4. Family Violence: A Common Interpretative Framework?

Definition of family violence or acts constituting family violence

Family violence legislation

Although the family violence legislation of states and territories does not appear to be substantially different in respect of crucial matters such as the types of conduct that may constitute domestic violence, the Commissions consider that there are some key differences that ought to be addressed. One option for reform is to have a standard definition of family violence across state and territory family violence legislation. A uniform definition would remove any confusion about the meaning of family violence across the jurisdictions. A model definition was proposed in the Model Domestic Violence Laws Report but was not taken up.[1] The Commissions note that drafting a uniform definition acceptable to all states and territories would be a significant task, especially given that jurisdictions adopt differing terminology to describe family violence—including domestic violence and domestic abuse. The protection of victims of violence should not, however, be compromised by achieving a consistent definition, if consistency represents the lowest common denominator. The Commissions seek stakeholder views on the feasibility of this option.

An alternative is to concede that while definitions of family violence across state and territory family violence legislation need not be drafted in precisely the same terms, there should be a shared understanding of the types of conduct that constitute family violence, covering both physical and non-physical violence. The Victorian family violence legislation provides an instructive model in this regard.

The Commissions agree with the recommendation made by the United Nations Department of Economic and Social Affairs Division for the Advancement of Women that legislation should include a comprehensive definition of domestic violence, including physical, sexual, psychological and economic violence.[2]

The Commissions are interested in hearing views about whether the definition of family violence—in addition to setting out examples of conduct which constitute violence—should also provide that family violence is violent or threatening behaviour or any other form of behaviour that coerces, controls and/or dominates a family member and/or causes him or her to be fearful. The Commissions note that this formulation was proposed by the VLRC and part of this formulation is contained in the definition of family violence in the Victorian family violence legislation.[3]

Need for a definition of family violence in NSW family violence legislation

The NSW family violence legislation is notable in its omission to define ‘domestic violence’—although it defines a ‘domestic violence offence’. The Commissions reiterate the view, previously expressed by the NSWLRC, that there should be a separate definition of ‘domestic violence’ in the NSW family violence legislation which should include reference to psychological harm.[4] It is important for the definition to capture conduct which of itself may not amount to a criminal offence, expanding the circumstances in which victims of violence may seek protection. Apart from physical violence, the definition should capture the other types of family violence addressed below.

Sexual assault

In the Commissions’ view, sexual assault should be expressly recognised in the definitions of family violence in the family violence legislation of each state and territory. Raising the profile of sexual assault in the definitions may go some way to addressing the general invisibility of sexual assault as a form of family violence.

This will clearly necessitate amendment to the family violence legislation of Western Australia, which does not recognise sexual assault. The Commissions are interested in views about whether the general definition of ‘domestic violence’ in s 13 of the ACT family violence legislation should be amended to include express reference to sexual assault—even though various offences of sexual assault are included in sch 1 as ‘domestic violence’ offences. The Commissions tend to the view, however, that the general definition in the ACT family violence legislation should refer expressly to sexual assault.

Further, as discussed below, the Queensland definition of family violence—although it refers to ‘indecent behaviour without consent’—may also need to be amended to capture sexual offences against children where consent is not a defence.

Economic abuse

Economic abuse should be expressly recognised in the definitions of family violence in the family violence legislation of each state and territory. This will necessitate amendment to the family violence legislation of NSW, Queensland, Western Australia and the Northern Territory. Economic abuse is a particular form of violence identified as being used against older women.

The Commissions propose that the NSW Government amend s 44 of the Crimes Act 1900 (NSW)—a ‘domestic violence offence’ dealing with failure to provide any wife, apprentice, servant or insane person with necessary food, clothing or lodgings—to ensure that its underlying philosophy and language are appropriate in a modern context. The Commissions consider that the proposed inclusion of economic abuse in the family violence legislation of NSW may be more appropriate.

Emotional or psychological harm/abuse

The Commissions note the various formulations of emotional or psychological harm or abuse—or related conduct that ‘intimidates,’ ‘harasses’ or ‘coerces’—referred to in the family violence legislation of the various states or territories. While one option is to have a consistently worded definition, the Commissions consider that, at the least, the emphasis should be on a shared understanding that emotional abuse is a recognised form of family violence.

However, there are two respects in which the Commissions offer a tentative view. One is in relation to the use of legislative examples; the other concerns possibly inappropriate emphasis on proof of emotional abuse in relation to certain types of family violence. Each of these is addressed below.

