Evaluate effectiveness of the law in protecting victims of domestic

violence
Domestic violence refers to the acts of violence committed against someone who has or has had a
domestic relationship. It can be physical or psychological and includes verbal, physical or sexual
assault, or emotional and economic abuse. The law aims to protect victims of domestic violence
through a range of measures either through criminal conviction under the Crimes Act 1900 (NSW) or
ADVOs under the Crimes (Domestic and Personal Violence) Act 2007 NSW. Due to the changing
nature of relationships and the increasing volume and seriousness of domestic violence many areas
of the law have been amended such as the Bail Amendment Act 2003 NSW. The accessibility,
responsiveness and enforceability of the law, the extent to which it achieves justice, protects the
individual and meets societys needs are considered in the evaluation of its effectiveness.
While acts such as assault are considered a crime under the Crimes Act 1900(NSW) the
circumstances of domestic violence requires it to be treated differently. In 1982 Section 15 of the
Crimes Act - relevant to domestic violence - was reaffirmed in the Crimes (Domestic Violence)
Amendment Act 1982 (NSW). As it is no longer buried under the density of the Crimes Act it
effectively tailors to domestic violence which means cases are better addressed. It means increased
acknowledgement of DV and clearer interpretation of the law. This substantially improved the
effectiveness of the legal system in protecting victims of domestic violence through better resource
efficiency, accessibility and protection of the individual.
Protection of the individual was amplified in The Crimes (Domestic Violence) Amendment Act 1982
(NSW) as it introduced a major instrument in protecting victims of domestic violence Apprehended
Domestic Violence Orders (ADVOs). ADVOs are orders imposed restricting the behaviour of a
domestic partner for a period of time. These restrictions can vary from prohibiting the offender from
being in the home to being within a certain distance of the victim. They also require all firearms and
weapons to be seized. If the ADVO is breached the offender will receive a criminal charge. As a
result, ADVOs are relatively effective in protecting victims of domestic violence. This is because they
prevent domestic violence as opposed to the Crimes Act which is reactive i.e. the offender is
prosecuted after crime has already been committed. They also provide a sense of security and are
relatively cheap, easy to access and apply for.
Following a wide range of reforms, ADVOs are currently issued under the Crimes (Domestic and
Personal Violence) Act 2007. These reforms have widened the scope of ADVOs to other family
members, relatives, ex-partners and persons living in the same household. Other areas of family law
have also been reformed to redefine a de facto relationship and to protect same-sex couples. The
law has effectively responded to reflect the changing needs of society and nature of families and
relationships.

While ADVOs have reduced the level of domestic violence they are difficult to enforce as they do not
physically prevent the offender from the act of violence. They are ineffective under issue of
compliance and non-compliance. It is also difficult to prove when an ADVO has been breached. As a
result there have been cases of continued domestic violence and murder even when the offender
was under an ADVO. The failure of ADVOs is highlighted in 2006, when Evelina Gavrilovic was shot
by her husband Slobodan Gavrilovic who then shot himself. Prior to the murder, she applied for an
ADVO and during her application her husband was still following her. It was granted after several
months however, What no one factored in was the reluctance of police to enforce it and her
husband's determination to dominate and control. - reported SMH in Nov 2008. Their deaths
highlight flaws in the legal system in protecting victims of domestic violence, its lack of enforceability
and about a police and court process that is not responsive enough to women's cries for help.
In addition to the flaws of ADVOs, the Bail Act 1978 NSW was ineffective in protecting victims of
domestic violence. Ms van Koeverden was shot dead by her ex-husband Anthony Bardokas two
weeks after he was released on bail. He was a repeat offender of indictable offences including rape.
"When an offender gets bail, the veil of safety once afforded to the victim is lifted and the
offender again has control, reported SMH in May 2003. He was also under an AVO which
reinforces its lack of enforceability. Ms Koeverdens mother said the judicial system had failed to
protect her daughter and pleaded with lawmakers to change bail laws. This was responded as
parliament introduced the Bail Amendment Act 2003 which removed the presumption of bail in
respect to serious repeat offenders, highlighting the effectiveness of legislation in its responsiveness
and ability to meet societys needs in relation to protecting victims of domestic violence.
Victims of domestic violence also extend to individuals in the household setting most commonly
children. The protection of children is paramount since they are vulnerable and dependent. Children
are protected under the Family Law Act 1975 Cwlth however this was amended in 2011 in the
Family Law Legislation Amendment (Violence and other Measures) Bill. It prioritised the safety of
children in parenting matters and extended child abuse to include witnessing domestic violence due
to its psychological impacts. 59 percent of women who reported domestic violence said it took place
in front of children as report by SMH in bill to expand the definition of child abuse. This is one of
many examples of an effective response by the legal system in protecting children against domestic
violence.

