Evaluating Family Law Act's Response to Domestic Violence in Australia

This essay delves into the critical issue of domestic violence in contemporary Australian society, examining the Family Law Act 1975 (Cth) and its effectiveness in addressing the prevalence of violence within family disputes. The essay begins with a background study, highlighting the significant impact of domestic violence on individuals, families, and the broader community, citing relevant statistics and studies. It then introduces the Family Law Act, defining domestic violence and exploring its causes, including gender inequality, power imbalances, and controlling behaviors. The core of the essay focuses on the legal framework, analyzing legislative initiatives aimed at discouraging, deterring, and punishing domestic violence, including the issuing of protective orders. It also examines the challenges affecting the effectiveness of these laws, such as community attitudes, low reporting rates, and variations in legal systems. The essay further explores the government's response to the rise in domestic violence. The essay concludes with recommendations for improving the legal framework and addressing the issue comprehensively.

DOMESTIC VIOLENCE 1
THE CONTINUED OCCURRENCE OF DOMESTIC VIOLENCE IN AUSTRALIA
The Name of the Institution
Student Number
Student’s Name
Course Name
Professor’ Name
Date

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Table of Contents
Background Study...........................................................................................................................3
Introduction......................................................................................................................................4
The Causes of Domestic Violence...................................................................................................4
Discouraging, Deterrence, and Punishing...................................................................................5
Behavioural Change.....................................................................................................................6
Issuing of Protective Orders........................................................................................................6
The Legal Framework for Domestic Violence................................................................................6
Challenges Affecting the Effectiveness of the Laws on Domestic Violence..................................7
Changing the Community Attitude..............................................................................................7
Low Reporting Rates...................................................................................................................8
Lack of Proper Funding For Legal Aid.......................................................................................8
The Variation in the Legal Systems.............................................................................................9
 The Maximum Penalties for violations.............................................................................9
The Court Systems.........................................................................................................................10
Government Response to the Rise in Domestic Violence.............................................................10
Conclusion.....................................................................................................................................11
Recommendations..........................................................................................................................11
References......................................................................................................................................12
Books, Reports, Media Releases, Web Sources, & Journals Articles.......................................12
Legislations................................................................................................................................13

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Question 2. “In contemporary Australian society, it has been accepted that domestic violence is
a prevalent problem. For its part, the Family Law Act 1975 (Cth) contains several provisions
relating to family violence. Do you think they have been an effective response to the prevalence
of violence in family disputes?”
Background Study
A family forms the central and critical component of a society. Most families are founded on
love, trust and a common understanding for each other.1 It is the greatest relations that could ever
exist. Most families start when a man and a woman. This unity could be a legal one under civil
law or it could be a de facto relationship. According to a survey study done by Bryant and
Bricknell, in a week a woman loses her life in the hands of her partner or former lover.2 A
finding by the Australian Bureau of Statistics survey of 2016 established that out of every four
women have experienced emotional abuse in the hand of their ex or current partner as early as
the age of 15.3 Furthermore, in every five women, one has experienced sexual violence from the
young age of 15. The most affected persons when it comes to domestic violence are children,
young people (1 in every 6 women have been victims of abuse before attaining the age of 15)
and women.4
1 Rosie Batty, A Mother's Story(HarperCollins Publishers Australia, 2017)
2 Bryant, Willo. & Bricknell, Samantha, Homicide in Australia 2012-2014: National Homicide Monitoring Program
report. Canberra. (Australian Institute of Criminology, 2017) <https://bit.ly/2ozctxh.> accessed 2nd May 3, 2019
3 Australian Bureau of Statistics. Personal Safety Survey 2016. (ABS, 2017)
<http://ww.abs.gov.au/ausstats/abs@.nfs/mf/4906.0> accessed 2nd May 3, 2019
4 Ibid (n3)

