Lawlink NSW: 14. Domestic Violence and Harrassment

14.1 Violence within families is a special social problem. Inquiries in Australia, the United Kingdom and elsewhere have documented its extent and proposed new legal procedures to deal with it.¹ New South Wales is no exception. A Task Force on Domestic Violence reported to the Premier in July 1981.² The Task Force was not specifically concerned with violence within de facto families, but it recommended that its proposed Domestic Violence Act should extend to persons living in de facto relationships.³

14.2 The Crimes (Domestic Violence) Amendment Act, 1982, was enacted in December 1982, and itsoperative provisions commenced in April 1983. The Act implements many of the recommendations made by the Task Force. It is clear that the Act will significantly improve the remedies available to a victim of violence within a de facto relationship. Nonetheless the protection accorded to such a victim will not be as complete as that provided to a victim of violence within a married relationship. Because we think that the law should provide full protection to victims (or potential victims) of domestic violence we pay particular attention in this Chapter to the differences in the respective legal remedies available to married people and de facto partners, and make recommendations for further change.

II. REMEDIES AVAILABLE TO MARRIED PERSONS AND DE FACTO PARTNERS IN RESPECT OF DOMESTIC VIOLENCE

14.4 Any person who has been assaulted may cause the assailant to be prosecuted for a criminal offence. For a conviction to be obtained, the assault, or other offence, must be proved beyond reasonable doubt. In many cases of domestic assault there is no witness other than the victim and consequently the standard of proof may not be easily satisfied. In any event, whether the victim (usually a woman) is married to or a de facto partner of the assailant, she is often reluctant to prosecute the man with whom she is living in a continuing relationship and upon whom she may be financially dependent. Also, a prosecution does not of itself provide any protection against further assaults. Indeed, it may provoke them. In short, the criminal prosecution is a crude defence against domestic violence. Its utility, or lack of it does not, however, vary as between married persons and de facto partners.

14.5 Section 547 of the Crimes Act, 1900, provides, in effect that in all cases of apprehended violence, a justice of the peace (usually a court officlao may, on the complaint of the person apprehending the violence, issue a summons or warrant, and another Justice of the peace (usually a magistrate) may examine the complainant, the defendant, and their witnesses. If it appears that the apprehension alleged is reasonable, the second justice of the peace may require the defendant to enter into a bond to keep the peace for a term not exceeding six months. If the bond is not entered into, the defendant may be imprisoned for three months. The penalty for breach of the bond, by, for example, repetition of the threatening conduct, is forfeiture of the money value of the bond.

14.6 Section 547 is frequently invoked by both married women and women living in de facto relationships. The section has its own special advantages and disadvantages but in its application to apprehended domestic violence, it is likely to fall into disuse now that the Crimes (Domestic Violence) Amendment Act, 1982, has come into force. For this reasor we do not comment in detail on the provisions or operation of the section.

14.7 The expressed object of this Act is to facilitate efforts to reduce the incidence of domestic violence. ⁴ The Act itself is concerned with “domestic violence offence”. This term includes specified offences, such as assault or sexual assault (whether committed or attempted), where the assailant and the victim are married to each other or living in a de facto relationship. ⁵ The object of the Act is achieved by amending the Crimes Act so as

The last-mentioned provisions are contained in the new section 547AA of the Crimes Act to which we now refer in more detail.

14.8 Under section 547AA, a complaint may be made to a Local Court by the “aggrieved spouse” of the defendant (including a person with whom the defendant has been living on a bona fide domestic basis), or by a police officer. Where a complaint of apprehended domestic violence is made, a justice may issue a summons for the appearance of the defendant or a warrant for his or her arrest. ¹⁰

14.9 If the court is satisfied, on the civil standard of the balance of probabilities, that the “aggrieved spouse” reasonably apprehends that the defendant will commit a domestic violence offence, ¹¹ the court may prohibit or restrict, for a period of up to six months:

An order may be made in the absence of the defendant. The court has power, on application to vary or revoke an order.

