When two police officers arrived at Bianca’s* front door in the middle of a cold winter’s night last year, she assumed they were coming to tell her they’d taken out a family violence order against her partner.
Just a few hours earlier she’d gone to Hobart Police Station to report that he’d assaulted her after she’d broken up with him. She followed him home across the road from a cafe they’d met at, she told officers, saying she wanted to “end things with love and kindness”; he regularly stormed off during their relationship and punished her with “silent treatment” for days, and now she wanted closure on her terms.
But when she stepped inside his house, she said, he grabbed her and shoved her into the door. She was so shocked and upset that she slapped him, but knew immediately she was in trouble when she saw the look in his eyes — at six-foot-two, he towered above her petite frame.
“I thought, ‘Oh my god, he’s going to kill me’,” said Bianca, a lawyer. “He grabbed me by the ear and … shoved my head into the brick wall and pinned me there … I honestly thought he was going to keep slamming my head into the wall — that he was either going to kill me or give me brain damage.”
Which is why she was so shocked to hear that, after interviewing her partner, the officers concluded Bianca was the aggressor and were naming her as the respondent on a police family violence order (PFVO). She’d been completely honest with police, she’d pointed out her injuries — she assumed they would protect her.
“I felt such deep shame that I was being labelled a perpetrator when I’m so committed to looking after people who are vulnerable,” she said. “I thought that if you tell the truth, and you have evidence, you’ll get a just response. And I learned the hard way that is not the case.”
A simmering crisis
Perhaps she shouldn’t have been so surprised, though. For months domestic violence workers in Tasmania have been warning of a simmering misidentification crisis: of mounting cases where police have mistaken the victim for the perpetrator and taken out a protection order against them or charged them with criminal offences — with devastating consequences.
Unlike police forces in other jurisdictions, Tasmania Police have unique authority to issue final 12-month family violence orders which can only be revoked by the Magistrates Court — a central feature of 2004 reforms designed to strengthen the state’s response to family violence. But in too many cases, experts say, the system is backfiring on the people it’s supposed to protect, with misidentified victims finding it almost impossible to have orders overturned.
And the costs are incalculable: Tasmanians who have been wrongly named on PFVOs have lost their jobs, their children, their homes, their faith in police and, for some migrant and refugee women, their visa — their ticket to remain in Australia.
Data obtained by ABC News earlier this year showed police issue PFVOs against female respondents at more than triple the rate of courts, raising questions about whether officers are always picking the right perpetrator. Now, new figures reveal the number of applications to revoke PFVOs increased 102 per cent in the six years to June 2023, with applications by female respondents jumping 154 per cent.
The missing ‘safety net’
“What I find interesting is the revocation of orders and the [apparent] misidentification is a lot higher for women,” said Yvette Cehtel, chief executive at Women’s Legal Service Tasmania. “That doesn’t surprise me because … I think women are much more likely than men to own up to their behaviour” — for instance, if they retaliated or fought back against an abusive partner.
“And when that is taken out of the context of the pattern of abuse in the relationship it can constitute an offence,” Ms Cehtel said. “So police, if they don’t consider the coercive control that sits around the actual incident … may see her as the perpetrator.”
Female victims of domestic violence in Australia are also misidentified because they’ve presented as “hysterical” or angry, or because police haven’t seen through an abuser’s calculated attempts to manipulate the system. Though there has been hardly any research on misidentification in Tasmania, studies in other states show First Nations women and those from culturally diverse communities are particularly at risk.
Compounding the problem is that Tasmania’s PFVO system lacks what experts describe as the crucial “safety net” of judicial oversight, meaning police have outsized power to make final decisions about who is the victim and who is the perpetrator.
Many advocates are now urging that the Family Violence Act be reviewed and redesigned along the lines of legislation in other states, where police can issue temporary safety notices which ostensibly protect victims until a court can review the matter and make or not make final orders.
