Grounds for obtaining a protection order

7.89 While the grounds for obtaining protection orders differ across state and territory family violence legislation, there are two broad approaches to setting a threshold for obtaining a protection order, which are considered below. In all jurisdictions, the court has discretion not to make a protection order, even if the grounds for the order have been met.

Acts-based tests

7.90 One approach is to focus on the commission of past family violence. Victoria[124] and Queensland[125] take this approach, but also require proof that the person who used family violence is likely to do so again.

7.91 Tasmania takes a similar approach of focusing both on past and future conduct, except rather than using the terminology of the person using violence being ‘likely to commit’ family violence again, it uses the terminology that the person ‘may again commit’ family violence.[126] ‘May’, on its face, suggests a less stringent test than ‘likely’, implying possibility rather than probability. The Second Reading Speeches for the Tasmanian family violence legislation do not indicate why the terminology of ‘may’ was preferred to ‘likely’—or indeed if it was an intentional choice. The Commissions are not aware of any cases that have judicially considered this aspect of the provision.

7.92 Hunter and Stubbs have criticised the approach of requiring a victim to prove likelihood of further family violence:

This represents a significant hurdle for complainants, particularly those who, in order to ensure their safety, have separated from their violent partner. Some magistrates have difficulty understanding why women remain fearful after separation, when as they see it, the parties are unlikely to have any future contact with each other.[127]

7.93 The ACT also relies on an acts-based test, however it alone allows for a protection order to be made on the basis that the person against whom it is sought has used family violence.[128] There is no requirement to prove that family violence may again occur.

Effect on the victim

7.94 The second broad approach focuses on the effect on the victim. In NSW, a person must have reasonable grounds to fear, and must in fact fear, the commission of a personal violence offence. Thus, both an objective and subjective test are applied. The subjective test of fear is not, however, required to be met in certain cases. These include if the protected person is a child or of below average intelligence. Importantly, another exception is where the victim has been subjected to past family violence by the person against whom the order is sought, and there is a likelihood that the person using violence will do so again, and the court is satisfied that the making of the order is necessary in the circumstances.[129] The Northern Territory legislation only requires an objective standard of fear.[130]

7.95 Hunter and Stubbs have expressed the view that a test requiring reasonable apprehension of fear has some advantages over a test focusing on past conduct and likelihood of repetition:

This approach is preferable in that it does not require waiting for a violent act to occur before an order can be made, and is in line with the preventive function of the protection order.[131]

7.96 Chief Justice James Spigelman of the NSW Supreme Court, writing extra-curially, notes that the concept of freedom from fear has disappeared from legal discourse:

This is regrettable because the most significant impact on personal freedom occurs through the mechanism of fear, rather than through actual direct interference with such freedom. …

The most effective, indeed the most common, form of interference with freedom arises from the self-imposed restraint on behaviour because of the threat of adverse consequences if the behaviour is engaged in. Furthermore, the restraint on the behaviour is greater, indeed almost always much greater, than would occur on the basis of calculation of the probability of those consequences actually occurring. …

Once it is accepted that protection of human rights requires not only the prevention of direct interference, but also a response to the threat of interference, then freedom from fear can be seen to inhere in most of the human rights protected by international instruments and domestic provisions. Such freedom is not, itself, a freestanding right. It should, however, be recognised as a critical dimension of other rights.[132]

7.97 The South Australian family violence legislation articulates the test as reasonable grounds to ‘suspect’—rather than ‘fear’—that the relevant person will commit an act of abuse, and that making an order is appropriate in all the circumstances.[133]

7.98 In no state or territory does family violence legislation rely on grounds for the making of protection orders which consist of a subjective test alone— for example, a subjective test of fear.

