Family law

Definition of family violence in the Family Law Act

6.61 The Family Law Act distinguishes between ‘family violence’ and abuse of a child. The same conduct in relation to a child, however, may constitute both family violence and child abuse.[63] Family violence is defined 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.[64]

6.62 This definition of ‘family violence’ is a semi-objective definition, as it requires reasonableness—an objective element—but also requires the decision maker to place themselves in the position of the potential victim—a subjective element.[65] This is stricter than the purely subjective test for family violence which previously existed under s 60D of the Family Law Act.[66] The definition is also narrower in some respects than the definitions in state and territory family violence legislation.

6.63 Objective definitions of family violence have been criticised on the basis that ‘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’.[67] Conduct that causes a victim to fear for his or her safety may seem benign to an outsider. Dr Elspeth McInnes of the National Council of Single Mothers and their Children gave the following example to the Senate Legal and Constitutional Legislation Committee:

We had a case where a mother detailed how her ex partner had brutally murdered the family pet, a cat, in front of the child and the mother. It was in an episode of high agitation and aggression and he had threatened that this would happen to other family members who defied him. He used to like to send kitten cards to the child and the mother when she was attending court. Everybody would look at that on the outside and say ‘Isn’t that nice, he’s sending a lovely card with a kitten’. But the message was ‘remember the cat’.[68]

6.64 Women’s Legal Services Australia submitted to the Family Courts Violence Review (Chisholm Review) that the definition of ‘family violence’ in the Family Law Act should be broadened to reflect better the nature and dynamics of family violence as a pattern of behaviour, including by removing the objective element of the reasonableness test.[69]

There is a tendency to see family violence as a series of incidents, when in fact it is a pattern of behaviour that involves the use of violence as a tool of power and control. Victims of family violence learn to ‘read’ the perpetrator of violence and know what is coming next. It may appear to an outsider that a specific incident should not ‘reasonably’ cause the victim to fear for their safety, but her experience tells her otherwise.[70]

6.65 A number of other stakeholders also submitted to the Chisholm Review that the definition of ‘family violence’ in the Family Law Act was too narrow, including National Legal Aid, which submitted that ‘an expanded and more prescriptive definition’, similar to the one in the Victorian family violence legislation, should be adopted.[71]

6.66 The Family Law Council in its December 2009 advice to the Australian Government Attorney-General recommended that the Family Law Act define ‘family violence’ in the same way that it has been defined under the Victorian family violence legislation,[72] noting that this approach would remove the objective element contained in the definition.[73]

6.67 Abuse in relation to a child in the Family Law Act is defined to mean:

(a) an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs; or

(b) a person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first-mentioned person or the other person, and where there is unequal power in the relationship between the child and the first-mentioned person.[74]

6.68 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, which are to ensure that effective measures are identified, implemented and monitored in the management of matters involving family violence and the protection from harm of the Court’s clients, their children and staff.[75] As a result, the Family Violence Committee—which was established in early 2002 to review and reformulate the Family Court’s policy framework on family violence[76]—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.[77]

6.69 Dr Rae Kaspiew notes that differences in legislative definitions and practice-based definitions risk potentially inconsistent approaches in legal and family dispute resolution processes.[78] In particular, ‘they may militate against the development of a coherent understanding of violence being applied across different practice contexts’.[79]

Interaction of definitions: family violence laws and the Family Law Act

6.70 As discussed in Chapter 4, the Family Law Act requires courts exercising jurisdiction under the Act to have regard to a number of principles, one of which is the need to ensure safety from family violence, as defined in the Act.[80] There are a number of other provisions which require family courts to consider family violence. Insofar as family courts have to decide what is in a child’s best interests, a ‘primary’ consideration is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[81] An ‘additional’ consideration is any family violence involving the child or a member of the child’s family.[82] On its face, this means that family courts are potentially considering family violence in much narrower terms than the generally broader conceptualisations under state and territory family violence legislation.

6.71 However, while the definition of ‘family violence’ in the Family Law Act is comparatively narrow, the definition of ‘family violence order’ captures orders—including interim orders—made under prescribed laws of a state or territory to protect a person from family violence.[83] This is important because family courts are 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.[84] In addition, in making parenting orders, family courts have 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.[85]

6.72 The prescribed laws under sch 8 of the Family Law Regulations 1984 (Cth)[86] cover: state and territory family violence legislation; other Acts that confer jurisdiction on courts to make family violence orders and; at least in one case,[87] an Act that confers jurisdiction on courts to make restraint orders outside the boundaries of the family violence context as defined in that state’s family violence legislation.[88]

6.73 This means that family courts have 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, family courts 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 a family court has an 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, a family court has broad discretion to consider any other fact or circumstance that the court thinks is relevant,[89] which may extend to a consideration of violence falling outside the parameters of the definition of family violence in the Family Law Act.