“Timely judicial review is absolutely essential for cases of misidentification,” said Anna*, who was misidentified by Tasmania Police in 2021. “But at the moment, PFVOs are a sentence without a hearing. When the police respond to family violence, they should be there to protect, not to punish. But PFVOs, which last for 12 months and often have a huge impact on people’s lives — especially when police make the wrong decision — are a punishment.”
A punishment for migrant women
They are a punishment particularly for many migrant women. Taya Ketelaar-Jones, a senior lawyer at the Tasmanian Refugee Legal Service, which runs the Family Violence Migration Service for victim-survivors on temporary visas, said a review of her case files suggests 99 per cent of clients named as respondents on PFVOs have been misidentified.
“It may be because it’s an easier option for police,” Ms Ketelaar-Jones said. Officers frequently take out PFVOs against both parties, often in cases when the couple isn’t fluent in English and investigating further to determine who is most in need of protection isn’t necessarily straightforward.
“Using interpreters is essential. It’s not a matter of convenience or a matter of availability … it’s a human right,” she said. “But too often, we’re told the police couldn’t get an interpreter. That would be the number one priority for reducing rates of misidentification.”
In some cases, misidentification can result in victims of family violence being denied visas. The Department of Home Affairs “rightly” takes a “very serious stance” on domestic violence, Ms Ketelaar-Jones said, and visa applicants must declare if they have been subject to a domestic violence order. This can be a “big issue” for migrants who have been misidentified, she said, because it could mean they fail the “character test”.
Misidentification can have even more serious ramifications for migrants whose abusive partner is their visa sponsor. When such a relationship ends, an applicant would not be granted a partner visa unless they can prove they’ve experienced family violence, Ms Ketelaar-Jones said — usually a stressful, years-long process requiring a high standard of evidence.
“So for somebody who’s been misidentified on a PFVO, immediately the Department is going to scrutinise that case so much more heavily, and they’re going to have a much harder time proving that they’ve been a victim of family violence,” she said. “It’s already a very, very difficult process. And in those scenarios, it’s so much more difficult.”
Occasionally when clients have been misidentified on PFVOs, Ms Ketelaar-Jones will work with other services to try and have the order revoked, sometimes by approaching police directly and explaining the nuances of the situation and the consequences for their visa. But this strategy is rarely successful. “We find a lot of the time they won’t be revoked,” she said. “From reviewing our matters, there is a clear correlation between being misidentified and named as a respondent on a PFVO and being refused a partner visa application, if the client is pursuing a family violence pathway.”
All of this generally takes a “huge toll” on clients’ mental health, she said. The stress and uncertainty of migration legal issues aside, women on temporary visas may not have access to critical health and social services, employment or other support they might otherwise have.
And most are at such a “point of crisis” that the idea of applying to the court to have an order revoked is too “foreign and overwhelming”. “Their priority is, ‘Am I going to be forced to leave Australia?’ It’s a critical moment of not being able to think about anything else.”
Seven traumatic months of life on hold
For Bianca, the dominoes began falling during her first visit to Hobart Police Station. The constable who took her statement didn’t ask about her partner’s history of emotional abuse or suggest a medical examination, she said, despite her telling them he’d injured her head and ear.
The officer also omitted what she felt were crucial details and context of the incident and selectively wrote down parts of her story that were “disadvantageous” to her. “I felt like I was having to actively fight to get my story heard,” she said. “It wasn’t an empowering process.”
In hindsight, she thinks the police concluded she was the aggressor for a couple of reasons. One, because they took an “incident-based” approach and seemed to focus on her admission that she’d followed her partner home and slapped him after he shoved her — without taking into account his alleged history of coercive control, the fact he was bigger and stronger, or her claim that he assaulted her, injuring her head and ripping the buttons off her coat.
As she sees it, the officers believed her partner’s account that she assaulted him whilst “trespassing” on his property and he “moved” her to defend himself.
But she’s also concerned her Asian ethnicity was a factor, especially after viewing footage of the police interview with her partner. In it, she said the constable jokes with him and apologises for having to ask “annoying” questions — a starkly different tone to what she’d expect of an impartial officer investigating a family violence matter.
