Hunter, Rosemary --- "Narratives of Domestic Violence" [2006] SydLawRw 31; (2006) 28(4) Sydney Law Review 733
* Professor of Law, University of Kent. This article draws on my JSD dissertation, completed at Stanford University in 2005. I would like to express my gratitude to Deborah Rhode, my advisor, and to Donna Coker, whose seminar on domestic violence introduced me to many of the ideas discussed in Part 4 of this article.
[1] These include Rosemary Wearing, Monitoring the Impact of the Crimes (Family Violence) Act 1987 (1992); Rosemary Wearing, Monitoring the Crimes (Family Violence) Act 1987: A Study of Those Who Do Not Proceed (1996); Jennifer Hickey & Stephen Cumines, Apprehended Violence Orders: A Survey of Magistrates (1999); Lily Trimboli & Roseanne Bonney, An Evaluation of the NSW Apprehended Violence Order Scheme (1997); Jessamy Babbel, ‘Balancing the Act: Survivors of Family Violence, Intervention Orders and Victorian Magistrates’ Courts’ [2002] DVIRC Newsletter (Winter) 12; Hanna Assafiri & Maria Dimopoulos, ‘The Legal System’s Treatment of NESB Women Victims of Male Violence’ (1995) 6(4) Criminology Aust 20; Belinda Carpenter, Sue Currie & Rachael Field, ‘Domestic Violence: Views of Queensland Magistrates’, paper presented at the Australian & New Zealand Society of Criminology Annual Conference, 21–23 Feb 2001.
[2] These include John Dewar & Stephen Parker, ‘The Impact of the New Part VII Family Law Act 1975’ (1999) 13 AJFL 96; Helen Rhoades, Regina Graycar & Margaret Harrison, The Family Law Reform Act 1995: The First Three Years (2000); Kathryn Rendell, Zoe Rathus & Angela Lynch, An Unacceptable Risk: A Report on Child Contact Arrangements Where There is Violence in the Family (2000); Helen Rhoades, ‘The “No Contact Mother”: Reconstructions of Motherhood in the Era of the “New Father”’ (2002) 16 Int’l J Law, Policy and the Family 71; Miranda Kaye, Julie Stubbs & Julia Tolmie, Negotiating Child Residence and Contact Arrangements Against a Background of Domestic Violence (2003); Rae Kaspiew, ‘Violence in Contested Children’s Cases: An Empirical Exploration’ (2005) 19 AJFL 112.
[3] Where individual matters are discussed, they are referred to by code, location and date, such as MC22 (Suburb Magistrates’ Court, 5 January 1996).
[4] Notes from these informal discussion are referred to in footnotes as ‘Field notes’, together with the relevant location and date.
[5] Eleven of the practitioners were solicitors, four were barristers and three were support workers. Where these interviewees agreed to be identified, they are referred to by name; where they wished to remain anonymous, I have assigned codes such as S1 (solicitor), B2 (barrister), and SW1 (support worker).
[6] Women litigants were guaranteed anonymity, and are identified by code such as WL3 (woman litigant).
[7] In relation to the Family Court, see above n2. In relation to the Magistrates’ Court: Babbel, above n1. See also Jenny Nunn & Marg D’Arcy, ‘Legal Responses to Family Violence: The Need for a Critical Review’ [2001] DVIRC Newsletter (Spring) 17.
[8] Victorian Law Reform Commission, Review of Family Violence Laws: Consultation Paper (2004).
[9] Australian Bureau of Statistics, Women’s Safety Australia, Cat no 4128.0 (1996) at 42, 50. ‘Violence’ was defined as ‘any incident involving the occurrence, attempt or threat of either physical or sexual assault’: id at 2. For a discussion of definitional and methodological issues in prevalence surveys of violence against women, see Holly Johnson, ‘Rethinking Survey Research on Violence Against Women’ in Rebecca Emerson Dobash & Russell Dobash (eds), Rethinking Violence Against Women (1998).
[10] Australian Bureau of Statistics (ABS), id at 50.
[11] Id at 51.
[12] Id at 42.
[13] Jenny Mouzos & Toni Makkai, Women’s Experiences of Male Violence: Findings from the Australian Component of the International Violence Against Women Survey (IVAWS) (2004) at
[44] .
[14] Access Economics, The Cost of Domestic Violence to the Australian Economy (2004) at vi–vii.
[15] Id at vii.
[16] Ibid.
[17] See, for example, Ann Genovese, ‘The Battered Body’ (1997) 12 Australian Feminist Studies 91; Ann Genovese, ‘The Politics of Naming: 70s Feminisms, Genealogy, and “Domestic Violence”’ in Ruth Walker, Kylie Brass & John Byron (eds), Anatomies of Violence: An Interdisciplinary Investigation (2000); Lesley Laing, Progress, Trends and Challenges in Australian Responses to Domestic Violence (2000) at 3.
[18] Domestic Violence Act 1986 (ACT); Crimes Act 1900 (NSW) Part 15A; Domestic Violence Act 1992 (NT); Domestic Violence (Family Protection) Act 1989 (Qld); Domestic Violence Act 1994 (SA); Family Violence Act 2004 (Tas); Restraining Orders Act 1997 (WA).
[19] See, for example, The Family Court Lobby Group of South Australia, “In Whose Best Interest?” A Report of the South Australian Phone In on Women, Domestic Violence and the Family Court
(1990); Juliet Behrens, ‘Domestic Violence and Property Adjustment: A Critique of “No Fault” Discourse’ (1993) 7 AJFL 9; Australian Law Reform Commission, Equality Before the Law: Justice for Women Report 69, Part I (1994); Regina Graycar, ‘The Relevance of Violence in Family Law Decision Making’ (1995) 9 AJFL 58.
[20] Family Law Act 1975 (Cth), former ss68F(2)(g), (i) and (j); see also former ss68J and 68K.
[21] Elizabeth Stanko, Intimate Intrusions: Women’s Experience of Male Violence (1985) at 165.
[22] See, for example, NSW Department for Women, Heroines of Fortitude: The Experiences of Women in Court as Victims of Sexual Assault (1996); Melanie Heenan & Helen McKelvie, Rape Law Reform Evaluation Project, Report No 2: The Crimes (Rape) Act 1991 – An Evaluation Report (1997); Patricia Easteal (ed), Balancing the Scales: Rape, Law Reform and Australian Culture (1998); Mary Heath & Ngaire Naffine, ‘Men’s Needs and Women’s Desires: Feminist Dilemmas about Rape Law “Reform”’ (1994) 3 Aust Feminist LJ 30.
[23] See, for example, Elizabeth Sheehy, Julie Stubbs & Julia Tolmie, ‘Defending Battered Women on Trial: The Battered Woman Syndrome and its Limitations’ (1992) 16 Crim LJ 369; Julie Stubbs, ‘Battered Woman Syndrome in Australia: A Challenge to Gender Bias in Law?’ in Julie Stubbs (ed), Women, Male Violence and the Law (1994); Julie Stubbs & Julia Tolmie, ‘Falling Short of the Challenge? A Comparative Assessment of the Australian Use of Expert Evidence on the Battered Woman Syndrome’ [1999] MelbULawRw 27; (1999) 23 MULR 709; Terry Threadgold, ‘Performativity, Regulative Fictions, Huge Stabilities: Framing Battered Woman’s Syndrome’ (1997) 3 Law Text Culture 210; Julia Tolmie, ‘Pacific-Asian Immigrant and Refugee Women Who Kill Their Batterers: Telling Stories that Illustrate the Significance of Specificity’ [1997] SydLawRw 25; (1997) 19 Syd LR 472; Therese McCarthy, ‘“Battered Woman Syndrome”: Some Reflections on the Invisibility of the Battering Man in Legal Discourse, Drawing on R v Raby’ (1995) 4 Aust Feminist LJ 141.
