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

In the context of this study, social discourses (or what I generally call “narratives”) about domestic violence and about victims of violence may be constant, but each institutional setting has a different set of rules and structures that may provide more or less space for hearing women and responding to their need for safety, and that presumably interact with broader social narratives about violence in different kinds of ways. There is thus a need for detailed examination and analysis of how these various elements work in different court settings—the task attempted in this study. In doing so, I have two objectives. Firstly, I am looking to see what conclusions can be drawn about the nature of implementation problems in the jurisdictions examined, which may inform future feminist activism around violence against women. Secondly, I want to make a more general point about the importance of procedure in feminist legal theory and praxis. In Australia in particular, feminist legal scholars and advocates have placed a heavy emphasis on doctrinal revision and have largely ignored issues of implementation (apart from noting them, exclaiming loudly in protest, and trying to craft further doctrinal solutions). My argument is that procedure (conceived broadly to encompass the what, where, how, and who of legal proceedings) crucially shapes women’s experience of the legal process and is neglected by feminists at their peril.

Methodology

In order to examine the operation of intervention order legislation and the domestic violence provisions of the Family Law Act (1975), the study looks not just at the legal doctrine expounded in appellate decisions but also at the day-to-day processes of giving and evaluating evidence within the courtroom. As just noted, this is a relatively rare focus in the Australian context. Few previous feminist studies have sought to scrutinize court proceedings, especially civil proceedings, in any detail, and even fewer have made this their exclusive subject. Previous studies have tended to concentrate on what happens before and after court, with relatively brief reference to what occurs during the court process.