Domestic violence and homeless children: are ouster orders the answer?

Domestic violence incontrovertibly results in the homelessness of many women and children. This is because society, and the legal system, has accepted that women bear the onus of escaping violence and of rescuing themselves and their children by leaving the family home.

Ouster orders, also known as sole occupancy or exclusion orders, are issued under domestic violence legislation, and have the potential to prevent some level of homelessness for women and children by ensuring that it is the perpetrator of violence who is removed from the family home and forced to find alternative accommodation. For example, the Domestic Violence (Family Protection) Act, 1989 (Qld) (the Act) provides that a condition can be placed on a protection order that prohibits a perpetrator of domestic violence from remaining in, entering (or attempting to enter), or approaching within a stated distance of, a particular premises. A protection order with such a condition attached to it works to override any legal or equitable interest the perpetrator may have in the property.

The making of ouster orders is, however, controversial, and at this time, relatively uncommon. This is because they involve superordinating and prioritising the housing, support, social and familial needs of women and their children in a situation where in the past those needs have been subordinated to the assumption that it is the responsibility of the victims of domestic violence to escape.

Ouster orders also are also controversial because they raise the issue of increased requirements for funding of men's emergency accommodation - and there is concern that this may be at the risk of funding for victim's services. They also challenge legal notions of proprietorial rights - that a "man's home is his castle".

Ouster orders offer, however, one of the most legally and socially significant ways to ensure that a perpetrator of domestic violence is held responsible for his actions, as well as providing some sense of normalcy for women and children whose lives are otherwise in chaos.

By requiring the perpetrator to leave, ouster orders address, to some extent, the inevitable dislocation that women and children face when they are forced to escape the family home, and leave their existing supports and networks. For children, that dislocation includes having to leave toys, books, familiar furniture, pets, and neighbours behind. Leaving their home (and usually in addition, their local area) also means the likely disruption of schooling, sporting activities, and connections to friends. It also often means, in terms of relocating to a refuge, having only a temporary sense of safety and security in an environment where there is a lack of privacy that accompanies communal living.

Ouster orders can also help to reduce some of the financial disadvantage that women and children currently face when they are forced to escape the family home. This is because the inevitable burden of expenses associated with itinerance and relocation is transferred to the perpetrator.

Victims of domestic violence, both women and children, can also experience a sense of regained control and empowerment by pursuing the option to remain in the home.

Most importantly, perhaps, ouster orders hold the perpetrator accountable for his violence. It is inappropriate and unjust that it is the victims, the women and children, and not the perpetrators of violence, who are effectively condemned to eviction in the current system. This system allows the guilty party to remain in full possession of the home and all the accompanying comforts and conveniences. Ouster orders require the perpetrator of violence to bear the physical, emotional, social and financial burdens of his disruption to the well-being and safety of the family. It is his violence. His responsibility.

In short, ouster orders can be seen as an effective alternative tool to address issues of homelessness that confront survivors of violence - both women and their children. Ouster orders respect the idea that victims of domestic violence need the comfort and support of their familiar surroundings, support networks, and possessions, and should not be made to cope with the difficulties and hardships caused by relocation.

Until recently there was relatively little written about the jurisdiction of Magistrates in the making of ouster orders. Research has shown, however, that Magistrates in Tasmania and Victoria have been reluctant to make such orders, and that in 1987 only 3.2 per cent of orders made in NSW included a requirement that the offender no longer reside in the family home. We know that the reluctance of some Magistrates to issue ouster orders relates to concern about preventing a man from being at his own property. We also know that in some jurisdictions, the likelihood of obtaining an ouster order ex parte (that is, if the perpetrator isn't in court) is low unless the Magistrate has evidence of physical injury. And we know that police seem reluctant to assist with excluding perpetrators from their home, as very few police initiate applications including a request for such a condition. Finally, it has been suggested that many self-representing women do not know that the ouster option exists.

To contribute to the body of knowledge relating to the making of ouster orders in situations of domestic violence we surveyed Magistrates in Queensland in 2000 and asked them: "Do you feel comfortable ousting a violent person from their home?" Seventy-nine per cent of Queensland Magistrates' responded positively. This result would seem to indicate a relatively high level of judicial support for the use of ouster orders. However, Magistrates' comments and notations on the survey raised a number of issues that indicate that while they may feel "comfortable" making such an order, this "comfort" may not necessarily translate into orders actually being made.

