Policy position paper
Appropriate domestic violence court support
for women from culturally and linguistically
diverse backgrounds
Paper No 2, April 2013
Women’s Domestic Violence Court Advocacy Service NSW Inc recommends that the
delivery of specialist court advocacy and support for women from culturally and
linguistically diverse (CALD) backgrounds who have experienced domestic violence
should be prioritised as a means of improving their access to all local courts in New
South Wales. WDVCAS NSW identifies the following as being significant barriers to
CALD women being empowered to access the legal framework relating to domestic
violence:
•
a lack of cultural awareness and sensitivity;
•
language barriers;
•
access to information; and
•
uncertainty of immigration status.
About Women’s Domestic Violence Court Advocacy Service NSW Inc
Established in 1996, Women’s Domestic Violence Court Advocacy Service NSW Inc
(WDVCAS NSW) is the peak body for the state-wide Women’s Domestic Violence Court
Advocacy Services who provide services to assist women and children seeking legal
protection from domestic violence. WDVCAS NSW is an incorporated association
comprising representatives from 28 individual WDVCAS 1 that operate in 108 local courts
throughout metropolitan, regional and rural New South Wales.
In 2011/2012, the 28 WDVCAS provided 76,473 services to 27,526 clients across NSW. The
WDVCAS made a total of 44,642 referrals, and assisted 3,168 Aboriginal clients and 5,123
CALD clients.
1
Blue Mountains, Burwood, Central Coast, Central West, Far South Coast, Far West, Hunter, Hunter Valley, Illawarra,
Macarthur, Macquarie, Mid-North Coast, New England, North Coast, North West, North West Sydney, Northern Rivers,
Northern Sydney, Riverina, South Coast, South Eastern, South West Sydney, Southern, Southern Sydney, Sydney,
Wagga Wagga, Western, Western Sydney
1
Introduction
Immigration in Australia
According to 2011 census data 2 the cultural diversity of Australia has been reshaped by the
nation’s strong immigration policy. Of a total population of just over 21.5 million, 24.6 per
cent of residents were born overseas, while 43.1 per cent have at least one parent who
migrated here.
The top countries of birth outside of Australia are:
1.
the United Kingdom;
2.
New Zealand;
3.
China;
4.
India; and
5.
Vietnam and Italy (equally).
Interestingly (but perhaps not surprisingly), the countries with the highest rate of increase
were:
1.
Nepal;
2.
Sudan;
3.
India;
4.
Bangladesh; and
5.
Pakistan.
WDVCAS NSW strongly asserts that domestic violence is a gendered issue. No woman ever
asks to be the victim of violence and culture is never an excuse for violence against women
and children. While there is no culture in the world that officially condones violence against
women, there are some who would seek to rationalise it using cultural or religious values
and beliefs.
International research 3 recognises that violence against women crosses all cultures,
religions and social classes and that regardless of the context the dynamics of violence
against women are always about power and coercive control.
Violence against women
Good practice recognises the cultural diversity of communities and makes equitable access
to advocacy and support for all women who have experienced domestic violence a priority.
The prioritising of specialist court advocacy and support for CALD women who have
experienced domestic violence would accord with the Australian Law Reform Commission’s
recommendations regarding the provision of and access to culturally appropriate victims
support services and legal services for victims of family violence including enhanced support
for victims in high risk and vulnerable groups in all Australian jurisdictions. 4 Specialist court
advocacy and support for CALD women would have certain minimum core features,
including:
•
cultural awareness and sensitivity;
•
easy and regular access to quality interpreters for victims;
•
pro-active advocacy and victim support, including legal and non-legal services.
2
3
4
Commonwealth, Australian Bureau of Statistics, http://www.abs.gov.au/ausstats, accessed 2 January 2013
United Nations Children’s Fund (UNICEF) Innocenti Research Centre, Domestic violence against women and
girls, Innocenti Digest No. 6 (2000) and World Health Organisation (WHO), Violence against women, WHO
consultation Geneva Switzerland (1996)
Australian Law Reform Commission, Family Violence – A National Legal Response (2010), see
recommendations 29-3 and 29-4
2
WDVCAS NSW believe this model of specialisation is readily achievable because the key
elements already exist across many courts in New South Wales and need only to be
adequately resourced to expand in an integrated way. Currently, in 13 of the 28 individual
WDVCAS a CALD Specialist Worker is employed to work directly with CALD women to
ensure they are empowered to exercise their rights against domestic violence.
