Guiding principles and a human rights framework

7.8 Definitions form only one limb of an interpretative framework—principles form another.[10] The Model Domestic Violence Laws Discussion Paper was criticised by Hunter and Stubbs for failing to include a set of guiding principles.[11] Most family violence legislation does not set out guiding principles or address the specific features of family violence. This section discusses principles and features in turn.

Principles

7.9 There is some precedent in family violence legislation—and criminal laws[12]—for the articulation of principles to guide legislative interpretation and to educate those applying or engaging with the law. As discussed in Chapter 4, the family violence legislation of Victoria sets out in its preamble a number of principles, including that:

  • non-violence is a fundamental social value that must be promoted;

  • family violence is a fundamental violation of human rights and is unacceptable in any form; and

  • family violence is not acceptable in any community or culture.[13]

7.10 While the NSW family violence legislation does not expressly state that family violence is a fundamental violation of human rights, it clearly places protection from family violence in a human rights framework by stating that its objects are to enact provisions consistent with certain principles underlying the Declaration on the Elimination of Violence against Women and the United Nations Convention on the Rights of the Child.[14]

7.11 In the Consultation Paper, the Commissions proposed that the family violence legislation of each state and territory should contain guiding principles, which should include express reference to a human rights framework. The Commissions noted that the preamble to the Family Violence Protection Act 2008 (Vic) provides an instructive model. The Commissions proposed that the principles should refer expressly to relevant international conventions such as the Declaration on the Elimination of Violence against Women, and the Convention on the Rights of the Child.[15]

Submissions and consultations

7.12 The majority of stakeholders who addressed the issue agreed with this proposal.[16] Stakeholders identified a number of benefits of incorporating principles, including fostering a common approach to family violence[17] and the educative function of guiding principles.[18] The Magistrates’ Court and Children’s Court of Victoria described the inclusion of guiding principles in the Victorian legislation as a ‘helpful development’, which courts can use as a guide to interpreting legislation.[19]

7.13 The Queensland Government—which conducted consultations in its 2010 review of the Queensland family violence legislation—referred to the benefit of principles in assisting judicial officers and practitioners to interpret legislation. It further stated that principles articulate key policy directions. However, the Government cautioned against excessively prescriptive principles, ‘as this could have an unintended consequence of limiting the interpretation of the legislation by the courts’.[20]

7.14 A number of stakeholders emphasised the importance of guiding principles in highlighting family violence as a human rights issue.[21] For example, the Australian Association of Social Workers stated that a human rights perspective provides a consistent framework to conceptualise and address family violence.[22] The Ngaanyatjarra Pitjantjatjara Yankunytjatjara Women’s Council Domestic and Family Violence Service argued that:

It is important that guiding principles in family violence legislation be linked to a human rights framework, so it is clear that human rights are the fundamental rights that underpin the legislation and that violence against Aboriginal women cannot and should not be minimised by cultural arguments.[23]

7.15 Some stakeholders expressed a preference for principles incorporated within the body of the legislation, rather than within the preamble, on the basis that the latter would have greater directive status.[24]

7.16 A number of stakeholders identified other international human rights instruments that should be included in the principles. These were the:

  • Convention on the Elimination of All Forms of Discrimination against Women;[25]

  • Convention on the Rights of Persons with Disabilities;[26]

  • Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power;[27]

  • Declaration on the Rights of Indigenous Peoples;[28]

  • International Covenant on Civil and Political Rights;[29]

  • International Covenant on Economic, Social and Cultural Rights;[30]

  • International Convention on the Elimination of all Forms of Racial Discrimination;[31] and

  • Universal Declaration of Human Rights.[32]

7.17 A few submissions opposed incorporating reference to the Declaration on the Elimination of Violence against Women in guiding principles on the basis that this would promote assumptions that, in cases of family violence, men are offenders and women are victims.[33]

7.18 The Queensland Law Society—while supporting the proposal—also submitted that principles should be inclusive of all victims of family violence. It noted that a feature of family violence is that victims underreport its incidence, and stated that

the preamble should be written in an inclusive way so that those who have been subject to domestic and family violence are not discouraged from seeking protection.[34]

Commissions’ views

7.19 The Commissions consider that the family violence legislation of each state and territory should contain guiding principles, which should include express reference to a human rights framework. The preamble to the Family Violence Protection Act 2008 (Vic) provides an instructive model. The Commissions consider that the principles contained in the preamble to the Victorian legislation are informative and inclusive, without being over-prescriptive—although the principles should also be placed in a human rights framework.

