Introduction

4.1 In this Inquiry the Commissions have been asked to consider how family violence laws interact in practice with the criminal laws of the Commonwealth, states and territories, and with the Family Law Act (1975) (Cth). The interactions cross geographical jurisdictions, various areas of substantive law—family law, family violence law, criminal law and criminal procedure—and span criminal and civil jurisdictions, as well as private and public law.

4.2 This chapter discusses the underlying policy justifications for various laws relevant to family violence, including those specifically referred to in the Terms of Reference—namely family violence laws, family law, child protection laws and the criminal law—as well as victims’ compensation schemes and migration law. Victims’ compensation schemes are included in the analysis in this chapter because of their particular interaction with the criminal law, and because victims’ compensation is inextricably connected with an assessment of how legal frameworks can be improved to assist victims of family violence to navigate various jurisdictions. While, as noted in Chapter 1, there is a range of federal laws that intersect with family violence laws and other laws the subject of the Terms of Reference, the Migration Regulations 1994 (Cth) are considered because their operation impacts on a group of women who are particularly vulnerable to family violence, due to the threat of deportation.^[1]

4.3 An analysis of these policy considerations reveals that, while policy justifications differ, in some cases different statutory regimes share common aims. This discussion is a necessary prelude to consideration of the desirability of pursuing a common interpretative framework for what constitutes family violence across the different legislative schemes under consideration—an issue which is canvassed in Chapters 5 to 7. A key theme explored in this Part of the Report is balancing the need for statutory definitions of family violence to reflect the underlying purposes of various civil and criminal legislative schemes relevant to family violence, with the benefits that could flow from the adoption of a common interpretative framework.

4.4 A discussion of the underlying policy objectives of the various legislative schemes also serves as a general background to the discussion of specific interaction issues between family violence laws and the criminal law, and between family violence laws and the Family Law Act, which are considered in the following chapters in this Part.^[2] Chapters 8 to 14 discuss interaction issues between family violence laws and criminal procedures and criminal laws, as well as the recognition of family violence in the criminal law. Chapters 15 to 18 discuss interaction issues between family violence laws and the Family Law Act, including various orders under the Family Law Act, such as parenting orders, property orders and injunctive relief.

4.5 The organisation of the chapters in this Part—addressing issues of interaction between specified legislative schemes—has been decided upon for convenience in writing, and to address the specific interactions of legal frameworks referred to in the Terms of Reference. As stated in Chapter 2, the Commissions recognise that, in practice, issues may not present themselves in such a siloed manner. Matters may involve interactions between multiple legal frameworks, and there may be different permutations of interactions between legal frameworks—such as interactions between family violence and child protection laws.