http://hscintheholidays.com.au/wp-content/uploads/2012/03/Legal-Studies-Family-assessment.pdf
http://www.lawlink.nsw.gov.au/lrc.nsf/b302b703a1328b7e4a2565e8002658dc/17b115f09f2be0e2c
a256c92002d4f32/$FILE/dp45_ch02.pdf
http://aifs.govspace.gov.au/2012/12/13/domestic-violence-justice-strategy-for-nsw/
http://www.bocsar.nsw.gov.au/lawlink/bocsar/ll_bocsar.nsf/pages/bocsar_mr_cjb155
http://www.smh.com.au/news/national/killed-as-she-tried-to-escape-hisviolence/2008/11/23/1227375062487.html
http://www.lawlink.nsw.gov.au/lawlink/bocsar/ll_bocsar.nsf/vwFiles/bb61.pdf/$file/bb61.pdf

Evaluate effectiveness of the law in achieving just outcomes for

parties involved in relationship breakdowns
The dissolution of a couple leads to many issues including the welfare of children, division of assets
and the future of their relationship. In order to achieve just outcomes for parties involved in
relationship breakdowns, these issues require legal attention and are hence covered under varying
laws in Australia such as the Family Law Act 1975 Cwlth. Legislation such as the De Facto
Relationships Act 1984 NSW have reflected the changing nature of relationships in addition to
various reforms. The effectiveness of the legal system in achieving just outcomes for parties involved
in relationship breakdowns vary when considering its enforceability, responsiveness, the extent to
which they protect the individual, achieve just outcomes and adhere to the rule of law.
Prior to 1974 marriage dissolution was only granted under 14 grounds of fault under the
Matrimonial Causes Act 1959. This was ineffective as it instigated further tension and disagreement
hence failed to achieve just outcomes. This was abolished in The Family Law Act 1975 where it
introduced no-fault dissolution. Rather, it requires a single proof of irretrievable breakdown which
means no likelihood of reconciliation as outlined in Whiteoak vs Whiteoak 1980. This was done by
both parties living separately for 12 months. This is an effective response by the legal system to
achieve just outcomes by adopting more realistic measures. However this is limited due to the dear
cost of divorce in the court system which leads to self-representation in court. This is ineffective as it
leads to unfair trials, hindering the rule of law.
The Family Law Act also introduced a kiss and make up period which gives couples a 3 month
opportunity to reconcile during their 12 month separation. This aimed to promote self resolution
and cooperation. It reflects the flexibility of the law in achieving just outcomes in the event of
marriage breakdown.
In response to the costs of adversarial divorce processes, the Family Law Reform Act 1995
introduced primary dispute resolution which mandated counselling for couples who have been
married for less than 2 years. It also placed emphasis on alternative dispute resolution methods such
as mediation. These processes are more effective since they are cheap and quick - resource efficient
- and accessible. Although it encourages cooperation it is difficult to enforce and parties may choose
not to comply. Despite this ADR and PDR are significantly efficient methods of achieving just
outcomes as 95% of all marriage dissolutions are resolved outside of the court.
In the event of a divorce, the protection of children is paramount due to their vulnerability and
dependence. They require the most legal protection. The two primary considerations include the
childs right to maintain a meaningful relationship with both parents and the need to protect the
child from harm. Other considerations include the view of the child, the nature of the childs
relationship and residence of their parents.
The Family Law Act 1975 described the agreements made for children of separated parents with the
term custody. This meant courts had the power to make decisions in regard to the child. This was
ineffective in achieving justice as it did not encourage the parties involved in the dissolution

negotiate a mutual agreement. The law was ineffective as it failed to protect the individual rights of
children.
In response, this was amended in the Family Law Reform Act 1995 which embraced the best
interests of the child and replaced the term custody -which treated children as property with
shared responsibility. This encouraged partners to agree on a resolution rather than receiving a
court order and to prioritise children as individuals. In the case of B v. B (1997) FLC 92-755 the
woman who had residence of the children was given leave to move and remarry away from the
father. The father received rights to visit the children. This agreed with the best interest of the child
as it promoted shared responsibility and happiness. As a result the reform has improved the
effectiveness of the law by better achieving justice and protecting the rights of the child.
In addition to children, the division of property and assets must be considered in the breakdown of
marriage. The Family Law Act 1975 is the predominant legislation which governs property division. In
the event that a couple has not reached a property settlement the court will consider four factors:
financial and non-financial contributions, future needs and pre-nuptial agreements. It promotes
equality as the domestic contributions made by a wife and mother is regarded equal to the man
going out to work. This was established in the Marriage of Kemp (1976). Courts initially assume a
50/50 split then consider other factors. For example if children are under the responsibility of one
parent they will be entitled to a greater share. This reflects a fair and flexible process, enhancing the
effectiveness of the legal system in achieving just outcomes.
Due to the increase in de facto relationships and same-sex couples the Family Law Act was obsolete
as it only covered married heterosexual couples. De facto and same-sex couples did not receive the
same rights. This signified an ineffective system as it failed to provide equality, fairness and adhere
to the rule of law. In response the Property (Relationship) Act 1984 NSW rectified this issue by
providing de facto couples the same rights of maintenance and property division. Similarly,
amendments in 1999 recognised legal measures for same-sex couples. These changes highlight an
effective legal system in providing just outcomes for relationship breakdowns in respect to
responsiveness, meeting societys needs and following the rule of law.
In conclusion