[24] Lawrence Friedman, American Law in the 20th Century (2002) at 589.
[25] Lawrence Friedman, ‘Is There a Modern Legal Culture?’ (1994) 7 Ratio Juris 117 at 130.
[26] Ibid.
[27] Lawrence Friedman, ‘Legal Culture and the Welfare State’ in Gunther Teubner (ed), Dilemmas of Law in the Welfare State (1986) at 269.
[28] Julia Horney & Cassia Spohn, ‘Rape Law Reform and Instrumental Change in Six Urban Jurisdictions’ in Stewart Macaulay, Lawrence Friedman & John Stookey (eds), Law and Society: Readings on the Social Study of Law (1995) at 525. See also Lawrence Friedman, ‘The Concept of the Self in Legal Culture’ (1990) 38 Cleveland State LR 517 at 522 (noting that ‘[m]any experts … have come to grief, because they assume that the law is a top-down command system’); Sue Lees, ‘Lawyers’ Work as Constitutive of Gender Relations’ in Maureen Cain & Christine Harrington (eds), Lawyers in a Postmodern World: Translation and Transgression (1994) at 126 (observing that ‘the law often constitutes gender relations in its discretionary spaces rather than in its explicit rules’, which ‘renders these practices virtually immune to political action’).
[29] See Carol Smart, Feminism and the Power of Law (1989) at 82; Lucinda Finley, ‘Breaking Women’s Silence in Law: The Dilemma of the Gendered Nature of Legal Reasoning’ (1989) 64 Notre Dame LR 886 at 891, 909; Margaret Thornton, ‘Feminism and the Contradictions of Law Reform’ (1991) 19 Int’l J of the Sociology of Law 453 at 461; Radha Jhappan, ‘The Equality Pit or the Rehabilitation of Justice’ (1998) 10 Canadian J of Women & Law 60 at 62–64.
[30] Smart, id at 164; Elizabeth Schneider, Battered Women and Feminist Law Making (2000) at 6; Renée Römkens, ‘Law as a Trojan Horse: Unintended Consequences of Rights-based Interventions to Support Battered Women’ (2001) 13 Yale J of Law & Feminism 265.
[31] Wendy Brown, States of Injury: Power and Freedom in Late Modernity (1995); Reva B Siegel, ‘“The Rule of Love”: Wife Beating as Prerogative and Privacy’ (1996) 105 Yale LJ 2117; Susan Hekman, ‘Beyond Identity: Feminism, Identity, and Identity Politics’ (2000) 1 Feminist Theory 289 at 296–97; Römkens, id at 267, 283.
[32] Thornton, above n29 at 464; Jocelynne Scutt, The Incredible Woman, vol 1 (1997) at 137–43; Kathleen Ferraro, ‘The Dance of Dependency: A Genealogy of Domestic Violence Discourse’ (1996) 11(4) Hypatia 77 at 79.
[33] Smart, above n29; Carol Smart, ‘Law’s Truth/Women’s Experience’ in Regina Graycar (ed), Dissenting Opinions: Feminist Explorations in Law and Society (1990) at 20; Carol Smart, Law, Crime and Sexuality: Essays in Feminism (1995) at 219; Mary Joe Frug, Postmodern Legal Feminism (1992) at 148–53.
[34] Ellen Pence & Michael Paymar, Education Groups for Men Who Batter: The Duluth Model (1993) at 5.
[35] Id, passim; Karla Fischer, Neil Vidmar & Rene Ellis, ‘The Culture of Battering and the Role of Mediation in Domestic Violence Cases’ (1993) 46 Southern Methodist ULR 2117 at 2141; Martha Mahoney, ‘Legal Images of Battered Women: Redefining the Issue of Separation’ (1991) 90 Mich LR 1 at 53–60.
[36] Pence & Paymar, above n34 at 2–3. See also Rebecca Dobash & Russell Dobash, ‘Wives: The “Appropriate” Victims of Marital Violence’ (1977–78) 2 Victimology 426 at 438; Fischer, Vidmar & Ellis, id at 2121–22, 2141. The Women’s Safety Australia study also documented emotional abuse (defined as ‘manipulation, isolation or intimidation’), damage to or destruction of property, and difficulties over family finances: ABS, above n9 at 51. In the Australian IVAWS study, 37–40 per cent of women reported controlling behaviours from a current intimate partner, and controlling behaviours were found to increase the risk of physical violence by a factor of six: Mouzos & Makkai, above n14 at 48, 61.
[37] Liz Kelly, ‘How Women Define Their Experiences of Violence’ in Kersti Yllö & Michele Bograd (eds), Feminist Perspectives on Wife Abuse (1988); Pence & Paymar, above n34 at 155– 56; Alice Bailey, ‘Women’s Understandings of Violence in Their Everyday Relationships’ [1995] DVIRC Newsletter (November) 8.
[38] The Women’s Safety Australia study estimated that 42 per cent of the women who had been pregnant during a previous relationship had experienced violence during the pregnancy, with 20 per cent experiencing violence for the first time when pregnant: ABS, above n9 at 52.
[39] Lesley Laing, Children, Young People and Domestic Violence (2000) at 1; Mildred Daley Pagelow, ‘Justice for Victims of Spouse Abuse in Divorce and Child Custody Cases’ (1993) 8 Violence & Victims 69 at 77.
[40] Peter Jaffe, Nancy Lemon & Samantha Poisson, Child Custody and Domestic Violence: A Call for Safety and Accountability (2003) at 22–24; Laing, id at 10; Nicholas Bala, ‘Spousal Abuse and Children of Divorce: A Differentiated Approach’ (1996) 13 Can J Fam L 215 at 335–37; Jennifer McIntosh, ‘Thought in the Face of Violence: A Child’s Need’ (2002) 26 Child Abuse & Neglect 229 at 230; Howard Davidson, ‘Child Abuse and Domestic Violence: Legal Connections and Controversies’ (1995) 29 Fam LQ 357 at 359; Stephen Doyne, Janet Bowermaster, J Reid Meloy, Donald Dutton, Peter Jaffe, Stephen Temko & Paul Mones, ‘Custody Disputes Involving Domestic Violence: Making Children’s Needs a Priority’ (1999) 50 Juvenile & Fam Ct J (Spring) 1; Amy Levin, ‘Comment, Child Witnesses of Domestic Violence: How Should Judges Apply the Best Interests of the Child Standard in Custody and Visitation Cases Involving Domestic Violence?’ (2000) 47 UCLA LR 813 at 833.
[41] Jaffe, Lemon & Poisson, ibid.
[42] For example, Bala, above n40 at 235–37.
[43] Etienne Krug, Linda Dahlberg, James Mercy, Anthony Zwi & Rafael Lozano, World Report on Violence and Health (2002) at 68; Adam Tomison, Exploring Family Violence: Links Between Child Maltreatment and Domestic Violence (2000); Jaffe, Lemon & Poisson, above n40 at 30; Lesley Hewitt, Thea Brown, Margarita Frederico & Rosemary Martyn, ‘Family Violence in the Family Court’ [1996] DVIRC Newsletter (August) 19 at 20–22; Rendell, Rathus & Lynch, above n2 at 42; Suzanne Eastwood & Kaz Phillips, ‘But Was He a Good Father? Parenting and Male Violence’ [1996] DVIRC Newsletter (March) 12; Lee Bowker, Michelle Arbitell & Richard McFerron, ‘On the Relationship Between Wife Beating and Child Abuse’ in Kersti Yllö & Michele Bograd (eds), Feminist Perspectives on Wife Abuse (1988); Bala, above n40 at 235– 37; Davidson, above n40 at 357–58.