Use of legislative examples. The category of violence covering emotional or psychological abuse or intimidation/coercion is one that is particularly likely to impact differently on various groups in the community. In this regard, the Commissions endorse the recommendation made by the VLRC that a definition of family violence ‘should be broad enough to include abuses specific to certain groups in the community’.[5]

Examples of such conduct as they affect varying groups and that appear desirable to include in family violence legislation include:

  •  threatening to: institutionalise a person; withdraw care on which the person is dependent; withhold medication or prevent the person accessing necessary medical equipment or treatment—potentially relevant to aged persons and those suffering from a disability or illness;
  •  racial taunts; and preventing a person from making or keeping connections with the person’s family, friends or culture, including cultural or spiritual ceremonies or practices—potentially relevant to migrants, Indigenous people and persons from diverse cultural and linguistic backgrounds;
  • threatening to disclose a person’s sexual orientation against the person’s wishes—relevant to those from the gay, lesbian, bisexual and transgender community.

The Commissions are interested in hearing whether, in practice, legislative examples of certain types of family violence conduct are being treated as exhaustive. In any event, family violence legislation should make it clear that such examples are not intended to be exhaustive.

Appropriate use of emotional or psychological abuse category. In some cases family violence legislation refers to emotional or psychological abuse to describe conduct that would not otherwise amount to a criminal offence (if proved to the requisite standard), for example, repeated derogatory taunts. This approach is appropriate. In other cases, even where conduct could amount to a criminal offence a person must also prove emotional abuse to obtain a protection order. For example, the South Australian family violence legislation focuses on either the impact of harm to a victim or the intention of the person engaging in family violence. Sexual assault is included as an example of conduct that could result in emotional or psychological harm.

The Commissions are concerned that requiring a person to prove emotional or psychological harm as the result of sexual assault adds a further evidentiary burden. The very fact of sexual assault should fall within conduct constituting family violence without the need to prove that such conduct had a certain effect on the victim. The same could be said of depriving a person of his or her liberty—which is also cited as an example of conduct that could cause emotional or psychological harm in the South Australian legislation.

Kidnapping or deprivation of liberty

The Commissions consider that, for the sake of clarity, the definition of family violence in the family violence legislation of Queensland and the Northern Territory should include kidnapping or deprivation of liberty.

Damage to property

In the Commissions’ view, the family violence legislation of Tasmania should be amended to include damage to property and the threat to commit such damage in the definition of family violence. The absence of this category of violence is anomalous. As stated in the review of that jurisdiction’s legislation, property damage is a common feature of family violence incidents. Property damage is recognised as family violence across the family violence legislation of the other states and territories and also, for example, in the Migration Regulations 1994 (Cth), and in overseas jurisdictions such as New Zealand.

Injury to animals

The definition of family violence in each of the states and territories should be broad enough to capture relevant conduct that causes death or harm to an animal, such as a family pet, irrespective of whether the animal is technically the property of the victim. There are a number of ways of achieving this. Harm to an animal can be specifically incorporated into the definition of family violence, or it can fall within the general category of emotional or psychological abuse. Where harm to an animal is linked to property damage, definitions of property can be extended to make it clear that property covers not only property that is owned by the victim but also property in his or her possession or otherwise used or enjoyed.

It appears that the family violence legislation of the following jurisdictions will need to be amended to capture harm to animals which may not technically be the property of the victim:

  • NSW—as its legislation does not refer to such harm, nor does it contain the category of emotional or psychological abuse, nor an expanded definition of property either in s 7—which refers to intimidation—or insofar as it picks up property offences in the Crimes Act 1900 (NSW) s 195, which refers to property ‘belonging to another’.
  • Queensland—as its legislation only specifically refers to wilful damage to the other person’s property—including his or her pet—and does not contain a category of emotional or psychological abuse.
  • Western Australia—as its legislation links harm to an animal to property belonging to the victim, and although it contains a category covering emotional abuse, it requires such abuse to be ‘ongoing’. One or two instances of killing or injuring a family pet may not qualify as ‘ongoing’.
  • Northern Territory—as its legislation allows for injury or death of an animal either on the basis that it damages the victim’s property or intimidates the victim by causing reasonable apprehension of harm to his or her property.

Exposure of children to violence

Time for Action noted that:

Children and young people exposed to sexual assault and domestic and family violence experience anger, sadness, shame, guilt, confusion, helplessness and despair. Children do not need to be physically present when violence occurs to suffer negative consequences. Living in an environment where violence occurs is extremely damaging to children and there is little difference in outcomes for children whether they see the violence or not.

