Doctor of Philosophy (PhD) / This thesis examines the use of cross applications in civil protection order proceedings in New South Wales (NSW) (known as Apprehended Domestic Violence Orders, ADVOs). A cross application takes place when one person in an existing or former intimate relationship, usually the woman, applies for an ADVO and sometime afterwards the defendant in that originating application, usually the man, seeks an ADVO against the first person. The focus on cross applications provides a means to investigate the nature of men’s and women’s competing allegations about domestic violence, and to explore the way in which professionals working within the ADVO system approach, and seek to unravel, these competing claims. This thesis draws on the extensive debate within the sociological literature about ‘what is domestic violence’ and whether domestic violence is gendered in its perpetration. This debate has been paid scant attention in the legal literature. This thesis examines the assumptions underpinning the legal definitions and understandings of domestic violence in the civil protection order system, with reference to these theoretical debates about ‘what is domestic violence’ and ‘what counts as domestic violence’. To do so it draws on empirical work: semi-structured in-depth interviews with women involved in cross applications and key professionals working in the field, documentary analysis of court files, and observations of court proceedings. The key contribution of this thesis to this literature is threefold: (1) it explores the question of gender perpetration through the investigation of official data (a data source little explored in debates about gender and domestic violence), (2) it combines qualitative and quantitative methods in a single study, and (3) it extends questions about the gendered perpetration of domestic violence to the legal arena (in particular the prime legal arena that responds to domestic violence in NSW, the ADVO system, a system ostensibly designed to better respond to domestic violence). This thesis found that, like other studies in this field, the analysis of quantitative data alone reveals few differences between the types of violence men and women are alleged to use against their intimate partners. However when supplemented by qualitative data differences started to emerge particularly for men who lodged their application second in time. This qualitative analysis reveals not only that male second applicants appeared to make claims of a different nature, but that some men appeared to use the ADVO process to undermine women’s claims for legal protection. The differences that emerged between men and women’s alleged experiences of domestic violence resonated with feminist understandings of domestic violence that highlight its function of control and the repetitive, cumulative environment in which violence is perpetrated by men against women. While the study focussed on cross applications, its findings reveal a number of issues of concern for the ADVO system more broadly: its focus on incidents, the poor quality of complaint narratives, the brevity of court proceedings and the emphasis on settlement. These features undermine the progressive potential of the ADVO legislation to capture more than single incidents of largely physical violence. This was further compounded by the fact that while the professionals interviewed articulated broad definitions of domestic violence, this tended to be lost when responding to practice-orientated questions (here professionals returned to incident-based definitions). Perhaps more significantly the defining feature of domestic violence as a mechanism of control is not articulated in the NSW legislation, and hence (not unsurprisingly) was generally not articulated in the complaint narratives examined in this thesis. Yet control was the dominant way in which the women interviewed described their relationship with their former partner. The failure of complaint narratives to reflect the dimension of control, combined with the failure of key professionals to give sufficient emphasis to control in their practice under the ADVO legislation, an absence highlighted through the focus on cross applications, is an issue of concern for the ADVO system generally. This is important given the growing recognition in the research literature of the fundamental nature of control to the experience of domestic violence, particularly women’s experiences of domestic violence.