Act and effect

7.99 Western Australia, in effect, adopts both approaches in the alternative. That is, a court can make a protection order either because there has been past violence and there is the likelihood of future violence, or because the victim has reasonable grounds to fear violence. In each case, the court has to be satisfied that the granting of the order is appropriate in the circumstances.[134] The approach of adopting both tests in the alternative is in accordance with the approach ultimately recommended by the Domestic Violence Legislation Working Group in drafting Model Domestic Violence Laws.[135]

Options for reform

7.100 In the Consultation Paper, the Commissions proposed that state and territory family violence legislation should adopt the same grounds for obtaining a protection order.[136] The Commissions also proposed that grounds for obtaining a protection order should not require proof of likelihood of repetition of family violence, unless such proof is an alternative to a ground that focuses on the impact of the violence on the person seeking protection.[137]

7.101 The Commissions presented four options for consistent grounds for obtaining a protection order. The options reflected the Commissions’ preference for grounds that focus on the effect on the victim, and the exclusion of grounds that rely solely on proof of likelihood of repetition of violence. The Commissions asked stakeholders for their views on which of the following grounds should be adopted by the states and territories:

  • a test similar to that in NSW—which includes an objective test of fear, and a subjective test with the latter capable of being excluded in certain circumstances;

  • a test similar to that in the Northern Territory, which imposes only an objective test of fear;

  • a test similar to that adopted in South Australia, which imposes an objective test of suspicion that the relevant person will use violence plus a requirement that the court is satisfied that making the order is appropriate in all the circumstances; or

  • an approach similar to that in Western Australia and advocated in the Model Domestic Violence Laws—that is, adopting as alternatives a test that focuses on past conduct and likelihood of repetition, and the objective test of fear.[138]

Submissions and consultations

Consistent grounds for protection orders

7.102 The majority of stakeholders supported the proposal that state and territory family violence legislation should adopt consistent grounds for obtaining a protection order.[139] The Magistrates’ Court and Children’s Court of Victoria and Legal Aid NSW considered that this would address cross-jurisdictional issues when victims of family violence move interstate.[140] The Queensland Government submitted that harmonising the grounds for protection orders across state and territory jurisdictions is particularly relevant in the context of the proposed national scheme to register protection orders across all states and territories.[141]

7.103 The Magistrates’ Court and Children’s Court of Victoria and Legal Aid NSW pointed to the benefit of consistency across jurisdictions in interpretation and enforcement of legislation. The Magistrates’ Court and Children’s Court of Victoria submitted that:

there is very little case law in family violence and it would be helpful to have a body of common law across the country that assisted judicial officers in interpreting and applying this and other aspects of family violence legislation.[142]

7.104 A number of stakeholders—while supporting the proposal—expressed concern that harmonising the grounds in state and territory family violence legislation should not be achieved by retreating to the lowest common denominator, resulting in diminished protection for victims.[143]

Likelihood of repetition test

7.105 Most stakeholders who commented agreed with the proposal that the grounds for obtaining a protection order should not require proof of likelihood of repetition of family violence, unless such proof is an alternative to a ground that focuses on the impact on the violence on the person seeking protection.[144] One stakeholder considered that the test is inappropriate, given the nature of family violence, in particular that it occurs in the context of a relationship and is generally ongoing.[145] Another submission stated that a single instance of family violence may be sufficient to prompt reasonable fear of further violence.[146]

7.106 Some stakeholders referred to the difficulties of proving likelihood of repetition.[147] The Aboriginal Family Violence Prevention and Legal Service Victoria (AFVPLS) and the Magistrates’ Court and Children’s Court of Victoria argued that it may be particularly difficult to prove in circumstances where there has been serious family violence in the past, but no violence during the term of a previous protection order or for a considerable period.[148]

7.107 The Magistrates’ Court and Children’s Court of Victoria commented that proving likelihood of repetition may be problematic when parties have separated, despite a history of violence and the victim being in fear. The courts—which currently apply a likelihood of repetition test—agreed it would be

assisted by the inclusion of an additional ground for obtaining a protection order, that is, a ground that focuses on the impact of the violence on the person seeking protection.[149]

7.108 The Department of Premier and Cabinet (Tas) and National Legal Aid submitted that there are circumstances in which it may be reasonable for a person to fear family violence, despite family violence toward that person not having previously occurred.[150] The Queensland Government noted that, in the review of Queensland family violence legislation, some stakeholders suggested that the requirement to prove repetition of family violence should be removed from the Act.[151]

7.109 The Queensland Law Society did not support the proposal, arguing that the likelihood of repetition test in the Queensland legislation should be retained. It submitted that the test is not onerous, and provides an appropriate balance between protecting victims and properly scrutinising applications for protection orders. The Law Society submitted that the likelihood of repetition test provides a safeguard against spurious applications, including cross applications by respondents who have used family violence:

If the ‘fear’ test proposed by the Commissions were to be adopted in Queensland, then it is likely that orders which are currently not capable of being made in Queensland due to the safeguard of the ‘likely’ test will be made resulting in more orders being made in cross applications brought by violent husbands.[152]

Preferred grounds for protection orders

7.110 Stakeholders were divided over which grounds for obtaining a protection order should become standard across the states and territories, with all options presented by the Commissions receiving some support.