7.20 The adoption of guiding principles across family violence legislation will serve an educative function, and aid the interpretation of the legislation. Guiding principles will also complement the recommended adoption of a consistent core definition of family violence and a shared understanding of the types of behaviour that may constitute family violence.

7.21 The Commissions do not have a preference for whether guiding principles should be located in a preamble or elsewhere in family violence legislation. A preamble may be taken into account and given the same weight as sections when interpreting legislation.[35] The Commissions take a non-prescriptive approach in this regard, and consider drafting of such provisions to be a matter for states and territories.

7.22 The principles should refer to or draw upon all applicable international human rights instruments. The endorsement of a human rights framework is particularly relevant, for example, for Indigenous peoples and for those from culturally diverse backgrounds, by reinforcing that customary laws or cultural practices do not override the rights of family members to be safe and live free from violence—and indeed, free from fear, a freedom which has been referred to as the ‘forgotten freedom’.[36]

7.23 The Commissions consider that reference to a human rights framework is also particularly relevant to women. It is important that family violence legislation explicitly acknowledges women’s right to live free from family violence, particularly in the context of government acceptance of statistics which indicate that victims of family violence are predominantly—although not exclusively—female. This issue is discussed further in the next section of this chapter.

Features of family violence

7.24 As discussed in Chapter 4, the family violence Acts in NSW, South Australia and Victoria, to varying degrees, set out some of the features and dynamics of family violence, including:

  • its gendered nature—that is, that it is predominantly committed by men against women, children and other vulnerable persons;

  • the detrimental impact it has on children;

  • the fact that it occurs in all areas of society—irrespective of location, socio-economic status, age, culture, gender, sexual identity, ethnicity or religion; and

  • that it may involve overt or subtle exploitation of power imbalances and may consist of isolated incidents or patterns of behaviour.[37]

7.25 However, apart from recognising the damaging effects of violence on children, and the fact that it occurs in all areas of society, the legislation in these jurisdictions does not mention that family violence also has a particularly damaging impact on other groups in society, such as: Indigenous persons; those from a culturally and linguistically diverse (CALD) background; gay, lesbian, bisexual, transgender and intersex persons; older people; and people with disabilities.[38]

7.26 In the Consultation Paper, the Commissions proposed that the family violence legislation of each state and territory should contain a provision that explains the nature, features and dynamics of family violence—including its gendered nature, detrimental impact on children, and the fact that it can involve exploitation of power imbalances, and occur in all sectors of society. The Victorian and NSW family violence legislation were cited as instructive models.[39]

7.27 In addition, the Commissions proposed that, just as the NSW and Victorian family violence legislation highlights the particularly damaging impact on children of exposure to family violence, family violence legislation should also acknowledge the particularly damaging impact of family violence on other groups in society including: Indigenous persons; those from a CALD background; those from the gay, lesbian, bisexual and transgender community; older people; and people with disabilities.[40] Some persons may fall within multiple categories.

7.28 The Family Law Act refers many times to family violence, but apart from the definition, there are no provisions which further explain the nature of family violence. In the Consultation Paper, the Commissions proposed that the Family Law Act should include a section detailing the features, dynamics and nature of family violence.[41]

Submissions and consultations

7.29 The majority of stakeholders who responded to this proposal supported including a provision on the features about family violence in family violence legislation.[42] A number of stakeholders emphasised the importance of consulting with the relevant groups regarding the inclusion and the drafting of provisions,[43] particularly to ensure that categories of vulnerable groups are not inadvertently omitted.[44] National Legal Aid did not support the proposal on the basis that these were matters more appropriate for education and training rather than legislative provisions.[45]

7.30 Stakeholders expressed a range of views with respect to the particular features of family violence suggested for inclusion. These are considered in turn.

