This essay was submitted to the PLN’s policy essay competition and placed in the Top 5. It responds to the question ‘What is the most important public interest law issue of this new decade?’
Written by Charlene Fernando.
From the outset, the new decade assumed a predominantly sobering tone, signaled by a number of national and international crises. In particular, the murder of Hannah Clarke and her three children by her former partner reverberated through Australia, reinvigorating dialogue on the crisis of domestic violence against women. However, this is by no means a phenomenon in Australia, with approximately one woman dying each week due to domestic violence. Whilst there has been notable law reform in preceding decades, legislative and socio-political barriers still impute a significant impediment to women who are seeking protection from abusive partners. This essay will discuss these potential areas of reform, and in the interests of limiting the scope of argument, discussion will be limited to an analysis of domestic violence by male partners against women.
A PRESUMPTION OF SHARED RESPONSIBILITY
Per the Family Law Act 1975 (Cth), Courts ‘must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child’. Whilst this is a rebuttable presumption, and would not apply if there has been a history of domestic violence or child abuse, the scope of the provision is arguably too expansive, in that it ‘assumes equality between all parties while failing to recognise their potential to harm more vulnerable parties’. In particular, it fails to take into account that violence may occur as a result of acrimonious divorce/separation proceedings, and co-parenting may in some cases exacerbate violence or abuse because shared parenting ‘calls for a high degree of parental cooperation’, which may not exist in the circumstances.
In 2018, the Australian Institute of Health and Welfare recognised that women separating from their partners are at a higher risk of family, domestic and sexual violence compared to other groups.
Whilst a history of family violence is an important indicator in predicting future behaviour and rebutting the statutory presumption, the current law is problematic given that it does not place adequate emphasis on current safety concerns, and how Courts would take this into account in imposing a shared parental responsibility order. In a recent study, it was found that where parents were separated and had no prior history of violence, 18% of mothers had current concerns for the safety of their child. Placing an emphasis on present safety concerns would ‘allow the concentration of resources on the parents and children who are at most risk as a result of post-separation parenting arrangements’, and allow Courts to take pre-emptive action to prevent violence against women and children by their former partners. Furthermore, this would achieve the statutory objective of prioritising the welfare, or the best interests of the child, which might otherwise be overlooked.
Whilst the Australian Women Against Violence Alliance (AWAVA) have called for the abolition of this statutory presumption, it is evident that there are benefits of a legal shared parental responsibility presumption, especially where there has been no history of violence and no current concerns for safety. Fifty studies have indicated that children in a shared parenting arrangement have better wellbeing than those in a sole parenting arrangement, this is defined by various factors including lower levels of depression and anxiety, lower aggression, lower rates of alcohol/substance abuse and better school performance. Therefore, it is proposed that the legislative presumption be retained, but revised to ensure current safety concerns are also considered.
B PARTIAL DEFENCE OF PROVOCATION
The partial defence of provocation can be invoked where a defendant was provoked to such an extent so as to ‘lose self-control’ and use lethal force, reducing culpability and generally downgrading the conviction from murder to manslaughter. Whilst Tasmania, Victoria and Western Australia have abolished the defence, consistency across all Australian jurisdictions is necessary to disallow an unfair avenue to justify killing partners (especially female) and avoiding murder convictions.
Legal commentators and researchers have expressed concern over the gendered connotations of this defence, especially that it has been ‘raised successfully by men who killed a female intimate partner in response to relationship separation (actual or threatened) and/or sexual infidelity (actual or suspected)’. Furthermore, this defence attempts to justify, or engage in a convoluted and unhelpful analysis of perceived gender stereotypes, and ‘accommodate differences in gender behaviour’. To illustrate, the violent behaviour of men against their female partners is presented as the ‘proprietary male’, being prone to emotions of jealousy and possessiveness, restoring his honour against the allegation of having been ‘insulted, mocked, humiliated or spurned’.
Privileging a ‘sudden and uncontrollable rage and anger’ produces a highly inequitable result, largely prejudicing the interests, safety and rights of women. There are also evidential issues arising from this defence, especially that Courts rely solely on the accused’s testimony, that they were so provoked so as to lose self-control. Whether this can satisfy the evidentiary burden required in criminal cases is highly questionable. The availability of such a defence in some jurisdictions does little to alleviate the difficulty women face in attempting to leave an abusive relationship, with a study of eleven women evincing the prevalence of retaliatory violence or threats during attempts to leave.
The retention and application of this partial defence sets a dangerous precedent, compromising the safety of women at the expense of engaging in a precarious analysis of perceived gender psychology, and hence, all Australian jurisdictions should progress towards abolition.
1 Limited Defence
Notwithstanding this, it may be necessary to include a “half-way house” provision to ensure that there is an avenue available, especially for women who kill their partners due to sustained domestic abuse. It is noted by many international researchers that whilst the majority of intimate partner killings by men occur primarily due to attitudes of possessiveness over women, especially ‘stalking and killing post separation [and] killing after years of inflicting verbal and physical violence’, women kill their male partners under highly different circumstances: ‘Unlike men, women kill male partners after years of suffering physical violence, after they have exhausted all available sources of assistance, when they feel trapped, and fear for their own lives’.
In this way, it is imperative to incorporate an ‘excessive self-defence’ provision in all Australian jurisdictions, similar to what has been introduced in New South Wales, which questions whether the use of lethal force was a “reasonable response” in the circumstances as perceived by the accused’. This objective test tempered with subjectivity would allow inquiry into, for instance, whether a woman who killed her partner believed that this was the only reasonable way to protect herself/her children from family violence, even if that use of force may be otherwise seen as disproportionate, ensuring victims of domestic violence are not disproportionately penalised.
