Domestic Violence, Separation and Parenting: Negotiating Safety Using Legal Processes

Current Issues in Criminal Justice, Vol. 15, No. 2, pp. 73-94, 2003

Sydney Law School Research Paper No. 09/04

25 Pages Posted: 20 Apr 2005 Last revised: 27 Jan 2009

See all articles by Miranda Kaye

Miranda Kaye

University of Technology Sydney (UTS); The University of Sydney

Julie Stubbs

University of New South Wales (UNSW, Australia) - Faculty of Law

Julia Tolmie

University of Auckland

Abstract

This article reports selected findings from a study of women who were negotiating and facilitating residence and contact arrangements for their children with a former partner who had abused them (Kaye, Stubbs & Tolmie 2003). The article analyses women's attempts to protect themselves and their children from domestic violence using legal processes. In doing so it contributes to the empirical literature in two ways. Firstly, it demonstrates that women (at least when they are mothers) are not autonomous actors. Women's experiences of domestic abuse and the manner in which they engage with the legal system are profoundly affected by their relationships with others, especially their children. We found evidence that women's and children's safety are often both at risk in circumstances of domestic violence and that women's capacity to achieve effective legal protection from domestic violence may be diminished as a consequence of their role as mothers. Secondly, the study provides recognition of the fact that where women have separated from a former partner their recourse to legal protection from violence for themselves and their children will typically require them to engage with both State legislation and family law. We found that inconsistencies and failures in coordination between different systems and bodies of law can potentially diminish the degree of protection from domestic violence that women are able to achieve.

Keywords: Domestic violence, separation, parenting, legal processes, family law, criminal law

JEL Classification: K14, K19, K42, K49

Suggested Citation

Kaye, Miranda and Stubbs, Julie and Tolmie, Julia, Domestic Violence, Separation and Parenting: Negotiating Safety Using Legal Processes. Current Issues in Criminal Justice, Vol. 15, No. 2, pp. 73-94, 2003, Sydney Law School Research Paper No. 09/04, Available at SSRN: https://ssrn.com/abstract=699822

Miranda Kaye

University of Technology Sydney (UTS) ( email )

15 Broadway, Ultimo
PO Box 123
Sydney, NSW 2007
Australia

The University of Sydney ( email )

University of Sydney
Sydney, NSW 2006
Australia

Julie Stubbs (Contact Author)

University of New South Wales (UNSW, Australia) - Faculty of Law ( email )

Kensington
High St
Sydney, NSW 2052
Australia

Julia Tolmie

University of Auckland ( email )

Private Bag 92019
Auckland
New Zealand

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