6.74 However, it appears to the Commissions that there may be unjustified anomalies in the treatment of family violence issues, which turn on whether a party to family law proceedings who is a victim of family violence has, in fact, obtained a state or territory protection order.[90] Consider the following hypothetical:

Hypothetical

A is from Victoria and is involved in family law proceedings concerning the determination of parenting orders. A has obtained a final family violence protection order under the Victorian family violence legislation on the grounds of a pattern of economic abuse. In making a parenting decision under the Family Law Act, a family court is bound to consider that final order.

B is from Victoria and is also involved in family law proceedings concerning the determination of parenting orders. B never applied for, and therefore never obtained a protection order under Victorian family violence legislation, even though B has suffered family violence, including economic abuse. In making a parenting decision under the Family Law Act, the Family Court is bound to consider family violence—and given the absence of a state protection order, B—unlike A—will need to satisfy the semi-objective test in s 4 of the Family Law Act. If B does not satisfy that test, the Family Court may not be bound to consider the family violence suffered by B—although it may do so in its broad discretion if it considers the conduct constituting the claim to be a relevant fact or circumstance that it should take into account.

C is from New South Wales and is involved in family law proceedings concerning the determination of parenting orders. Under New South Wales family violence legislation C was not able to obtain a family violence protection order on the basis of suffering economic abuse, even though she suffered such abuse over a period of years. In order for C’s claim of family violence to be considered by the Family Court, C—unlike her counterpart A in Victoria—will need to satisfy the semi-objective test in s 4 of the Family Law Act. If C fails to satisfy this test, the Family Court is not bound to consider the family violence suffered by C, although it may do so in its broad discretion if it considers the conduct constituting the claim to be a relevant fact or circumstance that it should take into account.

Submissions and consultations

Interactions in practice

6.75 In the Consultation Paper, the Commissions asked what effect in practice the different definitions between family violence in the Family Law Act and in state and territory family violence legislation have in matters before federal family courts:

(a) where a victim who has suffered family violence has (i) obtained a state or territory protection order or (ii) has not obtained such an order; and

(b) on the disclosure of evidence or information about family violence.[91]

6.76 The Commissions also asked whether the broad discretion given to courts exercising jurisdiction under the Family Law Act 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.[92]

6.77 Many submissions which addressed these questions focused on broader concerns about how federal family courts deal with evidence of family violence. It was submitted that:

  • ‘disclosure of family violence is most likely to be met with disbelief, [and] a minimisation of any harm caused’;[93]

  • ‘the existence of current protection orders, or attempts to obtain one, is largely ignored’;[94] as is other evidence of family violence—such as police reports and witness testimony;[95]

  • federal family courts have not recognised protection orders, particularly in cases where no charges and convictions were laid or where the respondent to a protection order had consented to the protection order without admissions;[96] and

  • ‘when there are no protection orders, it can be even more difficult for victims of family violence to demonstrate what they have experienced’ as the federal family courts ‘take little notice of descriptions of family violence in … affidavits or … applications for protection orders’.[97]

6.78 Women’s Legal Service Queensland stated that ‘the issue is much bigger than definitions’:

Domestic violence, how victims and perpetrators may present and the relevance of domestic violence is not well understood in the family law system. Consistent definitions would help, but also training, guidance in the Family Law Act on domestic violence and evidence that may be produced and use of domestic violence experts/reports.[98]

6.79 Justice for Children submitted that family courts seem to prefer evidence of physical violence over emotional or psychological violence.[99] A similar point was made by the Aboriginal Family Violence Prevention and Legal Service, which submitted that the definition of family violence in the Victorian family violence legislation was better than that in the Family Law Act because it focused beyond physical and sexual violence.

In the Family Court unless alleging physical and sexual violence, the family violence generally is not taken seriously—verbal abuse in particular. Often both parties will allege the other is verbally abusive. In a recent family report—the ATSI mother was unable to talk to the report writer about the physical violence she had experienced—(which is a separate issue)—but when she spoke about the verbal abuse the report writer was dismissive of it. This would have further impeded the ability of the mother to expand on the physical violence. (She had given evidence of physical violence in a detailed affidavit).[100]

6.80 Other submissions also reported that the differences in definition did have an impact.[101] For example, one legal service provider submitted:

In cases where there is actually third party evidence about family violence, the weight that different judicial officers place on certain evidence based on how certain information falls under the different definitions of family violence actually can be quite different. Therefore, consistency in terms of the definition of ‘family violence’ would be beneficial to all proceedings.[102]