Importantly, the CALD Specialist Worker shares their expertise with all staff and secondees
within the WDVCAS to improve the capacity of the entire service to work with CALD women.
Further, a specialist response for CALD women who experience domestic violence would
affirm the NSW Government’s commitment to the Charter of Victim’s Rights and would
promote a positive intention to address and reduce domestic violence in the community.
Cultural awareness and sensitivity
The dynamics that prevent CALD women from escaping domestic violence are in many
ways similar to those encountered by any woman in the same situation:
•
a sense of shame and the need to maintain appearances (including to avoid
repercussions from family in Australia and overseas);
•
fear of violent repercussions if they try to leave;
•
social isolation and rejection by community;
•
normalisation of the violence;
•
low self esteem;
•
lack of information about alternatives;
•
fear of poverty or having no support for their children on their own;
•
a desire to keep the family intact for the sake of the children;
•
love for their partner in spite of the violence; or
•
hope that things will improve. 5
However, for CALD women these barriers are often compounded because:
•
their sense of shame is closely related to cultural factors;
•
their fear is heightened by uncertainty about their immigration status;
•
their social isolation is compounded by language issues, separation from family and
friends, and a lack of familiarity with New South Wales laws, social structures and
services;
•
family and community members’ views about marriage, divorce, gender roles and
violence may have a cultural component; or
•
a fear of racism 6;
Previous trauma (either experienced in their country of origin or in Australia) can have
significant impacts on a CALD woman experiencing domestic violence perceptions of the
purpose of police officers attending her house. Particularly, the presence of police officers
can have a negative connotation based on the context of previous trauma which can result in
a heightened fear of authority rather than feelings of safety and security.
WDVCAS NSW asserts that a key to empowering CALD women to escape domestic
violence is a culturally respectful approach to service delivery.
5
6
Canada, Empowerment of immigrant and refugee women who are victims of violence in their intimate
relationships, Justice Institute of British Columbia, (2007) 12
Ibid
3
The importance of specialist expertise
WDVCAS recognises in practice what research concludes:
Often NESB [non-English speaking background] women comment on their sense of isolation,
which arises when they are supported by workers who never ask directly about the meaning of
a woman’s culture and/or experience, while alluding to their own feelings of inadequacy and
cross-cultural fear.
…
Cross cultural practice does not depend on emphasising differences… Cross cultural practice
acknowledges the diversity as an inherent characteristic of our community and seeks to
answer to its community needs on a platform that is respectful … This respect includes
engaging with women’s need for safety and understanding and not avoiding this by off-loading
7
through referrals to specialist NESB community organisations.
The NSW Legislative Council Standing Committee on Social Issues (Standing Committee on
Social Issues) inquiry into domestic violence trends and issues recognised the CALD
population as being a particular group who faced increased barriers accessing domestic
violence services. 8
WDVCAS NSW accepts the inherent challenge that “cultural taboos” can present in
acknowledging and discussing domestic violence with CALD women. However, such
assumptions ultimately limit a CALD woman’s access to the most basic advocacy and
support.
Access to information that is presented in a culturally sensitive format is often the first step
toward victims of domestic violence making meaningful and informed choices by gaining an
increased awareness of the support services that are available.
The NSW Domestic Violence Justice Strategy 9 sets as clear outcomes:
•
immediate referral to a victim’s service 10;
•
safety planning with victims 11; and
•
accessible counselling for victims 12.
WDVCAS NSW supports these strategies but stresses that the particular needs and
vulnerabilities of CALD women must be specifically considered in the implementation of any
programs.
WDVCAS NSW encourages the NSW Government to draw on our specialist expertise during
all stages of planning and implementation of the Justice Strategy.