Living with domestic and family violence can directly affect infants, causing negative developmental, social, emotional and behavioural consequences. At a time of rapid neurological growth, an infant’s development may be compromised by exposure to ongoing violence, whether or not they are the target of the violence. Infants may have symptoms typical of post-traumatic stress.[6]

The Commissions are of the preliminary view that family violence legislation ought to acknowledge the detrimental impact of family violence on children. The Commissions tend to the view that the definitions of family violence in the family violence legislation of each state and territory should either acknowledge exposure of children to family violence as a category of violence in its own right—as is the case in Victoria—or enable the making of orders to protect children from such exposure. In making these proposals, the Commissions have been persuaded by the considerable amount of research documenting the fact that exposure of children to family violence causes long-term emotional, psychological, physical and behavioural issues.

Exposure of children to family violence encompasses more than just witnessing family violence. Indeed the terminology of ‘witnessing’ may be problematic in the sense that it may have a tendency to downplay the fact that children are living with the reality of family violence. The Victorian family violence legislation provides instructive examples of behaviour that causes a child to hear or witness or otherwise be exposed to family violence.[7] These include the child comforting or providing assistance to a family member who has been physically abused by another family member, and being present when police officers attend an incident involving physical abuse of a family member by another family member.

The Commissions are interested, however, in hearing whether such a proposal would have negative effects for mothers who are victims of family violence and are held accountable for not protecting children from violence at a time when they are under intense pressure.

Linkage to criminal law

The Commissions note that family violence legislation in both NSW and the ACT sets out certain offences which are ‘domestic violence’ offences. The Commissions consider that the states and territories should have flexibility to do this in their definitions of family violence—provided that other elements of family violence are also acknowledged in the definition. Linking family violence to certain criminal offences has the advantage of clarity. However, the Commissions consider that the list of offences should be reviewed by the respective state and territory governments with a view to ascertaining whether:

  • each of the offences ought to remain classified as a ‘domestic violence offence’;
  • there are any additional offences that ought to be included; and
  • there are any offences that need to be updated or amended.

The Commissions are particularly interested in understanding why it is necessary to categorise the following offences as ‘domestic violence’ offences (as the ACT legislation does) and whether they have been used as the basis for obtaining protection orders:

  • causing bushfires;
  • engaging in unreasonable obstruction in relation to the use of government premises;
  • behaving in an offensive or disorderly manner while in or on government premises; and
  • refusing or neglecting to leave government premises when directed.

The Commissions consider that the NSW and ACT Governments, in undertaking the proposed review of ‘domestic violence offences’, should also give particular attention to those offences in respect of which their legislation differs. For example, NSW does not categorise incest, causing bushfires and negligent driving as ‘domestic violence offences’, but the ACT does.

Proposal 4–1       
  1. State and territory family violence legislation should contain the same definition of family violence covering physical and non-physical violence, including conduct the subject of Proposals 4–3 to 4–5 and 4–7 to 4–10 below. The definition of family violence in the Family Violence Protection Act 2008 (Vic) should be referred to as a model.
    OR
  2. The definitions of family violence in state and territory family violence legislation should recognise the same types of physical and non-physical violence, including conduct the subject of Proposals 4–3 to 4–5 and 4–7 to 4–10 below. The definition of family violence in the Family Violence Protection Act 2008
(Vic) should be referred to as a model.
Question 4–1         Should the definition of family violence in state and territory family violence legislation, in addition to setting out the types of conduct that constitute violence, provide that family violence is violent or threatening behaviour or any other form of behaviour that coerces, controls or dominates a family member or causes that family member to be fearful?
Proposal 4–2         The Crimes (Domestic and Personal Violence) Act 2007 (NSW) should be amended to include a definition of ‘domestic violence’, in addition to the current definition of ‘domestic violence offence’.
Proposal 4–3         State and territory family violence legislation should expressly recognise sexual assault in the definition of family violence to the extent that it does not already do so.
Proposal 4–4         State and territory family violence legislation should expressly recognise economic abuse in the definition of family violence to the extent that it does not already do so.
Proposal 4–5         State and territory family violence legislation should include specific examples of emotional or psychological abuse or intimidation or harassment that illustrate acts of violence against certain vulnerable groups including: Indigenous persons; those from a culturally and linguistically diverse background; the aged; those with a disability; and those from the gay, lesbian, bisexual and transgender community. Instructive models of such examples are in the Family Violence Protection Act 2008 (Vic) and the Intervention Orders (Prevention of Abuse) Act 2009 (SA). In each case, state and territory family violence legislation should make it clear that such examples are illustrative and not exhaustive of the prohibited conduct.
Question 4–2         Some state and territory family violence legislation lists examples of types of conduct that can constitute a category of family violence. In practice, are judicial officers and lawyers treating such examples as exhaustive rather than illustrative?
Proposal 4–6         The definition of family violence in state and territory family violence legislation should not require a person to prove emotional or psychological harm in respect of conduct which, by its nature, could be pursued criminally—such as sexual assault. In particular, the Intervention Orders (Prevention of Abuse) Act 2009 (SA) should be amended to ensure that sexual assault of itself is capable of meeting the definition of ‘abuse’ without having to prove emotional abuse.
Proposal 4–7         The Domestic Violence and Protection Orders Act 2008 (Qld) and Domestic and Family Violence Act 2007 (NT) should be amended expressly to recognise kidnapping or deprivation of liberty as a form of family violence.
Proposal 4–8         The Family Violence Act 1994 (Tas) should be amended to recognise damage to property and threats to commit such damage as a form of family violence.
Proposal 4–9         The Crimes (Domestic and Personal Violence) Act 2007 (NSW), Domestic Violence and Protection Orders Act 2008 (Qld), Restraining Orders Act 1997 (WA), and Domestic and Family Violence Act 2007 (NT) should be amended to ensure that their definitions of family violence capture harm or injury to an animal irrespective of whether that animal is technically the property of the victim.
Proposal 4–10       State and territory family violence legislation should include in the definition of family violence exposure of children to family violence as a category of violence in its own right.
Proposal 4–11       Where state or territory family violence legislation sets out specific criminal offences that form conduct constituting family violence, there should be a policy reason for the categorisation of each such offence as a family violence offence. To this end, the governments of NSW and the ACT should review the offences categorised as ‘domestic violence offences’ in their respective family violence legislation with a view to (a) ensuring that such categorisations are justified and appropriate; and (b) ascertaining whether or not additional offences ought to be included.
Proposal 4–12       Incidental to the proposed review of ‘domestic violence offences’ referred to in Proposal 4–11 above, s 44 of the Crimes Act 1900 (NSW)—which deals with the failure to provide any wife, apprentice, servant or insane person with necessary food, clothing or lodgings—should be amended to ensure that its underlying philosophy and language are appropriate in a modern context.