It is indisputable that domestic violence is socially unacceptable and unanimously condemned. However, individual subconscious biases regarding abuse pervade the social and legal spheres, and undermines the experience of abuse survivors, potentially further endangering the safety of present or future victims. For example, a study by the University of New South Wales revealed that one third of participants believed a woman was to blame for abuse if she didn’t leave a violent relationship. 21% believed that ‘sometimes a woman can make a man so angry he hits her when he didn’t mean to’.
This was further evidenced in the comments made by a detective in Hannah Baxter’s murder investigation, who stated the job as an investigator was ‘to keep a completely open mind’,questioning whether the case at hand was one of domestic violence or of ‘a husband being driven too far…into committing acts of this form[?]’. Whilst a comment akin to this is not representative of the wider legal enforcement mechanism, the overarching ramification is that of providing legitimacy to abusers’ actions, simultaneously casting doubt over the victim’s character, or “victim-blaming”. This is alarmingly analogous to the effect achieved with a successful invocation of the provocation defence, justifying retaliatory violence.
In addition, a study showed than one in every five mothers perceived that in cases of domestic violence, legal professionals did not give due weight to a history of violence in making child contact arrangements, and that ‘judges, magistrates or registrars did not treat their experience of domestic violence as a significant issue, or ignored the fact that they had an ADVO’. However, this is an older study, this further manifesting the necessity of conducting of more perception-based studies in this area, to better reflect contemporary sentiments. It is evident that perception-based studies, and qualitative analysis would be more effective and accurate in determining the potential areas of improvement for the legal system.
Violence against women in Australia has become a severe national crisis and requires immediate scrutiny to prevent further exacerbation. Ultimately, whilst legal reform is crucial in efforts to reduce domestic violence against women, social attitudes will inform the level of legislative reform that occurs, given that laws are ultimately a reflection of the prevailing community values at any given point in time.
 Kate Walton, ‘Australia Urged to Take Action Amid Rising Violence Against Women’, Al Jazeera (online at 6 March 2020) <https://www.aljazeera.com/news/2020/03/australia-urged-action-risingviolence-women-200306022709312.html>.
 ‘Quick Facts’, Our Watch (Web Page) <https://www.ourwatch.org.au/quick-facts/>.
 Family Law Act 1975 (Cth) s 61DA (‘Family Law Act’).
 Lucy Daniel, ‘Australia’s Family Law Amendment (Shared Responsibility) Act 2006: A Policy Critique’ (2009) 31(2) Journal of Social Welfare and Family Law 147, 151.
 Edward Kruk, ‘Arguments Against a Presumption of Physical Custody in Family Law’ (2018) 59(5) Journal of Divorce and Remarriage 388, 394.
 ‘Family, Domestic and Sexual Violence in Australia, 2018’, Australian Institute of Health and Welfare (Media Release, 28 February 2018) <https://www.aihw.gov.au/reports/domesticviolence/family-domestic-sexual-violence-in-australia-2018/contents/summary>.
 Patrick Parkinson, Violence, Abuse and the Limits of Shared Responsibility (Report No 92, July 2013) 12.
 Ibid 13.
 Ibid 12.
 Family Law Act (n 3) s 67ZBB.
 Letter from Australian Women Against Violence Alliance to Women’s Safety Ministers, 5 March 2020 <https://awava.org.au/2020/03/05/in-focus/womens-safety-ministers-urgent-actions-forwomens-safety?doing_wp_cron=1583462746.1233379840850830078125>.
 Sanford L Braver and Michael E Lamb, ‘Shared Parenting After Parental Separation: The Views of 12 Experts’ (2018) 59(5) Journal of Divorce and Remarriage 372, 375.
 Paul Gregoire and Ugur Nedim, ‘Abolishing the Partial Defence of Provocation: An Interview with Dr Kate Fitz-Gibbon’, Sydney Criminal Lawyers (Blog Post, 25 November 2016) <https://www.sydneycriminallawyers.com.au/blog/abolishing-the-partial-defence-of-provocation-aninterview-with-dr-kate-fitz-gibbon/>.
 Hemming, ‘Provocation: A Totally Flawed Defence that has No Place in Australian Criminal Law Irrespective of Sentencing Regime’ (2010) 14(1) University of Western Sydney Law Review 1, 30.
 Graeme Coss, ‘The Defence of Provocation: An Acrimonious Divorce from Reality’ (Research Paper No 07/04, Sydney Law School, University of Sydney, January 2007) 54.
 Ibid 52.
 R v Ramage  VSC 508 .
 Crystal Bruton and Danielle Tyson, ‘Leaving Violent Men: A Study of Women’s Experiences of Separation in Victoria, Australia’ (2018) 51(3) Journal of Criminology 339, 345.
 Coss, ‘The Defence of Provocation’ (n 16) 58.
 Department of Justice, Defensive Homicide: Proposals for Legislative Reform (Consultation Paper, September 2013) 18.
 Diane Nazaroff, ‘Disturbing Australian Attitudes Towards Violence Against Women and Gender Equality Uncovered in New Research’, UNSW Newsroom (online at 30 November 2018) <https://newsroom.unsw.edu.au/news/general/disturbing-australian-attitudes-towards-violenceagainst-women-and-gender-equality>.
 Rebeka Powell, ‘Brisbane Car Fire Detective Taken Off the Case After Suggesting Killer Rowan Baxter May Have Been “Driven too Far”’, ABC News (online at 21 February 2020) <https://www.abc.net.au/news/2020-02-21/qld-police-commissioner-apologises-detectives-camp-hillcomments/11987426>.
 Miranda Kaye, Julie Stubbs and Julia Tolmie, ‘Domestic Violence and Child Contact Arrangements’ (2003) 17 Australian Journal of Family Law 1, 22.