6.81 Peninsula Community Legal Centre submitted that, in practice, the differences in definition cause a number of problems:

In PCLC’s experience, in practice, the difference between the definition of family violence in the Victorian legislation and the definition of family violence within the Family Law Act 1975(Cth) causes several problems. In situations where an order has been obtained, often [by] consent without admission, the federal family courts review only the final order and not whether there has been any finding of the alleged violence or risk. This creates potential problems, where the existence of a protective order may serve to unfairly restrict contact between children and a parent or alternatively, may expose a child to risk by way of unsuitable living arrangements. …

Where no protective order has been obtained and violence is alleged, such allegations can be dismissed by the federal family courts, as lacking validity for want of evidence.[103]

6.82 In contrast, the Queensland Law Society, which agreed that the definition of family violence in the Family Law Act is too narrow to meet the objectives of the Family Court’s Family Violence Strategy, submitted that the differences in definition between the Queensland and federal legislative schemes have little effect.

In practice, if a survivor of violence asserts in Family Law Act proceedings that he or she has been the subject of violence, then in properly prepared material he or she will not merely rely upon the existence of a protection order but will set out what violence has occurred so that it can be properly taken to account as evidence before the Federal Magistrates or Family Court.[104]

6.83 However, most stakeholders who addressed the issue considered that the broad discretion given to courts exercising family law jurisdiction and the approach taken in the Family Court’s Family Violence Strategy did not, in practice, overcome the potential constraints posed by the definition of family violence in the Family Law Act,[105] and some of these stressed the need for common definitions across the legislative schemes.[106] For example, women’s legal services submitted that:

  • ‘no strategy will influence all members of the Court … and the only way to ensure proper exercise of discretion is to enshrine it in legislation’; [107] and

  • ‘the legislation is a means of educating the community about the law and these benefits of including a definition should not be overlooked’.[108]

6.84 Crossroads Community Care Centre Inc, in expressing the view that the identified constraints were not overcome in practice, submitted that the exercise of discretion is ‘usually conservative’ and ‘economic abuse, psychological abuse and threats are routinely ignored’.[109]

6.85 A small number of stakeholders considered that the broad discretion given to courts exercising family law jurisdiction and the approach taken in the Family Court’s Family Violence Strategy did, in practice, overcome the potential constraints posed by the definition of family violence in the Family Law Act;[110]while others said that this was the case ‘sometimes.’[111]

6.86 An extension of the definition of family violence in the Family Law Act has consequences for the current legislative scheme. Under s 61DA(2), the presumption of equal shared responsibility does not apply where there is family violence. Federal Magistrate Dr Altobelli argues that the fact that any family violence falling within the definition in s 4 of the Act rebuts the presumption is both a strength and a weakness. The strength is signalling the unacceptability of any family violence; the weakness is fettering the judiciary’s ability to craft appropriate parenting orders in the best interests of children.[112] He stated that:

[t]o fail to differentiate family violence can be as harmful to victims of violence, and their children, as it could be to children who are denied otherwise safe and meaningful relationships with parents who have perpetrated certain types of violence.[113]

6.87 This is linked to a consideration of the typologies of violence, discussed below.

Expanding definition

6.88 In the Consultation Paper, the Commissions expressed the view that the definition of family violence in the Family Law Act is too narrow, and proposed that it should be expanded to include specific reference to certain physical and non-physical violence, including: sexual assault, economic abuse, emotional or psychological abuse, kidnapping or deprivation of liberty, damage to property, harm or injury to an animal irrespective of whether the victim owns the animal, and exposure of children to family violence. The Commissions cited the definition in the Victorian family violence legislation as a model.[114] In effect, the Commissions proposed that there be a shared understanding of what constitutes family violence across family violence legislation and the Family Law Act.

6.89 The majority of stakeholders who addressed this issue supported the proposal.[115] Reasons given include that it would ‘reflect established social research’ and assist in educating parties about what constitutes family violence.[116] In particular, stakeholders expressed support for consistent definitions of family violence in legislation.[117] For example, the Magistrates’ Court and Children’s Court of Victoria submitted:

We believe that more consistent definitions of family violence would assist in the prevention of family violence because they avoid confusion about what does and does not constitute behaviour that is, at a minimum, unacceptable. Consistency allows courts to send clearer messages about what constitutes prohibited behaviour.[118]

6.90 A community legal service expressed the view that consistent definitions should go some way to alleviate particular problems identified in the Consultation Paper arising from the interaction between family violence legislation and the Family Law Act, which could affect the treatment of victims depending on whether or not they had obtained a state or territory protection order.[119]

