Domestic Violence Essay Plan PDF

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HSC LEGAL STUDIES: FAMILY LAW

Assess the effectiveness of legal and non-legal measures in dealing with domestic violence Legal and non-legal measures have been effective to a moderate extent in dealing with domestic violence, however these are often limited by issues of compliance and enforceability. While the law aims to cater for domestic violence prevalent in family relationships, its effectiveness is often limited by its ability to satisfy the needs of those involved, particularly limited by resource inefficiencies and competing objectives. This is most specifically seen with domestic violence legislation, the court system, shared parental responsibility, the care and protection of children in domestic violence situations, ADVOs, ATSI victims and the role of the media and NGOs. Therefore, legal and non- legal measures are only effective to a moderate extent in dealing with issues relating to domestic violence. Domestic Violence Legislation Legislation as a legal measure, has been effective to a moderate extent in dealing with domestic violence, though it is limited by its ability to enforce and satisfy the needs of society. Ø Crimes (Domestic and Personal Violence) Act 2007 (NSW): Governs crimes within domestic violence relationships and situations, defining domestic violence as, “personal violence committed against someone with whom the offenders have or has had, a ‘domestic relationship, that is a marriage, de facto relationship or another close personal relationships” Ø Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth): recognised need to protect children from and harm and aims to improve court response to family violence by providing better information with existence or risk of family violence Ø George Brandis in May 2017 announced conducting comprehensive review into the Family Law Act and System to increase its effectiveness in dealing with instances of domestic violence (SMH, May 2017) The Courts The court system, as a legal measure has been effective to a moderate extent in dealing with circumstances of domestic violence, however this is limited by court delays and resource inefficiencies, presenting a lack of accessibility. Ø Federal Circuit Court established in 2006 to alleviate some of the burden from the family court system, taking 85% of cases o However, Q & A says courts are in a “state of crisis”, with parents waiting 3 years for decisions over assets and 6 months over child disputes Ø Australian Institute of Family Studies found those who use family law system are more troubled, with history of domestic violence, mental illness, etc (The Guardian, July 2016) o Family Law Review found violent parents using family law system to maintain campaign of harassment against their partner (SMH, October 2016) Ø Tindall & Saldo [2016]: Domestic violence dragged on through the courts for six years, in which father threatened to physically kill mother and daughter with samurai sword o Mother spent $80,000 in court defending her daughter and was fired for her jobreflecting limited ability of courts to deal adequately with instances of domestic violence Ø This is coupled with the allowance of cross examination of victims in the family law system, prolonging traumatising experiences and limiting their ability to present evidence

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Ms Hadchiti, a victim of domestic violence has described her experience of cross examination as if she was “thrown in with the lions” (SMH, February 2017) Justice Secretary Elizabeth Truss has described direct cross-examination as “a humiliating and appalling practice that must be banned as quickly as possible” (SMH, February 2017) This has led to the Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2017, which will prohibit offenders/violent former partners in family law proceedings to cross examine victims of family violence, due to distressing and traumatising experience

Shared Parental Responsibility Shared Parental Responsibility, as a legal measure, has been effective to a moderate extent in dealing with domestic violence, though has been limited in its ability to account for the complex nature of relationships present. Ø Family Law Reform Act 1995 (Cth)- shifted legal focus from parents ‘rights’ to parents ‘responsibilities’ Ø Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth), introduced the notion of shared parental responsibility following lobbying from the Lone Fathers Association of Australia, instating that parents should bear equal responsibility for child o However, the courts in misinterpreting the legislation, as outlined by Retired Family Judge Richard Chisholm, have prioritised the child’s needs for meaningful relationships over violence allegations Ø Luke Batty Case (2014): 11-year-old Luke Batty was stabbed and beaten to death with a cricket bat at the hands of his father after court ordered shared parental responsibility and time Ø This has led to Rosie Batty, with Women’s Legal Services Australia calling for the law to be reformed to increase its effectiveness in dealing with domestic violence incidents, removing “equal shared time” and “equal shared responsibility” towards a greater focus on child’s safety (SBS, May 2016) Care and Protection of Children, as victims of domestic violence Legal and non-legal measures have been effective to a moderate extent in supporting the care and protection of children, as minored victims of domestic violence. Ø Consideration of S60CC of the Family Law Act 1975 (Cth) prioritises the best interests of the child, which are a child’s right to maintain a meaningful relationship with both parents and need to protect child from harm Ø In considering child’s best interests, Independent Children’s Lawyer was introduced under the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth), ensuring child’s views are heard by the court, especially in domestic violence situations o However, Family Law Express Study “Neither Seen nor Heard: Australia’s Child Protection Conundrum” has exposed flaws in the current enforcement of ICL standards, with only 8% of respondents believing ICL best represents child’s interests Ø Two-year-old Peanut died from fractured skull inflicted by family members- mother had child protection history and father alcohol abuse (SMH, December 2014)