To assist CALD victims of domestic violence, specialist court advocacy and support workers
would have a critical role in:
•
liaising with police prosecutors and domestic violence liaison officers and other victim
support persons as appropriate;
•
interviewing the victim before the matter is listed in the local court;
•
understanding the type of orders appropriate to the victim’s circumstances; and
7
8
9
10
11
12
Multicultural identity and working across cultures in responding to violence, Australian Domestic and Family
Violence Clearinghouse, Newsletter No 36 – Autumn 2009
Legislative Council Standing Committee on Social Issues, Parliament of New South Wales, Domestic violence
trends and issues in NSW (2012), 35-36 and 89
New South Wales, The NSW Domestic Violence Justice Strategy: Improving the NSW criminal justice
system’s response to domestic violence 2013-2017, (2000)
Ibid (see Justice Outcome Strategy 1.3)
Ibid n8 (see Justice Outcome Strategy 3.2)
Ibid n8 (see Justice Outcome Strategy 3.3)
4
•
influencing the broader legal system and community perceptions of domestic violence.
WDVCAS NSW recommends an enhancement of the current WDVCAS CALD Specialist
Worker positions to achieve the required level of specialisation in courts across New South
Wales.
Overcoming the language barrier
It is WDVCAS NSW’s experience that the language barrier is a serious obstacle to CALD
women accessing support to escape domestic violence, and therefore put many women
at further risk. Weak use of English is a barrier to safety, health and justice. The ability to
help CALD women break through the language barrier can have a significantly positive
impact on their ability to address the domestic violence, keep themself safe, and exercise
their human rights.
An ability to communicate is an important component of empowerment for CALD women
if they are to actively participate in the justice system. Even if a woman is generally able
to cope adequately with English, it is not uncommon for their language skills to be
compromised when in fear, upset or confused by their circumstances, such as dealing
with police or appearing before a magistrate in court.
Poor English language skills should not restrict access to information about the legal
justice system or social and support services available that are critical to assisting victims
of domestic violence. No victim of domestic violence should be a bystander to the justice
process because of cultural barriers.
Access to quality interpreters is a key issue, and inadequate funding arrangements
should never be an excuse for not allowing every victim of domestic violence access to
an interpreter if they need one. WDVCAS NSW is greatly concerned by the practice of
using family members, especially children, to assist communication rather than
professional interpreters. This practice not only breaches the confidentiality of the victim,
but also limits potential disclosure by the victim of the history and nature of domestic
violence in the relationship.
WDVCAS NSW strongly asserts that the provision of a professional translator is more
than a matter of respect for cultural differences. Access to a quality translator can make
the pivotal difference between a CALD woman’s ability to access appropriate orders for
her safety in an Apprehended Domestic Violence Order (ADVO) or not. When victims of
domestic violence, their advocates and the police cannot communicate clearly, women
are put at greater risk of further violence.
WDVCAS NSW support research which concludes:
Taking the first step away from a violent relationship and accessing help often depended on
having information about their rights and services. Lack of information was particularly
disempowering for these women because they were often new to this country... At every step,
access or lack of access to timely, accurate information in a language they could understand
was key to their ability to access safety. Women spoke of the necessity of accurate
information about available resources, the nature and dynamics of abuse in relationships, and
13
immigration and refugee rights.
13
Ibid 5, 38
5
In addition, accessibility of information is particularly important because violence against
women may not be a well publicised issue in the women’s country of origin.
WDVCAS NSW recommends the adequate resources be allocated to funding
professional interpreters to assist CALD women who are victims in domestic violence
matters.
While it is not practical for many reasons to suggest that interpreters can be present with
police who attend the domestic violence incident, it is critical that the need for an
interpreter to assist a CALD woman victim is identified at the first opportunity and
engaged at all stages through the process. As well as being in fear of the perpetrator, it is
not unusual for CALD women who are victims of domestic violence to also be in fear of or
uncertain of:
•
the role of police and the local court (and other government agencies) in protecting
her;
•
the threat of deportation to her country of origin with or without her children;
•
the threat of homeless without any financial support.