Criminal law

The discussion below addresses interaction issues between the definitions or terminology in family violence laws and the criminal law:

  • in the limited circumstances where the criminal law defines ‘family violence’; and
  • where each law defines a particular type of conduct that may constitute family violence.

Interaction of definitions of ‘family violence’ in criminal and family violence laws

There are limited examples of definitions of ‘family violence’ or ‘domestic violence’ in the criminal laws of Australia. One area where the criminal law has defined ‘family violence’ is in the context of defences to homicide. This is the case under the Crimes Act 1958 (Vic), and the Criminal Code (Abusive Domestic Relationship Defence and Another Matter) Amendment Act 2010 (Qld).

In the Commissions’ preliminary view, where a state or territory’s criminal legislation recognises family violence as relevant to a defence to homicide—either in its own right or as part of a broader concept of self-defence—family violence should be defined broadly to include both physical and non-physical violence, in the same way that it should be defined under family violence legislation. There is merit in a jurisdiction’s family violence legislation and criminal legislation adopting a common understanding of the types of conduct that constitute family violence irrespective of whether the criminal legislation limits the availability of defences to homicide in a family violence context to cases involving ‘serious’ family violence.

There would appear to be a stronger case for uniformity of the definition of ‘family violence’ within a state or territory’s family violence and criminal laws, than is the case across state or territory jurisdictions. In the latter case, the emphasis should be on adopting a shared understanding of what constitutes family violence.

The Commissions have considered whether the differing policy objectives of civil protection legislation and criminal legislation warrant a more restrictive definition of family violence in the criminal context. On balance, the Commissions tend to the view that the different policy objectives of the criminal law and family violence legislation are not compromised by the adoption of a commonly shared definition. Those different policy objectives may be addressed by placing emphasis, where necessary, on the seriousness of the family violence, rather than excluding certain types of violence. That is the approach taken in Queensland criminal legislation, which provides one model for reform. It appears appropriate that the degree of severity of family violence capable of being relied upon as a defence to murder is higher than that which may be needed to obtain a protection order.

Where a jurisdiction allows evidence of family violence to be adduced in the context of a broader concept of self-defence, like Victoria, the issue of severity will most likely be one of the factors considered by the jury in determining whether the accused had reasonable grounds for believing his or her conduct was necessary.

In Chapter 7 the Commissions pose a series of questions about how the criminal law can best recognise family violence as a defence to homicide, including seeking feedback on problems or issues which arise from current models which recognise family violence as relevant to a defence to homicide.

The fact that the Victorian criminal legislation has a narrower definition in its family violence legislation is more accidental rather than purposeful. The definition of family violence used in Victoria’s family violence legislation was not enacted at the time the family violence amendments were made to the Victorian Crimes Act. In the Commissions’ preliminary view, the definition of family violence in s 9AH of the Crimes Act should be replaced with the definition of family violence in s 5 of Victoria’s family violence legislation. Alternatively, the definition of family violence in s 9AH of the Crimes Act should be amended to include economic abuse. The Commissions understand that the Victorian Crimes Act is currently under review.

