Appropriate domestic violence court support for women from culturally and linguistically diverse backgrounds

Transcription

1 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

2 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: Nepal; 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 Commonwealth, Australian Bureau of Statistics, 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

3 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

4 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 through referrals to specialist NESB community organisations. 7 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 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), and 89 New South Wales, The NSW Domestic Violence Justice Strategy: Improving the NSW criminal justice system s response to domestic violence , (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

5 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 immigration and refugee rights Ibid 5, 38 5

6 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

7 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,

8 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

9 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 Ibid n7, recommendation 73 Ibid n7, recommendation 80 9