The first key issue is that, in order for many Magistrates to feel comfortable ousting a violent person from their home, it seems important that the violence must be seen to be relatively severe. Severity, in terms of conceptions of domestic violence, usually requires an element of physical violence to be present. What this means is that Magistrates consider ouster orders to be justified only as a last-resort measure, and "when the circumstances are bad enough".

However, circumstances where there is a clear and present danger to women and their children and where there is evidence of physical violence are precisely those circumstances in which ouster orders are likely to be most inappropriate. That is, where a woman is frightened for her physical safety, and also for her children, she is least likely to want to remain in the family home and most likely to need the security and safety of refuge accommodation. Magistrates should therefore not rely on the criterion of circumstances being "bad enough" for the issuing of ouster orders because it is more appropriately where the circumstances are "good enough" that such orders should be made.

A second key issue for Magistrates appears to be a reluctance to issue ouster orders ex parte. That is, many Magistrates do not feel comfortable ousting a perpetrator of violence from his home unless the respondent has been given the opportunity to be heard and to defend his case. This approach satisfies liberal legal notions of natural justice but also potentially results in an encouragement by the system of the perpetrator's denial and mitigation of his behaviour. That is, if a perpetrator has to deny his violent behaviour in order to stay in his home, the system is failing to encourage him to take responsibility for his violence. Further, it is possible that the reluctance of Magistrates to make ex parte ouster orders is linked to a respect for the perpetrator's legal or equitable interests in the property. If this is the case, legal process is allowing a perpetrator's property rights to be superordinated over the rights of women and children to live free of violence in their own home. A further dilemma here is that a perpetrator can ensure that an ouster order is not made by simply not being present in court.

A third key issue relates to the assertion by Magistrates of their objective, legally focused approach to the issuing of ouster orders. That is, many Magistrates said it was irrelevant whether or not they felt comfortable making such orders because if the order "must be made then it is made". This indicates a commitment to notions of objective justice which perhaps belies the subjective nature of the exercise of a Magistrate's discretion in responding to applications for ouster orders. We would argue that in practice a Magistrate's feelings about the idea of ousting a person from their home certainly are relevant to whether these orders are being made or not.

A fourth key issue for Magistrates is whether information is available about the involvement of children and the availability of suitable alternative accommodation for the applicant. Here we find evidence of the availability of refuge for women and children as a disincentive for the making of ouster orders. That is, because victims of domestic violence are more likely to have alternative emergency accommodation available to them than the perpetrator, they are the ones who are expected to leave the home.

In addition to these views of the Magistracy, which can be argued as resulting in a rather limited approach to the current use of ouster orders, there are a number of impediments to any potential increase in their use. First, the legal system is not able to guarantee the safety or protection of women inside their own home if the violent partner is removed. This means that in order for an increase in the use of ouster orders to work, government will need to commit resources to new and different funding dilemmas. For example, there would need to be improved measures to protect women and children in their home after the perpetrator has been ousted by way of, for example, increased home security, provision of personal alarms and increased potential for immediate police response and attendance. There may also be a need for more rigorous legal sanctions for breach of the orders, which inevitably involves resource implications for police and the courts, as well as other services.

An increased use of ouster orders would also result in a need for expanded emergency accommodation services for men. This issue, mentioned above, is controversial and difficult because it challenges some of the current orthodoxies that exist in terms of service provision for victims of violence which are based on supporting women and children in escaping the family home. On the basis of these orthodoxies, men's domestic violence crisis accommodation services are currently limited. This creates a situation, however, where the courts are reluctant to oust perpetrators from the home because the view is taken that they have no-where else to go, whereas the assumption is made that women and children have a network of refuges to turn to. An increase in the funding of men's emergency accommodation also makes many in women's services fearful that their limited funding and resources will be reduced or shifted to assist perpetrators. Undertakings are perhaps required from government that any funding changes that are made to facilitate the making of ouster orders will not be accompanied by the removal of resources from already under-funded women's emergency services.

Issues in relation to the making of ouster orders by Magistrates have largely escaped academic scrutiny in Australia to date. The results of the survey conducted in Queensland prima facie reflect a generally positive approach on the part of Magistrates to an issue which is fraught with difficulty. The comments of Magistrates indicate, however, that much of their consideration of this issue is focussed on ouster orders as an extreme response to physical violence. In order for social justice to be served for survivors of violence, ouster orders should in fact be issued far more frequently and in circumstances where the violence is not severe.

An increase in the use of ouster orders is dependent not only on Magistrates' development of a better understanding of issues for women and children in this context, but also on legal, social, policy and service developments that challenge past and current orthodoxies in terms of responses to domestic violence in Australia.