HSC LEGAL STUDIES: FAMILY LAW Ø Bravehearts, “the competing narratives of warring parents are often difficult to decipher, and children can become weapons in their arguments” (SMH, July 2016) ADVOs ADVOs, as a legal measure, have been effective to a moderate extent in dealing with domestic violence, though its protection is limited by issues of compliance and enforceability. Ø Crimes (Domestic and Personal Violence) Amendment (Review) Act 2016- increased accessibility towards ADVOs, by no longer needing to prove to court that they fear perpetrator when applications finalised Ø NSW BOCSAR found 98% of women no longer experienced physical violence after taking out an ADVO Ø However, its effectiveness in dealing with domestic violence victims is limited by lack of enforceability and compliance, leading to numerous breaches o NSW BOCSAR found 44% of all ADVOS breaches (SMH, January 2015) Ø Case of Sharon Michelutti: found that years of ADVOs dating back to 1990s, including one taken out weeks before death where not enough to protect her from partner, Gavin Debeyer, who stabbed her in the chest at their home in Sydney’s southwest Ø Aim to increase effectiveness through legislation such as Crimes (Domestic and Personal Violence) Amendment (National Domestic Violence Orders Recognition) Act 2016, which aims to allow states police to enforce ADVO even if issued outside of NSW- increased protection across jurisdictional borders through automatic recognition and enforcement Aboriginal Domestic Violence Victims Legal and Non-legal measures have been effective to a moderate extent in dealing with ATSI victims of domestic violence, who are over-represented in Australia’s legal system. Ø Indigenous Academic, Marcia Langton described it as a “national crisis”, as the causes of domestic violence in Aboriginal communities is due to oppression, childhood experience of violence and abuse, intergenerational trauma, violent family environment, etc o According to Creative Spirits, Aboriginal woman is 45 times more likely to experience domestic violence than a white woman and 2.6 women on average per day seek treatment for domestic violence related injuries in Alice Springs (ABC News, May 2015) Ø Funding cuts to Aboriginal services in 2016-17 Federal Budget such as Aboriginal Family Violence Prevention Legal Centre has meant Aboriginal victims of domestic violence unable to obtain help in key services, limiting effectiveness o According to the Prime Minister’s Indigenous Advisory Council, generalised government programs “do not always understand the nature of kinship and family relationships, and the importance of these networks for Indigenous women seeking help from family violence issues”. Believes we need community specific programs to overcome intergenerational violence, in contrast to “band aid solutions” (The Conversation, June 2016) Ø Tackling Violence Campaign: community education, early intervention, prevention programme using strong local leadership regional rugby league clubs and NRL stars to promote anti-domestic violence messages in rural communities

HSC LEGAL STUDIES: FAMILY LAW Ø Sisters Day Out (ABC News, October 2015): Non- legal, early intervention workshops encouraging Aboriginal women to report family violence, breaking down associated stigma and supporting them through process NGO + Media In addition, the media and NGO’s as non-legal measures have been effective to a moderate extent in dealing with domestic violence, particularly by arousing community awareness and increasing the call for law reform measures. Ø “Stop it at the Start” Federal Government Program aims to address the influencers such as coaches and parents, which is often a cause of family violence at the start. Aims to produce a generation which is educated with less domestic violence Ø ABC News Segment “Hitting Home”- revealed limited effectiveness to which the law adequately deals with domestic violence incidents- aimed to arouse community awareness towards more reform Ø Bravehearts- child protection advocate NGO, particularly towards child victims of domestic violence, calling for greater reform measures as a non-legal measure such as a Royal Commission into the Family Law System, to increase its efficiencies in dealing with families of domestic violence Therefore, legal and non-legal measures are only effective to a moderate extent in dealing with domestic violence, as they are often undermined by issues of compliance and enforceability, limiting the ability to meet society’s needs. This was seen when examining domestic violence legislation, the court system, shared parental responsibility, the care and protection of children in domestic violence situations, ADVOs, ATSI victims and the role of the media and NGOs....