Recognising family relationships in criminal law responses to family violence

14.110 In Chapter 7, the Commissions consider the categories of relationships covered by state and territory family violence legislation.[164] A further issue is how—if at all—a family relationship should be defined where it is prescribed as an element of an offence, defence or as a sentencing factor in the family violence context. In particular, this raises the following matters:

· whether it is necessary or appropriate to define a family relationship between the offender and the victim for the purposes of criminal law responses to family violence;

· if so—the categories of relationships that should be recognised in any criminal law definitions; and

· whether it is necessary or feasible to align the categories of relationships recognised in criminal law definitions with those recognised in family violence legislation.

14.111 As noted in Chapter 13, the Commissions consider this issue in the Consultation Paper in the context of potential family-violence related offences.[165] However, the Commissions consider that it is necessary to consider the issue in a broader context, given that state and territory criminal laws have variously prescribed a family relationship between the offender and the victim as an element of aggravated offences,[166] and an element of some defences.[167] At common law, sentencing courts have also recognised a family relationship between the offender and the victim as an aggravating factor in appropriate cases.[168]

14.112 In considering this issue, however, the Commissions reiterate views expressed in Chapter 13 that the existence of a family relationship between the offender and the victim should not form the sole basis of aggravation in relation to offences or sentencing, or the sole basis for any family-violence specific criminal defences. Rather, the Commissions tend to the view that criminal laws must target the underlying dynamics of family violence.[169]

Current approaches to recognising family relationships in criminal laws

State and territory criminal laws

14.113 This part of the chapter considers the categories of family relationships currently incorporated in defences, aggravated offences and sentencing factors in state and territory criminal laws.

Homicide defences

14.114 The Victorian Crimes Act 1958 defines a ‘family member’ of the accused person for the purposes of defences to murder, defensive homicide or manslaughter in circumstances of family violence. Section 9AH defines a ‘family member’ as including:

· a person who is or has been married to the accused person, or who has had an intimate personal relationship with the accused person;

· a person who has been the father, mother, step-father or step-mother of the accused person;

· a child who normally or regularly resides with the accused person;

· a guardian of the accused person; or

· another person who is or has ordinarily been a household member with the accused person.[170]

14.115 A key difference between the above criminal law definition and the definition of the same term in the Family Violence Protection Act 2008 (Vic) s 8 is that the criminal law definition is drafted in inclusive terms—whereas the definition in the family violence legislation is exhaustive. In addition—and potentially as a consequence of its exhaustive nature—the definition in the Family Violence Protection Act makes express reference to spouses, domestic partners and relatives, which are defined terms in the Act.[171] The Family Violence Protection Act definition also includes a functional element, encompassing any other person whom the relevant person reasonably regards as being ‘like a family member’, having regard to nine enumerated factors.[172]

14.116 In Queensland, a ‘domestic relationship’ is an element of the defence of killing in an abusive domestic relationship in Criminal Code s 304B. The term ‘domestic relationship’ is defined by reference to the Domestic and Family Violence Protection Act 1989 (Qld) s 11A.[173] The latter section defines a ‘domestic relationship’ as comprising a spousal relationship, intimate personal relationship, family relationship or an informal care relationship—as defined in the Act. Accordingly, the definition in both civil and criminal laws is exhaustive in nature.

14.117 The term ‘domestic relationship’ is referred to but not defined in the Evidence Act 1977 (Qld) s 132B, which confirms the admissibility of evidence of a domestic relationship between the offender and the victim, where such evidence is relevant to defending certain charges of offences against a person.[174]

Aggravated offences

14.118 The criminal legislation of South Australia and Western Australia makes reference to certain family relationships between the offender and the victim as elements of aggravated offences. The relevant family relationships are defined exhaustively in both jurisdictions. In South Australia, the Criminal Law Consolidation Act 1935 (SA) s 5AA(1)(g) lists the following relationships between the offender and the victim as circumstances of aggravation:

· spouses—defined as persons who are legally married;[175]

· domestic partners—defined by reference to the Family Relationships Act 1975 (SA);[176] and

· a child of whom the offender or his or her present or former spouse or domestic partner has custody as a parent or guardian; or who regularly resides with the aforementioned persons.[177]