14.10 Where an order has been made and served personally on the defendant, he or she is guilty of an offence, and liable to imprisonment for up to six months, if he or she knowingly fails to comply with a restriction or prohibition specified in the order. ¹³ A police officer may, without a warrant, arrest a person who is reasonably suspected of having committed such an offence, and in such a case bail may be granted under the provisions of the Bail Act, 1978.

14.11 The procedure under section 547AA has similarities to legislation enacted in South Australia in 1982. ¹⁴ It is a hybrid measure, having elements of both a civil remedy and a criminal offence. The remedy can be invoked by establishing a reasonable apprehension of a domestic violence offence on the civil standard of prooe rather than the more stringent criminal standard required by section 547 (paragraph 14.5). The order which may be made under the section has similarities to the injunction which a civil court may issue. In additiom a court acting under section 547AA may impose conditions on an order to provide effective protection according to the nature of the threatened behaviour and the circumstances of the complainant. Orders may be made without the defendant having been served with a summons or otherwise having notice of the proceedings, if the court is satisfied that it is appropriate to proceed in this manner.

14.12 On the other hand, section 547AA has been placed within the Crimes Act and has many of the trappings associated with a provision creating a criminal offence. After a complaint is made, the defendant may be subject to arrest Proceedings may be instituted by a police officer, and the complaint must relate to the threat of commission of one of a number of specified criminal offences. Breach of the order constitutes an independent criminal offence and the orderitself is regarded as a “punishment” for the purposes of the appeal provisions of the Justices Act, 1902. ¹⁵

14.13 There is uncertainty about the jurisdiction of the Supreme Court to issue injunctions in relation to threatened assaults or seriously annoying behaviour. Some authorities suggest at least in relation to threatened assault that the court has such a jurisdiction but there are decisions to the contrary. ¹⁶ And, even if the court has this jurisdiction there is also uncertainty about the circumstances in which the court would grant an injunction. It seems reasonably clear, however, that an injunction would be granted only in exceptional circumstances. ¹⁷ Given the new power in courts of summary jurisdiction conferred by section 547AA of the Crimes Act to make orders imposing restrictions or prohibitions on persons by whom domestic violence is apprehended, we doubt that many married persons or de facto partners will seek to invoke this jurisdiction of the Supreme Court. Apart from the uncertain nature of the jurisdiction itself, the fact that proceedings in the Supreme Court are likely to be much more expensive than those in a Local Court is a telling consideration.

14.14 The Family Law Act 1975 provides remedies for a party to a marriage and for the children of a marriage. For reasons discussed in Chapter 2, it does not provide remedies for de facto partners or their children. An important remedy is conferred by section 114(1) of the Act. That section allows a court, among other things, to grant an injunction for the personal protection of a party to a marriage or of a child of the marriage. A wife, for example, who fears violence from her husband may seek an injunction for her personal protection and she may do so even without instituting proceedings for divorce or for any other relief under the Act.¹⁸ In urgent cases, a court may issue an injunction on herex parte application that is, an application of which the husband has no notice whatsoever.

14.15 In practice, section 114(1) has been construed liberally in the sense that it has beer used to protect a party not only from abuse or threatened physical or mental harm but also tc prevent undue interference by one party with the other, or the children. ¹⁹ In short, the concept of “personal protection under section 114(1) extends to the prevention of non-violent molestation harassment or persistent annoyance. The subsection also authorises the making of orders relating to the use or occupancy of the matrimonial home. An order of this kind may have the effect of excluding a violent spouse from the home indefinitely. ²⁰

14.16 Injunctions under section 114(1) may be issued by the Family Court of Australia or by a State court of summary jurisdiction. ²¹ In practice, magistrates in New South Wales frequently issue these injunctions. There are, however, proposals to the effect that, except for maintenance matters, the Family Court should have exclusive jurisdiction in respect of all matters arising under the Family Law Act, including applications under section 114(1), in those metropolitan areas where the court is permanently established. ²² The Family Law Amendment Bill 1983, introduced into Parliament on 1 June 1983, would allow the Government to terminate the jurisdiction of Local Courts in New South Wales with respect to specified classes of proceedings. ²³