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Introduction
The Family Law Act of 1975 defines a de facto relationship as a relationship where the parties
are not legally married, or related by blood. At the beginning of these relationships, all is well
until misunderstandings kick in causing a rift between the parties involved leading to violence.
Domestic violence commonly referred to as family violence means the act of violently
threatening or any other behaviour by a person that compels or controls one to act in a specific
way other than out of their own free will and instils fear in them. Although laws have been put in
place to curb domestic violence, it continues to be prevalent as the incidences being reported to
have been increasing day in day out. Could it be that the laws put in place are not sufficient or
the key players and/or law enforcement agencies are failing? The aforementioned statistics
(under background study) substantiate the fact that domestic violence is more prone in rural areas
than in urban areas. It is important that this paper study and address the issue with reference to
the Family Law Act of 1975 in order to prevent the side effects of experiencing the side effects
of domestic violence which include disability, illness, and premature deaths.5
The Causes of Domestic Violence
It is always important that one understands the problem they have at hand for them to be in a
position to prevent the problem as well as solve it. Domestic violence just like other offences has
underlying causes that give the perpetrator the impetus to commit the offence. It is without a
doubt that it is a changing world, it is, therefore, inaccurate to conclude that it is only in a family
consisting of children, a woman, and a man that is at a high risk of facing domestic violence.
Since the introduction of same-sex marriages, domestic violence can also take place in such a
family.
It is common knowledge that gender inequality is a major determinant. A woman in a set up
surrounded by social acceptance, praise for masculinity, and shallow misguided emphasis on
gender roles are likely to suffer violence. Cultural practices that support women over men leave
women vulnerable to family violence as the men tend to assert their dominance over women.6
5 Ayre Et Al, Examination of The Burden of Disease of Intimate Partner Violence Against Women in 2011. Final
Report (2019) < http:bit.ly/2K1sQvJ> accessed 2nd May 3, 2019
6 Justin Healey, Domestic and Family Violence (Spiney Press, 2014)

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However, domestic violence is not entirely driven by gender inequality. In Australia, it has been
noted that controlling one's partner through threats and instilling fear is an essential element in
domestic violence. The offenders are able to achieve this through emotional and psychological
abuse. This is more of losing yourself and gaining total control over your partner.7
Generally, domestic violence is caused by power imbalance, inequality in rights and societal
opportunities, and the controlling nature of the perpetrator.
The Position of the Law on Domestic Violence
Australia comprises of various states and territories. All these territories are up in arms in the
fight to prevent and reduce domestic violence therefore, they have come up with legislation that
is crucial in the fight against family violence. The Commonwealth has been doing this through
empowering courts to make orders that seek to protect family members who are at a high risk of
experiencing domestic violence.8
Due to the rising number of domestic violence case, governments of the Commonwealth have
seen it fit to address the issue. This has been done through both legislative and non-legislative
initiatives. This essay will focus more on the legislative initiatives that have been put in place in
order to deal with family violence. These legislative measures are aimed at reducing domestic
violence through the following ways:
Discouraging, Deterrence, and Punishing
This involves the outlawing of domestic violence and levying punitive measures on the
perpetrators. This relies on the rational choice theory as offenders always compare and contrast
the benefits of their actions versus the consequences of their action. Therefore, before one
engages in the act of threatening the other or acting in a way that compels the other to perform a
duty or live in fear they will be able to know that their actions have consequences thus desisting
from committing the offence. 9
7 Clementine Ford, "Australian Men are Still Using This Defense To Justify Violence," Daily Life (Webpage, 2019)
http://dailylife.com.au/news-and-views/dl-opinion/australian-men-are-still-using-this-defence-to-justify-violence-
201500525-gh9et1> accessed 2nd May 3, 2019
8 Greg Et Al Connellan, Family Violence and Child Protection Law in Victoria (Thomson Lawbook Co, 2016)
9 Susan Easton and Christine Piper, Sentencing And Punishment (Oxford University Press, 4th ed, 2016)

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Behavioural Change
The commission of crime lies solely on the individual's behaviour and state of mind. Many are
times that the law has been used to bring about behavioural change. This is possible through
compulsory sentencing to a guidance and counselling institute. In these institutions, one is taught
on how to manage their anger which is a leading cause of domestic violence in contemporary
Australian society.
Issuing of Protective Orders
Since most women experience domestic violence, it is important that is be granted with
restraining orders that keep them safe from the would-be offenders who may cause them bodily
harm. It is important to note that the injunction orders issued are a civil law matter and not
criminal law.10 In as much as these orders are issued, at times the perpetrator breaches them.
When this breach on the injunction order occurs the police have been reported to not have taken
any measure to deal with the offender leading to the questioning of how the process works.11
The Legal Framework for Domestic Violence
This is one of the legal frameworks that was granted by the Commonwealth to help combat
domestic violence or family violence. However, different states in Australia have a different
system that they have employed to help then tackle this menace.
The main aspect under the Commonwealth legal framework is the protection of vulnerable
groups.12These protection orders serve to protect the disadvantaged parties through restriction of
occupancy of a family residence, or restraining would-be perpetrators from the areas of study or
work of the other family members to whom they have threatened to control or threaten.
However, the family laws injunction IS more costly, complex and difficult to enforce this could
be the reason why domestic violence remains prevalent in modern Australia.
10 Australian Solicitor General, Domestic Violence in Australia June 2009 (2009) <Domestic-Violence-in-Australia-
Aph.gov.auPDFhttps://www.aph.gov.au>media>report> accessed 2nd May 3, 2019
11 Domestic Violence and Protection Orders Act 2008 (ACT); Restraining Orders Act 1997(WA); Family Violence
Act (2004).
12 Australian Law Reform Commission (ALRC), Family Violence and Commonwealth Laws - Improving Legal
Frameworks, ALRC Report 117 (2011). p.800