Doctor of Philosophy (PhD) / This thesis examines the use of cross applications in civil protection order proceedings in New South Wales (NSW) (known as Apprehended Domestic Violence Orders, ADVOs). A cross application takes place when one person in an existing or former intimate relationship, usually the woman, applies for an ADVO and sometime afterwards the defendant in that originating application, usually the man, seeks an ADVO against the first person. The focus on cross applications provides a means to investigate the nature of men’s and women’s competing allegations about domestic violence, and to explore the way in which professionals working within the ADVO system approach, and seek to unravel, these competing claims. This thesis draws on the extensive debate within the sociological literature about ‘what is domestic violence’ and whether domestic violence is gendered in its perpetration. This debate has been paid scant attention in the legal literature. This thesis examines the assumptions underpinning the legal definitions and understandings of domestic violence in the civil protection order system, with reference to these theoretical debates about ‘what is domestic violence’ and ‘what counts as domestic violence’. To do so it draws on empirical work: semi-structured in-depth interviews with women involved in cross applications and key professionals working in the field, documentary analysis of court files, and observations of court proceedings. The key contribution of this thesis to this literature is threefold: (1) it explores the question of gender perpetration through the investigation of official data (a data source little explored in debates about gender and domestic violence), (2) it combines qualitative and quantitative methods in a single study, and (3) it extends questions about the gendered perpetration of domestic violence to the legal arena (in particular the prime legal arena that responds to domestic violence in NSW, the ADVO system, a system ostensibly designed to better respond to domestic violence). This thesis found that, like other studies in this field, the analysis of quantitative data alone reveals few differences between the types of violence men and women are alleged to use against their intimate partners. However when supplemented by qualitative data differences started to emerge particularly for men who lodged their application second in time. This qualitative analysis reveals not only that male second applicants appeared to make claims of a different nature, but that some men appeared to use the ADVO process to undermine women’s claims for legal protection. The differences that emerged between men and women’s alleged experiences of domestic violence resonated with feminist understandings of domestic violence that highlight its function of control and the repetitive, cumulative environment in which violence is perpetrated by men against women. While the study focussed on cross applications, its findings reveal a number of issues of concern for the ADVO system more broadly: its focus on incidents, the poor quality of complaint narratives, the brevity of court proceedings and the emphasis on settlement. These features undermine the progressive potential of the ADVO legislation to capture more than single incidents of largely physical violence. This was further compounded by the fact that while the professionals interviewed articulated broad definitions of domestic violence, this tended to be lost when responding to practice-orientated questions (here professionals returned to incident-based definitions). Perhaps more significantly the defining feature of domestic violence as a mechanism of control is not articulated in the NSW legislation, and hence (not unsurprisingly) was generally not articulated in the complaint narratives examined in this thesis. Yet control was the dominant way in which the women interviewed described their relationship with their former partner. The failure of complaint narratives to reflect the dimension of control, combined with the failure of key professionals to give sufficient emphasis to control in their practice under the ADVO legislation, an absence highlighted through the focus on cross applications, is an issue of concern for the ADVO system generally. This is important given the growing recognition in the research literature of the fundamental nature of control to the experience of domestic violence, particularly women’s experiences of domestic violence.

This study's focus is aimed at determining the effectiveness of a protection order (PO) in South Africa obtained against gender-based violence (GBV). This legal instrument's function is to protect victims against further violation from the perpetrator. The Domestic Violence Act 116 of 1998 (DVA), grants victims the right to a PO. However, the enormous number of GBV cases in South Africa continues to increase. This alludes to South Africa's lack of adequate implementation and enforcement, in contradiction of its constitutional obligation to protect. The continued prevalence of GBV requires an investigation of whether preventative legal instruments, such as the PO, are fulfilling their purpose and the judicial implications of failure to provide protection. This study examined the international human rights law obligation South Africa has to promote and fulfil the right to protection against GBV. Extensive existing research confirms that victims of GBV, statistically, are likely to be female. It was vital to examine obligations that South Africa has assumed through regional legal mechanisms, as they similarly guide implementing protective measures against GBV. The national legal framework was revisited and the provisions in the DVA were reassessed to give a clear indication of the PO processes. The outcome of the study revealed that South Africa's PO process provisions in the DVA, have enabled South Africa to comply with its international, regional and domestic obligation to safeguard victims against GBV. However, there are glaring shortcomings in the implementation of the PO machinery. Law enforcement and prosecuting authority were found to be major contributors to these shortcomings. The research found that several of these essential service providers are challenged with full adherence to the provisions regarding the granting of the PO. These shortcomings have the effect that, in practice, South Africa has failed to comply with its obligations to international and regional human rights treaties and the South African Constitution. This study recommends ways in which POs can be applied more successfully in South Africa. The study suggests revised and strengthened legal processes, and more effectively informed intervention strategies.

No description available.

In this article, the author describes the importance of protection orders issued in domestic violence processes, in relation to Law 30364. In addition, she points out its difference with interim orders, that protection orders offer preventive protection to the victims of domestic violence. She concludes that protection orders must been interpreted according to certain principles and its validity must continue through a non-contentious process. / En este artículo, la autora describe la importancia de las medidas de protección dictadas en los procesos de violencia familiar, a propósito de la Ley 30364. Asimismo, señala su diferencia con las medidas cautelares, siendo que las medidas de protección ofrecen tutela preventiva a las víctimas de violencia familiar. Concluye que las medidas de protección deben ser interpretadas de acuerdo a determinados principios, y su vigencia debe continuar a través de un proceso no contencioso.

PhD (Sociology) / Department of Social Work