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.