The Other (Overlooked) Victims of Domestic Violence


Appearing in Court

In October 2015, former Australian rugby league football star Hazem El Masri was charged with an alleged domestic assault against his 25-year-old then-wife, former receptionist Douah El-Cherif.

The 39-year-old retired NRL player had been charged with assault occasioning actual bodily harm and common assault.

The charges related to an alleged incident at the former footballer’s home.

It was alleged that in the midst of negotiating living arrangements during the couples separation, El Masri tried to secure the keys to one of his homes, however his then wife, El-Cherif, refused to provide him the keys and to move out of the home. During this argument, El-Cherif accused El Masri of pushing her.

El Masri is a devout Muslim and a former ambassador for White Ribbon Day, a national campaign to stop violence against women.

He split with first wife of 13 years, Arwa El Masri, without incident in 2014, and remarried in 2015.

Although the Australian legal system is intended to work on a presumption of innocence, no such presumption of innocence, as evidenced by events that followed soon after the allegations, seem to have been afforded Mr El-Masri.

Among a number of  commercial arrangements being put on hold or severed, arrangements which were El Masri’s primary source of income post his football days, El-Masri was understood to have been unceremoniously dropped by the NRL, the ruling body of the sport he excelled in.

El Masri was abruptly dropped from a number of high profile roles sponsored by the NRL, roles he undertook since his retirement, including according to Mr El Masri his most cherished role, that of ambassador for White Ribbon Day.

This is despite the broad understanding by the authorities at that time that the allegations made against El Masri were weak and inconsistent.

Forward 5 months and it was further revealed by the authorities that more than a dozen police working on the case have not been able to substantiate the allegations, even though Ms El-Cherif, 25, wanted to continue to pursue the matter.

audio-recording-with-iphoneThis is nothing new in cases of domestic violence, and contrary to what many may expect, charges are not necessarily dropped because of a lack of evidence, given that people’s safety, and at worst their lives, may hang in the balance unless preventative measures are taken, often in the absence of any hard evidence.

But in this case, as a result of an indisputable piece of evidence, not only have the charges been dropped, but news has seeped into the media that El Masri has been completely exonerated.

As a result the Police stated that all charges would be dropped.

“I want to make it clear what’s happened here today,” El Masri’s lawyer Chris Murphy said outside court.

“Mr El Masri has been totally exonerated. And he hasn’t been exonerated because somebody dropped off or something happened. The police have examined the evidence. There is overwhelming forensic evidence that shows his innocence.”

“There is a recording that he made of the event in which he allegedly misbehaved. It didn’t happen.”

All very well and good. But what if this recording did not exist? I think the outcome would have been markedly different.

It can be argued that El Masri is the exception to the rule, being lucky enough to have irrefutable evidence of an incident that often relies on he-said, she-said.

And in these cases, the Courts tend to priorities the potential safety of the alleged victim, over and above the injustice against the alleged perpetrator.

So what lesson can you extract from this news item?

According to Jacob Romano, editor of Family Law Express, he states that in a period of extreme public sensitivity towards domestic violence issues, the pendulum has swung firmly in the direction of a priority on prevention of abuse against women.

There seems to be a general acceptance in the community that if push comes to shove, protecting women from domestic abuse should be the priority, even at the cost of prosecuting innocent men.”

Whether this practical but imperfect application of the law is in itself just, perhaps relies more on who the victim identifies with, the alleged victim of abuse, or the alleged victim of false allegations, then any objective measure of justice.

But if we are genuinely interested in better separating genuine allegations from false allegations, then the use and reliance of audio recording software, should not only be encouraged, but should perhaps become the new forefront on prevention and detection of domestic abuse, in high risk families, similar to our reliance on CCTV on public areas.

One Nation Pushing for a Fairer Family Court System

The head of Australia’s Family Court has warned against “simplistic” reforms to the troubled system, saying the vast majority of cases are complex and involve family violence, mental health and substance abuse issues.

Pauline Hanson’s One Nation party is calling for the Family Court to be abolished and be replaced with a family tribunal made up of people from “mainstream Australia”.

Key points:

  • Pauline Hanson says current Family Court system is “unworkable”
  • Member for Flynn Ken O’Dowd says he is open to working with Ms Hanson on the issue
  • Australian Institute of Family Studies says system has been vastly improved recently

“Respected” members of local community, social and health groups would be invited to participate, according to the party’s policy.

Pauline Hanson, Family Court

Pauline Hanson wants a fairer Family Court System.

Joint custody should be the option of choice, and there should be recognition that “a child’s standard of living following divorce cannot be maintained at pre-divorce levels”, the policy says.

But Chief Justice Diana Bryant told ABC Radio National on Thursday the main issue for the Family Court had been a lack of federal funding to employ new judges, which would tackle the glacial progression of cases.

The funding shortfall has seen waiting times balloon to more than two years; a situation Justice Bryant said was “unacceptable”.

The idea of a tribunal may have some merit for simple matters that did not involve making orders, she said, but could run into constitutional hurdles.

“I’m actually in favour of people putting this on the agenda … but I think we have to be fairly careful about looking for simplistic solutions to complex problems,” she told the ABC.

The British family court tribunal system is presided over by judges, and members that are non-legal experts in relevant fields, like child psychologists.

One Nation is not the only voice calling for Family Court changes.

Family violence advocate Rosie Batty, and the Women’s Legal Services Australia in May launched a campaign calling for reforms, including domestic violence training for court staff and judges.

Ms Batty also wants an end to victims, overwhelmingly women, being directly cross-examined by abusers in court.

New senator Derryn Hinch has also called for a senate inquiry into the Family Court and child welfare agencies.

In Australia, only about 5 per cent of Family Court cases make it as far as a trial, but of these, about 85 per cent involve family violence, mental health or substance abuse issues.


… Family Law system needs to be fixed

Over the past 10 years courts have been dealing with more complex situations which take longer, but in the same period the government had not put more money into courts, said Justice Bryant,

Australia’s family law system is “almost dysfunctional”, with families caught for years in expensive, long-winded battles, says Professor Patrick Parkinson, the former chair of the Family Law Council.

“We desperately need solutions to this problem and we shouldn’t reject them out of hand simply because it’s One Nation,” Professor Parkinson says.

“The easiest thing in the world would be for me to criticise One Nation, everybody does. But let’s look at what they have said.”

Abolishing the Family Court is constitutionally impossible, he says, but an alternative courtroom to deal quickly with property matters, for example, might be a sensible option.

One Nation’s family court policy on child support is clearly influenced by the concerns of men’s and father’s rights organisations, he said.

The Nationals Member for Flynn, Ken O’Dowd said “I’ll work with anyone that can resolve the issue and make it a fairer system.”