“My ex appears as a calm white man and I would have appeared as a highly distressed coloured woman,” she said. “And whether we like it or not, we live in a society where we assign more credibility to white men than we do to coloured women. I can’t ever know for sure but I suspect that played a part in who was believed that night.”
After her shock wore off, Bianca flipped into lawyer mode. She went to an independent medical doctor to have her injuries documented. She sought expensive legal advice. She wrote a long statement for police detailing her account of the incident and her partner’s history of abuse.
But still police refused to withdraw the PFVO against her. So she began what would turn out to be a stressful, exhausting process of applying to the Magistrates Court to have the order revoked — a step very few women are prepared to take, frontline workers say.
Thanks to court and police delays it took seven months for Bianca’s matter to be heard. “I found the process highly traumatic and unnecessarily difficult,” she said. “My life was basically on hold … and there were many times where I thought I’d give up, that it wasn’t worth it. Thankfully, I had people around me supporting me and telling me to keep fighting … but I lost faith in getting any kind of positive institutional response. I thought, ‘This is a system that is failing victims badly’.”
A ‘David and Goliath’ battle
One of the biggest hurdles came in the form of six statements from officers at Hobart Police Station. Each outlined their connection to Bianca’s matter and essentially supported the decision to list her as the respondent on a PFVO.
The declaration from the constable who took Bianca’s statement also contained glaring factual errors — for instance, he listed the wrong address for the cafe they met at, implying she’d followed him further than she did. “The extent to which they were trying to discredit me was distressing,” she said. “Why were they investing such significant resources into fighting this order? … It felt like it was me versus six police officers, a David and Goliath battle.”
Although it wasn’t a problem for Bianca, another major challenge for misidentified victims who have asked police to vary or revoke their PFVO is a legal test in Tasmania’s Family Violence Act. It requires that applicants seeking a revocation in the Magistrates Court be able to demonstrate that there has been “a substantial change in the relevant circumstances” since the order was made.
But lawyers say it’s a problem because it overlooks the fact that for most misidentified victims, nothing has changed — rather, the PFVO should not have been issued in the first place.
“It’s a massive hurdle that needs reviewing,” Ms Cehtel said. “The Magistrates Court should be able to review the decision that was made by police at the time … not just where there has been a substantial change in circumstances, but where there has been a mistake or error in judgement.”
Some victim-survivors agree the change in circumstances clause — which appears on the court’s PFVO revocation application form — is deterring misidentified women from pursuing justice. Anna said she was told by a police officer she had “a snowflake’s chance in hell” of getting the PFVO against her revoked.
“Later, when I investigated the possibility of applying to the court for revocation, I saw that condition and it just seemed like another barrier,” she said — so she didn’t proceed with an application. “Even though my ex and I had separated, I interpreted it to mean, ‘How was I less of a danger to him?’ And I knew, and my ex knew, that I’d never been a danger to him.”
The hearing
I’d never been a danger to him. Bianca feels it was one of many crucial details in her case that police glossed over. In the end, it seems they arrived at a similar conclusion, emailing her lawyer a few days before her court hearing earlier this year to say they were agreeing to revoke her PFVO.
At the hearing she received an order confirming that her PFVO was revoked from that day forward. But she received no explanation for the police’s sudden backflip, no acknowledgement that she had been misidentified, and no apology.
“I’ve told the truth the entire time, I had everything documented … I had an unshakeable belief that I was not the perpetrator — I was the victim,” Bianca said. “I also had the most incredible support network … but that’s a lot of ducks you have to have lined up to be able to successfully navigate the system. For anyone doing it alone it’s virtually impossible. And it shouldn’t be that hard when you’re also suffering from having been abused by the person you thought you loved. It’s too much.”
Rob Blackwood said Tasmania Police was unable to comment publicly on specific cases but said the issue of misidentification was “one that is being considered nationally and is not isolated to Tasmania”. Tasmania Police recently examined the “issues” that arise when officers take out PFVOs against both parties, he said, and was also developing a policy paper that “considers and responds” to the problem of misidentification generally, including how best to identify the person most in need of protection.
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Source: ABC News