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The Commonwealth legal framework that introduced the family law is complemented by the
injunctions issued under state and territories law. Unlike the costly and complex injunctions,
state law issued injunction possesses advantages such as:
 any party is at liberty to institute an injunction proceeding including the police;
 it protects a wide range of family members (siblings, extended family, and other
household members), that is, they can be tailor-made to fit the needs of the victim as he
or she so wishes; and
 It specifies a wide range of conditions (prohibitions) that are included in the injunction
orders.
Challenges Affecting the Effectiveness of the Laws on Domestic Violence
The continued reporting of domestic violence cases is an indicator that the legal framework put
in place is facing challenges that hinder it from executing its objectives and mandate seamlessly.
It is important that these issues be addressed to have an effective legal framework. 13
Changing the Community Attitude
The prevalence of domestic violence will remain an issue as long as the community has a
negative attitude towards gender roles, sexuality, domestic violence, and sexual assault. These
issues hold an immense influence on the disclosure and prevalence of domestic violence issues.
The inability to understand why some people continue to stay in an abusive relationship reduces
domestic violence to a mere excusable offence while it has adverse effects on the victim and can
lead to one committing suicide just to get away from it. The misconception that the perpetrator
later feels 'deeply sorry' for his actions and the use of a language that trivializes 'it was just a slap'
this criminal act affects the reporting rate thus making it impossible for law enforcement
agencies to know that one is going through this and needs help.
In 2013, a survey carried out by the Victorian Health Promotion Foundation, the University of
Melbourne and the Social Research Centre as a follow up on the National Community Attitudes
Survey (NCAS). In September 2014, they came up with the conclusion that the community
13 Alan Hayes and Daryl J. Higgins, Families, Policy and the Law (Australian Institute of Family Studies, 2014)

DOMESTIC VIOLENCE 8
perspective on domestic violence had not recorded any significant change. However, it was
noted that a majority of persons were in a position to know where to go for help.14
The NCAS were able to establish that a majority of persons prefer male dominance in private
relationships while advocating for gender equality only at workplaces. The promotion of male
dominance in relationships is an underlying cause of domestic violence.
Low Reporting Rates
Law enforcement agencies are unable to prosecute a matter when it is not reported. The laws
may be in place and the relevant agencies made accessible but as long as the victim remains
reluctant in reporting the issue nothing much can be done to bring the offender to book. The
reasons that make it difficult to report such matters include the fear of feeling ashamed and
embarrassed. This is common when it comes to domestic violence involving sexual assault.
Instead of reporting most people to resort to consulting and opening up to their family
members.15
Lack of Proper Funding For Legal Aid
The application for an injunction being a civil matter is it expensive; therefore it is important that
the states, territories, and commonwealth should fund legal aid programs. Lack of proper funding
has great effects on the persons affected by family dispute or domestic violence. According to
the Mid-Year Economic and Financial Outlook,16 a cut of $43.1 million aimed at funding legal
aid programs. It was noted that this had a great impact on the assistance that was to be granted to
the victims of family violence.17
It was important that a restoration to the funds be done in order to able the legal aid committee to
execute its functions and also retain its staff. This lead to the Attorney General making an
announcing in 2015 ensuring the public that that year there would be no cut in the funding.18
14 Colleen Fisher, "Changed And Changing Gender And Family Roles And Domestic Violence In African Refugee
Background Communities Post-Settlement in Perth Australia" (2013) 19(7) Violence Against Women.
15 Diana S. Peterson and Julie A. Schroeder, Domestic Violence in International Context. (Routledge, 2017)
16 Mid-Year Economic and Financial Outlook 2013-2014 (December 2013)
17 Parliament of Australia, Legal Aid And Legal Assistance Services (2018)
https://www.aph.gov.au/About_Paliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/
BudgetReview101718/LegalAid> accessed 2nd May 3, 2019
18 The Attorney-General, Senator the Hon George Brandis QC, and the Minister Assisting the Prime Minister for
Women, Senator the Hon Michaelia Cash, 'Legal aid Funding assured to support most vulnerable in our
community', Media Release, 26 March 2015.