14.17 Section 114 also provides for the enforcement of orders which have been made for the personal protection of a party. Where a person has knowingly and without reasonable cause contravened or failed to comply with an order, the court may impose a fine, require the person to enter a bond or punish that person for contempt (which may result in imprisonment). In addition, where the breach of an order constitutes an offence under any other law, the offender may be punished, but not so as to be punished twice for the same offence.

14.18 If provisions of the kind contained in the Family Law Amendment Bill 1983 are enacted, the courtwill be specificallyempowered togrant injunctions restraining a party from entering or remaining in the matrimonial home and any other premises in which the other party is living or working. ²⁴ In additiom the court will be empowered to attack for a period not exceeding six months, a power of arrest to a personal protection order. The court will have this power where it is satisfied that the respondent has caused or threatened to cause bodily harm to his or her spouse, or to a child of the marriage, and that that person is likely to cause bodily harm to those persons. Once a power of arrest is attached to an order, a police officer will be able, if he or she believes on reasonable grounds that the person in question has breached the in’unctior to arrest that person without warrant. The Bill also contains detailed provisions dealing with the bringing of the arrested person before the court to be dealt with for breach of the injunction. ²⁵ These provisions are outside the scope of this discussion except to the extent that they have the effect of creating a “24 hour truce” between the parties.

14.19 Both married persons and de facto partners have the following remedies in respect of domestic violence:

On the other hand, a married persom but not a de facto partner, also has the remedies provided by the Family Law Act.

14.20 One complicating factor should be noted although it need not be resolved by us. Under the Constitutiom where there is an inconsistency between a valid Commonwealth law and a State law, the former prevails and, to the extent of the inconsistency, the latter is invalid. ²⁶ There would seem to be no inconsistency between the availability of injunctive relief under section 114 of the Commonwealth Act and the quasi-criminal apprehended violence procedure under section 547 of the State Act. The position is, however, less clear in considering whether there is any inconsistency between section 114 and the new apprehended domestic violence procedure under section 547AA, particularly if the Family Law Act is amended to allow a power of arrest for breach to be attached to an injunction. It may be, for example, that the procedure under section 547AA is sufficiently “criminal” in character to warrant the conclusion that the subject matter of the Commonwealth and State Acts are different and that they are therefore not inconsistent. The matter could be put beyond doubt by the passage of the Family Law Amendment Bill 1983, which proposes, in clause 58, to insert a new section 114AB(1), saving the operation of “a prescribed lawof a State... that is capable of operating concurrently with” sections 114 and 114AA. The proposed section 114AB(2) provides that where a remedy has been sought by a married person under, say, section 547AA of the Crimes Act (assuming it is a “prescribed law”), that person should not be entitled to institute proceedings under section 114 or section 114AA.

14.21 Several thoughtful submissions commented on the legal problems presented by violence within de facto relationships. ²⁷ The preparation of the submissions, and discussions held with the authors, preceded the enactment in 1982 of section 547AA of the Crimes Act. They therefore concentrated on the effectiveness of the apprehended violence procedure under section 547 of that Act, and compared that procedure with the provisions governing injunctions under section 114 of the Family Law Act Some of the criticisms in submissions have been met by the 1982 legislation but other points of substance remain for consideration.

14.22 The submissions of chamber magistrates in New South Wales suggested that it is very common for women living in de facto relationships to seek orders protecting them against domestic violence. The oral evidence given on behalf of a women’s refuge indicated that the centre encountered a large number of domestic violence cases involving de facto partners, often in conjunction with custody disputes. ²⁸ Our surveys of legal practitioners and welfare workers supported this evidence by showing that both groups were regularly consulted on such matters, ²⁹ although it seems to be more usual for a woman in need of protection to go directly to a chamber magistrate rather than to a solicitor.