[44] Pence & Paymar, above n34 at 2–3, 9–14; Kate Cavanagh, Rebecca Dobash & Russell Dobash, ‘“Remedial Work”: Men’s Strategic Responses to Their Violence Against Intimate Female Partners’ (2001) 35 Sociology 695; Fischer, Vidmar & Ellis, above n35 at 2138; Elizabeth Schneider, ‘The Violence of Privacy’ (1991) 23 Conn LR 973 at 984; James Ptacek, Battered Women in the Courtroom: The Power of Judicial Responses (1999) at 71.
[45] Kelly, above n37 at 119; Fischer, Vidmar & Ellis, above n35 at 2141.
[46] Lenore Walker, Terrifying Love: Why Battered Women Kill and How Society Responds (1987) ch 3; Edward Gondolf & Ellen Fisher, Battered Women as Survivors: An Alternative to Treating Learned Helplessness (1988) ch 2; Fischer, Vidmar & Ellis, above n35 at 2129–30, 2141; Robin West, ‘The Difference in Women’s Hedonic Lives: A Phenomenological Critique of Feminist Legal Theory’ (2000) Wis Women’s LJ 149 at 167; Bailey, above n37 at 9.
[47] Pence & Paymar, above n34 at 13; Walker, ibid.
[48] Gondolf & Fisher, above n46.
[49] Kelly, above n37 at 124; Mahoney, above n35 at 18, 22; Fischer, Vidmar & Ellis, above n35 at 2141; Elaine Lawless, ‘Transformative Re-membering: De-scribing the Unspeakable in Battered Women’s Narratives’ (2000) 57 Southern Folklore 65 at 73–77; Bailey, above n37 at 9; Schneider, above n44 at 984.
[50] Mary Ann Dutton, Empowering and Healing the Battered Woman (1992) ch 1.
[51] Gondolf & Fisher, above n46.
[52] Gondolf & Fisher, ibid; Dutton, above n50; Mahoney, above n35 at 61; Fischer, Vidmar & Ellis, above n35 at 2136.
[53] See, for example, Renata Alexander, Domestic Violence in Australia: The Legal Response (3rd ed, 2002) at 31–33; Wearing (1992), above n1 at 283–89; Nunn & D’Arcy, above n7 at 18–19; Hayley Katzen & Loretta Kelly, ‘How Do I Prove I Saw His Shadow?’ Responses to Breaches of Apprehended Violence Orders: A Consultation with Women and Police in the Richmond Local Area Command of NSW (2000); Trimboli & Bonney, above n1 at 58–59; Victorian Law Reform Commission, above n8 at 187; Queensland Department of Justice & Attorney-General and Office of Women’s Policy, Report of the Taskforce on Women and the Criminal Code (2000) at 111.
[54] Pence & Paymar, above n34 at 15; Ruth Busch, Neville Robertson & Hilary Lapsley, ‘The Gap: Battered Women’s Experience of the Justice System in New Zealand’ (1995) 8 Can J Women & Law 190 at 194; Dobash & Dobash, above n36 at 438; Mahoney, above n35 at 55.
[55] Fischer, Vidmar & Ellis, above n35 at 2141; Ptacek, above n44 at 79.
[56] Nan Seuffert, ‘Domestic Violence, Discourses of Romantic Love, and Complex Personhood in Law’ [1999] MelbULawRw 8; (1999) 23 MULR 211; Threadgold, above n23 at 222–25.
[57] Mahoney, above n35 at 20; Leslie Espinoza, ‘Legal Narratives, Therapeutic Narratives: The Invisibility and Omnipresence of Race and Gender’ (1997) 95 Mich LR 901 at 901, 906, 919; Donna Coker, ‘Shifting Power for Battered Women: Law, Material Resources, and Poor Women of Color’ (2000) 33 UC Davis LR 1009 at 1019; Rosanna Langer, ‘Male Domestic Abuse: The Continuing Contrast Between Women’s Experiences and Juridical Responses’ (1995) 10 Can J Law & Society 65 at 86, 88.
[58] Coker, id at 1017–18.
[59] Mahoney, above n35 at 15–16. See also Bailey, above n37 at 7–8.
[60] For example, Christine Littleton, ‘Women’s Experience and the Problem of Transition: Perspectives on Male Battering of Women’ [1989] U Chi Legal Forum 23 at 52; Sally Engle Merry, ‘Wife Battering and the Ambiguities of Rights’ in Austin Sarat & Thomas Kearns (eds), Identities, Politics, and Rights (1997) at 304; Deborah Rhode, Speaking of Sex: The Denial of Gender Inequality (1997) at 114.
[61] Ptacek, above n44 at 73.
[62] Walker, above n46.
[63] Ibid; Mahoney, above n35 at 5–6.
[64] Mahoney, id at 6. In the Women’s Safety Australia survey, around half of the women who had experienced violence in a previous relationship had separated from the previous partner and then returned before the final separation; 35 per cent of these had experienced violence during the time of separation: ABS, above n9 at 51–52. One US study found that up to three quarters of reported domestic assaults occur after the victim has left the abuser: see Barbara Hart, ‘Gentle Jeopardy: The Further Endangerment of Battered Women and Children in Custody Mediation’ (1990) 7 Mediation Q 317 at 324.
[65] Sue Lees, Ruling Passions: Sexual Violence, Reputation and the Law (1997) at 129.
[66] Hart, above n64; Nan Seuffert, ‘Locating Lawyering: Power, Dialogue and Narrative’ [1996] SydLawRw 30; (1996) 18 Syd LR 523 at 536.
[67] Donna Cecere, ‘The Second Closet: Battered Lesbians’ in Kerry Lobel (ed), Naming the Violence: Speaking Out About Lesbian Battering (1986).
[68] Cory Dziggel, ‘The Perfect Couple’ in Kerry Lobel (ed), Naming the Violence: Speaking Out About Lesbian Battering (1986) at 67 (noting that, for example, the battered partner may not be economically dependent on the abuser, she may be bigger and stronger than the abuser, and may sometimes fight back and injure the abuser); Lee Vickers, ‘The Second Closet: Domestic Violence in Lesbian and Gay Relationships: A Western Australian Perspective’ (1996) 3(4) E Law: Murdoch U Electronic J of Law at [23], [30–31], [72] (noting that violence in lesbian relationships is seen as antithetical to the lesbian ideal of equality between partners, and hence is either assumed not to exist, or denied and silenced within the lesbian community).
[69] Mary Eaton, ‘Abuse by Any Other Name: Feminism, Difference, and Intralesbian Violence’ in Martha Albertson Fineman & Roxanne Mykitiuk (eds), The Public Nature of Private Violence: The Discovery of Domestic Abuse (1994) at 197–98, 216; Vickers, ibid; Wendy Bennet, ‘Barriers to Support for Lesbians in Abusive Relationships’ in Out of Limbo: First National Conference on Violence in Lesbian Relationships (1997) at 17–20.
[70] Chris Womendez & Karen Schneiderman, ‘Escaping from Abuse: Unique Issues for Women with Disabilities’ (1991) 9 Sexuality & Disability 273 at 276; Keran Howe, ‘Violence Against Women with Disabilities: An Overview of the Literature’ (1999) 7 Women Against Violence J 11, at 14; Margaret Nosek, Carol Howland & Rosemary Hughes, ‘The Investigation of Abuse and Women With Disabilities: Going Beyond Assumptions’ (2001) 7 Violence Against Women 477 at 484; Carolyn Frohmader, ‘Violence Against Women with Disabilities’ in Out of the Fire: Domestic Violence and Homelessness (2001) at 28.
[71] National Committee on Violence Against Women, Access to Services for Women with Disabilities (1993) at 14, 29; Womendez & Schneiderman, id at 277; Nosek, Howland & Hughes, id at 482; Frohmader, ibid.