6.91 Stakeholders also specifically supported the inclusion of non-physical violence,[120] and for the Victorian definition to be used as a model[121]—for example, on the basis that it has proved ‘workable and successful’.[122] Professor Patricia Easteal supported the proposal and submitted that the ‘more examples and detail [to be included in the definition] the better’.[123] Also in support, one legal service provider noted that ‘there are safety catches in place to prevent abuse of broad definitions by perpetrators’.[124]

6.92 Professor Patrick Parkinson opposed the proposal. As discussed in Chapter 5, Parkinson expressed concerns about the expansion of the definition of family violence to the extent that it would create ‘discrete categories of violence provable by reference to specific incidents or behaviours outside of a context of coercive, controlling violence or behaviour that causes someone to fear for their safety’, noting the significant net-widening effects of such an approach. He submitted that family violence should be defined as

violent or threatening behaviour or any other form of behaviour, including sexual, economic or psychological abuse, which has the purpose of coercing, controlling or subjugating a family member or causing that family member to be fearful, or which is reasonably likely to have these consequences.[125]

6.93 Toni McLean—a partner violence counsellor—also appears to oppose the proposal, insofar as its aim is to include in the Family Law Act a definition that is as consistent as possible with that in family violence legislation.

The understanding of family violence for the purposes of the Family Court must be different from and more nuanced than the definition of family violence for the purposes of family violence and/or criminal legislation. The latter is focused on maintaining the safety of real or perceived victims of a particular kind of harmful behaviour in a ‘snapshot’ moment when the menace has occurred or is reasonably expected to be about to occur; and police officers could not be reasonably expected to conduct a lengthy investigation before taking further action. That is, police officers are responding to a ‘snapshot’ of a situation. The Family Court, however, is not making decisions about individual events, but rather about long term situations, consistent with viewing a whole ‘film’ rather than a single snapshot.[126]

Removal of reasonableness test

6.94 In the Consultation Paper, the Commissions proposed that the definition of family violence in the Family Law Act should be amended by removing the semi-objective test of reasonableness.[127]

6.95 The overwhelming majority of stakeholders who addressed this issue, including a number of legal service providers, advocacy organisations and family violence related service providers who made confidential submissions, supported the proposal.[128] Support was principally expressed because of the unsatisfactory way the reasonableness test could operate.

6.96 In addition to expressing support for the views expressed in the Consultation Paper,[129] stakeholders also submitted that:

  • ‘reasonable’ in the family law is open to discretion at times to the detriment of women and children’s safety; [130]

  • the test of ‘reasonableness’ is flawed because, in most cases, a male judge will be deciding the ‘reasonableness’ of a female’s fear and what is ‘reasonable’ to fear is a ‘culturally loaded measure, that when poorly applied can minimise women’s experience of fear’;[131]

  • the concept of reasonableness is vague and ‘leaves litigants confused and unsure as to what the Court requires, also leaving [it] open to broad interpretation by [judicial officers] and legal representatives’;[132] and

  • the note at the end of the definition of ‘reasonableness’ is ‘unclear’.[133] A community legal service asked:

Does this mean for example, that a person with [post-traumatic stress disorder (PSTD)] caused by family violence needs to experience his or her fear as the reasonable person would, or the way a reasonable PSTD sufferer would?[134]

6.97 In addition, in a joint submission, Domestic Violence Victoria and others expressed support

in the interests of victim protection, consistency and reducing complexity for victims and other non-perpetrator parties pursuing Family Court matters.[135]

6.98 Women’s Legal Services submitted that it supports a review of the definition of family violence that includes consideration of the removal of the test of reasonableness:

The test was introduced as part of the 2006 reforms in the absence of any identified need to amend the definition in this way. We believe that the objective test was included in the definition to respond to apparent concerns about the making of ‘false allegations’ of family violence and was, at the time, a highly inappropriate policy response to this issue which has no empirical basis.[136]

6.99 However, the Department of Premier and Cabinet (Tas) submitted that:

Anecdotally, the objective test of reasonableness is not drastically affecting outcomes because the objective test does tend to be applied as if the objective person has been through the experiences of the victim (which is only sensible).[137]

6.100 The One in Three Campaign submitted that it concurred with the views expressed in the Chisholm Review that: the correct interpretation of the requirement of reasonableness would take the context into account; the inclusion of the concept of reasonableness has merit; and the question is whether it has been in fact interpreted in ways that is unfair to victims.[138]

6.101 Another stakeholder expressed neither support nor opposition for the proposal, but suggested:

If the test of reasonableness remains, it should be used such that it considers the context and history of the behaviour that is under question, and should be used to test the validity or otherwise of the fears of the victim with regard to his/her safety and that of the children. If it is limited to a ‘snapshot’ of an event, and does not include consideration of the whole ‘film’, then it is not a reasonable test.[139]

Commissions’ views

Expanding definition

6.102 It is unacceptable that differences in definitions across family violence legislation and the Family Law Act may result in different treatment of persons suffering similar types of family violence.