Gendered nature of family violence

7.31 Stakeholders expressed differing views in response to the Commissions’ proposal that the gendered nature of family violence should be included in the description of the nature of family violence. While some stakeholders specifically referred to the importance of an explicit statement regarding the gendered nature of family violence,[46] others opposed the incorporation of such a provision.[47]

7.32 Some stakeholders argued that family violence is not a gendered issue, because a significant proportion of family violence involves male victims and female offenders. They cited numerous reports and statistics to support this position.[48] Further, a few stakeholders expressed concern that legislative provisions describing family violence as gendered may operate to the disadvantage of male victims.[49] The Department of Premier and Cabinet (Tas)—while supporting the proposal—also considered that ‘there is a risk of further marginalising male victims of family violence and inadvertently reducing the already low probability that they will come forward’.[50]

7.33 Some stakeholders argued that incorporating such a provision would amount to ‘gender profiling’, and would create a presumption that men as a class are more likely to use family violence, and women are more likely to suffer family violence.[51]

Groups particularly affected by family violence

7.34 Two stakeholders expressly stated their support for including in the principles an acknowledgment of groups that may be particularly affected by family violence.[52] For example, ACON stated that introducing illustrative examples of same-sex family violence into legislation is important, as it has

unique aspects that set it apart from other forms of domestic violence. These unique aspects include using societal homophobia as a tool of control (including the threat of ‘outing’) and the barriers of access to services such as health and justice services due to fears of homophobia and breaches of confidentiality.[53]

7.35 In a joint submission, Domestic Violence Victoria and others noted that the Commissions should include the intersex community among the groups for whom family violence may have a particular impact.[54]

Family Law Act

7.36 Stakeholders also overwhelmingly supported the proposal that the Family Law Act should include a provision detailing the features, dynamics and nature of family violence.[55] Stakeholders considered that it would provide guidance to courts, and others involved in family law matters,[56] and perform an important educative function.[57] Moreover, the Magistrates’ Court and Children’s Court of Victoria stated that ‘it is preferable for legislative provisions of this nature to be as consistent as possible across jurisdictions’[58]— a view endorsed by several other stakeholders.[59]

Commissions’ views

7.37 In the Commissions’ view, state and territory family violence legislation should contain provisions setting out the nature, features and dynamics of family violence, including that: it can occur in all sectors of society; it can involve exploitation of power imbalances; its incidence is underreported, and it has a detrimental impact on children. The provision should also address the gendered nature of family violence, discussed below. The preamble to the Family Violence Protection Act 2008 (Vic) and s 9(3) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) provide instructive models in this regard.

7.38 Coupled with guiding principles, provisions setting out the nature, feature and dynamics of family violence provide a contextual framework for judicial decision-making. Such provisions also serve an important educative function, and should complement the training and education of judicial officers, lawyers and the police. However, the incorporation of a provision explaining the features of family violence should not be considered a substitute for education and training, but should be part of what is considered in judicial education. The Commissions’ recommendation regarding this provision is part of a package of recommendations to facilitate a common understanding of family violence across the community, victims of family violence and the legal sector.[60]

Gendered nature of family violence

7.39 The Commissions note the extensive research and statistics on family violence. While Time for Action acknowledges that men can be victims of intimate partner violence, it states that ‘overwhelmingly sexual assault and domestic and family violence is perpetrated by men against women’.[61] Where state and territory governments accept statistics indicating that family violence is predominantly used by men against women, this should be reflected in the principles of family violence legislation.

7.40 Anyone may be a victim of violence, and family violence is unacceptable in any circumstances. It is important that family violence legislation does not operate to marginalise male victims. The Commissions consider that state and territory family violence legislation should contain a provision that explains the nature, features and dynamics of family violence including that: while anyone may be a victim of family violence, or may use family violence, it is predominantly committed by men.

7.41 The Commissions consider it is appropriate to address the predominantly gendered nature of family violence in provisions detailing its nature, features and dynamics—and in guiding principles generally. By contrast, definitions should be gender-neutral, because the law should apply equally to both sexes, and should provide a mechanism for protection or redress regardless of the sex of the victim or the person using violence.

Groups particularly affected by family violence

7.42 The Commissions further recommend that family violence legislation should refer to the particular impact of family violence on: Indigenous persons; those from a CALD background; those from the gay, lesbian, bisexual, transgender and intersex communities; older persons; and people with disabilities. Highlighting the impact of violence on these groups complements the Commissions’ recommendation that family violence legislation include examples of emotional or psychological abuse that would affect diverse groups in the community.[62] The combined effect of these recommendations may assist in the challenging task of ensuring that experiences of family violence of such groups are properly recognised across the legal system.

