Overview of the Report

Definitions and terminology

1.102 This section sets out some of the terminology that will be used in this Report in referring to specific concepts in the family violence sphere.

Culturally and linguistically diverse

1.103 The phrase ‘culturally and linguistically diverse’—and the abbreviation ‘CALD’—are commonly used in referring to people of diverse backgrounds. The Commissions recognise that the discussion in this Report may apply to people who are ‘culturally or linguistically diverse’ as well as those who are ‘culturally and linguistically diverse’. The phrase is used for convenience to embrace both kinds of diversity.

Family

1.104 The definition of ‘family’ or ‘domestic’ relationship varies across the Australian jurisdictions and legislation. In this Report the particular definitions of ‘family’ are considered in the context of the specific legislation under consideration. In the discussion of sexual assault in a family violence context—under the second Term of Reference—emphasis is placed on sexual assault by current or former intimate partners (defined as spouses, de facto, and boyfriend/girlfriend).^[110]

Family violence

1.105 The terminology that should be adopted to describe violence within families and intimate relationships has been, and continues to be, the subject of controversy and debate.^[111] Invariably there will be difficulties in attaching any one label to describe a complex phenomenon varying in degrees of severity and reflecting the differing experiences of persons from diverse cultural, socio-economic, geographical groups, and those in same-sex relationships or in family structures that do not replicate the nuclear family structure.

1.106 Professors Belinda Fehlberg and Juliet Behrens note that:

The label attached to such violence has been a key issue in feminist struggles to bring it out of the shadow of the private sphere, where historically it remained as a vestige of the era when husbands had the right to use physical force to discipline not only their children but also their wives. According to feminist arguments, the lack of visibility of such violence in public discourse, in policy and in the legal system served to reinforce the gendered imbalances in power that its physical enactment in private relationships perpetuated. Consequently both gender and power have been central to evolving feminist definitions of domestic violence.^[112]

1.107 State, territory and Commonwealth legislation that refers to violence within families and intimate relationships uses various descriptions—‘family violence’, ‘domestic violence’ and ‘domestic abuse’. The term ‘domestic’ has been criticised on the basis that it ‘qualifies and arguably reduces the term “violence”’.^[113] The Macquarie Dictionary notes the colloquial use of the term ‘domestic’ as ‘an argument with one’s spouse or another member of the household’.^[114] Thus, from a cultural perspective, the term ‘domestic’ can trivialise the impact of the violence on the victim. However the phrase ‘family violence’ has also been criticised:

The problem with the term ‘family violence’ is not even in its gendered neutrality, but the picture that it paints that violence in the family is something in which all members are complicit, and which is just to do with difficulties in relationships between family members and problems in handling conflict in non ‘violent’ ways. … The term is even less acceptable than the more commonly used ‘domestic violence’. ‘Domestic’ with all its implications of ‘just a domestic’, at least cannot be taken to qualify the violence by reference to the ungendered perpetrator, as ‘family’ can.^[115]

1.108 Reports and writing in this area have adopted varying terminology. Some have referred to both ‘family and domestic violence’, or vice versa;^[116] others to ‘family violence’;^[117] and some to ‘domestic violence’.^[118] Fehlberg and Behrens adopt the terminology of ‘violence and abuse in families’.^[119] In each case, the differing terminology—in the Australian context—attempts to refer to the same type of conduct, although the boundaries of such conduct have expanded over the years.

1.109 In this Inquiry the Commissions will refer to ‘family violence’, rather than ‘domestic violence’ or ‘domestic abuse’, unless specifically quoting from sources including legislation which use alternative terminology. The Commissions adopt this terminology to reflect the language used in the Terms of Reference, acknowledging that there is a robust debate about the appropriateness of such terminology.

Family violence legislation

1.110 Each of the states and territories has legislation which provides for the making of court orders to protect victims from future incidents of family violence.^[120] In some cases the legislation deals exclusively with the obtaining of protection orders in the family violence context; in other cases the legislation that deals with these protection orders also deals with the obtaining of protection orders in circumstances outside the family violence context. For ease of reference, in this Report the Commissions refer generically to both sets of legislation as family violence legislation.

1.111 At the time of writing this Report, the family violence legislation current in South Australia is the Domestic Violence Act 1994 (SA). This legislation, however, will be repealed once the Intervention Orders (Prevention of Abuse) Act 2009 (SA)—which was assented to on 10 December 2009—comes into effect. Parliamentary debates indicate that this may be sometime later in 2010.^[121] As of 1 September 2010 no proclamation had been made fixing a date of commencement. When the Commissions refer to the South Australian family violence legislation, it is to the Act which is yet to come into effect—unless the text indicates otherwise.^[122]

Indigenous peoples/Indigenous women

1.112 In this Report the Commissions use the term ‘Indigenous peoples’ to refer to Aboriginal and Torres Strait Island peoples, consistently with the terminology adopted by the Aboriginal and Torres Strait Islander Social Justice Commissioner in the Social Justice Report 2009:

Aborigines and Torres Strait Islanders are referred to as ‘peoples’. This recognises that Aborigines and Torres Strait Islanders have a collective, rather than purely individual, dimension to their livelihoods. … The use of the term ‘Indigenous’ has evolved through international law.^[123]

1.113 ‘Indigenous women’ and ‘Indigenous children’ also reflect this terminology.