14.119 The Intervention Orders (Prevention of Abuse) Act 2009 (SA) deems that two persons will be in a relationship for the purposes of identifying ‘domestic abuse’ in a broader range of circumstances than the criminal legislation. These include marriage, domestic partners, children, relatives, Indigenous kinship relationships or other culturally recognised family groups and unpaid care relationships.[178]

14.120 The Western Australian criminal legislationprovides for aggravated offences against the person where the offender is in a ‘family and domestic relationship’ with the victim.[179] The term ‘family and domestic relationship’ is defined by reference to the Restraining Orders Act 1997 (WA) s 4. The latter provision defines the term as a relationship between two persons who are or were in marital, de facto, intimate personal or other personal relationships; persons who are related to each other; and children who reside or stay with, or who are under the parental care or guardianship, of the other.

Sentencing factors

14.121 As noted in Chapter 13, the sentencing legislation of states and territories does not expressly prescribe a family relationship between the offender and the victim as a sentencing factor. However, at common law, the existence of a family or domestic relationship between the offender and victim is relevant to an assessment of the gravity of an offence.[180] In particular, in some jurisdictions the commission of an offence in a domestic context cannot be a mitigating factor,[181] and may be an aggravating factor in appropriate cases. For example, as noted in Chapter 13, in R v MFP, the Victorian Court of Appeal upheld the finding of the trial judge that the commission of an offence against a marital partner in ‘a domestic context’ was an aggravating circumstance.[182] Sentencing courts have made similar findings in respect of offences committed against de facto or former de facto partners,[183] children[184] and step-children[185]—particularly in circumstances involving a breach of trust.[186] However, the boundaries of the concept of a family relationship or the ‘domestic context’ for the purposes of common law sentencing factors do not appear to have been comprehensively delineated.

Criminal law provisions referring to the dynamics of family violence

14.122 As canvassed in Chapter 13, other provisions in state and territory criminal laws refer exclusively to the dynamics of the relationship between the accused person and the victim, without express reference to familial connection. In particular, these include aggravated offences[187] and aggravating sentencing factors[188] in respect of offences committed in abuse of a relationship of trust or authority between the offender and the victim.

United States

14.123 By way of comparison, as noted in Chapter 13, several US states recognise aggravated forms of offences against the person where they are committed against persons with whom the offender is in a defined family or domestic relationship. Most provisions define family or domestic relationships in exclusive terms, by reference to categories of relationships. For example, common categories of relationships recognised in the six illustrative US jurisdictions identified in Chapter 13 include:[189]

· spouses and former spouses;[190]

· adults who have a child in common irrespective of whether they have been married or have resided together;[191]

· romantic, dating or intimate personal relationships;[192]

· parents, children and siblings—including relationships created by adoption or marriage;[193]

· persons related by blood or consanguinity, marriage or affinity to the offender;[194] and

· household members or persons residing together or who have resided together.[195]

14.124 There is a substantial degree of alignment between criminal and civil definitions in the abovementioned illustrative jurisdictions.[196] In addition, the federal offences in the Violence Against Women Act apply to offences committed against spousal, intimate or dating partners as defined in the Act, and—in respect of offences involving the crossing of state boundaries to breach protection orders—persons who are the subject of protection orders under the relevant state or tribal legislation.[197]

Submissions and consultations

14.125 In the Consultation Paper the Commissions sought stakeholder views on the types of family relationships that ought to be recognised for the purposes of any potential aggravated offences, or discrete categories of family-violence related offences that do not attract higher maximum penalties, if such measures were to be implemented.[198] On balance, stakeholders expressed a preference for the inclusion of a broad range of family relationships, in similar terms to family violence legislation.[199] A small number of stakeholders responding to this issue expressly considered whether there is a need for criminal law responses to family violence to define or otherwise incorporate family relationships,[200] and the issue of alignment between civil and criminal laws.[201] These views are addressed below.

Is there a need for criminal laws to define or incorporate family relationships?