6.103 The Commissions maintain the view expressed in the Consultation Paper that the definition of family violence in the Family Law Act is too narrow. In particular, the Commissions consider that it is important that the definition expressly recognise that certain types of non-physical conduct—including economic abuse and psychological abuse—may fall within the wider definition of family violence. In this regard, the Commissions note the views of some stakeholders that federal family courts may favour evidence of physical violence over non-physical violence.

6.104 The Commissions are strongly of the view that there should be a consistent understanding of what constitutes family violence across federal family law, and state and territory family violence legislation. In this regard, the Commissions note stakeholder opinions that current definitional constraints in the Family Law Act are not always—or best—overcome by the exercise of discretion, or with regard to the Family Court of Australia’s Family Violence Strategy.

6.105 To this end, the Commissions recommend that the same core definition of family violence that is recommended for family violence legislation should also be adopted in the Family Law Act. That is, family violence should be given a definition that describes the context in which acts take place. Family violence should be defined as violent or threatening behaviour, or any other form of behaviour that coerces or controls a family member or causes that family member to be fearful—the approach recommended by the VLRC in its 2006 Report.[140] The definition should then set out non-exhaustive types of physical and non-physical behaviour that may fall within this definition, as outlined in Recommendation 6–4 below, mirroring the same types of conduct—including sexual assault, economic abuse and emotional abuse—that the Commissions have recommended be addressed in family violence legislation.[141] A summary of the key benefits of having a common core definition of family violence together with a shared understanding of what may fall within that definition across family law and family violence legislation is set out at the end of this chapter.

6.106 The Commissions consider that the definition that is recommended will assist in educating those engaged in the family law system about the complexities and nuances of family violence.

Removal of reasonableness test

6.107 The Commissions remain of the view expressed in the Consultation Paper that the semi-objective test of reasonableness should be removed from the definition of family violence in the Family Law Act on the basis that it is inappropriate to apply a test of reasonableness to the experience of fear in determining whether conduct is violent. To do so ignores the psychological impact of family violence, especially within the context of a controlling relationship.[142]

6.108 The Commissions’ approach is consistent with that taken by the Family Law Council in its December 2009 advice to the Australian Government Attorney-General.[143] As above, the Council recommended that the Family Law Act define ‘family violence’ in the same way that it has been defined under the Victorian family violence legislation,[144] noting that this approach would remove the objective element contained in the definition.[145]

6.109 The Chisholm Review recommended that, if the Australian Government did not adopt its recommendations about reforming the shared parenting provisions, then it should

strengthen the provisions of the Act relating to family violence, including more detail about the nature and consequences of family violence, and that it consider in this connection adapting some of the provisions of the Victorian or other state and territory legislation relating to family violence.[146]

6.110 The Commissions note, however, that the Chisholm Review took a different stance on the removal of the reasonableness requirement, expressing the view that the

correct interpretation of the requirement of reasonableness would take the context into account, and ask whether a person in the victim’s position, having experienced the history of violence, and knowing the meaning [for example, of a particular gesture] would have a reasonable fear … [and that] the inclusion of the concept of reasonableness has merit, and the question is whether it has in fact been interpreted in ways that are unfair to victims.[147]

6.111 The Chisholm Review stated that the information available before it did not indicate that the definition had in fact malfunctioned in that way, and did not recommend 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’.[148]

6.112 As discussed above, the Commissions consider that the definitions of family violence in family violence legislation and the Family Law Act should be consistent. The Commissions, therefore, do not make a separate recommendation about the removal of the reasonableness test from the definition of family violence in the Family Law Act—given that the definition that they have recommended does not include the test of reasonableness.

Cultural change

6.113 Changes in definition cannot in themselves bring about cultural change in attitudes towards violence. One stakeholder has expressed concern about the extent to which family violence is referred to as ‘conflict’ or ‘entrenched conflict’ in the family law system, including in the case law.[149] There is room for improvements in judicial and legal education in this regard. The Commissions endorse the recommendation made by the Chisholm Review that:

The Government, the family law courts and other agencies and bodies forming part of the family law system consider ways in which those working in the family law system might be better educated in relation to issues of family violence.[150]

Recommendation 6–4 The Family Law Act 1975 (Cth) should adopt the same definition as recommended to be included in state and territory family violence legislation (Rec 5–1). That is, ‘family violence’ should be defined as violent or threatening behaviour, or any other form of behaviour, that coerces or controls a family member or causes that family member to be fearful. Such behaviour may include but is not limited to:

(a) physical violence;

(b) sexual assault and other sexually abusive behaviour;

(c) economic abuse;

(d) emotional or psychological abuse;

(e) stalking;

(f) kidnapping or deprivation of liberty;

(g) damage to property, irrespective of whether the victim owns the property;

(h) causing injury or death to an animal, irrespective of whether the victim owns the animal; and

(i) behaviour by the person using violence that causes a child to be exposed to the effects of behaviour referred to in (a)–(h).

