Amendments to the to the Crimes Act 1958 (Vic) in 2005 require that the question of reasonable grounds or reasonable response in self-defence (s 9AC), manslaughter (s 9AE) and duress (s 9AG) be addressed within the social context of family violence. A person can respond in self-defence to the threat of harm that is not ‘immediate’ or ‘proportional’ (paras 9AH(1)(c) and 9AH(1)(d)).
2.
As argued in Winnett v Stephenson (unreported Magistrates Court of the ACT 19 May 1993, BurnsM). One author of this article (Easteal) gave evidence to assist the Court to understand how a woman of ‘ordinary firmness of mind’ would respond to the experiential context of domestic violence — that is, the objective element of the test for duress. Discussed in EastealPatriciaHughesKate and EasterJacki, ‘Defences: Battered women and duress’ (1993) 18Alternative Law Journal139.
3.
This section is drawn from a number of research projects by one of the authors (Easteal) that have included interviews and surveys of domestic violence survivors. For more detail see for example EastealPatricia and PlummerLouise McOrmond, Real Rape Real Pain (2006).
4.
FinkelhorDavid and YlloKersti, Licence to Rape: Sexual Abuse of Wives (1985).
5.
MahoneyPatricia and WilliamsLinda, Sexual Assault in Marriage: Prevalence, Consequences, and Treatment of Wife Rape (1998) National Network for Family Resiliency <agnr.umd.edu/nnfr/research/pv/pv_ch5.html> at 11 April 2009.
6.
WilsonKaren J., When Violence Begins at Home: A comprehensive guide to understanding and ending domestic violence (1997) 23–25.
7.
Discussed in EastealPatricia, ‘Don't talk, don't trust, don't feel’ (1994) 19Alternative Law Journal53, 53–57.
8.
HottonTina, ‘Spousal violence after separation’ (2001) 21Juristat1; JohnsonHolly and HottonTina, ‘Losing Control: Homicide risk in estranged and intact intimate relationships’ (2003) 7Homicide Studies58.
9.
MouzosJenny and RushfordCatherine, ‘Family Homicide in Australia’ (2003) Trends and Issues in Crime and Criminal Justice <aic.gov.au/publications/tandi2/tandi255.html> at 11 April 2009.
10.
WilkieMeredith, Women Social Security Offenders (1993) 115.
11.
(2006) 151 FCR 547.
12.
TranterKieran, SleepLyndal and StannardJohn, ‘After Pelka: Marriage- Like Relationships under Social Security Law’ (2007) 32(4) Alternative Law Journal208, 210.
13.
[1999] FCA 106 (18 February 1999).
14.
Commonwealth Ombudsman, Marriage-like relationships: Policy guidelines for assessment under social security law, Report No 14 (2007) <http://www.ombudsman.gov.au>.
15.
[2001] AATA 282.
16.
Ibid [17].
17.
Ibid [110].
18.
[2002] AATA 311.
19.
Ibid [43].
20.
Ibid [68].
21.
Department of Families, Community Services and Indigenous Affairs, Guide to Social Security Law, 1 July 2009 (v 1.152).
22.
Ibid [2.2.5.50].
23.
[2002] AATA 671.
24.
Ibid [22].
25.
AAT Matter No 2008/2484. The facts in the case are disturbing and we have used pseudonyms to protect the Applicant's identity.
26.
Domestic violence has been argued to be an area of specialised knowledge. See BradfieldRebecca, ‘Understanding the Battered Woman who Kills her Violent Partner – the Admissibility of Expert Evidence of Domestic Violence in Australia,’ (2002) 9Psychiatry, Psychology and the Law190. In addition to psychologists, people with extensive experience about family violence such as social workers, refuge workers or academics have provided expert evidence. For example, one of the authors (Easteal) has provided reports in a number of homicide cases and testified in a NSW Supreme Court case heard in Bathurst in 2005, R v Morgan, in which the defendant was acquitted. A welfare worker provided a report in Regina v Sharon Kaye Yeoman [2003] NSWSC 194, BuddinJ.
27.
Ruka v Department of Social Welfare [1997] 1 NZLR 154.
28.
The New Zealand check list for a ‘relationship in the nature of a marriage’ is substantially similar to check list provided in s 4.3) of the SSA for a marriage-like relationship.
29.
Bruce v SSAT, Perth, 15 September 1995, 22 November 1995, 11 March 1996. This case is discussed in Patricia Easteal Less Than Equal (2001).