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The Variation in the Legal Systems
In Australia, many states and territories have different laws. This difference brings about varying
definitions of family law and family violence due to the various legislations enacted in multiple
states. Secondly, there is a disconnect between the state courts and the family courts. This
disconnect has led to circumstances that the matter is tried in both systems which may lead to
double jeopardy. It is important that these two systems have a seamless way of complementing
each other and communicating. It is essential that the state court and the family court have a
common understanding of issues and approach.
The Commonwealth, states and territories should work together in harmonizing the Domestic
Violence Laws.19 There are three major and noticeable differences in the Domestic Violence
Laws in Australia. These differences include;
 The Maximum Penalties for violations. Different states have different maximum fines
and prison term. The lowest offences are made to carry between $2400 to about $50000
while the jail term ranges from 1 to 5 years.20 The commonwealth has collaborated with
the states to bring about the harmonization of the laws across all jurisdictions. This legal
framework under development seeks to remove the registration of one to a specific law in
order to be subject to that law.
Other notable differences include;
 mandating the police to investigate suspected incidences; and
 Varying approaches employed in counselling and rehabilitating the offenders.
The Court Systems
The family law act establishes the courts which have a jurisdiction to listen to and decide on
matters relating to domestic or family violence. These courts are equipped with everything
necessary to ensure the delivery of justice from, magistrates who are qualified to preside over
matters related to domestic violence and specialized personnel. Before proceedings are instituted,
19 Ibid (n18)
20 Ibid (n18)

DOMESTIC VIOLENCE 10
special arrangements are made in order to ensure the safety of the victim through the entire
proceedings. Furthermore, programs aimed at rehabilitating the offender are also employed.21
The jurisdiction that the magistrates exercise vary from state to state. For Instance, in Western
Australia, the magistrates in the family courts are focused on dealing with the criminal aspect of
family violence while their counterparts in Southern Australia are at liberty to preside over
criminal matters with regards to domestic violence as well as the issuance of orders. In Victoria,
the magistrates exercise a variety of juridical powers, that is, they preside over, civil personal
injury claims, criminal offence, application for protection orders, compensation, et cetera.
Government Response to the Rise in Domestic Violence
The government of Australia is tasked with the responsibility of ensuring that there is a decrease
in the number of family offences that are being committed across the country. In order to ensure
this, the government has come up with initiatives that are designed to reduce domestic offences.
However, it is not enough to have the government of Australia to take care of this issue. The
commonwealth state and territory are tasked with the role of making policies that aid in
addressing and preventing the occurrence of domestic violence.
It is important to note that, it is the state and the territories that have the relevant agencies that are
responsible for the enforcement of the policies, laws, and models put in place with the aim of
addressing domestic violence.22
Even though the government is responsible for the funding of the programs in the various states
and territories, the states are responsible for funding their own initiatives and programs aimed at
combating domestic violence in their own jurisdiction. This does not imply that there is total
autonomy between the national government and the state governments nor does it suggest that
the states are independent of each other. There are inter-government programs that are brought
together by the Australian Council of Governments.23
21 Archana Parashar and Francesca Dominello, The Family in Law. (Cambridge University Press, 2017)
22 Janet Phillips and Penny Vandenbroek. Domestic, family, sexual violence in Australia an Overview of Issues.
(Parliament of Australia, 2014)
23 Asher Flynn and Jacqueline Hodgson, Access to Justice and Legal Aid. (Bloomsbury Publishing, 2017)

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Conclusion
It is clear that it takes more than just laws to ensure that domestic violence is reduced or
prevented. The Family Law Act of 1975 encompasses all the aspects necessary to ensure that
domestic violence is addressed effectively. However, this offence continues to be on the rise. It is
therefore important to ensure that all the stakeholder are brought together to ensure and an
effective fight against domestic violence. The variations in the punishment levied upon the
perpetrators is also a stumbling block in against addressing the issue of family violence. It is
important to iron out the complexity of the justice system and make it accessible to all. The
majority of the population facing domestic violence are incapable of affording the fees required
when making an application for a protective order it is therefore vital that commonwealth be able
to provide sufficient funds for the states to extend legal aid services to the victims of family
violence.
Recommendations
 It is important that the funding towards legal aid be sufficient to ensure that all get justice
regardless of their financial status.
 It is essential that awareness is carried out on the masses to eradicate the misplaced
attitude the community has towards domestic violence.
 The laws across all states and jurisdictions should be unified, and penalties harmonized
depending on the magnitude of the offence.