14.23 Those with experience in advising women who are living in de facto relationships of the remedies available to them generally reported dissatisfaction with the state of the law. One commentator, a chamber magistrate, observed that many women who were (or had been) cohabiting were “indignant” when told that they did not have the same remedies available to them as married women and, in particular, could not obtain a restraining order under the Family Law Act. ³⁰ The chamber magistrates who made submissions to us generally considered that the remedies available to married women under the Family Law Act were more effective than apprehended violence orders under section 547 of the Crimes Act. The Family Law Act was regarded as having four main advantages:

There are no reliable statistics to indicate precisely the extent to which magistrates exercise their powers under the Family Law Act to grant injunctions for personal protection. A general indication can be gained from the fact that one suburban Court of Petty Sessions reported that 166 injunctions were granted under the Family Law Act in 1981, and that the “vast majority” were for the personal protection of a party to a marriage. ³¹

14.24 There is no doubt that the enactment of section 547AA and the other reforms in the Crimes (Domestic Violence) Amendment Act 1982, has done much to overcome criticisms of the law in New SouthWales. A personwho fears a domestic violence offence need only satisfy the statutory requirements on the civil standard of proof. A complaint may be made by the person apprehending the offence, or by the police. Orders maybe obtained on an ex parte basis and may prohibit or restrict, not merely the repetition of violent behaviour, but a wide range of conduct by the defendant that might adversely affect the person apprehending an offence. A defendant who knowingly breaches an order commits an offence and is liable to arrest. Clearly the new provisions will constitute the principal remedy for persons fearing domestic violence, and can be expected to work smoothly once arrangements are made with the police and other agencies to ensure that they utilise the new procedures. Nonetheless, some important issues remain for consideration.

14.25 The first issue arises from the fact that no court in New South Wales has a specific statutory jurisdiction to provide, in civil proceedings, a remedy in the nature of a restraining order or injunction where de facto partners or former de facto partners are involved. Such a jurisdiction exists, in relation to married persons, under section 114 of the Family Law Act. The procedure under section 547AA of the Crimes Act has certain features characteristic of civil proceedings, but as we have noted it also retains some of the trappings of criminal proceedings. It therefore does not provide a civil remedy in the same way as the procedure under the Family Law Act A person threatened by violence from a de facto partner may possibly obtain an injunction from the Supreme Court. But, as has been seer the precise scope of this jurisdiction, assuming it exists, is unclear and may be subject to significant restrictions. In additiom it appears to have been invoked relatively rarely in New South Wales.

14.26 We have been told frequently that some women threatened with violence are reluctant to institute proceedings of a criminal or quasi-criminal character, preferring to take no action rather than to invoke the criminal law or procedures that are associated with the police or the arrest of the defendant. If no civil remedy were available, women holding this view would be effectively denied a legal remedy. For this reason (among others) it was suggested that women living in de facto relationships should have the same opportunity as married women to obtain civil remedies in respect of domestic violence. ³²

14.27 We think that this is a powerful argument. The objective of the law should be to minimise the incidence of abusive conduct. The availability of civil remedies, as an alternative to the initiation of criminal or quasi-criminal procedures, contributes to the attainment of that goal. We see no reasom in the context of the principles stated in Chapter 5, to with hold civil remedies from a woman on the ground that her assailant is her de facto partner rather than her husband. On the contrary, the effective denial of civil remedies is an injustice to which the law should respond.

