While it is positive that there are various agency-level mechanisms in place to respond to misidentification, there is no agreed system-wide process designed to correct the records and reverse the damage of misidentification to victim survivors. In a paper prepared for our office, Safe and Equal explained that:
Feedback from members consistently demonstrated that there are no clear processes in place to correct misidentification. This results in workers undertaking their own advocacy on a case-by-case basis with no clear systemic processes or pathways in place with police and/or courts. Members commented that it is extremely hard to correct misidentification and it can often depend on who services speak to. Having no clear process in place has significant risk and safety implications for victim-survivors and is resource intensive for our members.63
Because each agency has its own records and information management systems, family violence practitioners, lawyers and individuals are left to advocate for records to be changed independently in multiple place. The most challenging aspect can be fighting against the misidentification that finds its way into court files at the Magistrates’ Court of Victoria, the Children’s Court of Victoria and the Federal Circuit and Family Court of Australia. This can be extremely complex and time-consuming work, and before proper rectification occurs, the victim survivor continues to suffer the consequences of having been misidentified and may be exposed to further abuse. This highlights the critical role lawyers play and the need for legal assistance to be better integrated with the family violence response system to ensure early and appropriate assistance for addressing the legal consequences of misidentification [relates to action 10].
Table 1 outlines the various places the misidentification can be found, the rectification processes in place, and the challenges that remain even after ‘rectification’. If these rectification processes aren’t followed, the challenges will be even greater.
The only system-wide guidance we found is for those who have used the Family Violence Information Sharing Scheme to share information, where misidentification is then found to have occurred. For example, agencies are expected to update their records to the best of their ability, stop sharing information without consent about a victim who has been misidentified as a perpetrator, and notify any other agencies with whom incorrect information has been shared.64 This is positive, but the flow of inaccurate information often occurs outside information-sharing legislation, through referral processes and court procedures. There would be benefit in providing similar guidance that applies beyond the Family Violence Information Sharing Scheme [relates to action 3].
There is a need for more whole-of-system discussion and action around how true rectification could occur [relates to action 1]. The former Primary Aggressor Working Group agreed, in dealing with misidentification, on ‘the importance of prompt rectification’ and ‘the need for a multi-agency approach, with capacity for feedback loops created’.65 We wholeheartedly agree and suggest a dedicated group is now needed to:
- document the locations where records containing misidentification are held
- formalise feedback loops to promptly communicate misidentification when it is found to have occurred
- understand the current rectification processes in place and their limitations
- identify opportunities for improving rectification processes to ensure police, Child Protection and courts do not continue to rely on inaccurate information
- build shared system responsibility for correcting inaccurate records and work to ensure the onus is removed from individuals or their representatives.
Table 1: Records containing misidentification across agencies, rectification processes and future implications
| Agency | Records | Rectification processes | Remaining challenges |
|---|---|---|---|
| Victoria Police | The Family Violence Report (FVR) that lists the victim as respondent is committed to LEAP and goes into the FVR Portal, which is shared with other agencies. | A new FVR can be conducted and linked to the original. | The original FVR remains on record. If police run a summary of past incidents or if records are subpoenaed in future court cases, the original FVR will show up. |
| The Orange Door, specialist services, Victims of Crime Helpline | The police referral that lists the victim as the respondent is held in local databases. | Local records can be updated within client management systems, with agencies classifying the individual as a victim. | Original referral remains in the system. Records can be subpoenaed in future court cases. |
| Child Protection | The police referral and/or Child Protection’s assessment of risk to a child based on that referral are held in local databases. | Theoretically, if Child Protection do their own assessment and find the alleged perpetrator is the victim, they may note this in their records and it may or may not change their protective concerns about the parent. | Original report remains in the system. Involvement of Child Protection can have implications for Federal Circuit and Family Court of Australia proceedings. |
| Courts | Applications for FVIOs and reports prepared in the pursuit of criminal charges or in child protection or family law proceedings that may reference the (inaccurate) family violence perpetration will all be in court records. | An FVIO application can be withdrawn by the prosecutor or struck out by a magistrate. Additional reports can be prepared to provide updates on past, inaccurate reports. | Misidentification is not recorded as the reason for the FVIO being withdrawn or struck out so may not be clear to others. Original reports remain on record and can find their way into future court cases. |
During our consultations, one suggestion was that courts could be given the power to issue an order finding that misidentification has occurred and requiring records to be corrected. We believe this approach to rectification would have significant benefit for victim survivors and is worth exploring further [relates to action 11].
In most misidentification cases shared with us, even when misidentification was picked up and communicated, stakeholders reported that Victoria Police and Child Protection were generally unresponsive. This is explored in detail below.
Victoria Police
Where new information comes to hand, Victoria Police has advised that officers can update the narrative in the original Family Violence Report and can complete a new report to capture the correct affected family member and respondent and an accurate assessment of risk. Victoria Police can also withdraw a family violence safety notice or FVIO application if new information changes their assessment of the situation and can ‘consider whether a new notice is issued for the correct respondent’.66
However, these processes are not detailed in the Victoria Police Manual Family Violence nor the Code of Practice for the Investigation of Family Violence. Further, Victoria Police and many of the stakeholders we spoke to commented that it would be rare for police to conduct a new Family Violence Report based on feedback that misidentification had occurred. From a police perspective, in the absence of clear procedures and agreed decision thresholds, it is difficult to judge when it is reasonable and necessary to revisit and potentially complete a new Family Violence Report [relates to action 3].
