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Federation failing on domestic and elder abuse

Opinion

Governments are failing to take coordinated action in areas of law which touch the most vulnerable people in our society, argues legal commentator Morry Bailes.

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Family and domestic abuse, like child sexual abuse, has come from the shadows to confront us in a very public way. In days past it was unspoken taboo. Now we discuss it openly as a society searching for answers to what is, despairingly, an endemic problem with terrible and far-reaching consequences.

As we find ourselves transfixed by the dreadful accounts of spousal and partner abuse, that often extend to children, an aspect of family and domestic violence often overlooked is elder abuse.

Elder abuse, often subtle, sometimes not, involves people who, a little like children, find themselves defenceless. It can be physical, it can be mental, and it is often carried out with financial motive. Carers and even family members can sometimes take advantage of older people who may be lacking in faculties or simply deceived by those by whom they thought loved them. It is heartless and horrible, but, sadly, with an ever-ageing population it is becoming more prevalent.

In all variants of family and domestic abuse the law needs to respond. So what is our scorecard looking like given our increasing awareness of these dreadful societal problems?

Firstly, in respect of spousal and partner abuse, the issues are complex and abuse is often masked and buried. The Northern Territory has laws requiring mandatory reporting, backed by penalties, but many remain unconvinced about its effectiveness as a tool to flush out instances of domestic violence. Indeed, it may cause victims to bury the problem even deeper if they know that to reveal their abuse to another may result in it being made public. Adding to the complexity is the fact that abuse can extend to children.

Once the abuse is known, however, circumstances change and unfortunately on that front our scorecard is poor. Domestic police are overwhelmed and under-resourced. Also, they may be under-skilled, through no fault of their own. If a matter is actioned it will inevitably lead to court, and by now I would hope that society at large understands how the chronic under-funding of our justice system has a material impact on its ability to successfully deliver timely outcomes.

However the problem is wider and more deep-rooted than that. Reported recently was a 56 per cent leap in Family Court cases with notices of child abuse or risk of family violence. Earlier this month, The Australian newspaper surveyed judges and academics in this area who said that not only are we seeing just the tip of the iceberg of these matters, but that the lack of a central child protection register means that movement between jurisdictions can result in a failure to follow and detect subsequent problems. A lack of consistent laws across jurisdictions only operates to exacerbate these circumstances. So while the Family Court and Family Circuit Court, both dealing with family law disputes, are federal jurisdictions, child protection laws are state-based.

Add to that a chronic under-funding of the courts and announced budget cuts to Community Legal Centres, who often represent women and children involved in the family law justice system, and you have the perfect storm: inadequate jurisdictional cooperation, inconsistent law and reduced government spending.

I can only give our efforts in this area a fail.

We are failing women who are victims of domestic violence and we are failing child victims of both physical and sexual abuse. And this failure is occuring just when the full extent of our shameful and culpable past, particularly that of institutions who had care of our children, is being excruciatingly exposed by commissions across the country.

Through the evidence from current royal commissions we are re-living the past, but we must simultaneously understand that the abuse is not locked in history. It is happening now. And while it is essential for victims of the past to receive redress, it is critically important to prevent what is happening today. Let’s not make the mistake of thinking we have only a historical problem here.

Judges, lawyers and legal academics have witnessed a flailing approach by all governments to this area of law which touches the most vulnerable members of society.

With elder abuse we are grappling with a similar problem. Once again, in our federal model, if one is to execute a power of attorney there is no national register. To execute a power of attorney is to donate to another person the legal right to be you without you being present. Depending on the nature of the donation, the done attorney may access bank accounts and even sell real estate. The risk of abuse for the elderly is obvious, but we have not, as a federation, got around to dealing with these challenges in a centralised way.

There are other problems. One is the ease with which a power of attorney may be executed without medical approval, for instance, when it often involves self-interested relatives. Another is the appointment of a singular attorney who is then invested solely with the power to access the estate, when wisdom would suggest the appointment of more than one is far less risky.

In all of this I have not broached the topic of the physical abuse of some of the elderly which is a sad reality and another reason why this area requires urgent attention.

The Australian Law Reform Commission is expected to publish a report soon on this issue, which is enormously encouraging. However, it will still take the collective will of all governments to recognise the problems and legislate accordingly.

The cuts to community legal sector budgets, and failures to adequately increase our legal aid spend, lead inevitably to consequential problems for the elderly as well. In a case of elder financial abuse, for example, it doesn’t help when the affected elderly person cannot afford to get legal advice. Paying for the preparation of a power of attorney is cheap. Remedying the consequences if the power is abused may not be. The problem is not one reserved for those with wealth. It can be as insidious as pinching some of an elderly person’s welfare or pension cheque. If such a person cannot get access to a lawyer to help in a first world country, I despair.

I am tempted to a view that we are sliding toward a fail in this area as well. I wonder, depressingly, if in 10 or 20 years we will have a federal royal commission into institutional elder abuse? The Victorian government, within broader terms of reference, already has.

So how are we to fix it, or is it unfixable?

I don’t think anything is beyond meaningful government reform. For example, I once thought the problem of the over-representation of Aboriginal and Torres Strait islander people in our jails was an insoluble problem. I have come to realise that it is not – it just requires governments to act and, most importantly, coordinate their responses. It will take a very long time to remedy, but we can, in fact, take immediate and incremental steps toward an outcome.

Similarly, the affliction of family and domestic violence, in all its variants, will not be expunged from society, but there is so much that can be done to address it through coordinated and concerted action.

There is not the space in this article to begin to detail what is required to address our many problems in this area. I have touched on some. Much work is also being done.

But we can’t just talk the talk. For our federal government to announce so publicly its commitment to this area and yet to fail so abjectly in the funding of legal aid and community legal services, and to permit our Federal Circuit Court, particularly, to languish in some registries with an acute lack of resources is just disingenuous.

Judges, lawyers and legal academics have witnessed a flailing approach by all governments to this area of law which touches the most vulnerable members of society.

When will our commitment to justice and the rule of law, backed by actions as well as words, return? For without it such afflictions as that of family and domestic abuse will remain insoluble.

Morry Bailes is the managing partner at Tindall Gask Bentley Lawyers, president-elect of the Law Council of Australia and is a past president of the Law Society of SA. The opinions expressed in this column are his own.

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