[72] Patricia Easteal, Shattered Dreams: Marital Violence Against Overseas-Born Women in Australia (1996) at 117, 119; Dianne Martin & Janet Mosher, ‘Unkept Promises: Experiences of Immigrant Women with the Neo-Criminalization of Wife Abuse’ (1995) 8 Can J Women & Law 3 at 20; Tien-li Loke, ‘Note, Trapped in Domestic Violence: The Impact of United States Immigration Laws on Battered Immigrant Women’ (1997) 6 Boston U Public Interest L J 589.
[73] Keys Young, Quarter Way to Equal: A Report on Barriers to Access to Legal Services for Migrant Women (1994) at 51; Melba Marginson, ‘Increasing Access for Filipina Survivors of Domestic Violence’ in Domestic Violence and Incest Resources Centre and Office of the Status of Women, Not the Same: Conference Proceedings and a Strategy on Domestic Violence and Sexual Assault for Non-English Speaking Background Women (1996) at 19 (hereafter DVIRC Conference); Martin & Mosher, id at 27; Linda Kelly, ‘Stories from the Front: Seeking Refuge for Battered Immigrants in the Violence Against Women Act’ (1998) 92 Northwestern ULR 665.
[74] Chris Cunneen & Julie Stubbs, Gender, ‘Race’ and International Relations: Violence Against Filipino Women in Australia (1997); Easteal, above n72 at 152, 155; Marginson, id at 18–19.
[75] Easteal, id at 24, 108, 116. This was part of the evidence in one of the Family Court cases observed: FC9 Family Court of Australia, Melbourne Registry, 20–24 January, 10–11 February and 14 February 1997.
[76] National Committee on Violence Against Women, above n71 at 14.
[77] Easteal, above n72 at 97.
[78] Id at 10.
[79] National Committee on Violence Against Women, above n71 at 14.
[80] Easteal, above n72 at 9, 34, 36; Marginson, above n73 at 19; Nilda Rimonte, ‘A Question of Culture: Cultural Approval of Violence Against Women in the Pacific-Asian Community and the Cultural Defense’ (1991) 43 Stan LR 1311 at 1313, 1319; Martin & Mosher, above n72 at 28.
[81] ‘A Strategy on Domestic Violence and Sexual Assault for Non-English Speaking Background Women’ in DVIRC Conference, above n73 at 85.
[82] In relation to ethnic communities, see, for example, Easteal, above n72 at 124. In relation to lesbian communities, see, for example, Cecere, above n67 at 29; Vickers, above n68 at paras 23, 30–31, 72; Audrey Yue, ‘Battered Homes: Some NESBian Que(e)ries’, DVIRC Conference, above n73 at 24, 25; Denise Bricker, ‘Fatal Defense: An Analysis of Battered Woman’s Syndrome Expert Testimony for Gay Men and Lesbians Who Kill Abusive Partners’ (1993) 58 Brooklyn LR 1379 at 1398–99.
[83] Easteal, above n72 at 10, 93–94, 129; Keys Young, above n73 at 52–54; ‘A Strategy on Domestic Violence and Sexual Assault for Non-English Speaking Background Women’, DVIRC Conference, above n73 at 85; Vickers, above n68 at [36], [39], [41]; Bennet, above n69 at 23–24; Domestic Violence Resource Centre, ‘Legal System – Invisibility Paradox of Same-Sex Couples and their Families within the Legal System’ [2000] DVAR Journal of the DVRC Inc (March) at 14–15; Coker, above n57 at 1042, 1048; Zanita Fenton, ‘Silence Compounded: The Conjunction of Race and Gender Violence’ (2003) 11 American U J of Gender Social Policy & Law 271; Robert Hampton, William Oliver & Lucia Magarian, ‘Domestic Violence in the African American Community: An Analysis of Social and Structural Factors’ (2003) 9 Violence Against Women 533 at 534; Martin & Mosher, above n72 at 20, 23, 26–28; Bricker, id at 1396.
[84] Easteal, above n72 at 49–50; Monique Hitter, ‘Enhancing Access for Immigrant and Refugee Women’, DVIRC Conference, above n73 at 47; Martin & Mosher, above n72 at 20, 23, 25.
[85] National Committee on Violence Against Women, above n71 at 29.
[86] Easteal, above n72 at 35, 70, 75, 99, 131; Zita Antonios, ‘Opening Speech: Violence Against NESB Women’, DVIRC Conference, above n73 at 6; Maria Katsabanis, Access and Equity Report (1993) at 41–42, 50–51, 55, 78–79; National Committee on Violence Against Women, above n71 at 17, 23–25, 27; Maree Ireland, ‘“An Almost Endless List of Injustices”: Violence Against Women with Disabilities’ [2002] DVIRC Newsletter (Summer) 9; Frohmader, above n70 at 28. Lesbians may also experience homophobia and discrimination when attempting to access refuges and other mainstream services. See Bennet, above n69 at 21–22; Vickers, above n68 at paras 53–56, 90; Domestic Violence Resource Centre, above n83 at 14.
[87] Easteal, above n72 at 110.
[88] Sotha Sous, ‘Mimosa House: A Refuge for Indo-Chinese Women’, DVIRC Conference, above n73 at 15.
[89] Anna Ferrante, Frank Morgan, David Indemaur & Richard Harding, Measuring the Extent of Domestic Violence (1996) at 34–35; Aboriginal and Torres Strait Islander Women's Task Force on Violence, The Aboriginal and Torres Strait Islander Women’s Task Force on Violence Report (rev edn, 2000) at 97; Paul Memmott, Rachael Stacy, Catherine Chambers & Catherine Keys, Violence in Indigenous Communities (1999). See also Audrey Bolger, Aboriginal Women and Violence (1991) at 4; Pam Greer, ‘Aboriginal Women and Domestic Violence in New South Wales’ in Julie Stubbs (ed), Women, Male Violence and the Law (1994) at 64–66.
[90] Indigenous people use the term ‘family violence’ to capture the range of violence and abuse experienced in and affecting all members of Indigenous communities: Aboriginal and Torres Strait Islander Women's Task Force on Violence, id at 2; Judy Atkinson, ‘Telling Stories and Healing Trauma’ [1997] DVIRC Newsletter (Summer) 6; Laing, above n17 at 2.
[91] Bolger, above n89 at 58–59, 68; Judy Atkinson, ‘Violence Against Aboriginal Women: Reconstitution of Community Law – The Way Forward’ (1990) 2(46) ALB 6 at 6–9; Pam Greer, ‘Creating Better Services for Aboriginal People’ [1997] DVIRC Newsletter (May) 13 at 16; Elizabeth Moore, ‘Not Just Court: Indigenous Families, Violence, and Apprehended Violence Orders in Rural New South Wales’, paper presented at Expanding Our Horizons: Understanding the Complexities of Violence Against Women: Meanings, Cultures, Difference Conference, University of Sydney, 18–22 Feb 2002 at 7–8. For a comprehensive account of police treatment of Indigenous women, including false imprisonment and rape of women in custody, see Human Rights and Equal Opportunity Commission, Racist Violence: Report of the National Inquiry into Racist Violence in Australia (1991).
[92] Aboriginal and Torres Strait Islander Women's Task Force on Violence, above n89 at 59; Bolger, above n89 at 54, 62.
[93] Bolger, id at 54–57.
[94] Sharon Payne, ‘Aboriginal Women and the Criminal Justice System’ (1990) 2(46) ALB 9 at 10; John Upton, ‘By Violence, By Silence, By Control: The Marginalisation of Aboriginal Women Under White and “Black” Law’ [1992] MelbULawRw 22; (1992) 18 MULR 867 at 872.