Typologies of violence

6.114 An issue that arises in considering the parameters of the legislative definition of family violence in the Family Law Act is whether it is feasible for the Act to differentiate between types of family violence.

6.115 Since the 1980s social scientists—including the American sociologist Dr Michael Johnson—have developed various theories to describe different types of family violence.[151] The typologies generally reflect the proposition that family violence committed by men, and that committed by women, have different meanings and impacts. These typologies have been the subject of extensive debate. The following five typologies have been identified:

  • coercive controlling violence—also referred to as intimate or patriarchal terrorism;

  • common couple violence—also referred to as situational couple violence;

  • violent resistance;

  • separation-instigated violence; and

  • mutual violent control.

6.116 The typologies do not purport to deal with other types of violence, such as violence against children, or family violence within Indigenous communities.[152]

Coercive controlling violence

6.117 Coercive controlling violence has control at its core. Johnson describes it as ‘a product of patriarchal traditions of men’s rights to control ‘their’ women’ and

as a form of terroristic control of wives by their husbands that involves the systematic use of not only violence but economic subordination, threats, isolation and other control tactics.[153]

6.118 Johnson claims that ‘patriarchal terrorism’ is almost exclusively committed by men against women[154]—an assertion which the One In Three Campaign has disputed in a submission to this Inquiry.[155]

6.119 Other features of this category of violence are that the violence usually escalates and that the victim rarely fights back or stops fighting back after initial attempts to do so.[156] Dr Joan Kelly and Johnson comment that it is not atypical for victims of this category of violence to report that the psychological effect of their experience is worse than the physical impact.[157]

Common couple/situational violence

6.120 Common couple/situational violence is not characterised by the dynamics of power and control. It arises from specific situations or arguments. It usually involves less serious forms of violence compared to coercive controlling violence. Kelly and Johnson state that this form of violence is used by both men and women. It is less likely to escalate over time, and is more likely to cease after separation.[158]

Violent resistance

6.121 Violent resistance describes the situation where a spouse uses violence—but not control—in response to coercive controlling violence. This type of violence is said to be almost entirely engaged in by women.[159]

Separation-instigated violence

6.122 As its name suggests, separation-instigated violence is violence instigated by the separation of an intimate couple where there was no prior history of violence in the relationship or in other settings.[160] Kelly and Johnson comment that this type of violence represents an ‘atypical and serious loss of psychological control’; that it is unlikely to occur again; and that those who use it ‘are more likely to acknowledge their violence rather than use denial’.[161]

6.123 A 2009 study by Parkinson and others found that of 181 parents in Australia who had been involved in parenting disputes after separation:

While there were certainly some histories of severe pre-separation violence, for a majority of respondents, the basis for the family violence order was post-separation conflict, without any reported history of violence in the course of their cohabitation.[162]

Mutual violent control

6.124 Mutual violent control refers to situations where both partners use violence to control the other. Johnson and Professor Kathleen Ferraro note that this type of violence is rare and that not much is known about its dynamics.[163]

Role of typologies in law

6.125 There are issues about whether such typologies have any role to play in legal frameworks and, if they do, what that role should be. Altobelli advocates the use of typologies of family violence espoused by social scientists such as Johnson, Kelly and Dr Peter Jaffe to enable more nuanced judicial responses to family violence in crafting parenting arrangements which are not only child-focused but also protect victims and children.[164] He stresses the importance of considering the context of violence, noting that the definition of family violence in the Family Law Act focuses on conduct having a certain effect, irrespective of context.[165] Altobelli relies, in part, on Professor Nancy Ver Steegh’s following hypothetical to support the case for differentiation:

Consider a situation where partner A slaps partner B. First imagine that when the incident takes place there is no prior history of physical violence or of other abusive behaviours between A and B. Then imagine that, although this incident is the first instance of physical violence, A has previously undermined B’s efforts to seek employment, denigrated B’s parenting in front of the children, and isolated B from her family and friends. Then imagine a situation where A broke B’s nose the week before and A is threatening to kill B and harm their children. The act of slapping is the same in each situation but the outcome and consequences are very different.[166]

6.126 Altobelli notes the dangers in the differentiation process:

The consequences of inaccurate differentiation are potentially serious. At one end of the spectrum there is the risk of endangering victims and their children. At the other end there is the danger of unnecessarily restricting parental contact with children.[167]

6.127 These typologies have been the subject of criticism and debate. For example, Fehlberg and Behrens, while acknowledging that the typologies provide useful ways of thinking about violence, also caution that they may tend to oversimplify a complex problem, particularly if they are applied in a legal setting.