Clear and documented guidance is required to describe what should occur when external agencies alert Victoria Police to misidentification, or when Victoria Police otherwise becomes aware of it [relates to action 7].
Even where police do conduct a new Family Violence Report, the original with the victim listed as a respondent remains in the LEAP database permanently. This is problematic because LEAP records containing the misidentification can be subpoenaed and become accessible to parties such as Independent Children’s Lawyers, magistrates, prosecution staff and DFFH. Victoria Legal Aid explained that ‘inferences may be drawn that supports the perpetrator’s narrative that the mother is violent, and potentially harms her credibility in the family law case’.67 Additionally, if police attend a future incident involving the individual, they will see that she has previously been listed as a respondent and will only see the misidentification if they delve into the records, which in many cases does not appear to happen.
While we acknowledge the importance of retaining original observations from the scene and documenting the reclassification process, there is a clear need to look at how records are captured in LEAP to ensure that, where misidentification is found, the headline record can be amended so a person doesn’t continue to be incorrectly listed as a respondent [relates to action 6].
Stakeholders told us of variability in police prosecutors’ approaches to withdrawing matters before they are heard at court; positive results often depend on relationships with individual prosecutors. It is not clear whether prosecutors have the authority to withdraw a matter and, anecdotally, even when the prosecutor agrees that withdrawal is appropriate, sergeants may be unwilling to agree to it. In some cases, due to workload, the police prosecutor may withdraw the matter but only at the last minute and after the victim and legal support services have already spent numerous hours in preparation. Similarly, where criminal charges coexist with misidentification on the FVIO, police often drop the charges, but this occurs after a drawn-out legal process that continues to traumatise the misidentified victim.68
A clearer policy to guide the withdrawal of both civil and criminal matters would be of great benefit to Victoria Police and stakeholders. Finding ways to ensure matters are withdrawn more quickly, avoiding lengthy adjournment periods, would help those in need of protection avoid further trauma [relates to action 8].
Child Protection
While Child Protection practitioners are expected to update records when new information is provided by another agency, we understand there is no specific guidance in place that explains what Child Protection practitioners should do next if misidentification is raised. We saw and heard no evidence of Child Protection adjusting its assessment of risk based on feedback that a mother had been misidentified [relates to action 3].
Of most relevance appears to be the guidance relating to ‘malicious reports’, where the advice is to focus on assessing the risk to the child rather than on the intent of the party who has made a report to Child Protection.69 This implies that, for example, if a mother has been misidentified by police as a perpetrator and her children referred to Child Protection, risk to the child will be assessed during the ‘investigation stage’ and protective concerns about the mother may be found and acted upon. We acknowledge that making judgements about the validity of reports to Child Protection is complex. However, if perpetrators are not held to account for making malicious reports to Child Protection, their systems abuse is enabled and even encouraged.
Family violence is only one of many protective factors that Child Protection staff must assess to determine the risk of harm to a child. However, further investigation is required to understand how family violence as a protective concern is weighed up against other protective concerns [relates to action 12]. The new SAFER Children Framework, launched in November 2021, provides an opportunity to build greater clarity among practitioners and others about how these factors that contribute to the assessment of risk to a child are weighed up, and emphasises the importance of guided professional judgement.
We understand that Child Protection practitioners are required to gather information from a variety of sources to understand and assess the risk of harm to children. However, stakeholders shared examples where children had been placed into accommodation with a father who was a known perpetrator, and indicated that they believed that his calm and stable demeanour, in contrast to the mother’s less stable demeanour, was a factor in the placement decision. While being a perpetrator of family violence does not automatically exclude a person from being a suitable carer for their children, stakeholders expressed concern that insufficient understanding and regard is given to the perpetrator’s use of violence and control and the impact this has on women and their children.
Women’s Legal Service Victoria has suggested that there needs to be a more trauma-informed approach to working with mothers who are victim survivors of family violence (whether or not they have been misidentified as a perpetrator) to better acknowledge the violence and control they have endured and assess whether they could be supported to safely care for their children.
Endnotes
63 Correspondence from Safe and Equal to the Family Violence Reform Implementation Monitor, September 2021.
64 Family Safety Victoria (2021): Family Violence Information Sharing Guidelines: Guidance for Information Sharing Entities, p. 53. Available at: vic.gov.au/sites/default/files/2021-04/Ministerial%20Guidelines%20-%20Family%20Violence%20Information%20Sharing%20Scheme_4.pdf (accessed 10 June 2021).
65 Family Safety Victoria (2019): Primary Aggressor Working Group 19 September 2019 Meeting Minutes.
66 Victoria Police (2019): Responding to Family Violence (Primary Aggressor), policy paper, not published.
67 Correspondence from Victoria Legal Aid to Family Violence Reform Implementation Monitor, September 2021.
68 Ibid.
69 Department of Families, Fairness and Housing (2016): Child Protection Manual: ‘Malicious reports – advice’. Available at: cpmanual.vic.gov.au/advice-and-protocols/advice/intake/malicious-reports (accessed 24 September 2021).
Updated