[95] Aboriginal and Torres Strait Islander Women's Task Force on Violence, above n89 at 59; Bolger, above n89 at 50–51, 53, 71, 80–81; Atkinson, above n91 at 6, 8; Payne, id at 10; Melissa Randall, ‘Domestic Violence’ (1995) 20 Alt LJ 3; Upton, id at 873.
[96] Moore, above n91 at 8.
[97] Pat O’Shane, ‘Is There Any Relevance in the Women’s Movement for Aboriginal Women?’ (1976) 12 Refractory Girl 31 at 32; Larissa Behrendt, ‘Aboriginal Women and the White Lies of the Feminist Movement: Implications for Aboriginal Women in Rights Discourse’ (1993) 1 Aust Feminist LJ 27 at 33; Jackie Huggins, ‘A Contemporary View of Aboriginal Women’s Relationship to the White Women’s Movement’ in Norma Grieve & Ailsa Burns (eds), Australian Women: Contemporary Feminist Thought (1994) at 71; Jan Pettman, Living in the Margins: Racism, Sexism and Feminism in Australia (1992) at 65.
[98] Aboriginal and Torres Strait Islander Women's Task Force on Violence, above n89 at xxxi, 22– 23, 25–26, 58, 60; Atkinson, above n90 at 6; Bolger, above n89 at 44; Heather Goodall & Jackie Huggins, ‘Aboriginal Women are Everywhere: Contemporary Struggles’ in Kay Saunders & Raymond Evans (eds), Gender Relations in Australia: Domination and Negotiation (1992) at 418; Rose Wanganeen, ‘The Aboriginal Struggle in the Face of Terrorism’ in Sophie Watson (ed), Playing the State: Australian Feminist Interventions (1990) at 69–70; Payne, above n94 at
[10] .
[99] Aboriginal and Torres Strait Islander Women's Task Force on Violence, above n89 at xxxi, xxxiii, 28, 31, 59; Bolger, above n89 at 29, 34–5, 45.
[100] Aboriginal and Torres Strait Islander Women's Task Force on Violence, above n89 at xxx; Aileen Moreton-Robinson, Talkin’ Up to the White Woman: Indigenous Women and Feminism (2000) at 160, 161–65, 177; Behrendt, above n97 at 27, 42; O'Shane, above n97 at 32–34; Barbara Flick, ‘Colonisation and Decolonisation: An Aboriginal Experience’ in Sophie Watson (ed), Playing the State: Australian Feminist Interventions (1990) at 66; Jackie Huggins, ‘Black Women and Women’s Liberation’ in Sneja Gunew (ed), A Reader in Feminist Knowledge (1991) at 6; Goodall & Huggins, above n98 at 401–2.
[101] Aboriginal and Torres Strait Islander Women’s Task Force on Violence, above n89 at 193; Bolger, above n89 at 44. Bolger notes, however, that some Indigenous men who abuse their partners are not powerless and poor: they are well educated and have good jobs as teachers, bureaucrats, and so forth. However, the stories of these men and their partners more closely resemble those of violent relationships in the Anglo-Australian community: at 35–37, 44.
[102] Aboriginal and Torres Strait Islander Women's Task Force on Violence, above n89 at 50.
[103] Linda Gordon, Heroes of Their Own Lives: The Politics and History of Family Violence (1988).
[104] Ferraro, above n32 at 77, 83. See also Mahoney, above n35 at 27, 60 (on pre-1970s understandings of domestic violence).
[105] Seuffert, above n56 at 216,
[218] –25.
[106] See above n9.
[107] Langer, above n57 at 87.
[108] Cited in Bailey, above n37 at 17.
[109] Miranda Kaye & Julia Tolmie, ‘“Lollies at a Children’s Party” and Other Myths: Violence, Protection Orders and Fathers’ Rights’ (1998) 10 Current Issues in Crim Just 52 at 59.
[110] See, for example, Kaye & Tolmie, id at 57, 61; Pence & Paymar, above n34 at 14. See also Regina Graycar & Jenny Morgan, The Hidden Gender of Law (2nd ed, 2002) at 309–10 (critique of the use of the Conflict Tactics Scale in studies purporting to show that women and men are equally violent).
[111] Ruth Busch, ‘“Don’t Throw Flowers at Me … (Judges) Will Say We’re in Love”: An Analysis of New Zealand Judges’ Attitudes Towards Domestic Violence’ in Julie Stubbs (ed), Women, Male Violence and the Law (1994) at 131–32.
[112] Pence & Paymar, above n34 at 11.
[113] Martha Mahoney, ‘Victimization or Oppression? Women’s Lives, Violence, and Agency’ in Martha Albertson Fineman & Roxanne Mykitiuk (eds), The Public Nature of Private Violence (1994) at 78; Schneider, above n30 at 104; Andrea Westlund, ‘Pre-Modern and Modern Power: Foucault and the Case of Domestic Violence’ (1999) 24 Signs 1045; Espinoza, above n57 at 915; Lees, above n65 at 137; Threadgold, above n23 at 217. In the national survey noted above, fully 77 per cent of respondents found it difficult to understand why women often stay with violent partners: Bailey, above n37.
[114] Maria Eriksson & Marianne Hester, ‘Violent Men as Good Enough Fathers? A Look at England and Sweden’ (2001) 7 Violence Against Women 779.
[115] Römkens, above n30 at 287–88.
[116] Adrian Howe, ‘Notes from a “War” Zone: Reporting Domestic/Family/Home/Epidemic (Men’s) Violence’ in Adrian Howe (ed), Sexed Crime in the News (1998) at 38.
[117] Ibid.
[118] Busch, above n111 at 108–9.
[119] Mahoney, above n35 at 3; Zanita Fenton, ‘Mirrored Silence: Reflections on Judicial Complicity in Private Violence’ (1999) 78 OrLR 995 at 996, 1027–8.
[120] Regina Graycar, ‘Telling Tales: Legal Stories About Violence Against Women’ (1997) 7 Aust Feminist LJ 79. See also Lisa Sarmas, ‘Storytelling and the Law: A Case Study of Louth v Diprose’ [1994] MelbULawRw 8; (1994) 19 MULR 701.
[121] Regina Graycar, ‘Telling Tales: Legal Stories About Violence Against Women’ (1996) 8 Cardozo Studies in Law & Literature 297; Stubbs, above n23 at 193; Busch, above n111 at 107; Martha Minow, ‘Words and the Door to the Land of Change: Law, Language, and Family Violence’ (1990) 43 Vand LR 1665 at 1673.
[122] Lori Beaman-Hall, ‘Abused Women and Legal Discourse: The Exclusionary Power of Legal Method’ (1996) 11(1) Can J Law & Society 125 at 132. See also Langer, above n57 at 66.
[123] See, for example, Barbara Creed, The Monstrous-Feminine: Film, Feminism, Psychoanalysis (1993); Threadgold, above n23 at 228; Renee Heberle, ‘Law’s Violence and the Challenge of “The Feminine”’ (2001) 22 Studies in Law, Policy & Society 49; Schneider, above n30 at 121; Stubbs, above n23 at 193–94.
[124] See, for example, Kaye & Tolmie, above n109 at 54; Kim Lane Scheppele, ‘“Just the Facts Ma’am”: Sexualized Violence, Evidentiary Habits, and the Revision of Truth’ (1992) 37 NY Law Sch LR 123 at 149–50.
[125] See Joan Meier, ‘Domestic Violence, Child Custody, and Child Protection: Understanding Judicial Resistance and Imagining the Solutions’ (2003) 11 American U J of Gender, Social Policy & Law 657 at 683–84.
