Legal Studies

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The legal system has been largely put in place in order to achieve justice and protect individuals as a result of that justice. Domestic violence is defined in the Crimes (Domestic and Personal Violence) Amendment Act 2007 as being “all physical, verbal, financial and emotional actions of violence or intimidation”. Due to the sensitivity of the nature of domestic violence, great care must be taken into consideration when responding effectively, to domestic violence, with laws that provide justice for the victims of domestic violence. In order to achieve this, law reform has had to occur.

Unfortunately there has not been a large amount of legislation that deals with domestic violence in an appropriate manner, however, the Crimes (Domestic Violence) Amendment Act 1982 (NSW), was a large step in the right direction in terms of punishment for domestic violence offenders, and helped to provide justice for victims. This act also introduced society to the growing issue of domestic violence. This was the result of the introduction of Apprehended Domestic Violence Orders (ADVO’s). An ADVO can be placed against someone who has committed an act of domestic violence.  On the contrary, it has been argued that ADVO’s have been ineffective in maintaining justice, as seen in the Andrea patrick case (1993). This was the case of a partner being murdered as a result of an ADVO being revoked. This demonstrates how in theory ADVO’s work well, however, the ability for them to be revoked so easily can become problematic. Furthermore, this was also ineffective as it mainly applied to cases of domestic violence in marriages, and did not apply to couples in de facto couples, or same sex relationships. As a result the act was again amended in 1983 in order to  include de facto couples and those who had been previously married or as long as they were domestically involved on a bona Fide basis.

The most effective form of law reform to have occured is the Crimes (Domestic and Personal Violence) Amendment act 2007 (NSW). Within this the definition of domestic violence was placed, and was revoked from the crimes (Domestic Violence) Amendment Act 1982, as well as significantly improved on Crimes act 1900 (NSW). This in combination with the subsequent reform in 2013 proved to be extremely effective in regards to achieving justice for the victims of domestic violence. The NSW Bureau of Crime Statistics and Research (BOCSAR) found that the prosecution of domestic violence offenders had increased by more than 35% since 2005. Despite this positive improvement, it has been ineffective given that it took 24 years for the law to be reformed. Nevertheless, the Crimes (Domestic and Personal Violence) Amendment act 2007(NSW) has also been effective given that it has provided easier access to ADVO’s, for victims. This is proven with the BOCSAR study finding a study growth in the number of ADVO’s being granted, increasing progressively to 22,000 in 2012. Despite this, critics have still argued that the previously mentioned case of Andrea Patrick (1993), proves, even with the improvements in the new legislation, the ineffectiveness of ADVO’s can be limited.

Another example of how law reform has occurred in order to keep up with society's needs in regards to domestic violence, is in regards to how to deal with children after a divorce or separation. In 1995 the Family Law Reform Act 1995 (cth), meant that domestic violence had to be considered when deciding where children would reside following the divorce or separation of their parents, however, it was often overlooked, as a child also has the right to be cared for by both parents, regardless of their relationship. This is proved to be problematic, as stated in the family services australia (FSA) article, which says “A rebuttable presumption that children will spend equal time with each parent following separation has the potential to keep victims of violence in a situation that remains dangerous.” As a response to this, the law was reformed with the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). The aim of this act was according to the Australian Institute of Family Services (AIFS) was to “bring about ‘generational change in family law’ and a ‘cultural shift’ in the management of parental separation, ‘away from litigation and towards co-operative' ‘parenting`''. This was theoretically going to be a positive act, however, this did not work out, as it placed the rights of children to have a relationship with both parents, as a priority over the right to safety. This demonstrates how despite the law reforming to achieve justice, there was no just outcome, therefore making the law reform ineffective.

In response to the 2006 law reform, the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 was introduced. The main purpose of this was to replace the rules in regards to dealing with children in separation and cases of domestic violence. Within this act, the main goals of the court in separation, was revised and instead of being the priority being about equal parental responsibility, it would now be about the child and their right to safety. This was demonstrated in the case of ‘Morse and Duarte (2017) when the children of a relationship from Mr Morse and Ms Duarte were revoked from Ms Duarte's care, due to the risk her new partner posed on the kids safety given his history of domestic violence. Ms Duarte however was still able to have supervised contact with her children in the absence of her new partner, meaning that the children's rights to have a relationship with both parents, whilst still maintaining a just outcome for the children and their safety. This case is a clear indication of how the law reform has been effective in achieving justice.

Despite these clear effective laws, there is still much debate as to whether or not the legal system does enough in order to keep up with society’s right to safety, given that it took 5 years after an ineffective reform had taken place, to have the law reviewed and reformed. Much of society has been in uproar about how the law has been so efficient in changing rapidly in relation to the one punch laws, following the death of Thomas Kelly (2012), with the introduction of the Crimes and other Legislation (Assault and Intoxication) Amendment Act 2014. The ABC article “When men were being killed on the street, we took action, so why is domestic violence different”, calls out again how quickly the laws were to be amended for homicide from one punch however, there is no act on the 100 deaths per year that are caused by family violence. The White RIbbon website also explains how on average, one woman per week is killed due to domestic violence. Cases such as the recent Hannah Clarke (2020) case, demonstrate how society calls for tougher rules on domestic violence. The ABC news article ‘Hannah Clarke murder prompts NSW MP's call for coercive control powers’ says that the Member of parliament believes there should be “legislation to criminalise coercive and controlling behaviour.”, given that having an AVO placed against an individual is not a crime, and therefore the behaviour leading to the AVO is not criminal behaviour either. The MP also pointed out, how laws in the United Kingdom have been highly effective such as Scotland's ‘Domestic Abuse Act’ criminalises the behaviour of psychological, financial and sexual abuse, and argues that australia should follow with this “Gold standard” response. Despite all of this, there has still been no major law reform in many years, and how although the laws change in order to keep up with the rights of individuals in society to some extent, they do not do very well in doing so in respect to domestic violence

Domestic Violence has clearly become a major concern for society, but is debatable, how concerned the law reform committees and the legal system are, in regards to the laws surrounding domestic violence. Given that there has been only a handful of law reforms in the last 40 years, indicates that the legal system struggles to keep up with the changing society, and is ineffective in maintaining the rights of individuals in society. However, laws such as the introduction of AVO’s signify, that there has been some good that has come out of the law reform, but, still not enough to sustain justice within the community.