There are potential dangers with taking it further. Its use in actual legal application could justify the adoption of an unhelpful set of dichotomies, in which violence is classified as ‘common couple’ violence and therefore not harmful, or ‘patriarchal terrorism’ and therefore harmful.[168]

6.128 Dr Jane Wangmann also cautions against the incorporation of the typologies into the legal system, including on the basis that the categories ‘may inadvertently reinforce current myths about [family] violence’.[169]

Submissions and consultations

6.129 In the Consultation Paper, the Commissions expressed the view that while the typologies developed by social scientists may have a role to play in enhancing understanding about the potential dynamics of different types of family violence, it is inappropriate for such typologies to be translated into legislative frameworks.[170]

6.130 Two stakeholders expressed diverse views on this issue. Wangmann submitted that:

at present, the use of such typologies is premature at any stage in the legal process—whether as a screening tool for primary dispute resolution, to guide legal practitioners, or in judicial education. These are also important stages of the legal process—particularly given the very small number of family law cases that reach a final determination—and as such, questions about the appropriateness of applying typologies extends well beyond whether they are to be incorporated in legislation.

We need to be cautious about the advocacy for the use of typologies at these pre-court stages—such typologies are still not well understood, they are open to considerable misunderstanding and misapplication, and thus have the potential to greatly impact on how cases are perceived and dealt with by lawyers, family relationship centres and judicial officers. It is worth noting that even Michael Johnson notes that the development and application of these typologies are in their ‘infancy’.[171]

6.131 Conversely, the One in Three Campaign submitted that such typologies should be reflected in legislative frameworks:

Without typologies embedded into legislative frameworks, we would rely simply upon judicial education processes to capture critical distinctions between different types, contexts and severities of violence. It is simply inappropriate for all ‘family violence’ to be lumped together when the effects, dynamics and outcomes for victims and children from different types, contexts and severities of violence differ so widely.[172]

Commissions’ views

6.132 The Commissions welcome further research on the typologies of violence that captures the depth and range of experiences of family violence—particularly in light of concerns that have been expressed about their relative under-development and potential for misunderstanding. The Commissions consider that, in time, the typologies may have a role to play in enhancing understanding about the potential dynamics of different types of family violence.

6.133 However, it is inappropriate for such typologies to be translated into legislative frameworks. First, the task of defining the typologies with any degree of certainty and precision appropriate for legislative application is fraught with difficulties. Secondly, legislative inclusion of the typologies could lead to a rigid and artificial hierarchy and, as noted by one stakeholder, could lead to misapplication. The Commissions remain of the view that the definition of family violence in the Family Law Act should not distinguish family violence on the basis of typologies. Judicial officers should retain a broad discretion to deal with matters on their facts in the best interests of children.[173] However, there is no reason why, in appropriate cases, expert evidence should not be received about typologies of violence which may assist the exercise of judicial discretion.

[63] Child protection is discussed in Part E.

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

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

[66] Ibid, 215. Section 60D previously defined family violence as ‘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 to fear for, or to be reasonably apprehensive about, his or her personal wellbeing or safety’.

[67] Ibid, 215.

[68] Senate Standing Committee on Legal and Constitutional Affairs—Parliament of Australia, Inquiry into the Provisions of the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (2006), [3.97].

[69]Comment on ALRC Family Violence Online Forum: Women’s Legal Service Providers.

[70] Ibid.

[71] R Chisholm, Family Courts Violence Review (2009), 143.

[72] 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), 25, Rec 1.

[73] Ibid, 26.

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

[75] Family Court of Australia, Family Violence Strategy (2004–2005), 1. The Strategy addresses five key areas: information and communication, safety, training, resolving the dispute, and making the decision.

[76] Ibid, 1.

[77] Ibid, 3 (citation omitted). The Commissions were informed in consultation that, in practice, the Strategy is adopted by both the Family Court of Australia and the Federal Magistrates Court: Federal Magistrates Court, Consultation, Sydney, 3 February 2010.

[78] R Kaspiew, ‘Family Violence in Children’s Cases under the Family Law Act 1975 (Cth): Past Practice and Future Challenges’ (2008) 14 Journal of Family Studies 279, 287. The risk of potentially inconsistent approaches to conceptualising family violence for the purpose of resolving family law disputes contradicts the principles of seamlessness and fairness, underlying the Commissions’ approach to this Inquiry, as discussed in Ch 3.