[126] See, for example, Anne Coughlin, ‘Excusing Women’ (1994) 82 Cal LR 1; Rosemary Hunter, ‘Gender in Evidence: Masculine Norms vs Feminist Reforms’ (1996) 19 Harv Women’s LJ 127 at 153–54; Rhode, above n60 at 116.
[127] Howe, above n116 at 53.
[128] Marnia Lazreg, ‘Feminism and Difference: The Perils of Writing as a Woman on “Women in Algeria”’ in Marianne Hirsch & Evelyn Fox Keller (eds), Conflicts in Feminism (1990) at 327, 329; Uma Narayan, ‘The Project of Feminist Epistemology: Perspectives from a Nonwestern Feminist’ in Alison Jaggar & Susan Bordo (eds), Gender/Body/Knowledge: Feminist Reconstructions of Being and Knowing (1989) at 259.
[129] See, for example, Trinh Min-ha, Woman, Native, Other: Writing Postcoloniality and Feminism (1989) at 104, 106; Antonios, above n86 at 6.
[130] Janet Hall, ‘ “The Court is Not a Sausage Machine”: Learning About Intervention Orders in a Mock Court’ [1999] DVIRC Newsletter (Winter) 10 at 11.
[131] For a critique of the definitions of violence in state and territory protection order legislation, see Rosemary Hunter & Julie Stubbs, ‘Model Laws or Missed Opportunity?’ (1999) 24 Alt LJ 12.
[132] Fisher v Fisher [1988] VicRp 93; [1988] VR 1028 at 1035. In the context of the particular case, this comment was strictly obiter, but it has been followed in the Magistrates’ Courts.
[133] See also Victorian Law Reform Commission, above n8 at 177.
[134] Interview with NESB Focus Group, Melbourne, 23 December 1997; Field notes,
Broadmeadows Court Support Program, 25 October 1996. The same observation was made by Babbel, above n1 at 16.
[135] Interview with Flora Culpen, Melbourne, 17 March 1997; Interview with S1, Melbourne, 16 January 1997; Field notes, Broadmeadows Magistrates’ Court, 11 July 1997.
[136] Interview with Angela Palombo, Melbourne, 1 April 1996.
[137] Interview with Sue Macgregor, Melbourne, 1 March 1996.
[138] See also Helen Spowart & Rebecca Neil, ‘Stop in the Name of Love’ (1997) 22 Alt LJ 81; Ptacek, above n44 at 8.
[139] Interview with Flora Culpen, above n135; Interview with Denyse Dawson, Melbourne, 5 June 1996. See also Wearing (1992), above n1 at 48–49; Hall, above n130 at 10–11. The Magistrates’ Court of Victoria, Family Violence and Stalking Protocols (rev ed, 2003) now encourage registrars to include in the complaint a ‘brief description of [the] past relationship’, and a description of the ‘incident that brought the person to the Court for an order’: at [4.6]. The form that applicants are asked to complete prior to their interview with the registrar (Form 1) asks them to provide details of the most recent incident, including the date on which and the place at which it occurred, and also asks ‘have there been other incidents in the past, if so when and where?’ Seven lines are provided for the most recent incident, and only six lines are provided for previous incidents. Notably, too, the form asks about previous incidents rather than the history of the relationship.
[140] For example, MC42 (Williamstown Magistrates’ Court, 31 October 1997). See also Spowart & Neil, above n138 at 83. The Magistrates’ Court Family Violence and Stalking Protocols require registrars to include in a complaint ‘stated reasons why there are concerns the behaviour would continue unless an order is made’: id at [4.5]. Form 1 asks the applicant to specify ‘Why do you fear such incidents are likely to occur again? Explain and give details’ (emphasis in original). In both cases, however, fears for the defendant’s future behaviour are structurally disconnected from the account of the defendant’s past behaviour.
[141] Interview with Karyn Anderson, Melbourne, 8 March 1996; Interview with Hana Assafiri, Melbourne, 24 June 1997; Interview with Flora Culpen, above n135; Interview with NESB Focus Group, above n134; Interview with Angela Palombo, above n136; Interview with Judith Peirce, Melbourne, 21 August 1997; Interview with S1, above n135; Interview with S2, Melbourne, 28 October 1997; Interview with SW1, Melbourne, 23 December 1997. See also Victorian Law Reform Commission, above n8 at 83; Wearing (1992), above n1 at 49, 157–58.
[142] Interview with Karyn Anderson, ibid; Interview with Judith Peirce, ibid; Interview with SW1, ibid. Similarly, most of the lawyers interviewed said that, despite the broad definition of family violence in s60D(1) of the Family Law Act, the Family Court was more interested in evidence of physical violence than in other forms of violence, both because it was considered more serious, and because it was easier to corroborate and was thus more believable: Interview with B1, Melbourne, 17 October 1997; Interview with B2, Melbourne, 22 October 1997; Interview with Barbara Phelan, Melbourne, 29 October 1997; Interview with S1, above n135; Interview with S2, ibid; Interview with Jane Trickey, Melbourne, 20 March 1996; Interview with Denyse Dawson, above n139; Interview with Margaret Mann, Melbourne, 8 March 1996.
[143] Interview with SW1, above n141.
[144] Wearing (1996), above n1 at 152; Interview with Sue Macgregor, above n137. See also Kim Lane Scheppele, ‘Manners of Imagining the Real’ (1994) 19 Law & Social Inquiry 995 at 1014– 15.
[145] Telephone interview with WL7, 28 October 1997.
[146] Telephone interview with WL2, 18 December 1997. Likewise, NSW magistrates responding to a Judicial Commission survey demonstrated a lack of understanding of fear, and considered a hypothetical applicant’s fear of her ex-husband not to be genuine or reasonable in a scenario in which there was a history of violence in the relationship, including assaults during pregnancy, but in which the couple had been separated for two months and there had been no recent incidents of assault: Hickey & Cumines, above n1 at 74.
[147] Interview with SW1, above n141.
[148] Interview WL5, Geelong, Geelong Focus Group, 19 December 1997.
[149] Interview with Geelong Focus Group, Geelong, 19 December 1997.
[150] See also Hickey & Cumines, above n1 at 59 (54 per cent of NSW magistrates responding to the Judicial Commission survey agreed with the proposition that ‘it takes two to tango’); Carpenter, Currie & Field, above n1 at 5 (42 per cent of Queensland magistrates in a matching survey agreed that ‘it takes two to tango’, although a number of respondents qualified their agreement by noting that this was sometimes, but not always, true).
[151] Field notes, above n135.
[152] Field notes, Preston Magistrates’ Court, 4 July 1996.
[153] MC38 Preston Magistrates’ Court, 4 July 1996.
[154] MC52 Dandenong Magistrates’ Court, 4 November 1996. The evidence about abduction of the children was not actually introduced in court, but I was privy to discussions between the applicant and her barrister before and after the hearing: Field notes, Dandenong Magistrates’ Court, 4 November 1996.
[155] MC52, ibid.
[156] MC101 Frankston Magistrates’ Court, 27 June 1997.
[157] Ibid.
[158] Merry, above n60 at 304.
[159] MC26 Sunshine Magistrates’ Court, 2 July 1996.
[160] Karla Fischer & Mary Rose, ‘When “Enough is Enough”: Battered Women’s Decision Making Around Court Orders of Protection’ (1995) 41 Crime & Delinquency 414 at 427.
[161] MC55 Dandenong Magistrates’ Court, 4 November 1996. A family law barrister also noted that if a woman had separated from and gone back to her partner several times before making the final break, the returns tended to be interpreted by the Family Court as reconciliations, and as an indication that the violence had not been particularly serious, rather than as evidence of the difficulty of separating from an abusive and controlling partner: Interview with Barbara Phelan, above n142.