The inclusion of economic abuse in the definition of family violence in s 9AH of the Crimes Act 1958 (Vic) will not necessarily mean that economic abuse of itself will constitute a defence to homicide. Rather, it will ensure that the pattern of family violence to which a person has been subjected—including physical and non-physical violence—will be relevant to self-defence where a person kills a family member who has been violent towards her or him.

Proposal 4–13       The definitions of family violence in a state or territory’s family violence legislation and criminal legislation—in the context of defences to homicide—should align, irrespective of whether the criminal legislation limits the availability of defences to homicide in a family violence context to cases involving ‘serious’ family violence.
Proposal 4–14       The definition of ‘family violence’ in s 9AH of the Crimes Act 1958 (Vic)—which largely replicates the definition in s 3 of the Domestic Violence Act 1995 (NZ)—should be replaced with the definition of ‘family violence’ in s 5 of the Family Violence Protection Act 2008 (Vic). Alternatively, the definition of family violence in s 9AH of the Crimes Act 1958 (Vic) should be amended to include economic abuse.

Definitions of, or terminology referring to, acts that may constitute family violence across criminal and family violence laws

Some state and territory definitions of family violence pick up some definitions of criminal law offences. For example, the Victorian family violence legislation provides that the definition of ‘assault’ for the purpose of family violence is the same as the definition of assault in s 31 of the Crimes Act 1958 (Vic).[8] Similarly, the Western Australian family violence legislation provides that various definitions, including those of ‘assault’, ‘intimidate’, ‘kidnapping or depriving the person of his or her liberty’ and ‘pursue’ are the same as the equivalent definitions in the Criminal Code (WA).[9]

However, there are some examples where the different ways in which the family violence law and criminal law of a jurisdiction define family violence produces potentially anomalous outcomes. Some specific examples are set out below, as are the Commissions’ proposals to address such anomalies.

Stalking—Northern Territory. ‘Stalking’ is defined differently—and in some respects more narrowly—under the Domestic and Family Violence Act (NT) than it is for the purpose of delineating conduct constituting a criminal offence under the Criminal Code (NT). In theory, this could mean that a victim in the Northern Territory may not be able to obtain a protection order in family violence proceedings against a person engaging in stalking for conduct that could be the subject of a criminal prosecution for stalking. The Commissions are interested in hearing about practical interactions between the stalking provisions in the Northern Territory’s criminal and family violence laws.

‘Domestic violence’—Queensland. The definition of ‘domestic violence’ in s 11 of the Domestic and Family Violence Protection Act 1989 (Qld) includes ‘wilful injury’. How does this interact in practice with ‘common assault’ as it is defined in s 245 of the Criminal Code (Qld)? The latter includes striking, touching or moving a person without his or her consent. A person may touch or move someone without causing injury, which appears to make the definition of ‘wilful injury’ in the family violence legislation more restrictive than the definition of ‘assault’ in the criminal legislation.

The definition of ‘domestic violence’ in s 11 also includes ‘indecent behaviour to the other person without consent’. However, in the Criminal Code there are some sexual offences against children where consent is not a defence. The scope of the definition of ‘domestic violence’ in the family violence Act means that a person would not be able to obtain a protection order—for example on behalf of a child—in circumstances where criminal redress may be available.

The Commissions are interested in hearing about whether there are other examples where the scope of conduct that could warrant prosecution is broader than conduct that could warrant an application for a protection order.

Question 4–3         Are there any other examples where the criminal law of a state or territory would allow for prosecution of conduct constituting family violence in circumstances where a state or territory’s family violence legislation would not recognise the same conduct as warranting a protection order?

There may of course be occasion for a particular term in family violence legislation to be defined more broadly than its corresponding term in criminal legislation, given the different objectives of the civil protection order regime. However, this should not be done in a way that may cause confusion. An example where different definitions and terminology across state or territory family violence and criminal legislation may cause confusion is discussed next.

Emotional or psychological harm, mental harm—South Australia. In the Intervention Orders (Prevention of Abuse) Act 2009 (SA) one of the categories of abuse is that which causes, or is intended to cause, ‘emotional or psychological harm’. Such harm is defined as including:

  • mental illness;
  • nervous shock; and
  • distress, anxiety or fear, that is more than trivial.[10]

The Criminal Law Consolidation Act 1935 (SA) uses the term ‘mental harm’. It defines ‘harm’ as meaning ‘physical or mental harm (whether temporary or permanent)’.[11] ‘Mental harm’ is in turn defined as ‘psychological harm and does not include emotional reactions such as distress, grief, fear or anger unless they result in psychological harm’.