14.28 We recognise that the new apprehended domestic violence procedure under section 547AA is significantly different from the old procedure established by section 547 and that the new remedy, as it becomes known and its effectiveness understood, will be widely accepted. Nonetheless, it is not difficult to envisage circumstances in which a person fearing domestic violence may prefer not to utilise the protection afforded by section 547AA, but to rely on a civil remedy. For example, we have recommended elsewhere that the Supreme Court should have jurisdiction to make orders adjusting the financial relationship of de facto partners and, in certain circumstances, to decide custody disputes between them. Where threats are made by one party, perhaps prompted by passions related to the pending proceedings, the aggrieved person may consider it inappropriate to invoke the quasi-criminal procedure in a Local Coum yet be most anxious to obtain a restraining order from the Supreme Court (and believe that such an order would be obeyed). Such a course of action might also be more convenient than initiating fresh proceedings in a separate court.

14.29 The second problem is that the powers of the court under section 547AA of the Crimes Act arise only on proof of apprehension of a domestic violence offence. Molestation and harassment not constituting an offence cannot be the subject of an order under the section. This is despite the fact that the court, once a reasonable apprehension of a domestic violence offence is proved, may make wide ranging orders including restraining the defendant from “specified behaviour ... which might affect the aggrieved spouse”. ³³

14.30 As we have noted, the Family Law Act has been interpreted in practice as authorising orders restraining molestation and harassment (including persistent annoyance) falling short of violence. Orders of this kind are regularly made in favour of married persons by judges of the Family Court and by magistrates. In our view there are good reasons for giving courts powers of this kind, since harassment or persistent annoyance may be as distressing or intimidating as the threats of violence. A failed or stormy de facto relationship is as likely as a failed or stormy marriage to produce this kind of conduct and the law should be capable of providing a swift and effective response.

14.31 This view has been adopted in the United Kingdom where the Domestic Violence and Matrimonial Proceedings Act 1976 allows the court to grant injunctions restraining the defendant from “molesting the applicant”. This power may be exercised where the parties have been living together in a de facto relationship. The term “molesting” has a wide meaning and is not confined to violence or threats of violence, but

Accordingly, the Act extends to behaviour such as the sending of abusive letters, intercepting the applicant on the way to work and similar conduct “which makes life extremely difficult”. ³⁵

14.32 For these reasons, we have concluded that despite the recent enactment of the Crimes (Domestic Violence) Amendment Act, the law should provide the parties to a de facto relationship with further protection against domestic violence. The guiding principle is that, as far as practicable, de facto partners should have essentially the same range of remedies in respect of domestic violence and harassment, and protection against the same range of conduct as is available to married persons. This means that in New South Wales

14.33 We think that our specific recommendations should take careful account of the provisions of the Family Law Act, since it is desirable, where possible, to promote consistency between Commonwealth and State legislation dealing with similar subject matter. Our recommendations should also take account of section 547AA of the Crimes Act, and work within the framework of that sectiorl as it is essential to avoid complications by creating overlapping jurisdictions to deal with the same problems. We now turn to the specific recommendations required to implement our policy conclusions.

14.34 For the reasons given in paragraphs 14.25-14.28, we recommend that the Supreme Court should be given express statutory power, in proceedings between the parties to a de facto relationship (includingthe parties to a relationship which has recently ended), to make orders for the personal protection of the applicant or the children of the parties ³⁶ against violence, molestation and other forms of harassment. The legislation should broadly follow the form proposed for section 114 of the Family Law Act 1975, with necessary adaptations. ³⁷ Accordingly, the powers of the Supreme Court should include a power to make an order

These powers should be in addition to the inherent jurisdiction of the Supreme Court to issue injunctions or make orders restraining conduct which threatens the applicants legal rights.

14.35 In making this recommendation we neither expect nor suggest that an order of the Supreme Court should become the primary remedy for domestic violence or non-violent harassment. The primary remedy, especially in serious and urgent cases, will be the apprehended domestic violence procedure under section 547AA of the Crimes Act. The Supreme Court will have a discretion to grant or withhold relief and no doubt will exercise thatdiscretion to ensure that orders are notgranted in inappropriate cases. However, in some circumstances (for example, where an application is made on good grounds in conjunction with other proceedings between the parties before the Supreme Court) it will clearly be appropriate for an order to be made. We have considered whether to provide specifically that the Supreme Court’s powers to make orders should be ancillary to other proceedings between de facto partners. On balance we have concluded that this is unnecessary, although we again stress our view that the jurisdiction of the Supreme Court should be exercised sparingly.