[162] See also Hickey & Cumines, above n1 at 17 (30 per cent of NSW magistrates who responded to the Judicial Commission survey considered that their role in domestic violence order proceedings included the mediation and resolution of disputes).
[163] MC13 Melbourne Magistrates’ Court, 11 June 1996.
[164] MC39 Williamstown Magistrates’ Court, 31 October 1996.
[165] MC18 Preston Magistrates’ Court, 18 June 1996.
[166] For example, MC17 Preston Magistrates’ Court, 18 June 1996; MC64 Broadmeadows Magistrates’ Court, 21 February 1997.
[167] MC86 Frankston Magistrates’ Court, 27 June 1997.
[168] Pence & Paymar, above n34 at 5–6; Mahoney, above n35 at 65; Spowart & Neil, above n138 at
[82] –83; Melinda Walker, ‘Interpreting the Figures: Increases in Women’s Violence or Just More Masculinist Legal Tactics?’ (1995) 5 Aust Feminist LJ 123 at 124–25. Vickers argues that because these distinctions are even less likely to be drawn in cases involving same sex partners, same sex domestic violence is always conceived of as ‘mutual violence’: above n68 at [47].
[169] Spowart & Neil, above n138 at 83; Babbel, above n1 at 14; Interview with Flora Culpen, above n135; Interview with SW1, above n141.
[170] Interview with Angela Palombo, above n136; Susan Blashki, ‘Family Law: Some Issues Following Recent Legislative Amendments’ [1997] DVIRC Newsletter (February) 4 at 8. See also Nunn & D’Arcy, above n7 at 20.
[171] Spowart & Neil, above n138 at 84; Interview with Susan Borg, Melbourne, 17 October 1997; Interview with Clare McNamara, Melbourne, 14 June 1996; Interview with SW1, above n141.
[172] Nunn & D’Arcy, above n7 at 20; Spowart & Neil, above n138; Walker, above n168 at 125; Interview with Flora Culpen, above n135; Interview with S1, above n135; Interview with SW1, above n141.
[173] Victorian Law Reform Commission, above n8 at 105; Babbel, above n1 at 14; Nunn & D’Arcy, above n7 at 21.
[174] MC53 Dandenong Magistrates’ Court, 4 November 1996; MC85 Sunshine Magistrates’ Court, 17 June 1997; MC91, MC98, MC110 Frankston Magistrates’ Court, 27 June 1997.
[175] MC85, ibid.
[176] Twenty-one orders (38.9 per cent) were made for 12 months, while 16 (29.6 per cent) were made indefinitely.
[177] See Wearing (1992), above n1 at 108–09, 178–79. This was also the view of the majority of clerks Wearing interviewed.
[178] Interview with Geelong Focus Group, above n149.
[179] Catherine Klein & Leslye Orloff, ‘Providing Legal Protection for Battered Women: An Analysis of State Statutes and Case Law’ (1993) 21 Hofstra LR 801 at 1086–87.
[180] Interview with NESB Focus Group, above n134.
[181] Interview with WL5, above n148.
[182] For this reason, Klein & Orloff argue that all orders should be made indefinitely: above n179 at 1087.
[183] Victorian Law Reform Commission, above n8 at 107–8 (57.3 per cent of orders made for 12 months or less in 2002–3).
[184] Family Law Act former s68T. Note, however, that the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) removed magistrates’ powers to make contact orders, although they may still suspend or vary such orders: Family Law Act new s68R.
[185] Kearney McKenzie & Associates, Report: Review of the Operation of Division 11 of the Family Law Reform Act (1998); Miranda Kaye, ‘Section 68T Family Law Act 1975: Magistrates’ Powers to Alter Family Court Contact Orders When Making or Varying ADVOs’ (2003) 15(1) Judicial Officers’ Bulletin 3; Family Law Council, ‘Letter of Advice to the Attorney-General on the Operation of Division 11 in Part VII of the Family Law Act 1975’, 17 November 2004.
[186] Victorian Law Reform Commission, above n8 at 170; Wearing (1992), above n1 at 29; Wearing (1996), above n1 at 121–22; Nunn & D’Arcy, above n7 at 23–24.
[187] Kaye, Stubbs & Tolmie, above n2 at 97; Victorian Law Reform Commission, id at 171; Nunn & D’Arcy, id at 23.
[188] See, for example, Kearney McKenzie & Associates, above n185 at [3.9]; Renata Alexander, ‘New Mantras in Family Law’ (1996) 21 Alt LJ 276 at 279. Similarly, the Magistrates’ Court of Victoria’s Family Violence and Stalking Protocols, above n139, offer no encouragement to use former s68T of the Family Law Act. Rather, registrars are advised that they should always check with an aggrieved family member if any contact orders are in place, and if so, ‘the order providing exception for contact with the aggrieved family member for the purposes of child contact should be selected for consideration of the Magistrate’: at [27.1].
[189] Interview with WL2, above n146.
[190] Interview with WL8, Melbourne, 7 November 1997.
[191] For example, MC46 Dandenong Magistrates’ Court, 4 November 1996; MC50 Dandenong Magistrates’ Court, 4 November 1996; MC110, above n174.
[192] MC18, above n165.
[193] MC93 Frankston Magistrates’ Court, 27 June 1997. In the Family Court, too, the view that wife abuse did not necessarily harm the children, that a violent father could still be a good parent, and that the needs of women and children subjected to domestic violence were different, also predominated, and was encouraged by the provisions of Family Law Reform Act. See Kaye, Stubbs & Tolmie, above n2 at 101–2; Laing, above n39 at 21; Hewitt, Brown, Frederico & Martyn, above n43 at 23; Kaspiew, above n2 at 121–22, 131, 137–38; Kathryn Rendell, ‘Current Responses to Children and Young People Affected by Domestic Violence: Beyond Dichotomies’ [1999] DVIRC Newsletter (Autumn) 3; Rhoades, above n2 at 82. Also Interview with Jane Trickey, above n142; Interview with Margaret Mann, above n142; Interview with Sue Macgregor, above n137; Interview with Denyse Dawson, above n139; Interview with WL2, above n146; Interview with WL5, above n148.
[194] See also Ptacek, above n44 at 71; Lenore Simon, ‘A Therapeutic Jurisprudence Approach to the Legal Processing of Domestic Violence Cases’ (1995) 1 Psychology, Public Policy & Law 43 at text accompanying notes 48–56.
[195] Field notes, above n135.
[196] Spowart & Neil, above n138 at 82. See also Elizabeth Gilchrist & Jacqueline Blisset, ‘Magistrates’ Attitudes to Domestic Violence and Sentencing Options’ (2002) 41 The Howard J 348 at 359.
[197] Interview with SW1, above n141.
[198] See, for example, Kaye, Stubbs & Tolmie, above n2 at 44–45, 83; Rendell, Rathus & Lynch, above n2 at 98–101; Toni Dick, ‘She Gave as Good as She Got? Family Violence, Interim Custody/Residence and the Family Court’ [1998] QUTLawJl 4; (1998) 14 QUTLJ 40 at 64; Jaffe, Lemon & Poisson, above n40 at 28. The Family Court’s Family Violence Strategy 2004–2005 (2004) now states that ‘[t]he Family Court aims to ensure that the evidence of independent experts designed to assist in the decision making process is of the highest quality and, in the context of family violence issues, that expert evidence be underpinned by an awareness of the dynamics of violence and its impact upon parents and children’: at 12.
[199] For example, Kaye, Stubbs & Tolmie, above n2 at 44–45; Rendell, Rathus & Lynch, above n2 at 98, 101; Kaspiew, above n2 at 125, 128; FC1 Family Court of Australia, Melbourne Registry, 20–21 March and 24 March 1996; FC5 Family Court of Australia, Melbourne Registry, 2–6 December 1996.