On first reading, the scope of each of the definitions—read in isolation—is arguably ambiguous, and when read together, somewhat confusing—especially from the point of view of a victim of family violence who may try to obtain a protection order based on emotional or psychological harm, in circumstances where there is also the prospect of commencing criminal proceedings for offences such as: causing serious harm,[12] causing harm,[13] acts endangering life or creating risk of serious harm.[14]

It appears that the definition of ‘mental harm’ in the Criminal Law Consolidation Act 1935 excludes emotional harm—given that any emotional reaction within the ambit of the definition has to amount to psychological harm. That may be a valid policy position. However, the criminal law does not define psychological harm. The absence of a definition of that term, combined with the fact that the Intervention Orders (Prevention of Abuse) Act 2009 conflates the definition of ‘emotional or psychological harm’, has the potential to cause confusion. Would proof of ‘mental illness’ or ‘nervous shock’—for the purpose of obtaining a protection order—qualify as proof of ‘mental harm’ for the purposes of a criminal prosecution for an offence, such as ‘causing harm’—assuming that proof is established beyond reasonable doubt?

At the time of writing, the Intervention Orders (Prevention of Abuse) Act 2009 had not come into effect, so it is not known whether the interaction in practice of the definitions discussed above is problematic.

In terms of policy, it is not justifiable to have a definition of family violence in family violence legislation that makes it more difficult for a victim to obtain a protection order than to commence a prosecution—in circumstances which warrant criminal prosecution.

State and territory governments should review the definitions and terminology used in defining family violence in their respective family violence Acts to ensure that they align with corresponding concepts or definitions in their criminal laws or, at least, ensure that the interaction of such terminology or definitions does not prevent a person obtaining a protection order in circumstances where a criminal prosecution could be pursued.

In particular, the definition of ‘stalking’ in the Northern Territory family violence legislation should be amended. Further, those aspects of the definition of ‘domestic violence’ referring to ‘wilful injury’ and ‘indecent behaviour without consent’ in the Queensland family violence legislation should be reviewed.

In addition, the Commissions consider that the South Australian Government should review whether the interaction of the definition of ‘emotional or psychological harm’ in its family violence legislation, and ‘mental harm’ in its criminal legislation is likely to confuse victims and their legal representatives involved in both civil and criminal proceedings. This review should consider whether it would be desirable, for example, for (a) the family violence legislation to distinguish between emotional and psychological harm; or (b) the criminal legislation to define ‘psychological harm’; and (c) for both the family violence and criminal legislation to adopt a commonly shared understanding of the meaning of ‘psychological harm’.

Proposal 4–15       State and territory governments should review their family violence and criminal legislation to ensure that the interaction of terminology or definitions of certain conduct constituting family violence would not prevent a person obtaining a protection order in circumstances where a criminal prosecution could be pursued. In particular,
  1. the definition of stalking in Domestic and Family Violence Act (NT) s 7 should be amended to include all stalking behaviour referred to in the Criminal Code Act (NT) s 189; and
  2. the Queensland government should review the inclusion of the concepts of ‘wilful injury’ and ‘indecent behaviour without consent’ in the definition of ‘domestic violence’ in s 11 of the Domestic and Family Violence Protection Act 1989 (Qld), in light of how these concepts might interact with the Criminal Code (Qld)
Proposal 4–16       The South Australian Government should review whether the interaction of the definition of ‘emotional or psychological harm’ in the definition of ‘abuse’ in s 8 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA), and ‘mental harm’ in s 21 of the Criminal Law Consolidation Act 1935 (SA) is likely to confuse victims and their legal representatives involved in both civil family violence and criminal proceedings. In particular, the review should consider whether it would be desirable for:
  1. the Intervention Orders (Prevention of Abuse) Act to distinguish between emotional and psychological harm;
  2. the Criminal Law Consolidation Act 1935 to define ‘psychological harm’; and
  3. both above mentioned Acts to adopt a commonly shared understanding of the meaning of ‘psychological harm’.

 

Family law

The Family Law Act defines family violence to mean:

conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.

Note: A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.[15]

This definition of ‘family violence’ requires reasonableness (objective element) but also requires the decision-maker to place themselves in the position of the potential victim (subjective element). The definition is narrower in some respects than the definitions in state and territory family violence legislation. Objective definitions have been criticised as ‘it is essentially a contradiction in terms to apply the notion of reasonableness to the experience of fear, and to do so fails to understand the psychological impact of violence, particularly in situations where there has been a history of control.’[16] What may seem benign to an outsider may be conduct that causes a victim to fear for his or her safety.