14.36 As we have seen, the Family Law Act expressly provides that if the court is satisfied that a person has knowingly and without cause contravened an order made under section 114, it may impose a fine and take other measures to secure compliance with the order. ³⁸ The Supreme Court, however, has wide powers to enforce its orders by punishing a person in breachforcontempt. The powers include committing a person to prison or imposing a fine. ³⁹ While the Family Law Act preserves the power of a court to punish for contempt, ⁴⁰ we think, subject to what is said in the next paragraph, that it is unnecessary in the case of the Supreme Court to confer statutory powers additional to its power to punish for contempt.

14.37 The amendments to the Family Law Act proposed in the Family Law Amendment Bill also contemplate that the court should have power, on application by a party, to authorise the arrest of the respondent without warrant forbreach of an injunction issued under section 114. If the legislation is enacted as drafted the power to authorise arrest will be exercisable only where the respondent has caused or threatened to cause bodily harm to the applicant or a child of the marriage and is likely to cause further bodily harm (paragraph 14. 18). As we have indicated, the primary remedy for serious cases of domestic violence should be the procedure established by section 547AA of the Crimes Act which by its terms, makes a deliberate breach of an order an arrestable offence, rendering the offender liable to imprisonment for up to six months. Nonetheless, there will be some serious cases coming before the Supreme Court in which it may be appropriate to provide for the arrest of the respondent should the order be breached.

14.38 The next question is how this should be done. One approach would be to follow the proposed amendments to the Family Law Act, and establish a special procedure whereby a court may attach a "power of arrest” to an injunction. Such an order would authorise the arrest of the respondent without warrant where a police officer has reasonable grounds for believing that he or she has breached the order. However we think it would be better to adopt a different procedure, in the light of section 547AA of the Crimes Act, which creates an offence of knowingly failing to comply with a restriction or prohibition in an order made under that section. ⁴¹ We suggest that it should be an offence for a person knowing y to breach the terms of an order of the Supreme Court for the personal protection of a party to a de facto relationship, or restraining the other party from entering premises. The creation of such an offence would allow a police officer who has reasonable grounds for believing that the respondent has breached the order to arrest and charge him or her with the offence. In practice, this means that breach of an order of the Supreme Court for personal protection of the kind described in paragraph 14.34, will attract the same consequences as a breach of an order made under section 547AA of the Crimes Act. Further proceedings in respect of the breach (unless for punishment for contempt) therefore can be brought before a magistrate rather than before the Supreme Court. Accordingly, we recommend that it should be an offence for a person, who has been served with a copy of an order of the Supreme Court of the kind described in paragraph 14.34, knowingly to fail to comply with the terms of the order.

14.39 Local Courts, unlike the Supreme Court, have statutory authority to make orders under section 114 of the Family Law Act on the application of a party to a marriage. They also have power under section 547AA of the Crimes Act to make orders in relation to apprehended domestic violence. For reasons we have explained, we think that Local Courts should also have power to deal with cases of molestation and harassment falling short of violence or apprehended violence between de facto partners. If there had been no recent legislation, there would be an argument in favour of creating a civil jurisdiction analogous to that created by section 114 of the Family Law Act in which the court would have power to make orders restraining such conduct by the de facto partner of the applicant. However, in view of the recent enactment of section 547AA of the Crimes Act we think it could be confusing to confer a further set of distinct powers on Local Courts. We think the best solution is to expand the circumstances in which the court can issue an order under section 547AA. Accordingly, we recommend that section 547AA of the Crimes Act, 1900, should be amended to enable an apprehended domestic violence order to be made in cases where a complainant apprehends the commission by his or her partner of conduct consisting of harassment or molestation falling short of actual or threatened violence. The order could provide for any of the matters specified in section 547AA(3) (paragraph 14.9).