7.111 Two stakeholders—Legal Aid NSW and the Law Society of NSW—preferred a test that includes both objective and subjective elements.[153] However, other stakeholders expressed concern about the inclusion of a subjective test of fear. The Department of Premier and Cabinet (Tas) and the Legal Aid Commission of Tasmania stated that such a test could prevent police from applying for a protection order where victims state they are not fearful of a person who has used family violence, but where police have good reason to expect violent conduct may occur. This may be of particular concern where children may be exposed to family violence.[154] The Legal Aid Commission of Tasmania pointed out that ‘this could also have implications for the involvement of child protection authorities in ensuring the safety of affected children’.[155]

7.112 The Queensland Law Society also criticised grounds based on a subjective test, referring to applications for protection orders where a person genuinely held fears, but the fears were misplaced. It provided an example in which a woman sought an application against her husband. The wife’s fear of her husband was ‘genuine, albeit misplaced, due to her psychiatric condition’. It argued that on the basis of a subjective test of fear, an order may have been made against the husband in these circumstances.[156]

7.113 Other stakeholders opposed grounds based on fear, as they considered that due to sex-role conditioning, men are less likely to admit that they are fearful.[157] The One in Three Campaign further stated that fear ‘is a subjective term which is easily misused by persons with malicious intent’ and expressed a preference for the South Australian grounds, which avoid reference to fear. [158]

7.114 Many stakeholders considered that the broad grounds provided by the Western Australian family violence legislation most appropriate.[159] AFVPLS preferred these grounds on the basis that one of the alternative tests within these grounds did not refer to an objective standard of reasonableness.[160]

7.115 Professor Patricia Easteal also commented that including the term ‘reasonable’ in the grounds is problematic.[161] In contrast, one stakeholder noted that incorporating an objective test of fear—that is, one that invokes a reasonableness test—may restrict abuse of process and can ‘knock down vexatious applications’.[162]

Commissions’ views

Consistent grounds for protection orders

7.116 The Commissions consider that each state and territory should have consistent grounds for making a protection order. In furthering the improvement of safety through legal frameworks, it is unacceptable that victims suffering similar experiences of abuse in different jurisdictions may have varying chances of obtaining a protection order based on the legislative threshold for the granting of orders in their jurisdiction.

7.117 Consistent grounds in state and territory legislation also complement the Commissions’ recommended approach for a common interpretative framework, comprising core definitions of family violence, as well as a consistent approach with regard to guiding principles and a common understanding of the nature and feature of family violence. Just as there should be a common understanding of what constitutes family violence, so should there be a common understanding of when the law should step in to provide protection.

7.118 Adopting consistent grounds across states and territories is also important in the context of the Australian Government’s commitment to the establishment of a scheme for the national registration of protection orders. Such a scheme would allow protection orders to be enforced across state and territory borders.[163] It is incongruous if thresholds for obtaining protection orders are variable across jurisdictions, where the orders themselves are enforceable in each state and territory. A scheme for the national registration for protection orders is discussed in more detail in Chapter 30.

7.119 A disparity in the grounds for obtaining a protection order across the states and territories is also relevant to the issue of whether family violence laws are capable of interacting with the Family Law Act. Consider the following hypothetical:

Hypothetical

Victim A resides in the ACT. She was physically assaulted by her partner. She applies for a protection order and has to prove that her partner assaulted her. She has photographic evidence of the injuries sustained in the assault, as well as the corroborating evidence of a neighbour. The court grants the application. The order is later made final. Victim A is also involved in family law proceedings seeking custody of her children. The Family Court has to consider the protection order made in her favour.