Significantly, the Family Violence Strategy of the Family Court of Australia acknowledges that the definition of ‘family violence ’in the Family Law Act is too narrow to meet the objectives of the Strategy. As a result, the Family Violence Committee adopted ‘a more comprehensive definition of the elements of violence:

Family violence covers a broad range of controlling behaviours, commonly of a physical, sexual, and/or psychological nature, which typically involve fear, harm, intimidation and emotional deprivation. It occurs within a variety of close interpersonal relationships, such as between spouses, partners, parents and children, siblings, and in other relationships where significant others are not part of the physical household but are part of the family and/or are fulfilling the function of family.[17]

The Family Court is bound to consider family violence orders that apply to a child or a member of the child’s family in ascertaining what is in a child’s best interests, but only if they are final or contested. In addition, in making parenting orders, the Family Court has to ensure that the order is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence.

The Family Court has to take family violence orders ‘as they are’, that is, orders based on the particular definitions and the grounds for obtaining those orders in the particular state or territory jurisdiction. In other words, in practice, the Family Court may be required to consider a conceptualisation of family violence that is broader than that envisaged under the Family Law Act. In cases where a person appearing before the Family Court has a pre-existing final or contested protection order, the differences in definitions between the state or territory and federal scheme may have little effect. Further, in ascertaining what is in a child’s best interests, the Family Court has broad discretion to consider any other fact or relevant circumstance that the court thinks is relevant,[18] which may extend to a consideration of violence falling outside the parameters of the definition of family violence in the Family Law Act.

The Commissions are interested in hearing whether, as a matter of practice, the different definitions between family violence in the Family Law Act and in the family violence laws of a particular state or territory have any impact in matters where there are pre-existing state and territory family violence orders, as well as in matters where there are not. Preliminary consultations that the Commissions have conducted tend to indicate that definitional issues do not have great significance in practice.

Question 4–4         In practice, what effect do the different definitions of family violence in the Family Law Act 1975 (Cth) and in state and territory family violence legislation have in matters before federal family courts:
  1. here a victim who has suffered family violence
    1. has obtained a state or territory protection order; or
    2. has not obtained a state or territory protection order; and
  2. on the disclosure of evidence or information about family violence?
Question 4–5         Does the broad discretion given to courts exercising jurisdiction under the Family Law Act 1975 (Cth) and the approach taken in the Family Court of Australia’s Family Violence Strategy overcome, in practice, the potential constraints posed by the definition of ‘family violence’ in the Family Law Act?

Expanding definition

In the Commissions’ preliminary view, the definition of family violence in the Family Law Act is too narrow. The definition should be expanded to include certain types of conduct recognised under state and territory family violence legislation. This would include the types of conduct the subject of the Commissions’ proposals in relation to the definition of family violence in family violence legislation—such as economic abuse, sexual assault, and exposing children to violence. The Commissions consider that the definition of family violence in the Victorian family violence legislation is an instructive model in this regard.

The Commissions note that this suggested approach is consistent with that taken by the Family Law Council in its December 2009 advice. The Council advocated that the Family Law Act define ‘family violence’ in the same way that it has been defined under the Victorian family violence legislation, noting that this approach would remove the objective element contained in the definition. The Commissions note, however, that the Chisholm Review took a different stance on the removal of the reasonableness requirement. The Review did, however, state that ‘further consideration should be given to this issue if more relevant information comes to light about the operation of the definition in practice’.[19]

The Commissions recognise that an expansion of the definition of family violence may affect the operation of the shared parental responsibility provisions in the Act, and note that reform of these provisions was considered in the Chisholm Review. The Commissions agree with the Family Law Council that further consideration be given to the ‘possible legislative side-effects of broadening the definition’.[20]

Proposal 4–17       The definition of family violence in the Family Law Act 1975 (Cth) should be expanded to include specific reference to certain physical and non-physical violence—including conduct the subject of Proposals 4–3 to 4–5 and 4–7 to 4–10 above—with the definition contained in the Family Violence Protection Act 2008 (Vic) being used as a model.
Proposal 4–18       The definition of ‘family violence’ in the Family Law Act 1975 (Cth) should be amended by removing the semi-objective test of reasonableness.

Migration legislation

Under the Migration Regulations ‘relevant family violence’ is defined as conduct, whether actual or threatened towards:

  1. the alleged victim; or

  2. a member of the family unit of the alleged victim; or

  3. a member of the family unit of the alleged perpetrator; or

  4. the property of a member of the family unit of the alleged victim; or

  5. the property of a member of the family unit of the alleged perpetrator

that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety.[21]

The focus of the definition is therefore not on categorising certain types of conduct—such as physical or emotional abuse—but rather on the effect of conduct on the victim. In this regard, the definition has a similar approach to that of ‘family violence’ adopted in the Family Law Act.