Protection orders

1.114 Protection orders under family violence legislation are variously described as: apprehended violence orders, family violence intervention orders, violence restraining orders, family violence orders, domestic violence orders, and domestic violence restraining orders. For the purposes of this Report the Commissions use the generic term of ‘protection order’, unless we are specifically quoting from legislation or case law which uses the specific terminology adopted by a particular state or territory.

Structure of the Report

1.115 The Report is arranged by parts, dividing up the subject areas of the Terms of Reference as the lens through which the interaction issues are considered. The arrangement of material in this way is a pragmatic one to make the consideration of the wide ranging area of the Inquiry more manageable through the dissection of issues. The Commissions are of the view, however, that it is essential for a proper understanding of the nature of family violence to see the problems from the perspective of those engaging with the legal framework, rather than through the laws themselves. In order to highlight the issues in the Terms of Reference from the perspective of those engaging with the legal system, a number of case studies, hypotheticals and illustrations have been used, integrated throughout the chapters.

1.116 Part A, Introduction, comprises three chapters: this introductory chapter; Chapter 2, focused on the international and constitutional settings for the Inquiry; and Chapter 3, setting out the framework for reform, including a consideration of the specific principles or policy aims on which the recommendations are based.

1.117 Part B, Family Violence—A Common Interpretative Framework, comprises four chapters. Chapter 4 considers the purposes of the various laws under review in the Inquiry. Chapter 5 then focuses on the definition of family violence in family violence legislation and considers the desirability of attaining a common understanding of what constitutes family violence across family violence legislation. Chapter 6 considers the definition of family violence in other legislative schemes, including the Family Law Act, and in the criminal law—and explores the relationship between the definitions in those schemes and in family violence legislation. Definitions form one limb of a common interpretative framework, complemented for example, by guiding principles and statutory objects, which are discussed in Chapter 7.

1.118 Part C, Family Violence and the Criminal Law, considers the interaction between family violence legislation and criminal laws. Chapters 8–10 consider the interaction between family violence laws and state and territory criminal procedures, with a focus in Chapter 9 on the role of police. Chapters 11–12 focus on family violence protection orders and the criminal law, including the issue of breach. Chapter 13 considers the recognition of family violence in offences and sentencing, and Chapter 14 considers family violence issues in the context of defences to homicide, as well as the issue of recognising family relationships in criminal law responses to family violence.

1.119 Part D, Family Violence and Family Law, focuses on the interaction between state and territory family violence legislation and the Family Law Act. This part comprises four chapters. Following an introductory chapter, Chapter 13, there is a consideration of the family law interactions with, first, the jurisdiction and practice of state and territory courts—in Chapter 14; and, secondly, the jurisdiction and practice of federal family courts—in Chapter 15.

1.120 Part E, Child Protection, considers interactions between child protection laws and a range of other laws. Chapter 19 focuses on the interactions with the federal family law, while Chapter 20 considers intersections between family violence protection orders, child protection and criminal laws.

1.121 Part F, Alternative Dispute Resolution, comprises three chapters. Chapter 21 considers the regulation of FDR by the Family Law Act and the role of FDR in cases of family violence, while Chapter 22 focuses on issues of confidentiality and the admissibility of family dispute resolution and family counselling communications. The final chapter in the part, Chapter 23, focuses on alternative processes in the context of child protection and family violence protection orders.

1.122 Part G, Sexual Assault, focuses on the second Term of Reference and considers sexual assault in a family violence context. This requires the Commissions to focus on the impact of inconsistent interpretation or application of laws in cases of sexual assault occurring in a family violence context, including rules of evidence, on victims of such violence. Chapter 24 outlines key background understandings of sexual assault in a family violence context, its nature and prevalence, and the response of the criminal justice system and other areas of law. Chapter 25 then describes the range of existing sexual offences and identifies inconsistencies in relation to elements of these offences, notably in relation to the issue of consent. It also discusses the role that guiding principles and objects clauses can play in attempting to mitigate the impact of laws on victims of sexual assault in a family violence context. Chapters 26–28 highlight ways in which particular laws and procedures operate for victims of sexual assault. In some cases, where it is possible to identify certain approaches as more promising and progressive than others, the Commissions recommend that the Commonwealth, state and territory governments should implement consistent measures based on the best model. Chapter 26 discusses some of the problems that may lead to attrition of sexual assault cases at the reporting, investigation, prosecution and other pre-trial stages. Chapter 27 focuses on issues that arise at trial, notably in relation to the application of laws of evidence, and Chapter 28 on other trial processes including the giving of jury warnings and the cross-examination of complainants and other witnesses in sexual offence proceedings. Overall, these chapters examine reform aimed at reducing attrition and improving the experiences of those who have suffered a sexual assault.

1.123 The final part of the Report, Part H, Overarching Issues, comprising four chapters, focuses on some of the overarching issues considered throughout the Inquiry. Chapter 29 examines integrated responses across Australia to issues of family violence and child maltreatment including the essential elements of such responses: common policies and objectives; inter-agency collaboration; and the provision of victim support. Information sharing, which underpins effective integrated responses, is discussed in Chapter 30. Chapter 31 focuses on the practices, resources and mechanisms required to provide and maintain quality education and training in the family violence context. The chapter then considers ways in which data collection and analysis can be improved to ensure systemic change and improvement. Specialisation—in particular specialised courts—which may also be a feature of integrated responses, is discussed in Chapter 32. Given that specialised practice is identified by the Commissions as a principal reform objective in this Inquiry, this chapter is the final chapter in this Report.