Such fears may be the result of coercive controlling tactics by the perpetrator or simply a
lack of knowledge and understanding of services and supports in New South Wales
exacerbated by a lack of proficiency in English. Such fears will severely inhibit a CALD
women’s ability to engage and participate in systems designed to help her escape
domestic violence.
WDVCAS NSW strongly supports the early engagement of an interpreter to ensure that
fears can be expressed and therefore addressed by referral to appropriate specialist
services, for example, information about immigration and visa classes; information on
welfare payment eligibility; information about how decisions concerning where children
live are made; information on crisis accommodation; and information on the court process
(including ADVO and any criminal charges).
WDVCAS NSW acknowledges the practice of some local courts to pre-arrange on-site
interpreters in the main community languages to attend court on domestic violence list
days as a positive initiative to improve access to justice for CALD women who are victims
of domestic violence. WDVCAS NSW strongly encourages this practice to the adopted in
all local courts across New South Wales. In addition WDVCAS NSW recommends the
use of female interpreters to further encourage CALD women to engage.
In acknowledging this initiative it is important to also acknowledge the inherent difficulty
that can be encountered when both the victim and perpetrator must share a single
interpreter at court.
Equal access
WDVCAS NSW acknowledges the work undertaken by Legal Aid in conducting
information sessions at court for perpetrators on: the legal nature of an ADVO (that is, an
ADVO is a civil not a criminal law matter); the different conditions that can be ordered,
and the practical implication of those conditions; and that a breach of an ADVO is a
criminal offence (unlike the original ADVO itself).
This is a critical step in the ADVO process as it can remove some of the uncertainty about
what the each of the conditions of an ADVO mean, and the reality of what may constitute
a breach of those conditions.
6
However, for the purposes of accessing these information sessions and appearing in the
local court, WDVCAS NSW strongly rejects the practice of both the applicant and
respondent utilising the same interpreter in proceedings.
In recognising that all parties to ADVO proceedings should have equal access to quality
advice, support and representation, WDVCAS NSW is concerned about an anomaly that
arises when it is a child that is the person in need of protection. WDVCAS NSW accepts
that local courts will only provide an interpreter to a party to the proceedings. However, it
is not unusual for the victim’s parent, guardian or carer (most often their mother) to
require an interpreter to support her child who is in need of protection by the ADVO.
WDVCAS NSW recommends that where the person in need of protection is a child, that
the accompanying parent, guardian or carer be provided with an interpreter if one is
required.
Proactive advocacy and victim support
Proactive advocacy and victim support should deliver empowering practices that help
CALD women who are victims of domestic violence keep themselves and their children
safe and move forward in their lives.
It is apparent to WDVCAS NSW that CALD women have great difficulty navigating the
complex service support system in New South Wales. 14 A lack of coordination between
services is also an issue of concern, particularly when it results from inadequate
knowledge and skills to effectively target and reach CALD women who are experiencing
domestic violence.
Currently, there a number of government agencies (including Community Services,
Police, Legal Aid, Corrections and Housing) all working in the domestic violence space
providing a range of programs and services targeted at specific but different client groups.
This is coupled with a range of non-government organisations partnering with government
to deliver these programs. The result is a waste of resources by duplicating the basic
infrastructure necessary to establish and operate these programs at the expense of front
line service delivery to victims of domestic violence.
WDVCAS Network recommends that a more coordinated and integrated approach to
domestic violence can be achieved by a single agency taking the lead in the State’s
domestic violence response.
Integrated response
Every WDVCAS works locally to promote a co-operative and integrated approach to
advocating for victims of domestic violence to ensure effective service delivery. WDVCAS
collaborates extensively with local courts, NSW police, referral support services and other
relevant bodies where appropriate to deliver a holistic service to women.
