Syllabus Topic
Option 3: Family
Responses to problems in family relationships
INTRODUCTION
This article explores the context of domestic violence in Family Law, key statistics highlighting its prevalence, and the legal and non-legal responses designed to protect victims and prevent further abuse.
DEFINING THE ISSUE - Context
The study of domestic violence within the context of Family Law focuses on how effectively the law protects victims, shifting away from the outdated notion that domestic violence is a "private, family matter." Instead, it is recognized as a public wrong that is destructive not only to individuals and families but also to society more broadly.
Historically, societal norms and legal frameworks narrowly defined domestic violence as physical violence between married couples, and typically heterosexual ones, although now domestic violence is recognised to occur within “intimate relationships” as opposed to purely marriage based ones. Such restrictive views around marriage were common in common law presumptions like the marital rape immunity presumption that lasted until the 1980s, where marriage was also deemed to imply a wife’s ongoing consent to intercourse, preventing husbands from being charged with sexually assaulting their wives.
KEY STATS
According to the Australian Institute of Health and Welfare, the Australian Bureau of Statistics (ABS) 2021-22 Personal Safety Survey (PSS) provides the following stats to consider for cases of domestic abuse.
Physical and/or Sexual Violence:
- 1 in 6 women and 1 in 18 men in 2021–22 experienced physical and/or sexual violence by a current or previous cohabiting partner since the age of 15.
- 3.8 million Australians (20% of the population) reported experiencing physical and/or sexual family and domestic violence since the age of 15.
- 11.3% (2.2 million) experienced violence from a partner, 5.9% (1.1 million) from a boyfriend/girlfriend/date, and 7.0% (1.4 million) from another family member.
Other stats from the ABS from 2020 include the following
- Assaults: More than half (54% or 70,000) of recorded assaults in 2020 were related to family and domestic violence, marking a 7.8% increase from 2019.
- Murders: Almost 2 in 5 (37% or 82) recorded murders in 2011 were linked to family and domestic violence.
- Victim Increase: Since 2011, the number of domestic violence victims recorded by police has increased annually. In 2020, there were 27,505 recorded victims, translating to 178.7 female victims and 33.5 male victims of sexual assault per 100,000 people.
LEGAL RESPONSES
Domestic violence offences in New South Wales are governed by the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The objective of this Act, as outlined in section 9, is broad and aims to reflect community values while enforcing compliance with Australia’s international obligations. The key aims include:
- Ensuring Safety and Protection: The Act prioritizes the safety and protection of all persons, including children, who may be victims or witnesses of domestic violence.
- Reducing and Preventing Violence: The Act seeks to reduce and prevent violence within any domestic relationship, not limited to sexual partners or those physically in the home. It covers a wide range of relationships, including partners, parents, and other family members.
- International Compliance: The Act aligns with international agreements, including the Declaration on the Elimination of Violence against Women (DEVW) and the UN Convention on the Rights of the Child (CROC), ensuring Australia’s domestic laws are consistent with global human rights standards.
Another legal response within this framework is the Apprehended Domestic Violence Order (ADVO).
- Apprehended Domestic Violence Orders (ADVOs): ADVOs are designed to provide enforceable protection for those who fear for their safety or the safety of their children. Victims can apply for an ADVO from a magistrate to protect themselves from ongoing fear of attack, harm, or harassment.
- Purpose and Enforcement: An ADVO is a court order that sets clear expectations regarding the behaviour of perpetrators. It provides direct and immediate protection by specifying actions the perpetrator must refrain from.
- Mandatory Orders: When granting an ADVO, judges or magistrates must impose standard mandatory orders, including:
- Prohibitions against assaulting, stalking, harassing, or intimidating the victim or the victim’s domestic relations. Provides restrictions on recklessly destroying or damaging property belonging to the victim or the victim’s domestic relations.
- Additional Protections: The court may also impose additional orders to provide further protection tailored to the specific circumstances of the case.
NON-LEGAL RESPONSES
Some non-legal responses include the following:
SOURCES
Parliament of Australia: Domestic violence: issues and policy challenges
Australian Law Reform Commission: Family Violence- A National Legal Response (ALRC Report 114)
Australian Institute of Health and Welfare: Family, Domestic and Sexual Violence and Statistics
Australian Bureau of Statistics: Recorded Crime- Victims
NSW Legislation: Crimes (Domestic and Personal Violence) Act 2007
Local Court New South Wales: Apprehended Violence Orders (AVOs)
Attorney General’s Department: National Domestic Violence Order Scheme
ABC News: VIDEO: Rosie's Story