14.40 Subject to one exception we see no reason why the remaining provisions of section 547AA should not apply to a complaint made in respect of molestation or harassment falling short of a domestic violence offence. The exception is that the making of such a complaint should not render the defendant liable to arrest before a hearing. The appropriate procedure to ensure the defendants attendance should be, at least in the first instance, the issue of a summons. On the other hand, we do not think it inappropriate that a deliberate breach by the defendant of an order made in consequence of apprehended non-violent molestation or harassment should constitute a criminal offence. The nature of the order and the conduct to which it applies will not necessarily differ according to whether the order is made as a result of apprehended domestic violence or apprehended molestation or harassment. Moreover, a breach of an order made in consequence of apprehended molestation or harassment may have very serious consequences for the applicant. We therefore recommend that the provisions of section 547AA should apply to a complaint made in respect of apprehended molestation or harassment falling short of a domestic violence offence, except that such a complaint should not render the defendant liable to arrest before the initial hearing.

14.41 Finally, we refer to a drafting matter which may indicate a weakness in section 547AA of the Crimes Act. The definition of a “domestic violence offence”, upon which the courts jurisdiction under the section depends, refers to certain kinds of offences

The difficulty is that an offence committed by, say, a man on his former de facto partner (or his former spouse) will not constitute a domestic violence offence for the purposes of the legislation. Accordingly, if a woman fears violence from her former de facto partner (or former spouse), this probably does not constitute apprehension of a domestic violence offence within section 547AA(1). We think it would be in accordance with the spirit of the amendments to the Crimes Act if the legislation extended to people who, for example, had lived together as de facto partners until a short time before the threatened violence. We recommend that the legislation be amended accordingly. It may be appropriate at the same time to extend the legislation to cover threatened violence between former spouses. If so, it would be appropriate to amend the definition of a domestic violence offence to include specified offences

14.42 The legal remedies against domestic violence in New South Wales have recently been extended and improved by the passage of the Crimes (Domestic Violence) Amendment Act, 1982. This Act applies both to married persons and people living in de facto relationships. Despite this legislation de facto partners do not have the same protection against domestic violence as the law affords to married persons. In particular, where de facto partners are involved

We think that the law should provide the fullest protection against domestic violence and accordingly, we suggest that

1. Domestic Violence Committee (SA), Report and Recommendations on Law Reform (1981); Joint Select Committee on the Family Law Act, Family Law in Australia (1980), vol.1. paras.6.17-6.23; Report from the House of Commons Select Committee on Violence in Marriage (H.C. Papers (Session 19.74-1975) 553); Scottish Law Commission, Report on Occupancy Rights in the Matrimonial Home and Domestic Violence (Scot Law Com. No.60,1980); Justices Act Amendment Act (No.2) 1982 (SA) (inserting a new s.99 into the Justices Act 1921-1982 (SA)); Domestic Violence and Matrimonial Proceedings Act 1976 (U.K). See Davis v. Johnson [1978] 1 All ER 1132 (HL); H A Finlay, “The Battered Mistress and the Violent Paramour”, (1978) 52 Australian Law Journal 613.

4. See the Explanatory Note relating to the Bill for the Act as introduced into Parliament.

5. Crimes Act, 1900, s.4(l) (definition of “Domestic violence offence’). See para. 14.41.

6. Id., s.407AA. The de facto partner was compellable under the pre-existing law, but could not apply to be excused.

10. The provisions of the Bail Act, 1978 apply to a person arrested pursuant to such a warrant CrimesAct 1900, s.547AA(14)(b).

12. Crimes Act, 1900, s.547AA(3). Before making an order restricting the defendants access to his place of residence, the court must consider the accommodation needs of all parties and the effect of an order on any children, s.547AA(4).