For emotional abuse to qualify as family violence under the Migration Regulations it must be considered to have been serious enough to cause fear or apprehension for the person’s well-being or safety. Acts that only have the ‘effect of causing diminution of a person’s feeling of well being’ will not suffice.[22]

The Commissions are interested in hearing from stakeholders affected by the operation of the definition of family violence in the Migration Regulations. Persons from a culturally diverse background—including women who are sponsored by Australian citizens and residents, who are particularly vulnerable to abuse due to the threat of deportation—are important voices in this Inquiry.

The Commissions note the similarity of approach between the Migration Regulations and the Family Law Act in defining family violence. The Commissions’ initial impression is that the definition in the Migration Regulations is too narrow, for the same reasons expressed in relation to the definition in the Family Law Act. One option, therefore, would be to amend the definition in a similar way as that proposed for the definition in the Family Law Act—namely to expand it to recognise specific types of physical and non-physical violence, with the definition in the Victorian family violence legislation being used as model, and by removing the test of reasonableness.

The Government may wish to reconsider the appropriateness of locating the family violence provisions—which impact on the lives and safety of a particularly vulnerable group in our society—in regulations, where they are currently housed, as opposed to primary legislation. Such provisions may be more appropriately placed in the Migration Act.

However, the Commissions make no formal proposals in this regard, noting that reform of migration legislation is outside the Commissions’ Terms of Reference. As noted in Chapter 1, the Commissions consider that the Australian Government should initiate an inquiry into how family violence is treated in federal legislative schemes not falling within the present Terms of Reference. Information received by the Commissions concerning the practical application of the definition of family violence in the Migration Regulations may be used in any further inquiry into the treatment of family violence in federal legislative schemes.

Question 4–6         How is the application of the definition of ‘relevant family violence’ in the Migration Regulations 1994 (Cth) working in practice? Are there any difficulties or issues arising from its application?

[1]           Domestic Violence Legislation Working Group, Model Domestic Violence Laws (1999), s 3, 18–23.

[2]           United Nations Department of Economic and Social Affairs Division for the Advancement of Women, Handbook for Legislation on Violence Against Women, 1 July 2009, [3.4.2.1].

[3]           Victorian Law Reform Commission, Review of Family Violence Laws: Report (2006), Rec 14; Family Violence Protection Act 2008 (Vic) s 5(1)(vi).

[4]           See New South Wales Law Reform Commission, Apprehended Violence Orders, Report No 103 (2003), [4.14]–[4.22].

[5]           Victorian Law Reform Commission, Review of Family Violence Laws: Report (2006), Rec 11.

[6]           The National Council to Reduce Violence against Women and their Children, Background Paper to Time for Action: The National Council’s Plan to Reduce Violence against Women and their Children, 2009–2021 (2009), 40 (citations omitted).

[7]           Family Violence Protection Act 2008 (Vic) s 5.

[8]           Family Violence Protection Act 2008 (Vic) s 4.

[9]           Restraining Orders Act 1997 (WA) s 6.

[10]         Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 8(3).

[11]         Criminal Law Consolidation Act 1935 (SA) s 21.

[12]         Ibid s 23.

[13]         Ibid s 24.

[14]         Ibid s 29.

[15]         Family Law Act 1975 (Cth) s 4(1).

[16]         B Fehlberg and J Behrens, Australian Family Law—The Contemporary Context (2008), 215.

[17]         Family Court of Australia, Family Violence Strategy (2004–2005), 3 (citation omitted).

[18]         Family Law Act 1975 (Cth) s 60CC(3)(m).

[19]         R Chisholm, Family Courts Violence Review (2009), 147.

[20]         Family Law Council, Improving Responses to Family Violence in the Family Law System: An Advice on the Intersection of Family Violence and Family Law Issues (2009), 26.

[21]         Migration Regulations 1994 (Cth)  reg 1.21(1). The purpose of these regulations is discussed in Ch 3.

[22]         Helmsesi [2002] MRTA 5231; Malik v Minister for Immigration and Multicultural Affairs (Unreported, FCA, Wilcox J, 19 April 2000); P Eastel, ‘Violence Against Women in the Home: Kaleidoscopes on a Collision Course?’ (2003) 3(2) Queensland University of Technology Law and Justice Journal 1, 18. Compare Wright [2001] MRTA 6123 where emotional and financial deprivation, and manipulation were considered because they caused fear or apprehension, and not just reduced well-being.