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

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.