14.126 Two stakeholders cautioned against prescribing a family relationship between the offender and the victim as an element of any potential family‑violence specific criminal offences. As noted in Chapter 13, Professor Julie Stubbs commented that such an approach would require the criminal law to ‘weigh the importance of the family versus strangers’, and that a preferable basis for a criminal law response to family violence is the existence of ‘a pattern of controlling, coercive or dominating behaviour’ on the part of the accused towards the victim.[202]

14.127 The NSW ODPP commented that a criminal law definition of a family relationship would duplicate existing provisions incorporating the dynamics of family violence—for example, sentencing factors directed towards offences committed in the home, in the presence of a child or in abuse of a relationship of trust or authority. The ODPP commented that any definition of ‘family relationship’ would be ‘problematic in determining the precise extent of the family’.[203]

Categories of family relationships and alignment with civil law definitions

Categories of family relationships

14.128 The majority of stakeholders supporting a criminal law definition of a family ‘relationship’ in the context of offences expressed a preference for the broadest possible definition, recognising, for example, past or current relationships including: dating, cohabiting and spousal relationships; family members; relatives; children of an intimate partner; those who fall within Indigenous concepts of family; and those who fall within culturally recognised groups. These categories of relationships are consistent with the Commissions’ approach in Recommendation 7–6.

14.129 While few stakeholders advanced reasons for their positions, some legal service providers emphasised the importance of recognising same-sex, transgender and intersex relationships, Indigenous kinship relationships, and other culturally recognised familial relationships.[204] Two stakeholders expressly supported the recognition of care relationships.[205]

Alignment of relationships recognised in criminal and civil laws

14.130 A small number of stakeholders commented on the alignment of the relationships recognised in family-violence related criminal laws with those contained in family violence legislation.[206] The majority of these respondents supported alignment[207]—in particular with the Victorian family violence legislation[208]—without explanation. One legal service provider suggested that the Family Law Act 1975 (Cth) should provide the basis for alignment.[209]

Commissions’ views

14.131 The Commissions do not make any recommendations in respect of defining or recognising family relationships for the purposes of criminal law responses to family violence. However, the Commissions advance four broad views on the approach which ought to be taken to such recognition.

A family relationship should not be the sole or predominant element of criminal law responses to family violence

14.132 As a general proposition, the Commissions consider that a family relationship between the offender and the victim should not be the sole or predominant element of any form of criminal law response to family violence. As stated in Chapter 13, the Commissions consider that the criminal law must target the underlying nature and dynamics of family violence with greater precision, and should avoid discriminating between violence committed by family members and that committed by strangers.

In limited circumstances, it may be necessary to prescribe a family relationship as an element of certain criminal law responses to family violence

14.133 The Commissions acknowledge, however, that in some limited circumstances it may be necessary for criminal laws responding to family violence to make specific reference to a family relationship between the offender and victim. The Commissions consider that this approach will be necessary in two categories of case.

14.134 First, reference to a family relationship may be necessary in respect of provisions that are directed towards promoting substantive equality between legal responses to family violence and non-familial violence. In particular, this category includes laws that are designed to rectify or avoid inequalities arising from the interpretation and application of general provisions in the family violence context—for example, the designation of a family relationship between the offender and the victim as a non-mitigating factor in sentencing,[210] and the provision of legislative guidance about the potential relevance of family-violence related evidence.[211] Reference to a family relationship between the offender and the victim may also be necessary where state and territory criminal laws have established separate defences specific to family violence victims who commit offences. As noted above and in Chapter 13, however, the Commissions favour criminal laws—including defences—of general application.

14.135 Secondly, it may be necessary to expressly incorporate a family relationship between the offender and the victim as an element of those offences in which the nature of the wrongdoing sought to be addressed is the exploitation of the family relationship itself—as distinct from the underlying dynamics of that relationship. The Commissions contemplate that offences in this category would be those imposing strict liability on the basis of a family relationship between the victim and the offender. For example, offences in the nature of incest may require a discrete definitional approach. Beyond making this observation, however, the Commissions do not comment specifically on the approach to be taken to identifying family relationships recognised in this category. This matter is appropriately determined in the context of drafting individual offences.

14.136 Given the confined nature of these categories, the Commissions consider that expressly recognising categories of family relationships in these circumstances would not duplicate existing criminal laws that address the dynamics of family violence but do not specifically refer to a family relationship between the offender and the victim. For example, the designation of a family relationship as a non‑mitigating factor in sentencing would not displace existing aggravating sentencing factors of general application or matters of sentencing discretion that may be relevant to the family violence context.

14.137 The Commissions consider that it would not be unduly complex to define family relationships for these purposes. The Commissions note existing statutory definitions of categories of family relationships in various civil and criminal laws, and the recognition at common law that the commission of an offence in ‘the domestic context’ may be an aggravating sentencing factor in appropriate circumstances.