7.43 The Commissions do not formulate precisely how the legislative provisions might refer to the impacts of family violence on diverse groups. These should be developed in consultation with the groups affected. The formulation may also be informed by the processes recommended by the Family Law Council to establish a common knowledge base about family violence.[63]

7.44 By way of illustration, some of the issues that may be referred to by family violence legislation include the following:

  • the fact that there is a disproportionate level of family violence among Indigenous communities, and the particular dynamics of Indigenous family violence such as violence within extended kinship networks;[64]

  • the barriers faced by victims from CALD backgrounds, including communication and language difficulties, and cultural barriers such as beliefs about traditional gender roles and the importance of the family;[65]

  • the features of elder abuse—that it commonly consists of economic abuse, as well as the withholding of medication, involuntary social isolation, and neglect;[66]

  • the particular problems faced by victims with disabilities because of their dependence on others for support, the compounding effect of their disability on their lack of power and control in a relationship, and the fact that their disability is exploited by their abusers;[67] and

  • the problems faced by those from the gay, lesbian, bisexual, transgender and intersex communities—including the fear of homophobia, transphobia, intersexphobia, the fear of being ‘outed’ and the fear of discrimination from the legal system due to their gender or sexual orientation.[68]

Family Law Act

7.45 In the Commissions’ view, the Family Law Act should also be amended to include a provision detailing the nature, features and dynamics of family violence. This would complement the recommended approach of adopting a standard core definition of family violence across the family law and family violence legislative schemes. As family violence is a critical factor in many cases before federal family courts, it is essential that judicial officers, lawyers and parties share a common understanding of its nature, features and dynamics. Further, a common understanding facilitates a seamless approach across jurisdictions.

7.46 The Commissions note that this position is consistent with an alternative recommendation made by the family courts violence review undertaken by Professor Richard Chisholm (the Chisholm Review) for the provisions in the Family Law Act referring to family violence to be strengthened by including more detail about the nature and consequences of family violence.[69]

7.47 The Commissions recognise that—unlike state and territory family violence legislation—the prevention of family violence is not the primary focus of the Family Law Act, although it is a significant concern in parenting disputes.[70] The Act is principally concerned with the rights, duties, powers and liabilities between spouses and children, and provides for enforcement of those rights and liabilities and the dissolution of marriage.[71] Moreover, the broad range of persons who may avail themselves of protection under family violence legislation may never have cause to be a party to family law proceedings.

7.48 Therefore, the focus of the provisions recommended by the Commissions reflects the different purposes of the legislative schemes. The Commissions consider it essential that both state and territory courts and federal family courts have a thorough understanding of the nature of family violence, and therefore it is desirable that the provisions setting out the nature, features and dynamics of family violence in the Family Law Act shouldmirror the provisions of state and family legislation as far as possible.

7.49 In federal family courts, judicial understanding of family violence is informed by the Best Practice Principles for Use in Parenting Disputes When Family Violence or Abuse is Alleged (Best Practice Principles).[72] The Best Practice Principlesincorporate some detail regarding the features of family violence, and the effect that family violence may have on children. The Commissions note that the Chisholm Review commented on the material included in the Best Practice Principles, and suggested various changes.[73] The Commissions consider that, in any forthcoming review of the Best Practice Principles, the federal family courts should have regard to the principles, nature, features and dynamics of family violence as expressed in Recommendations 7–1 and 7–2.

Recommendation 7–1 State and territory family violence legislation should contain guiding principles, which should include express reference to a human rights framework, drawing upon applicable international conventions.

Recommendation 7–2 State and territory family violence legislation should contain a provision that explains the nature, features and dynamics of family violence including: while anyone may be a victim of family violence, or may use family violence, it is predominantly committed by men; it can occur in all sectors of society; it can involve exploitation of power imbalances; its incidence is underreported; and it has a detrimental impact on children. In addition, family violence legislation should refer to the particular impact of family violence on: Indigenous persons; those from a culturally and linguistically diverse background; those from the gay, lesbian, bisexual, transgender and intersex communities; older persons; and people with disabilities.

Recommendation 7–3 The Family Law Act 1975 (Cth)should be amended to include a similar provision to that in Rec 7–2 explaining the nature, features and dynamics of family violence.

[10] Definitions are discussed in Ch 5.

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

[12]Crimes Act 1958 (Vic) s 37B. See also Ch 25.

[13]Family Violence Protection Act 2008 (Vic) preamble.

[14]Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 9(1). See Declaration on the Elimination of Violence against Women 20 December 1993, UN GAOR, A/RES/48/104, (entered into force generally on 23 February 1994); Convention on the Rights of the Child, 20 November 1989, [1991] ATS 4, (entered into force generally on 2 September 1990). International conventions are discussed in Ch 2.