14. See note 1 above. The South Australian legislation has significant differences. For example, it is not confined to complaints made by or on behalf of spouses and de facto partners of the defendant. Moreover, it extends to cases where the complainant fears not only personal injury, but also damage to property or behaviour likely to lead to a breach of peace: Justices Act 1921-1982 (SA), s.99(1).

16. Egan v. Egan [1975] 1 Ch 218, Zimitat v. Douglas [1979] QCLR 454l; Parry v. Crooks (1981) 27 SASR 1. Cf. Fitzwilliam v. Beckman [1978] QCLR. 398; Daley v. Martin (No.1) [1982] Qd.R. 23.

17. Parry v. Crooks (1981) 27 SASR 1, at pp.7-9; Corvisy v. Corvisy [1982] 2 NSWLR 557. Depending on the circumstances, the court may be prepared to grant an injunction to restrain a trespass or a nuisance. as opposed to an apprehended assault or molestation.

18. The Family Law Act 1975 (Cth) confers a separate power on the court to issue injunctions in proceedings claiming other relief (such as an orderwith respect to property) “in any case in which it appears to the court to be just or convenient to do so; s.114(3).

19. Wilmoth and Wilmoth [1981] FLC 91-030, at p.76,287, per Strauss J; see also P E Nygh, Guide to the Family Law Act 1975 (3rd ed 1982), para.1013.

20. See eg. O’Dea and O’Dea [1980] F.LC. 90-896: cf. Healey and Healey [19791 F.LC. 90-706. Violence need not be established for the court to grant an exclusive occupancy order. but it will clearly be a relevant factor Rowe and lzowe [1980] FLC 90-895, applying the principles of Davis and Davis [1976] FLC 90-062. Compare the terms of s.547AA(3),(4), para. 14.9 above.

21. Family Law Act 1975 (Cth), s.39(1), (2), (6). As to a State Family Court (currently established only in Western Australia). See s.4l. A court of summary jurisdiction may not continue to exercise jurisdiction with respect to property exceeding $1.000 in value where the respondent appears and seeks an order different from that sought by the applicant: s.46(1).

22. See Family Law Council, Jurisdiction of Magistrates under the Family Law Act 1975 (Working Paper No.6, 1980). p.2-5.

23. Family Law Amendment Bill 1983. Cl.14, proposing to insert a new subsection (7) in the Family Law Act 1975 (Cth), s.39.

24. Id., cl.57, proposing to insert a new s.114(1) in the Family Law Act 1975 (Cth). Of course the court already has power to grant such injunctions where necessary for the personal protection of a party.

25. Id., cl.58, proposing to insert a new s.114AA in the Family Law Act 1975 (Cth).

26. Constitution, s.109. It is presumably with this in mind that the Family Law Act 1975(Cth), s.114(6) provides that the penalties stipulated in the section for a wilful breach of an order do not prevent a prosecution under any other law.

27. Principally Mr G Johnson (Chamber Magistrate and Clerk of Petty Sessions), Submission No.7; Mr. R Grigg (Chamber Magistrate), Submission No.12; Mr. A- Cullen (Chamber Magistrate and Clerk of Petty Sessions), Submission No. 13, Blacktown Community Cottage Women’s Refuge, Submission No.29.

29. 235 respondents who had advised on “de facto problems” in the preceding twelve months reported at least 244 occasions on which they had been consulted in relation to domestic violence.

30. Mr G Johnson (Chamber Magistrate and Clerk of Petty Sessions), Submission No.7, p.3.

31. Mr A Cullen (Chamber Magistrate and Clerk of Petty Sessions), letter, 27 July 1982.

32. In addition to other submissions cited, see Australian Legal Workers’ Group, Submission No.54.

36. The children of the parties should include children of either party or children ordinarily residing within the household.

42. Crimes (Domestic Violence) Amendment Act, 1982, Schedule 1(1), inserting the definition in Crimes Act, 1900, s.4(1).