Where it is necessary to prescribe a family relationship as an element of criminal law responses to family violence, an inclusive definition is generally preferable

14.138 The Commissions consider that—in the limited circumstances in which it is necessary to refer specifically to a family relationship between the offender and the victim for the purposes of the first category of case identified above—an inclusive approach to recognising categories of relationships is preferable.

14.139 The Commissions consider that criminal law definitions of family relationships for these purposes should be expressed as including the same categories of relationships identified in Recommendation 7–6—namely:

· past or current intimate relationships, including dating, cohabiting and spousal relationships irrespective of the gender of the parties and whether the relationship is of a sexual nature;

· family members;

· relatives;

· children of an intimate partner;

· those who fall within Indigenous concepts of family; and

· those who fall within culturally recognised family groups.

14.140 A significant advantage of an inclusive—as opposed to an exhaustive—approach is that it maintains scope for judicial discretion in individual cases. This includes discretion in the application of categories of relationships in the inclusive list, and the identification of analogous categories in individual cases. An inclusive approach based upon the relationships identified in Recommendation 7–6 would further avoid the possibility that the categories of family relationships covered by the criminal law may be broader than those recognised under family violence legislation. This minimises the likelihood that circumstances of family violence may be relevant in proving and sentencing an offence, but the victim could not obtain a protection order in respect of the same conduct because he or she is incapable of being identified as a ‘person in need of protection’.

Alignment of the relationships recognised in criminal and family violence legislation should be considered on a case-by-case basis

14.141 Beyond the categories of relationships listed in Recommendation 7–6, however, the Commissions do not recommend the automatic alignment of relationships recognised under criminal and family violence laws. As identified in Chapter 7, the list of relationships in Recommendation 7–6 is intended as a minimum standard. Individual jurisdictions may recognise additional categories of relationships in their respective family violence legislation—for example, care relationships, housemates who are not in an intimate personal relationship, or persons who reasonably consider themselves to be family members having regard to a range of prescribed factors. Where family violence legislation recognises relationships exceeding the minimum stipulated categories in Recommendation 7–6, the question arises as to whether it is appropriate to extend the boundaries of criminal redress to such relationships. The Commissions consider that this matter is appropriately one for jurisdictions to consider on a case-by-case basis, in light of the purposes served by the particular legislation in question.

14.142 Further, where jurisdictions have currently aligned the categories of relationships recognised under criminal and family violence laws,[212] it may be necessary to reconsider the appropriateness of ongoing alignment following potential implementation of Recommendation 7–6. Reconsideration will be particularly important where the relationships recognised in criminal laws are incorporated by reference to family violence legislation, and Recommendation 7–6 would expand the categories of relationships currently recognised in the relevant family violence legislation.

[164] Rec 7–6.

[165] Consultation Paper, Question 7–2.

[166]Criminal Code Act Compilation 1913 (WA); Criminal Law Consolidation Act 1935 (SA) s 5AA(1)(g).

[167]Crimes Act 1958 (Vic) s 9AD and Criminal Code (Qld) s 304B.

[168] See, eg, R v MFP [2001] VSCA and the discussion of this case in Ch 13.

[169] See Ch 13.

[170]Crimes Act 1958 (Vic) s 9AH(4).

[171]Family Violence Protection Act 2008 (Vic) ss 8(1), 9, 10.

[172] Ibid s 8(3).

[173]Criminal Code (Qld) s 304B(2).

[174] See Chapters 28 to 30 of the Criminal Code (Qld) which include offences relating to homicide, endangerment of life or health and assaults.

[175]Criminal Law Consolidation Act 1935 (SA) s 5AA.

[176] The Family Relationships Act 1975 (SA) s 11A defines ‘domestic partners’ as persons living together in a close personal relationship—as defined in the Act—for a prescribed period, or who have had a child together.

[177] A ‘child’ is defined in the Criminal Law Consolidation Act 1935 (SA) s 5AA as a person under the age of 18 years. The terms ‘parent’ and ‘guardian’ are not defined in the Act.

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

[179]Criminal Code Act Compilation 1913 (WA) s 221.

[180] See, eg, R v Kibble [2002] VSC 52, [57], [64]–[66].