[15] 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), Proposal 4–21.

[16] Family Relationship Services Australia, Submission FV 231, 15 July 2010; Women’s Legal Services Australia, Submission FV 225, 6 July 2010; The Australian Association of Social Workers, Submission FV 224, 2 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; 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; National Abuse Free Contact Campaign, Submission FV 196, 26 June 2010; J Stubbs, Submission FV 186, 25 June 2010; Confidential, Submission FV 184, 25 June 2010; Confidential, Submission FV 183, 25 June 2010; Victorian Aboriginal Legal Service Co-operative Ltd, Submission FV 179, 25 June 2010; Queensland Law Society, Submission FV 178, 25 June 2010; Peninsula Community Legal Centre, Submission FV 174, 25 June 2010; Confidential, Submission FV 171, 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; 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; 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; National Council of Single Mothers and their Children Inc, Submission FV 144, 24 June 2010; Women With Disabilities Australia, Submission FV 143, 24 June 2010; Confidential, Submission FV 130, 21 June 2010; N Ross, Submission FV 129, 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; Domestic Violence Prevention Council (ACT), Submission FV 124, 18 June 2010; Ngaanyatjarra Pitjantjatjara Yankunytjatjara Women’s Council Domestic and Family Violence Service, Submission FV 117, 15 June 2010; Commissioner for Victims’ Rights (South Australia), Submission FV 111, 9 June 2010; Confidential, Submission FV 109, 8 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; Julia Farr Association, Submission FV 103, 4 June 2010; Confidential, Submission FV 96, 2 June 2010; Education Centre Against Violence, Submission FV 90, 3 June 2010; Confidential, Submission FV 82, 2 June 2010; Confidential, Submission FV 81, 2 June 2010; Confidential, Submission FV 78, 2 June 2010; Confidential, Submission FV 77, 2 June 2010; Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010; M Condon, Submission FV 45, 18 May 2010; Confidential, Submission FV 34, 6 May 2010.

[17] UnitingCare Children Young People and Families, Submission FV 151, 24 June 2010.

[18] 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.

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

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

[21] The Australian Association of Social Workers, Submission FV 224, 2 July 2010; Legal Aid NSW, Submission FV 219, 1 July 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; N Ross, Submission FV 129, 21 June 2010; Domestic Violence Prevention Council (ACT), Submission FV 124, 18 June 2010; Ngaanyatjarra Pitjantjatjara Yankunytjatjara Women’s Council Domestic and Family Violence Service, Submission FV 117, 15 June 2010; Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010.

[22] The Australian Association of Social Workers, Submission FV 224, 2 July 2010.

[23] Ngaanyatjarra Pitjantjatjara Yankunytjatjara Women’s Council Domestic and Family Violence Service, Submission FV 117, 15 June 2010.

[24] National Abuse Free Contact Campaign, Submission FV 196, 26 June 2010; Women’s Legal Service Queensland, Submission FV 185, 25 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; National Council of Single Mothers and their Children Inc, Submission FV 144, 24 June 2010.

[25]Convention on the Elimination of All Forms of Discrimination against Women, 18 December 1979, [1983] ATS 9, (entered into force generally on 3 September 1981): Women With Disabilities Australia, Submission FV 143, 24 June 2010; F Hardy, Submission FV 126, 16 June 2010.

[26]Convention on the Rights of Persons with Disabilities, 30 March 2007, [2008] ATS 12, (entered into force generally on 3 May 2008): 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; Women With Disabilities Australia, Submission FV 143, 24 June 2010; Julia Farr Association, Submission FV 103, 4 June 2010.

[27]Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, UN GAOR, 40th sess, 96th plen mtg, UN Doc A/RES/40/34 (1985): Commissioner for Victims’ Rights (South Australia), Submission FV 111, 9 June 2010.

[28]Declaration on the Rights of Indigenous Peoples, 13 September 2007, GA Res 61/295, UN Doc A/RES/47/1: 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; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010.

[29]International Covenant on Civil and Political Rights, 16 December 1966, [1980] ATS 23, (entered into force generally on 23 March 1976): 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; One in Three Campaign, Submission FV 35, 12 May 2010.

[30]International Covenant on Economic, Social and Cultural Rights, 16 December 1966, [1976] ATS 5, (entered into force generally on 03 January 1976): 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; Women With Disabilities Australia, Submission FV 143, 24 June 2010.

