Domestic violence is an act of carrying out violence on your partner, spouse or children within the domestic household. Domestic violence takes various forms and is currently protected under the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The main challenges facing the family law system presently include domestic violence; hence in an effort to overcome these challenges, the legal system has made attempts that have been both effective and ineffective.
The most common method of law used by victims for protection against domestic violence is an ADVO (Apprehended Domestic Violence Orders). These are court orders issued to protect a person by restricting another person from doing specific things. Around 45,000 ADVO’s were issued in 2014. The ADVO’s are quick, inexpensive, easily accessible and supported by the criminal system. The ADVO protected victims by prohibiting the defendant from doing activities like intimidating, harassing or threatening the person making them an effective tool issued by the law.
Reforms in the family law in 2006 recognised children as being the most vulnerable and susceptible to this kind of abuse and introduced the two main priorities of the law; the meaningful involvement which ensured the child maintained a meaningful relationship with both parents and the protection from harm principle. A study showed that 86% lawyers felt that the system took care of the first principle by protecting the rights of the father; however only 55% felt that the system was able to enforce the second principle. The main issues with these reforms included the friendly parent provision which basically gave both parents the right to establish a relationship with the child (even the violent parent). Hence reforms were not effectively meeting the purpose of protecting the child from harm.
Another drawback of the 2006 reform was the false allegations provision; which instead of encouraging victims of domestic violence to speak up was instead being used against them, if they failed to prove the abuse. The judge was allowed to issue a costs order against the person, which involved the victim to pay the legal fees of the perpetrator. Richard Chisholm, a former judge of the family court stated in an interview with ABC, that some parts of the law discouraged people from reporting violence. If efforts are made to speak up against the crime, there should be proper access to help, which presently is lacking in the family law system.
Inefficiencies like fragmentations still existed within the system which can be seen through a research report issued by the University of Sydney named ‘No Way to Live’ (2010), which found a huge gap between the state-based agencies and the family court. Division of power gave neither the states nor the commonwealth an exclusive power over family law.
The introduction of the Family Law Legislation (Family Violence and other measures) Act 2011helped fix issues from the reforms