The decision in Cakmak
61 The Full Court said (at [60]) that the phrase used by the Regulations is 'domestic violence'. 'Violence' is an ordinary English word, and the phrase 'domestic violence' refers to the social context of its occurrence. The phrase describes something: 'violence' occurring in the domestic context. After referring to dictionary definitions of 'violence' their Honours went on to say:
'61. In some contexts in ordinary usage, the notion of "violent" as intense, passionate or furious is expanded into areas of feeling, emotions and mental state. People do speak of emotional violence or verbal violence to express a meaning as to the furiousness, passion or venom of someone's behaviour. That is not, however, to say that someone who belittles, criticises, rejects, insults, humiliates or hurts the feelings of another, or who raises his or her voice to another, is committing an act of violence. It is the plainest use of language, we think, that to "commit" or "perpetrate" violence or the threat of violence involves the act, or threat of, application of physical force. It goes without saying that the application of force (especially the threat of it) may be exhibited by, and in the context of, a myriad of factual circumstances. The person disposed to commit the acts of violence may have to do little by way of word or deed to strike fear into someone as to their safety. Also, it goes without saying, that violence by spouse against spouse or other family member may well be accompanied by belittling, expressions of contempt and other conduct likely or intended to bring about coercion, humiliation, surrender or abasement.
62. However, belittling, lowering self esteem, "emotional violence" or "psychological violence" and such behaviour as surrogates or synonyms for violence is, we think, to broaden the scope of the regulations beyond their words. There must be "violence", or the "threat of violence", involving the application, or threat of application, of force such that the alleged victim is caused to fear for, or be apprehensive about, his or her well-being or personal safety.
63. This is not a body of regulations about marriage breakdown, matrimonial cruelty or psychological or emotional harm. The difficulties sometimes expressed as to the presumptive method of proof by the regulations (Wilcox J said it was a triumph of form over substance), to a significant degree, arise consequent upon the impermissibly broad scope given to the notion of violence. If the visa must be granted if a psychologist and a social worker express views that a client has been belittled, humiliated, rejected and insulted such that emotional violence has been done to him or her and that he or she fears for his or her emotional or psychological well-being, such criticisms have force. If, however, one recognises that the regulations were directed to the social problem of violence, that is the application, or threat of application, of force by a spouse to the other or a family member, and one recognises the difficulties of proof of those kinds of allegation that can exist, one can see the aim of the provisions. The sworn evidence of responsible professionals who could give an opinion, whether, from the viewing of contemporaneous evidence or indicia or not, that there has been violence or the threat of violence committed or perpetrated to cause the relevant fear or apprehension, was seen as a satisfactory surrogate for what might be intractably difficult fact finding in the absence of court orders already dealing with the allegations.
64. As we have said, "violence" is an ordinary word and "domestic violence" is an ordinary concept. Each normally includes the exercise of physical force. There are a number of pointers in the regulations themselves to indicate that this primary sense was intended by the drafter. In the first place, by virtue of regulation 1.21: "violence includes a threat of violence". If the concession on the part of the Minister is correct, this would have been unnecessary. Next, the reference in reg 1.23(2)(b) to violence against property is an indication in favour of the primary use of the term. The necessity for the violence to cause fear for, or apprehension about, the victim's personal well-being or safety underlines that meaning. Furthermore, as we have pointed out, none of paras (c), (d), (e) and (f) of reg 1.23(1) would usually apply unless there had been physical assault or the threat of physical assault upon person or property. The applications referred to in paras (a), (b) and (c) of s 114(1) of the Family Law Act, picked up by reg 1.23 (1)(c), in contrast to paras (d), (e) and (f) of s 114(1), not picked up by reg 1.23(1)(c), are of a kind likely to be based on a complaint of violence, in the sense we have discussed. The applications referred to in reg 1.23(1)(d), (e) and (f) expressly contemplate court orders about violence, in the sense we have discussed. Furthermore, reg 1.24(1)(a)(ii) provides for proof, by the production of a record kept by the police of an assault.
65. Reference also needs to be made to the structure of the regulations and their purpose. These regulations are obviously framed with a view to having as much objective certainty and as little room for subjective judgment as possible. This is difficult enough even when violence in the ordinary sense, and the threat of violence in the ordinary sense, is the criterion. If the criterion involves a kind of constructive violence, all manner of difficulties emerge, as illustrated by this case and by other cases to which we have been referred, particularly Meroka, and which are, as we have said, a significant underlying reason for some of the criticisms of the system made by Wilcox J in Ibrahim at [40] and [41]. In cases which do not involve physical violence to person or property, or a threat of such, the concession on behalf of the Minister means that there will always be a subjective judgment as to whether the conduct which is alleged is sufficient to reach the threshold of being domestic violence as required, unless that concept is regarded as devoid of all content.'
62 In the result, their Honours rejected what they regarded as an extension of 'violence' to encompass 'emotional' and 'psychological' violence as the subject of the relevant Regulations, in the absence of the application, or threat of application of physical force.