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Research Report: No home, no justice?  The legal needs of homeless people
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No home, no justice? The legal needs of homeless people  ( 2005 )  Cite this report

Ch 4. Legal issues facing homeless people in NSW



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Domestic violence


Victims

The literature indicates that domestic violence contributes to homelessness for women and their families when women have to leave their homes in order to escape the violence.24 When this is coupled with the financial disadvantage they may experience as a result of leaving their partners, homelessness can become a reality for these women. In 2002–03 an estimated 94 400 people in Australia were homeless due to domestic violence.25 In the same period, the estimated temporary accommodation costs due to domestic violence was $88.1 million.26

Early indications from the Law and Justice Foundation’s Legal Needs Survey are that a higher percentage of homeless respondents had a legal issue arising from domestic violence compared with other respondents.27 Further, domestic violence-related issues accounted for the second largest group of legal activities undertaken by the WLS for ‘homeless’ clients in 2002–03, after family law (including child contact and residency issues).28

Women who experience domestic violence may leave and return to their homes many times before leaving permanently.29 The path into homelessness for women who experience domestic violence appears to start often after they have experienced the violence for a sustained period of time, and are consequently forced to leave home to stay with friends or family, or at a refuge or other SAAP service.


    I lived in Canberra with my ex. He was too violent so I came back home here with my kids. And I have been living with mum ever since.30

Chamberlain and MacKenzie note that intervention at this point is difficult because many women do not seek assistance.31 Relevant legal processes at this point may include securing an apprehended violence order (AVO), with or without an exclusion order, family law matters, including child residency and contact, child support and property settlements (e.g. shared debts).

One caseworker from the Hunter region commented that if a woman leaves her partner because of domestic violence, the stress of the relationship breakdown is compounded by having to find safe accommodation and deal with the legal issues arising from the relationship breakdown. In this caseworker’s experience, women may find life more out of control and difficult when they leave the domestic violence situation than when they were in it.32

Exclusion orders

An apprehended violence order (AVO) is one option for people experiencing domestic violence. AVOs can impose a number of conditions on the defendant, namely, the prohibition of the defendant from assaulting, threatening or interfering with the person in need of protection.33 In addition, a Magistrate can also make an ‘exclusion order’ under s 562D of the Crimes Act 1900 (NSW). This prohibits the defendant from staying at or entering the family home, regardless of their legal interest in the property.34 Addressing domestic violence through AVOs and exclusion orders can alleviate homelessness for women in some circumstances, because:


    For women and children victims of domestic violence, exclusion orders provide an opportunity to leave a situation of domestic violence but remain in their own homes.35

The reality is, however, that exclusion orders are used infrequently in the justice system and women are still leaving home following domestic violence. Edwards conducted a study into the granting of exclusion orders in NSW at local courts in Waverley and Sutherland.36 The study found that exclusion orders are often not attached to AVOs. For example, 32 exclusion orders between both courts were made over a six-month period compared to approximately 30 AVOs at Waverley Local Court and 50 AVOs at Sutherland Local Court per week.37

In granting exclusion orders, Magistrates must consider the accommodation needs of the parties involved and any effects on the children.38 Edwards found that the accommodation needs of the defendant were being considered over the accommodation needs and general interests of women and children; a lack of available accommodation for the defendant was often cited by Magistrates as a reason for not granting exclusion orders.39

Edwards also highlights the role of the police in granting exclusion orders through the use of Telephone Interim orders. These are orders made in situations where it is not possible to have an AVO made straightaway in court, but where the police believe that a domestic violence offence has occurred.40 Edwards found that it was easier to have an exclusion order granted as part of a telephone interim order and to have it continued than at a hearing.41

In summary, exclusion orders can play a significant role in preventing women and children from becoming homeless. Edwards provides strong argument for the need for police and magistrates to be better informed of the existence of exclusion orders and their relevance in preventing homelessness for women and families. As one victim asked:


    Why do we women live in refuges when the perpetrators live in the comfort to which they are accustomed? Why must we three eke out a living on a pension of $330 per week of which $130 goes in rent while my husband lives on his salary of $750 per week of which $85 goes on the mortgage and lives alone in a four-bedroom, two-bathroom house.42

Defendants

Perpetrators also face legal issues arising out of domestic violence. Defendants may be rendered homeless by the enforcement of exclusion orders43 that contain ‘do not approach’ and ‘not to contact’ provisions.44 A lack of alternative accommodation can push defendants into homelessness. This not only affects men, but women and young people who are defendants to AVOs. One woman who was interviewed stated:


    I had my own Housing Commission place, and two children. The father and I separated and the kids find it very hard, they are very nasty to me. So my daughter (17 years old) was in a gang so I slapped her, and because I hurt her she reported it to the police … She put an AVO on me. I had to leave my own house and have the father move in with her, so I pay the rent there and I can’t even live there.45

Another stakeholder spoke about young people as defendants to AVOs:

    One thing that has been coming up recently is often breach of AVOs, where they’ve had to leave their parents house, or their mother’s house, fathers had to leave and when there’s been police involved, the police have encouraged the family to take an AVO on a young person, then maybe after a week or two the young people has again gone to approach them, the family or whatever, and it may not necessarily be for any sort of violence, it’s just the young kid wants to go home again and he ends up getting his AVO breached again like that.46

One rural solicitor said that it was fairly common for people to be breached for going home when they weren’t allowed to, particularly if they were intoxicated.47

Chung et al., p. 46, see also AIHW, SAAP 200203 NSW Tables and Chapter 3 of this report.
This includes victims, their families and perpetrators. Access Economics, The Cost of Domestic Violence, p. 55.
This included government funding (both state and federal) to supported SAAP and contribution by domestic violence victims themselves to accommodation such as boarding houses, motels, caravan parks. Access Economics, The Cost of Domestic Violence, p. 56.
Law and Justice Foundation of NSW, Legal Needs Survey 2003. The respondent could be a victim or a perpetrator of domestic violence.
Family law is the collection of the following categories as recorded on the WLS database: child contact, child residency, divorce, child support, spouse maintenance, property, property in marriage, property in de facto, separation and other family law. 200203 legal services data provided by the WLS, where homeless has been defined using the Chamberlain and Mackenzie definition.
MacKenzie & Chamberlain, Homeless Careers, pp. 401, see also Chung et al.
Interview no. 26.
MacKenzie & Chamberlain, Homeless Careers, p. 8.
Newcastle Workshop Group 1.
R Barry (ed.), The Law Handbook: Your Practical Guide to the Law in NSW, 9th ed., Redfern Legal Centre Publishing, Redfern, NSW, 2004, p. 1023.
The Law Handbook, p. 1024.
R Edwards, Violence Excluded: A Study into Exclusion Orders in South East Sydney, Violence Against Women Specialist Unit, NSW Attorney Generals Department, Sydney, 2004, <http://www.agd.nsw.gov.au/cpd.nsf/files/ViolenceExcluded.pdf/$FILE/ViolenceExcluded.pdf> (accessed June 2004).
Edwards, p. 2.
Edwards, p. 14.
Crimes Act 1900 (NSW), s 562D.
Edwards, p. 14.
The Law Handbook, p. 504.
Edwards, p. 12.
Chung et al., p. i.
Exclusion orders can be made as part of an AVO.
Consultation with Legal Aid NSW, October 2003.
Interview no. 19.
Roundtable Consultation, 27 August 2003.
Consultation with Richard Ikaafu, WALS, Walgett, May 2004.

24  Chung et al., p. 46, see also AIHW, SAAP 200203 NSW Tables and Chapter 3 of this report.
25  This includes victims, their families and perpetrators. Access Economics, The Cost of Domestic Violence, p. 55.
26  This included government funding (both state and federal) to supported SAAP and contribution by domestic violence victims themselves to accommodation such as boarding houses, motels, caravan parks. Access Economics, The Cost of Domestic Violence, p. 56.
27  Law and Justice Foundation of NSW, Legal Needs Survey 2003. The respondent could be a victim or a perpetrator of domestic violence.
28  Family law is the collection of the following categories as recorded on the WLS database: child contact, child residency, divorce, child support, spouse maintenance, property, property in marriage, property in de facto, separation and other family law. 200203 legal services data provided by the WLS, where homeless has been defined using the Chamberlain and Mackenzie definition.
29  MacKenzie & Chamberlain, Homeless Careers, pp. 401, see also Chung et al.
30  Interview no. 26.
31  MacKenzie & Chamberlain, Homeless Careers, p. 8.
32  Newcastle Workshop Group 1.
33  R Barry (ed.), The Law Handbook: Your Practical Guide to the Law in NSW, 9th ed., Redfern Legal Centre Publishing, Redfern, NSW, 2004, p. 1023.
34  The Law Handbook, p. 1024.
35  R Edwards, Violence Excluded: A Study into Exclusion Orders in South East Sydney, Violence Against Women Specialist Unit, NSW Attorney Generals Department, Sydney, 2004, <http://www.agd.nsw.gov.au/cpd.nsf/files/ViolenceExcluded.pdf/$FILE/ViolenceExcluded.pdf> (accessed June 2004).
36  Edwards, p. 2.
37  Edwards, p. 14.
38  Crimes Act 1900 (NSW), s 562D.
39  Edwards, p. 14.
40  The Law Handbook, p. 504.
41  Edwards, p. 12.
42  Chung et al., p. i.
43  Exclusion orders can be made as part of an AVO.
44  Consultation with Legal Aid NSW, October 2003.
45  Interview no. 19.
46  Roundtable Consultation, 27 August 2003.
47  Consultation with Richard Ikaafu, WALS, Walgett, May 2004.


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Forell, S, McCarron, E & Schetzer, L 2005, No home, no justice? The legal needs of homeless people in NSW, Law and Justice Foundation of NSW, Sydney