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.