Victim B resides in Queensland. She also was physically assaulted by her partner. She applies for a protection order and has to prove that her partner assaulted her and that he is likely to do so again. She has photographic evidence of the injuries sustained in the assault, as well as the corroborating evidence of a friend.

She gives evidence that her partner is likely to assault her again, based on her knowledge that when he is under considerable stress at work he ‘takes it out on her’. She leads evidence that similar types of assault occurred two years before, when her partner was also under considerable financial and work stress. Her partner contests the application, expressing remorse and providing evidence that he has enrolled in an anger management course. The court does not grant the application. Victim B is also involved in family law proceedings seeking custody of her child. Unlike the case of Victim A, there is no protection order to which the Family Court must have regard.

7.120 In Chapter 17, the Commissions recommend that, in determining the best interests of the child in making a parenting order in family law proceedings, the court should consider any family violence involving the child or a member of the child’s family, including evidence given or findings made in any protection order proceedings. This recommendation is aimed at amending the existing provision, which requires courts to take into account final or contested protection orders only.[164] If implemented, it should help to address some concerns and problems that arise for victims of family violence from the interaction of the Family Law Act and family violence legislation.

7.121 However, the Commissions also consider that the existence of a protection order should act as a flag to federal family courts that family violence is an issue in the proceedings before the court. Consequently, even if the Commissions’ abovementioned recommendation is implemented, the existence of inconsistent grounds for obtaining protection orders across the states and territories may result in inequality of treatment of parties before federal family courts. That is, some victims may not have been able to obtain a protection order which may act as such a ‘flag’ to the existence of family violence, in circumstances where victims in other jurisdictions have this advantage.

Likelihood of repetition test

7.122 The Commissions have concerns about an approach that requires proof of likelihood of repetition, due to the evidentiary hurdle that this may present to victims.

7.123 The likelihood of repetition should not be the sole ground for obtaining a protection order in family violence legislation. The purpose of a protection order should be anticipatory and preventative—capable of protecting persons before an act of family violence occurs. Further, the Commissions note concerns that proving likelihood of repetition may be difficult for victims in some circumstances, particularly if some time has elapsed since the latest incident of family violence due to, for example, persons who used family violence spending time in prison, or the existence of previous protection orders.

7.124 In the Commissions’ view, the requirement to prove that a person is ‘likely to commit’ or ‘may commit’ family violence imposes a further burden on the victim which is not imposed on victims who must establish reasonable fear or reasonable suspicion. As noted by Hunter and Stubbs, proving likelihood of repetition may be difficult for victims, particularly those who have separated from their partner. Further, acts-based tests require victims to wait for an act of family violence to occur, and do not facilitate the preventative nature of family violence legislation.[165]

7.125 The Commissions therefore consider that the grounds for obtaining a protection order under state and territory legislation should not require proof of likelihood of repetition of family violence. However, there is a place for a likelihood of repetition test as an alternative ground in family violence legislation, as discussed below.

7.126 While there was widespread support for the proposal that family violence legislation should not specify grounds for obtaining a protection order that requires a proof of likelihood test, the Commissions do not consider it necessary to make a separate recommendation in this regard. Recommendation 7–5 sets out the grounds to obtain a protection order which should be adopted by state and territory family violence legislation. The Commissions consider that the ambit of this Recommendation reflects that state and territory family violence legislation should not require a proof of likelihood test to be met as grounds to obtain a protection order.

Rejection of acts-based tests

7.127 The commission of past violence test in the ACT family violence legislation does not constitute a suitable ground for obtaining a protection order for two reasons. First, this test is not adequately preventative or anticipatory, as it requires an act of family violence to occur before a person meets the requirements to obtain a protection order. Secondly, this test does not attempt to consider whether or not a person is actually in need of future protection, which is the primary function of family violence legislation. To frame the grounds so widely is to allow, for example, the indiscriminate granting of protection orders against victims in cross applications where a victim may have resisted violently, but where the primary aggressor does not need protection.[166]

Rejection of subjective fear test

7.128 Reliance on a subjective test of fear was not suggested by the Commissions as a potential option for consistent grounds in the Consultation Paper. The purposes of family violence legislation do not include protecting persons from an unfounded fear of family violence. Family violence legislation must include a mechanism to test applications and ensure that an order is appropriate for a person’s protection. This mechanism is not provided by a subjective test as it includes no criteria to assess subjective fears, such as whether fears are reasonably held, or if future family violence is likely.