A key feature of the integrated response delivered by WDVCAS is the access to free legal
advice for clients through Legal Aid NSW’s Domestic Violence Practitioner Scheme (DVPS)
that operates in 32 local courts where a WDVCAS exists. DVPS practitioners speak with
women in the WDVCAS safe room, or other safe space in the local court, and advise not
only on the content of ADVOs but also other legal matters, for example, family law, housing
credit and debt, or fines. Where DVPS is not available, WDVCAS work to build
14
Violence through our eyes: Improving access to services for women from non-English speaking backgrounds with
disability and carers experiencing violence project report, Multicultural Disability Advocacy Association of NSW, 2010
7
collaboratively relationships with local legal practitioners to enable women victims to access
legal advice.
WDVCAS NSW asserts that the DVPS is an extremely successful support for women
victims of domestic violence, and that many victims are able to access free legal advice in a
safe environment which otherwise would not be available. WDVCAS NSW strongly supports
the recommendation of the Standing Committee on Social Issues 15 that the DVPS be
evaluated with a view to expansion across New South Wales.
WDVCAS NSW is keen to highlight that while a proactive and integrated response can
assist and empower CALD women, prior negative experiences in their country of origin may
mean that CALD women have a fear of police and legal intervention in their private lives.
WDVCAS NSW cannot stress enough the importance of early referral to independent nongovernment advocacy and support services to assist CALD women overcome their fear and
confusion of the ADVO system.
Early referral
WDVCAS NSW strongly asserts that a key enabler for CALD victims receiving proactive
advocacy and court support services in a timely manner is early referral to a specialist
service before the first court date. For a WDVCAS client, the advocacy begins with referral
from NSW Police very soon after they attend the domestic violence event, and at the latest,
on the first mention date in court, when contact is made with the victim and information
provided to her.
In the experience of WDVCAS NSW, women who have experienced domestic violence are
willing to participate in the ADVO process to ensure that their voice is heard and appropriate
orders are made for the protection of themselves and their children. WDVCAS statistics
show a strong correlation between pre-court contact by our specialist service, the women’s
attendance at court on the first occasion, and the early finalisation of the ADVO matter.
In domestic violence matters, many are finalised by consent between the parties on the first
occasion that the matter is before the court. The specialist advocacy provided by the
WDVCAS from the first court date is vital in ensuring that the safety of the victim is
paramount and reflected in the final orders made by the court in the form of an ADVO.
WDVCAS NSW is strongly of the opinion that a single or common point of referral
(especially for female victims of domestic violence) would result in major increases in the
effectiveness of court support services and subsequent referral to other services that might
assist the client. With adequate resources, a state-wide service like the WDVCAS is ideally
placed to be the lead agency receiving referrals for court related domestic violence matters.
The WDVCAS already has a robust working relationship with local Police Domestic Violence
Liaison Officers and this move would only increase and strengthen the partnerships already
in place.
Attending court
Due to resource constraints, individual WDVCAS has very limited capacity to assist women
and children at hearings to provide support and legal information. Therefore, many victims
attend court hearings with no independent professional support. For CALD women, this
creates a particular disadvantage if they are required to give oral evidence and be crossexamined without adequate support before, during and after court.
Active engagement with victims of domestic violence for the entire process was a key
element of the success of the Domestic Violence Intervention Court Model (DVICM).
15
Ibid n7, recommendation 70
8
WDVCAS NSW strongly supports the recommendation of the Standing Committee on Social
Issues 16 that the most successful aspects of the DVICM be integrated into all NSW local
courts.
The importance of CALD women attending court on cannot be underestimated. WDVCAS
NSW asserts that for the victim to have their justice interests met they must be given the
opportunity to participate and have a voice in the ADVO process. Many WDVCAS are
fortunate enough to have access to a secure space in the local court building, a safe room,
where victims of domestic violence can attend court in full knowledge that they can wait for
their matter to be dealt with by the court without having to face their perpetrator in the
general waiting area of the court.
WDVCAS NSW strongly supports the recommendation of the Standing Committee on Social
Issues 17 that safe rooms be established in all NSW local courts.
Acknowledgement
WDVCAS NSW Inc would like to acknowledge and thank the WDVCAS CALD Specialist
Workers Network for their significant contribution to the development of this position paper.
16
17
Ibid n7, recommendation 73
Ibid n7, recommendation 80
9