influence an affected family member.

See further the extract at 5.16.2 - Managing the courtroom.

 

Like many victims of family violence, CALD women primarily want the violence to stop and do not necessarily want the partner removed from the home

Visa dependency

Visa dependency is a critical barrier in accessing the justice system in family violence situations. Many refugees and migrants arrived in Australia on temporary visas. Studies have shown that concerns about immigration status and fear of deportation prevent women on temporary visas from reporting family violence. For example:

This barrier is particular inhibiting for secondary visa holders who are listed as dependents on primary visas. Many secondary visa holders are unaware that they do not have to accept an abusive relationship in order to remain in Australia.

The Migration Regulations 1994 (Cth) enable persons on relationship-based visas to obtain new visas when they are victims of family violence committed by their sponsors. Obtaining an intervention order is way to prove the existence of family violence.

[Migration Regulations 1994 (Cth) reg 1.23(4), and Schedule 2]

While an intervention order is proof of family violence, for the purposes of the Migration Regulations, the Victorian Law Reform Commission observed in its consultation paper that respondents often contest applications for intervention orders by temporary visa holders and argue that the woman has brought the application to support her visa application following the breakdown of the relationship.

The Commission noted that the Migration Regulations allow a person to prove the existence of family violence through other means, such as statutory declarations and it is therefore unlikely that a person will seek an intervention order solely to support a visa application.

[Victorian Law Reform Commission (2004), Review of Family Violence Laws; Consultation Paper, Melbourne, at 4.58-4.60]

 

Judicial Consideration

Where visa concerns are an issue, Judicial Officers may consider including additional conditions on the intervention order that prohibit the respondent from:

  • prohibit the respondent from engaging in any action that would undermine the other party’s application for permanent residence; or
  • prohibit the respondent from hiding or destroying documents required to process the affected family member’s (or children’s) immigration claims.

Given the vulnerable situation of CALD victims of family violence who do not have permanent residency status, exclusion conditions may be particularly appropriate.

Lack of cultural competency

Concerns about culturally inappropriate responses and a lack of culturally competent services and personnel is a significant barrier to CALD communities engaging with the justice system. Studies have shown that people from CALD backgrounds are reluctant to access mainstream services due to a lack of cultural competency.

Cultural competency in this context includes an understanding of the migration experience, the settlement process, the impact of traumatic pre-arrival experiences and knowledge of CALD communities and their values. For example, the Australian Human Rights Commission study found that:

A woman may not tell a police officer who is a male that she is experiencing domestic violence because it might be culturally inappropriate for her to share that kind of information with a man.

[Australian Human Rights Commission (2010), In Our Own Words – African Australians: A Review of Human Rights and Social Inclusion Issues, Sydney, p31]

Barriers to court processes and legal representation

Inappropriate responses from the justice system can prevent a CALD victim of family violence from seeking an intervention order or continuing with an application. InTouch found that despite reforms introduced by the FVPA, such as the prohibition on personal cross-examination, women’s discontent with the legal system was highly influenced by the negative experiences they had in the courtroom. There was evidence that affected family members from CALD communities:

They identified the use and availability of interpreters was identified as significant issue in intervention order proceedings. InTouch reported that:

[InTouch Multicultural Centre Against Family Violence (2010), Barriers to the Justice System Faced by CALD Women Experiencing Family Violence, Melbourne at 21]

The InTouch research stressed the need for judicial officers or court staff to take the time to clearly explain the effects of the intervention order, as many CALD women did not fully understand the conditions or the consequences of a contravention. 

The Footscray Community Legal Centre (2009) reported similar findings in a research study with its African clients about their understanding of family violence intervention orders. Issues identified included:

The study suggested that this confusion may result in people:

[Fraser, K. (2009), Out of Africa and into court: the legal problems of African refugees, Footscray Community Legal Centre, Melbourne]

 

Judicial Consideration

Judicial officers can assist CALD affected family members and respondents to understand the court process by:

  • taking time to explain the court process and minimising the use of complex language;
  • ensuring parties understand the effect of the order (registrars, interpreters, support workers and InTouch representatives may be able to assist with explanations); and
  • ensuring parties have access or referrals to appropriate legal representation (e.g. the Women’s Legal Service or InTouch).

See the discussion of court craft techniques in 5.16.3 - Managing the parties for further information.


Lack of appropriate services

It was widely recognised by participants in the InTouch research that support services assisted CALD women dealing with the legal system, especially if the workers spoke their language and understood their culture.

However, it was acknowledged by the services themselves that the following shortcomings significantly impact a woman’s willingness to engage with the services:

[InTouch Multicultural Centre Against Family Violence (2010), Barriers to the Justice System Faced by CALD Women Experiencing Family Violence, Melbourne at 22]

Judicial Consideration

Applicant support workers at courts with Specialist Family Violence Services and applicant and respondent support workers at courts in the Specialist Family Violence Court Division, can provide assistance and referrals for members of CALD communities. A case manager from InTouch Multicultural Centre Against Family Violence is present at Melbourne and Sunshine Magistrates’ Court every Monday and at Heidelberg and Dandenong Magistrates’ Court every Thursday.

Last updated: 3 May 2013

See Also

5.6 - Culturally and Linguistically Diverse people

5.6.1 - Prevalence of family violence amongst CALD communities

5.6.2 - Particular experiences of family violence

5.6.3 - Myth: violence against women is an accepted part of some cultures

5.6.5 - Services

5.6.6 - Further reading