7.129 The Commissions have concerns about grounds that incorporate a subjective test in addition to an objective test. The Commissions consider that the requirement that a personin factfears family violence may lead to gaps in protection in some circumstances. A person who is at risk of family violence, but does not have or express fear, may not be adequately protected by legislation. Some victims may not express fear due to concerns about retaliation. Some stakeholders noted that the requirements of the subjective test may particularly affect male victims, who may be reluctant to admit to fear.

7.130 The Commissions do not consider that the exceptions in the NSW legislation to the application of the subjective test are sufficient to protect victims of family violence. In cases where a victim has previously experienced family violence—but does not have or express fear—the court applies a proof of likelihood of repetition test, in addition to a further test that the order is necessary in the circumstances. These two elements combine to form an unduly onerous test. Further, the exceptions to proving the subjective test of fear do not capture persons at risk of violence where family violence has not previously occurred.

7.131 This gap in protection may extend to children who have been—or are at risk of being—exposed to the effects of family violence. Further, victims who do not fear family violence may find themselves unable to comply with the advice of child protection agencies to obtain protection orders. Ineligibility for a protection order may leave such families vulnerable to more intrusive intervention by child protection agencies.

7.132 Consequently, in the Commissions’ view, the objective test of fear is appropriate without the requirement that the person, in fact, fears family violence. Eliminating the subjective test of fear provides greater protection to persons at risk of family violence who may not fear or may not express their fear of future violence.

7.133 Further, the Commissions prefer an objective test of fear to an objective test of suspicion. Grounds based on fear—including an objective test of fear—are focused primarily on the impact on the victim. The test evaluates the potential behaviour of the person who may use family violence through the effect on the victim. In contrast, the test of reasonable suspicion does not focus exclusively on the impact on the victim. To illustrate, anyone may suspect certain future behaviour given certain factors. To fear future conduct is a more personal and emotive response.

7.134 Freedom from fear is a central human rights component of family violence legislation, complementing the right to personal security.[167] Chief Justice Spigelman has identified legislation relating to protection orders as ‘the most important mechanism directed to the dimension of fear in express terms’.[168] In applying for a protection order a victim is, in effect, seeking not only protection from violence but also freedom from fear. The Commissions consider that a test based on reasonable fear should form one of the alternative grounds for obtaining a protection order.

7.135 The Commissions note the concerns of some stakeholders about the inclusion of the term ‘reasonable’ in grounds for a protection order. The Commissions acknowledge that including an objective test in the definition of family violence is not appropriate, as discussed in Chapter 6. However, the Commissions consider that objective grounds as a legislative threshold for a protection order provides the necessary mechanism to test applications, while also providing accessible protection for victims of violence. This mechanism is necessary to deal effectively with applications that are not genuine, as well as applications by persons who fear violence without due cause.

7.136 The Commissions consider that broad grounds should be available to persons who have experienced or are at risk of family violence. The objective test of fear should be complemented by an alternative ground that focuses on past conduct and likelihood of repetition. Persons who have experienced family violence retain the option of satisfying the future likelihood of repetition test where there is no evidentiary hurdle to doing so. Where meeting this test may cause difficulties, persons should have the option of relying on the objective test of fear. A test with appropriate alternative grounds provides broad coverage for the protection of persons who have experienced or are at risk of family violence, and preserves those persons’ access to the Commissions’ preferred test—the objective test of fear.

Recommendation 7–5 State and territory family violence legislation should adopt the following alternative grounds for obtaining a protection order. That is:

  1. the person seeking protection has reasonable grounds to fear family violence; or
  2. the person he or she is seeking protection from has used family violence and is likely to do so again.

[124]Family Violence Protection Act 2008 (Vic) s 74. This issues is considered in Victorian Law Reform Commission, Review of Family Violence Laws: Report (2006), 112–113. Rec 19 focused solely on expanding the existing grounds to accommodate the proposed expanded definition of family violence.

[125]Domestic and Family Violence Protection Act 1989 (Qld) s 20.

[126]Family Violence Act 2004 (Tas) s 16(1).

