Domestic Violence Law Reform and Women’s Experience in Court: Th ...

This study investigates the ways in which women’s experiences of one particular form of violence—variously known as “domestic violence,” “intimate partner violence,” or “family violence”—are heard and understood in civil court settings, and examines women’s experiences of telling their stories (or at least attempting to do so) in those settings. The two areas on which the study focuses are domestic violence restraining order (known as “intervention order”) proceedings in State Magistrates’ Courts, and custody, visitation (known as “residence” and “contact”), and property matters in the Family Court of Australia (a federal court). It also looks at the intersection between these two types of proceedings—that is, how State Magistrates’ Courts deal with family law issues arising in intervention order applications, and how the Family Court regards intervention orders obtained by parties to family law proceedings. The two jurisdictions both have a statutory rather than common-law basis, and the relevant legislation is either partly or wholly a product of feminist legal activism. The study therefore seeks to determine whether the feminist claim that the criminal law silences women¹ also pertains in the context of new civil claims specifically designed to respond to women’s experiences. And if this is the case, why is it so? What factors and mechanisms contribute to the ongoing silencing of women’s voices, and what, if any, lessons can be drawn for the benefit of future feminist law reform efforts?

The Incidence of Domestic Violence

The fact that domestic violence is a serious and ongoing social problem has been well recognized since the women’s movement made the hitherto private experience of violence against women in the home into a political issue in the 1960s and 1970s. In Australia, a major, national prevalence study of violence against women conducted by the Australian Bureau of Statistics (ABS) in 1996 found that 23% of women who had ever been married or in a de facto relationship—1.1 million women—had experienced violence from their partner at some stage during the relationship (pp. 42, 50).² Of women who were currently married or in a de facto relationship, 2.6%—or 111,000—had experienced violence from their partner during the previous 12 months (p. 50).³