[200] See Tom Altobelli, ‘Family Violence in Children’s Cases: Implications in Practice: Part I’ (1998) 13(1) Aust Family Lawyer 6 at 10; Patricia Easteal, Juliet Behrens & Lisa Young, ‘Relocation Decisions in Canberra and Perth: A Blurry Snapshot’ (2000) 14 AJFL 234 at 246; FC1, above n199.
[201] MC45 Williamstown Magistrates’ Court, 31 October 1996.
[202] Ibid.
[203] MC101, above n156.
[204] Kaspiew, above n2 at 136.
[205] See, for example, Sandra Berns, ‘Parents Behaving Badly: Parental Alienation Syndrome in the Family Court – Magic Bullet or Poisoned Chalice?’ (2001) 15 AJFL 191.
[206] For example, Interview with SW1, above n141. See also Hickey & Cumines, above n1 at 35, 37 (90 per cent of magistrates surveyed in NSW agreed with the proposition that domestic violence protection orders are ‘used by applicants in Family Court proceedings as a tactic to aid their case and deprive their partner from access to children’, with around two thirds of these agreeing that this happened ‘often’); Kearney McKenzie & Associates, above n185 at [3.19]; Miranda Kaye & Julia Tolmie, ‘Fathers’ Rights Groups in Australia and their Engagement with Issues in Family Law’ (1998) 12 AJFL 19 at 53–59; Kaye & Tolmie, above n109 at 54.
[207] Both Australian and US research indicates that the majority of women applying for intervention orders experience repeated violence before first approaching the court. See, for example, Julie Stubbs & Diane Powell, Domestic Violence: Impact of Legal Reform in New South Wales (1989) at 43; Trimboli & Bonney, above n1 at 30; Wearing (1992), above n1 at 363; Wearing (1996), above n1 at 133; Fischer & Rose, above n160 at 416. While this evidence does not establish that women never apply for orders for strategic reasons, it does suggest that applicants are far more likely than not to have genuine need of an order, and supports Jaffe & Crooks’ contention that underreporting of partner violence and false denials by perpetrators are far more likely to occur than false allegations by women: Peter Jaffe & Claire Crooks, ‘Partner Violence and Child Custody Cases: A Cross-National Comparison of Legal Reforms and Issues’ (2004) 10 Violence Against Women 917 at 920.
[208] Interview with Judith Peirce, above n141.
[209] MC21 Prahran Magistrates’ Court, 27 June 1996.
[210] MC104 Broadmeadows Magistrates’ Court, 11 July 1997.
[211] Ibid.
[212] Field notes, above n135.
[213] The magistrate was referring to s60B of the Family Law Act, which provides that children have a right of ongoing contact with both parents, unless that would be contrary to the best interests of the child.
[214] Interview with B2, above n142.
[215] Interview with Barbara Phelan, above n142. Also Interview with Jane Trickey, above n142.
[216] FC16 Family Court of Australia, Melbourne Registry, unreported judgment, 19 November 1996.
[217] FC9, above n75. Other studies have also observed psychological assessments of battered women as ‘hysterical’, ‘histrionic’, paranoid, and personality disordered. See, for example, Rendell, Rathus & Lynch, above n2 at 38; Jaffe, Lemon & Poisson, above n40 at 45–46. See also T v S [2001] FamCA 1147; (2001) 28 Fam LR 342.
[218] FC9, above n75, unreported judgment (undated) at 18–21.
[219] Assafiri & Dimopoulos, above n1 at 20.
[220] Id at 21.
[221] Field notes, above n135.
[222] Interview with Sue Macgregor, above n137; Interview with Hana Assafiri, above n141.
[223] Assafiri & Dimopoulos, above n1 at 21; Interview with NESB Focus Group, above n134. The attitude that women from some cultures should put up with violence from their husbands also seemed to be implicit in the magistrate’s response in MC42, above n140, in which both parties were from the former Yugoslavia.
[224] Interview with Sue Macgregor, above n137; Assafiri & Dimopoulos, above n1 at 21.
[225] Assafiri & Dimopoulos, id at 22.
[226] Comment from the Floor, ‘Silencing Those Who Will Not be Silenced Forum’, Footscray Arts Centre, 16 August 1996.
[227] Interview with Hana Assafiri, above n141; Interview with Margaret Mann, above n142.
[228] Interview with Sue Macgregor, above n137; Interview with Karyn Anderson, above n141.
[229] Interview with Sue Macgregor, ibid.
[230] MC52, above n154.
[231] MC101, above n156.
[232] MC21, above n209.
[233] MC45, above n201.
[234] See also Kaye, Stubbs & Tolmie, above n2; Rhoades, above n2.
[235] Nancy Hartsock, ‘The Feminist Standpoint: Developing the Ground for a Specifically Feminist Historical Materialism’ in Sandra Harding (ed), Feminism and Methodology: Social Science Issues (1987). See also Sandra Harding, ‘Rethinking Standpoint Epistemology: “What is Strong Objectivity?”’ in Linda Alcoff & Elizabeth Potter (eds), Feminist Epistemologies (1993).
[236] Catharine MacKinnon, ‘Feminism, Marxism, Method and the State: An Agenda for Theory’ (1982) 7 Signs 515.
[237] This is a very brief summary of a set of complex arguments. For some elaboration, see Rosemary Hunter, ‘Deconstructing the Subjects of Feminism: The Essentialism Debate in Feminist Theory and Practice’ (1996) 6 Aust Feminist LJ 135 at 142–44.
[238] See Genovese (2000), above n17; Ferraro, above n32.
[239] For example as recommended by the Victorian Law Reform Commission, Review of Family Violence Laws: Report (2006) at 105–7, 113.
[240] See, for example, Jaffe & Crooks, above n207 at 921, 927; Juliet Behrens, ‘The Form and Substance of Australian Legislation on Parenting Orders: A Case for the Principles of Care and Diversity and Presumptions Based on Them’ (2002) 24 J Social Welfare & Fam L 401 at 413; Nancy Lemon, ‘Statutes Creating Rebuttable Presumptions Against Custody to Batterers: How Effective Are They?’ (2001) 28 William Mitchell LR 601; Maureen Sheeran & Scott Hampton, ‘Supervised Visitation in Cases of Domestic Violence’ (1999) 50 Juvenile & Family Court J 13; Laing, above n39; Rendell, Rathus & Lynch, above n2 at 121–22; Eriksson & Hester, above n114 at 793. By contrast, the 2006 amendments to the Family Law Act, while specifying that the need to protect children from (exposure to) abuse, neglect or family violence is a primary consideration in determining the best interests of the child, do not specify how this should occur, other than stating that if there are reasonable grounds to believe that a parent has engaged in family violence, there should be no presumption of equal shared parental responsibility: ss60CC(2), 61DA(2). At the same time, the amendments perpetuate fright narratives about false allegations of violence by tightening the definition of ‘family violence’ and providing that the court must make a costs order against a party found to have knowingly made a false allegation or statement in proceedings: ss4(1), 117AB.
[241] Domestic violence courts are currently in place or being piloted in the ACT, South Australia, Western Australia, NSW and Victoria.
[242] See, for example, Julie Stewart, Specialist Domestic/Family Violence Courts Within the Australian Context (2005); Rekha Mirchandani, ‘What’s So Special About Specialised Courts? The State and Social Change in Salt Lake City’s Domestic Violence Court’ (2005) 39 Law & Society Rev 379; Victorian Law Reform Commission, above n239 at 165–232.
[243] Note, however, that of the schemes currently in place, only the Victorian model aims to be a ‘one stop shop’. The ACT court deals only with crime, while the South Australian, Western Australian and NSW models deal with crime and protection orders but not family law.