[127] R Hunter and J Stubbs, ‘Model Laws or Missed Opportunity?’ (1999) 24 Alternative Law Journal 12, 14.

[128]Domestic Violence and Protection Orders Act 2008 (ACT) s 46(1).

[129]Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 16.

[130]Domestic and Family Violence Act 2007 (NT) s 18.

[131] R Hunter and J Stubbs, ‘Model Laws or Missed Opportunity?’ (1999) 24 Alternative Law Journal 12, 14.

[132] J Spigelman, ‘The Forgotten Freedom: Freedom From Fear’ (Paper presented at Sydney University Law School Distinguished Speakers Program 2009, Sydney, 17 November 2009), 4–6.

[133]Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 6.

[134]Restraining Orders Act 1997 (WA) s 11A.

[135] Domestic Violence Legislation Working Group, Model Domestic Violence Laws (1999), s 14(1).

[136] Consultation Paper, Proposal 4–27.

[137] Ibid, Proposal 4–28.

[138] Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence: Improving Legal Frameworks, ALRC Consultation Paper 1, NSWLRC Consultation Paper 9 (2010), Question 4–9.

[139] National Legal Aid, Submission FV 232, 15 July 2010; Queensland Government, Submission FV 229, 14 July 2010; Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Legal Aid NSW, Submission FV 219, 1 July 2010; WESNET—The Women’s Services Network, Submission FV 217, 30 June 2010; Wirringa Baiya Aboriginal Women’s Legal Centre Inc, Submission FV 212, 28 June 2010; Crossroads Community Care Centre Inc, Submission FV 211, 25 June 2010; Confidential, Submission FV 198, 25 June 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Confidential, Submission FV 183, 25 June 2010; Confidential, Submission FV 171, 25 June 2010; Berry Street Inc, Submission FV 163, 25 June 2010; K Greenland, Submission FV 161, 25 June 2010; Justice for Children, Submission FV 148, 24 June 2010; Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010 Police Association of New South Wales, Submission FV 145, 24 June 2010; Confidential, Submission FV 130, 21 June 2010; Confidential, Submission FV 128, 22 June 2010 F Hardy, Submission FV 126, 16 June 2010; Confidential, Submission FV 125, 20 June 2010; Ngaanyatjarra Pitjantjatjara Yankunytjatjara Women’s Council Domestic and Family Violence Service, Submission FV 117, 15 June 2010; T Searle, Submission FV 108, 2 June 2010; K Johnstone, Submission FV 107, 7 June 2010; Confidential, Submission FV 105, 6 June 2010; Confidential, Submission FV 96, 2 June 2010; Confidential, Submission FV 92, 3 June 2010; Education Centre Against Violence, Submission FV 90, 3 June 2010; Confidential, Submission FV 89, 3 June 2010; Confidential, Submission FV 78, 2 June 2010; Confidential, Submission FV 77, 2 June 2010; Confidential, Submission FV 71, 1 June 2010; C Pragnell, Submission FV 70, 2 June 2010; Confidential, Submission FV 68, 1 June 2010; Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010; M Condon, Submission FV 45, 18 May 2010; P Easteal, Submission FV 37, 12 May 2010; Confidential, Submission FV 34, 6 May 2010.

[140] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Legal Aid NSW, Submission FV 219, 1 July 2010.

[141] Queensland Government, Submission FV 229, 14 July 2010.

[142] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010.

[143] Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010; Women’s Legal Services Australia, Submission FV 225, 6 July 2010; J Stubbs, Submission FV 186, 25 June 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Confidential, Submission FV 164, 25 June 2010; Domestic Violence Prevention Council (ACT), Submission FV 124, 18 June 2010.