[181] See, eg, Raczkowski v The Queen [2008] NSWCCA .

[182]R v MFP [2001] VSCA , [20].

[183] See, eg, R v Kibble [2002] VSC 52.

[184] See, eg, R v CSG [1998] VSCA 117.

[185] See, eg, R v VZ [1998] 7 VR 693.

[186] Ibid, 699.

[187]Criminal Law Consolidation Act 1935 (SA), ss 5AA(1)(a) and (i).

[188]Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(2)(d),(ea),(eb),(k).

[189] These jurisdictions are: Georgia, Mississippi, Missouri, Montana, Nevada and Ohio.

[190]Georgia Code § 16-5-20(d); Mississippi Code § 97-3-7(3),(4); Missouri Annotated Statutes § 455.101(5); Montana Code § 45-5-206(2); Nevada Revised Statutes § 33.018; Ohio Revised Code § 2919.25(F).

[191]Georgia Code § 16-5-20(d); Mississippi Code § 97-3-7(3),(4); Missouri Annotated Statutes § 455.101(5); Montana Code § 45-5-206(2).

[192]Mississippi Code § 97-3-7(3),(4); Missouri Annotated Statutes § 455.101(5); Montana Code § 45-5-206(2); Nevada Code § 33.018.

[193]Georgia Code § 16-5-20(d) (excluding siblings); Mississippi Code § 97-3-7(3),(4); Missouri Annotated Statutes § 455.101(5); Montana Code § 45-5-206(2); Nevada Revised Statutes § 33.018; Ohio Revised Code § 2919.25(F).

[194]Mississippi Code § 97-3-7(3),(4); Nevada Revised Statutes § 33.018; Ohio Revised Code § 2919.25(F).

[195]Missouri Annotated Statutes § 455.101(5); Montana Code § 45-5-206(2); Nevada Revised Statutes § 33.018.

[196] See, eg, Georgia Code § 19-13-10; Mississippi Code § 93-21-3(a); Missouri Annotated Statutes § 455.010.

[197]Violence Against Women Act of 1994 18 USC (US) §§ 2266 (7), (10).

[198] Consultation Paper, Question 7–3.

[199] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Inner City Legal Centre and The Safe Relationships Project, Submission FV 192, 25 June 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Confidential, Submission FV 183, 25 June 2010; Peninsula Community Legal Centre, Submission FV 174, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; Confidential, Submission FV 164, 25 June 2010; No To Violence Male Family Violence Prevention Association Inc, Submission FV 136, 22 June 2010; P Easteal and A Hopkins, Submission FV 36, 12 May 2010.

[200] J Stubbs, Submission FV 186, 25 June 2010; Office of the Director of Public Prosecutions NSW, Submission FV 158, 25 June 2010.

[201] National Legal Aid, Submission FV 232, 15 July 2010; Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Confidential, Submission FV 183, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; No To Violence Male Family Violence Prevention Association Inc, Submission FV 136, 22 June 2010.

[202] J Stubbs, Submission FV 186, 25 June 2010.

[203] Office of the Director of Public Prosecutions NSW, Submission FV 158, 25 June 2010.

[204] Inner City Legal Centre and The Safe Relationships Project, Submission FV 192, 25 June 2010; Confidential, Submission FV 183, 25 June 2010; Confidential, Submission FV 164, 25 June 2010.

[205] Peninsula Community Legal Centre, Submission FV 174, 25 June 2010; P Easteal and A Hopkins, Submission FV 36, 12 May 2010.

[206] National Legal Aid, Submission FV 232, 15 July 2010; Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Confidential, Submission FV 183, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; No To Violence Male Family Violence Prevention Association Inc, Submission FV 136, 22 June 2010.

[207] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Confidential, Submission FV 183, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; No To Violence Male Family Violence Prevention Association Inc, Submission FV 136, 22 June 2010.

[208] Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; No To Violence Male Family Violence Prevention Association Inc, Submission FV 136, 22 June 2010.

[209] Confidential, Submission FV 83, 2 June 2010.

[210] Rec 13–3.

[211]Crimes Act 1958 (Vic) s 9AH; Evidence Act 1977 (Qld) s 132B. See Rec 14–5.

[212] See, eg, Criminal Code Act Compilation 1913 (WA) s 221; Criminal Code (Qld) s 304B.