[31]International Convention on the Elimination of All Forms of Racial Discrimination, 7 March 1966, [1975] ATS 40, (entered into force generally on 04 January 1969): 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.

[32]Universal Declaration of Human Rights, 10 December 1948, (entered into force generally on 10 December 1948): T McLean, Submission FV 204, 28 June 2010; One in Three Campaign, Submission FV 35, 12 May 2010.

[33] T McLean, Submission FV 204, 28 June 2010; Family Voice Australia, Submission FV 75, 2 June 2010; One in Three Campaign, Submission FV 35, 12 May 2010.

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

[35] D Pearce and R Geddes, Statutory Interpretation in Australia (5th ed, 2000), [4.39].

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

[37] See Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 9(3); Family Violence Protection Act 2008 (Vic) preamble; Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 10(1)(a)–(c).

[38] See, eg, National Council to Reduce Violence against Women and their Children, Background Paper to Time for Action: The National Council’s Plan to Reduce Violence against Women and their Children, 2009–2021 (2009), 18.

[39] Consultation Paper, Proposal 4–22.

[40] Ibid, Proposal 4–22.

[41] Ibid, Proposal 4–23.

[42] Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010; Family Relationship Services Australia, Submission FV 231, 15 July 2010; Women’s Legal Services Australia, Submission FV 225, 6 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; 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; National Abuse Free Contact Campaign, Submission FV 196, 26 June 2010; Women’s Legal Service Victoria, Submission FV 189, 25 June 2010; J Stubbs, Submission FV 186, 25 June 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Confidential, Submission FV 184, 25 June 2010; Confidential, Submission FV 183, 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; 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; 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; Women With Disabilities Australia, Submission FV 143, 24 June 2010; Disability Services Commission (WA), Submission FV 138, 23 June 2010; Confidential, Submission FV 130, 21 June 2010; N Ross, Submission FV 129, 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; Domestic Violence Prevention Council (ACT), Submission FV 124, 18 June 2010; Victorian Government, Submission FV 120, 15 June 2010; ACON, Submission FV 119, 15 June 2010; Ngaanyatjarra Pitjantjatjara Yankunytjatjara Women’s Council Domestic and Family Violence Service, Submission FV 117, 15 June 2010; K Johnstone, Submission FV 107, 7 June 2010; Confidential, Submission FV 105, 6 June 2010; Julia Farr Association, Submission FV 103, 4 June 2010; Confidential, Submission FV 96, 2 June 2010; Confidential, Submission FV 82, 2 June 2010; Confidential, Submission FV 81, 2 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; Queensland Commission for Children and Young People and Child Guardian, Submission FV 63, 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 39, 14 May 2010; Confidential, Submission FV 34, 6 May 2010.

[43] Legal Aid NSW, Submission FV 219, 1 July 2010; Inner City Legal Centre and The Safe Relationships Project, Submission FV 192, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010.

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

[45] Ibid.

[46] Legal Aid NSW, Submission FV 219, 1 July 2010, Education Centre Against Violence, Submission FV 90, 3 June 2010; Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010.

[47] T McLean, Submission FV 204, 28 June 2010; R Smith, Submission FV 135, 22 June 2010; A Brunacci, Submission FV 97, 4 June 2010; Family Voice Australia, Submission FV 75, 2 June 2010; One in Three Campaign, Submission FV 35, 12 May 2010.

[48] T McLean, Submission FV 204, 28 June 2010; R Smith, Submission FV 135, 22 June 2010; Family Voice Australia, Submission FV 75, 2 June 2010; One in Three Campaign, Submission FV 35, 12 May 2010.

[49] T McLean, Submission FV 204, 28 June 2010; R Smith, Submission FV 135, 22 June 2010; A Brunacci, Submission FV 97, 4 June 2010; Family Voice Australia, Submission FV 75, 2 June 2010; One in Three Campaign, Submission FV 35, 12 May 2010.

[50] Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010.

[51] R Smith, Submission FV 135, 22 June 2010; One in Three Campaign, Submission FV 35, 12 May 2010.