[144] Legal Aid NSW, Submission FV 219, 1 July 2010; Australian Domestic and Family Violence Clearinghouse, Submission FV 216, 30 June 2010; Wirringa Baiya Aboriginal Women’s Legal Centre Inc, Submission FV 212, 28 June 2010; Crossroads Community Care Centre Inc, Submission FV 211, 25 June 2010; Confidential, Submission FV 198, 25 June 2010; J Stubbs, Submission FV 186, 25 June 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; Confidential, Submission FV 164, 25 June 2010; Berry Street Inc, Submission FV 163, 25 June 2010; Confidential, Submission FV 162, 25 June 2010; K Greenland, Submission FV 161, 25 June 2010; Confidential, Submission FV 160, 24 June 2010; UnitingCare Children Young People and Families, Submission FV 151, 24 June 2010; The Central Australian Aboriginal Family Legal Unit Aboriginal Corporation, Submission FV 149, 25 June 2010; Justice for Children, Submission FV 148, 24 June 2010; Confidential, Submission FV 130, 21 June 2010; Confidential, Submission FV 128, 22 June 2010; F Hardy, Submission FV 126, 16 June 2010; Confidential, Submission FV 125, 20 June 2010; K Johnstone, Submission FV 107, 7 June 2010; Confidential, Submission FV 105, 6 June 2010; Education Centre Against Violence, Submission FV 90, 3 June 2010; Confidential, Submission FV 89, 3 June 2010; Confidential, Submission FV 78, 2 June 2010; Confidential, Submission FV 82, 2 June 2010; Confidential, Submission FV 81, 2 June 2010; Confidential, Submission FV 77, 2 June 2010; Confidential, Submission FV 71, 1 June 2010; C Pragnell, Submission FV 70, 2 June 2010; Confidential, Submission FV 68, 1 June 2010; Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010; M Condon, Submission FV 45, 18 May 2010.

[145] K Greenland, Submission FV 161, 25 June 2010.

[146] Confidential, Submission FV 198, 25 June 2010.

[147] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; Confidential, Submission FV 96, 2 June 2010.

[148] Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010.

[149] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010.

[150] Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010; National Legal Aid, Submission FV 232, 15 July 2010.

[151] Queensland Government, Submission FV 229, 14 July 2010.

[152] Queensland Law Society, Submission FV 178, 25 June 2010.

[153] Legal Aid NSW, Submission FV 219, 1 July 2010; Law Society of New South Wales, Submission FV 205, 30 June 2010.

[154] Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010; National Legal Aid, Submission FV 232, 15 July 2010.

[155] National Legal Aid, Submission FV 232, 15 July 2010.

[156] Queensland Law Society, Submission FV 178, 25 June 2010.

[157] T McLean, Submission FV 204, 28 June 2010; One in Three Campaign, Submission FV 35, 12 May 2010.

[158] One in Three Campaign, Submission FV 35, 12 May 2010.

[159] Confidential, Submission FV 198, 25 June 2010; Women’s Legal Service Victoria, Submission FV 189, 25 June 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Confidential, Submission FV 184, 25 June 2010; Berry Street Inc, Submission FV 163, 25 June 2010; N Ross, Submission FV 129, 21 June 2010; The Central Australian Aboriginal Family Legal Unit Aboriginal Corporation, Submission FV 149, 25 June 2010; Confidential, Submission FV 128, 22 June 2010; Confidential, Submission FV 125, 20 June 2010; Ngaanyatjarra Pitjantjatjara Yankunytjatjara Women’s Council Domestic and Family Violence Service, Submission FV 117, 15 June 2010; Confidential, Submission FV 109, 8 June 2010; K Johnstone, Submission FV 107, 7 June 2010; Education Centre Against Violence, Submission FV 90, 3 June 2010; Confidential, Submission FV 82, 2 June 2010; Better Care of Children, Submission FV 72, 24 June 2010; C Pragnell, Submission FV 70, 2 June 2010; Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010.

[160] Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010.

[161] P Easteal, Submission FV 37, 12 May 2010. Ch 6 discusses criticisms of the semi-objective test of reasonableness in the definition of family violence in the Family Law Act.

[162] Confidential, Submission FV 164, 25 June 2010.

[163] Australian Government, The National Plan to Reduce Violence against Women: Immediate Government Actions (2009). See Ch 1.

[164] Rec 17–1.

[165] R Hunter and J Stubbs, ‘Model Laws or Missed Opportunity?’ (1999) 24 Alternative Law Journal 12, 14.

[166] See Ch 9 for discussion on identifying the primary aggressor.

[167] For a discussion of the right to personal security and freedom from fear, see J Spigelman, ‘Violence against Women: The Dimensions of Fear and Culture’ (2010) 84 Australian Law Journal 372.

[168] Ibid, 379.