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Disclaimer: This report was prepared by the Australian Government Solicitor (AGS) at the request of the Department of Families, Housing, Community Services and Indigenous Affairs (FAHCSIA). It provides general information about Australian and New Zealand legislation relating specifically to domestic violence. The Report does not constitute legal advice, and nothing in the Report should be relied upon for the purposes of, or in connection with, a particular matter.
Readers should note that the Report discusses Commonwealth, State, Territory and New Zealand legislation as in force at 25 November 2008 (the date on which AGS originally provided the Report to FAHCSIA). The Report does not reflect any changes that may have been made to the legislation since that date.
Views expressed in this publication do not necessarily reflect the views of FaHCSIA or the Ministers responsible for the portfolios of Families, Housing, Community Services and Indigenous Affairs.
Part 5: Domestic violence and family law issues – Overview of relevant provisions of the Family Law Act 1975
2. Provisions relating to care of children and associated issues
3. Protection orders and injunctions
Appendix to Part 5
Part 6: Overlap and conflict between the Family Law Act and State/Territory protection orders legislation
2. Conflict and inconsistency between orders under the Family Law Act relating to children and State/Territory protection orders
3. Interaction between Family Law Act orders/injunctions and State/Territory domestic violence protection orders
4. The Family Law Act and State/Territory protection orders legislation: Discussion of key issues
Appendix to Part 6
1.1. The Australian Government Solicitor (AGS) is pleased to present this Report in response to the request from the Department of Families, Housing, Community Services and Indigenous Affairs (the Department) for a comparative analysis of the laws relating specifically to domestic violence in Australia and New Zealand. Our aim is to provide a Report to assist the National Council to Reduce Violence against Women and their Children in the development of its Time for Action report.
1.2. The Australian Bureau of Statistics reported in 2005 that physical assaults against women most commonly occur in the home, that family members or friends were the most likely perpetrators of physical assaults on women, and that, of those women who were physically assaulted, 46% (780, 500) were assaulted by a current or previous partner.1 The position is worse for Indigenous women, who are estimated to be up to 40 times more likely to experience violence in the home than non-Indigenous women.2
1.3. Over the past several decades, governments at the Commonwealth, State and Territory levels have taken steps in response to domestic violence through legislative and non-legislative measures. The law can do much to discourage domestic violence – by making it a crime and attaching penalties intended both to punish and to deter offenders and would-be offenders, and by establishing mechanisms (such as protection orders) designed to protect and assist the persons against whom domestic violence is perpetrated or threatened. The law can also seek to change behaviours by, for example, encouraging or even mandating perpetrators’ participation in counselling programs. By conferring strong powers on the authorities of the state to deal with domestic violence, lawmakers can send a clear message to the community about what is acceptable and unacceptable behaviour in homes and families.
1.4. As requested, this Report provides:
an overview of all State and Territory and New Zealand domestic violence- specific laws providing for the making of protection orders;
a comparative analysis of what behaviours constitute domestic violence for the purposes of those laws, and what relationship must exist between the persons concerned in order for the legislation to apply;
a comparative analysis of the laws of each of the examined jurisdictions for the registration and enforcement of domestic violence protection orders made in other jurisdictions (‘portability’ of orders);
a comparative analysis of the laws of the examined jurisdictions in relation to orders which operate to exclude a perpetrator of domestic violence from that person’s home (where the perpetrator and the victim would normally cohabit);
a comparative analysis of the laws of the examined jurisdictions providing for counselling (both mandatory and voluntary) for perpetrators of domestic violence;
an overview of the laws of the examined jurisdictions that make stalking an offence;
an overview of the provisions in the Family Law Act 1975 (Cth) that have particular significance in relation to domestic violence; and
an analysis of areas where there is overlap and potential for conflict between orders or injunctions made under the Family Law Act 1975 (Cth) and orders made under the State and Territory domestic violence protection orders legislation.