[52] Legal Aid NSW, Submission FV 219, 1 July 2010; Crossroads Community Care Centre Inc, Submission FV 211, 25 June 2010; National Abuse Free Contact Campaign, Submission FV 196, 26 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; National Council of Single Mothers and their Children Inc, Submission FV 144, 24 June 2010; Women With Disabilities Australia, Submission FV 143, 24 June 2010; Disability Services Commission (WA), Submission FV 138, 23 June 2010; Queensland Commission for Children and Young People and Child Guardian, Submission FV 63, 1 June 2010; Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010; P Easteal, Submission FV 39, 14 May 2010.

[53] ACON, Submission FV 119, 15 June 2010.

[54] They also commented that it is more appropriate to use the plural ‘communities’ in referring to gay, lesbian, bisexual, transgender and intersex communities, rather than the singular ‘community’: 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.

[55] Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010; Family Relationship Services Australia, Submission FV 231, 15 July 2010; Women’s Legal Services Australia, Submission FV 225, 6 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; 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; National Abuse Free Contact Campaign, Submission FV 196, 26 June 2010; NSW Women’s Refuge Movement Working Party Inc, Submission FV 188, 25 June 2010; J Stubbs, Submission FV 186, 25 June 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Confidential, Submission FV 184, 25 June 2010; Confidential, Submission FV 183, 25 June 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Victorian Aboriginal Legal Service Co-operative Ltd, Submission FV 179, 25 June 2010; Queensland Law Society, Submission FV 178, 25 June 2010; N Norris, Submission FV 176, 25 June 2010; Peninsula Community Legal Centre, Submission FV 174, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; Confidential, Submission FV 171, 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; 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; National Council of Single Mothers and their Children Inc, Submission FV 144, 24 June 2010; Confidential, Submission FV 130, 21 June 2010; N Ross, Submission FV 129, 21 June 2010; Confidential, Submission FV 128, 22 June 2010; Confidential, Submission FV 125, 20 June 2010; Domestic Violence Prevention Council (ACT), Submission FV 124, 18 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 82, 2 June 2010; Confidential, Submission FV 81, 2 June 2010; A Harland, Submission FV 80, 2 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 69, 2 June 2010; Confidential, Submission FV 68, 1 June 2010; National Peak Body for Safety and Protection of Parents and Children, Submission FV 47, 24 May 2010; M Condon, Submission FV 45, 18 May 2010; P Easteal, Submission FV 37, 12 May 2010.

[56] Legal Aid NSW, Submission FV 219, 1 July 2010; Confidential, Submission FV 183, 25 June 2010.

[57] Confidential, Submission FV 130, 21 June 2010; Confidential, Submission FV 128, 22 June 2010; Confidential, Submission FV 69, 2 June 2010.

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

[59] 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; T Searle, Submission FV 108, 2 June 2010; K Johnstone, Submission FV 107, 7 June 2010.

[60] See Chs 16 and 31.

[61] National Council to Reduce Violence against Women and their Children, Time for Action: The National Council’s Plan for Australia to Reduce Violence against Women and their Children, 2009–2021 (2009), 29.

[62] See Rec 1–2.

[63] Family Law Council, Improving Responses to Family Violence in the Family Law System: An Advice on the Intersection of Family Violence and Family Law Issues (2009), pt 6.

[64] P Memmott, R Stacy, C Chambers and C Keys, Violence in Indigenous Communities (2001), prepared for the Crime Prevention Branch, Australian Government Attorney-General’s Department, 1.

[65] Department for Community Development (WA), A Review of Literature Relating to Family and Domestic Violence in Culturally and Linguistically Diverse Communities in Australia (2006), 49–50.

[66] D Bagshaw, S Wendt and L Zannettino, Preventing the Abuse of Older People by Their Family Members (2009), prepared for the Australian Domestic and Family Violence Clearinghouse, 5.

[67] G Hauge, R Thiara, A Mullender and P Magowan, Making the Links: Disabled Women and Domestic Violence Final Report (2008), prepared for Women’s Aid (UK), 13–14.

[68] Inner City Legal Centre—Safe Relationships Project, Submission FV 17, 13 January 2010.

[69] R Chisholm, Family Courts Violence Review (2009), Rec 3.6.

[70] See Ch 15.

[71] A Dickey, Family Law (5th ed, 2007), 43.

[72] Family Court of Australia, Best Practice Principles for Use in Parenting Disputes When Family Violence or Abuse is Alleged (2009). For further discussion of the Best Practice Principles, see Chs 15 and 17.

[73] R Chisholm, Family Courts Violence Review (2009). Chapter 1 sets out the background to the Chisholm Review.