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References
Books, Reports, Media Releases, Web Sources, & Journals Articles
Batty, Rosie, A Mother's Story (HarperCollins Publishers Australia, 2017)
Julie, Ayre et al., Examination of the Burden of Disease of Intimate Partner Violence against
Women in 2011. Final Report (2019)
Healey, Justin, Domestic and Family Violence (Spiney Press, 2014)
Ford, Clementine, "Australian Men are Still Using This Defense to Justify Violence," Daily Life
(Webpage, 2019) <http://dailylife.com.au/news-and-views/dl-opinion/australian-men-are-still-
using-this-defence-to-justify-violence-201500525-gh9et1> accessed 2nd May 3, 2019
Greg et al. Connellan, Family Violence and Child Protection Law in Victoria (Thomson
Lawbook Co, 2016)
Easton, Susan and Christine Piper, Sentencing and Punishment (Oxford University Press, 4th ed.
2016)
Hayes, Alan and Daryl J. Higgins, Families, Policy and the Law (Australian Institute of Family
Studies, 2014)
Fisher, Colleen, "Changed And Changing Gender and Family Roles and Domestic Violence In
African Refugee Background Communities Post-Settlement in Perth Australia" (2013) 19(7)
Violence Against Women.
Parashar, Archana and Francesca Dominello, The Family in Law. (Cambridge University Press,
2017)
Flynn, Asher and Jacqueline Hodgson, Access to Justice and Legal Aid. (Bloomsbury Publishing,
2017)
Peterson, S. Diana and Julie A. Schroeder, Domestic Violence in International Context.
(Routledge, 2017)
Willo, Bryant & Bricknell, Samantha, Homicide in Australia 2012-2014: National Homicide
Monitoring Program report 2012-2014: (Australian Institute of Criminology, 2017) Statistical
Reports No. 2. Canberra: (Australian Institute of Criminology. 2017) <
https://aic.gov.au/publications/sr/sr002> accessed 2nd May 3, 2019

DOMESTIC VIOLENCE 13
Australian Bureau of Statistics, Personal Safety Survey 2016. (ABS, 2017)
<http://ww.abs.gov.au/ausstats/abs@.nfs/mf/4906.0> accessed 2nd May 3, 2019
Australian Law Reform Commission (ALRC), Family Violence and Commonwealth Laws -
Improving Legal Frameworks, ALRC Report 117 (2011). p.800
Australian Solicitor General, Domestic Violence in Australia June 2009 (2009) <Domestic-
Violence-in-Australia-Aph.gov.auPDFhttps://www.aph.gov.au>media>report> accessed 2nd
May 3, 2019
Mid-Year Economic and Financial Outlook 2013-2014 (December 2013)<
https://budget.gov.au/2013-14/content/myefo/download/2013_14_MYEFO.pdf> accessed 2nd
May 3, 2019
The Attorney-General, Senator the Hon George Brandis QC, and the Minister Assisting the
Prime Minister for Women, Senator the Hon Michaelia Cash, 'Legal aid Funding assured to
support most vulnerable in our community', Media Release, 26 March 2015.
Parliament of Australia, Legal Aid and Legal Assistance Services (2018)
<https://www.aph.gov.au/About_Paliament/Parliamentary_Departments/
Parliamentary_Library/pubs/rp/BudgetReview101718/LegalAid >accessed 2nd May 3, 2019
Janet Phillips and Penny Vandenbroek. Domestic, family, sexual violence in Australia an
Overview of Issues. (Parliament of Australia, 2014)
Legislations
Domestic Violence and Protection Orders Act 2008 No. 10 of 2008
Restraining Orders Act 1997(WA) No. 19 of 1997
Family Violence Act 2004 No. 67 of 2004
Family Law Act 1975(Cth) No. 53 of 1975