[79] Ibid, 287.

[80]Family Law Act 1975 (Cth) s 43(1)(ca). In this chapter, the term ‘family courts’ is used to refer to courts exercising jurisdiction under the Family Law Act,including the Family Court, Federal Magistrates Court, and state and territory courts exercising family law jurisdiction.

[81] Ibid s 60CC(2)(b).

[82] Ibid s 60CC(3)(j). There is some debate about the significance of the 2006 amendments to the Family Law Act which introduced ‘primary’ and ‘secondary’ considerations. See Ch 16 for discussion of how the Family Courts Violence Review, undertaken by Professor Richard Chisholm (the Chisholm Review), recommended this distinction be dealt with.

[83] Ibid s 4.

[84] Ibid s 60CC(3)(k).

[85] Ibid s 60CG.

[86]Family Law Regulations 1984 (Cth) sch 8.

[87]Justices Act 1959 (Tas).

[88]Family Violence Act 2004 (Tas) s 4 (definition of ‘family relationship’).

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

[90] The role of protection orders in making parenting orders is discussed in Ch 16.

[91] Consultation Paper, Question 4–4.

[92] Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence: Improving Legal Frameworks, ALRC Consultation Paper 1, NSWLRC Consultation Paper 9 (2010), Question 4–5.

[93] Confidential, Submission FV 96, 2 June 2010.

[94] T Searle, Submission FV 108, 2 June 2010. See also Women’s Legal Service Queensland, Submission FV 185, 25 June 2010, which expressed the view that protection orders are ‘routinely ignored/devalued/downplayed’.

[95] C Pragnell, Submission FV 70, 2 June 2010.

[96] Women’s Legal Services NSW, Submission FV 182, 25 June 2010.

[97] Ibid.

[98] Women’s Legal Service Queensland, Submission FV 185, 25 June 2010.

[99] Justice for Children, Submission FV 148, 24 June 2010.

[100] Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010.

[101] For example, Confidential, Submission FV 183, 25 June 2010; Peninsula Community Legal Centre, Submission FV 174, 25 June 2010.

[102] Confidential, Submission FV 183, 25 June 2010.

[103] Peninsula Community Legal Centre, Submission FV 174, 25 June 2010.

[104] Queensland Law Society, Submission FV 178, 25 June 2010.

[105] Crossroads Community Care Centre Inc, Submission FV 211, 25 June 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Women’s Legal Centre (ACT & Region) Inc, Submission FV 175, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; Berry Street Inc, Submission FV 163, 25 June 2010; The Central Australian Aboriginal Family Legal Unit Aboriginal Corporation, Submission FV 149, 25 June 2010; Justice for Children, Submission FV 148, 24 June 2010; Police Association of New South Wales, Submission FV 145, 24 June 2010; Confidential, Submission FV 105, 6 June 2010; Confidential, Submission FV 82, 2 June 2010; M Condon, Submission FV 45, 18 May 2010; P Easteal, Submission FV 40, 14 May 2010. One academic expressed the view that it ‘probably did not overcome the potential constraints’: N Ross, Submission FV 129, 21 June 2010.

[106] Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Women’s Legal Centre (ACT & Region) Inc, Submission FV 175, 25 June 2010; Berry Street Inc, Submission FV 163, 25 June 2010.

[107] Women’s Legal Service Queensland, Submission FV 185, 25 June 2010.

[108] Women’s Legal Services NSW, Submission FV 182, 25 June 2010.

[109] Crossroads Community Care Centre Inc, Submission FV 211, 25 June 2010.

[110] Confidential, Submission FV 81, 2 June 2010; Confidential, Submission FV 78, 2 June 2010.

[111] Confidential, Submission FV 183, 25 June 2010. A similar view was expressed in K Johnstone, Submission FV 107, 7 June 2010.

[112] T Altobelli, ‘Family Violence and Parenting: Future Directions in Practice’ (Paper presented at Australasian Institute of Judicial Administration Family Violence Conference, Brisbane, 2 October 2009), 43.

[113] Ibid, 43.

[114] Consultation Paper, Proposal 4–17.

[115] For example, National Legal Aid, Submission FV 232, 15 July 2010; Family Relationship Services Australia, Submission FV 231, 15 July 2010; Women’s Legal Services Australia, Submission FV 225, 6 July 2010; Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Crossroads Community Care Centre Inc, Submission FV 211, 25 June 2010; National Association of Services Against Sexual Violence, Submission FV 195, 25 June 2010; J Stubbs, Submission FV 186, 25 June 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Confidential, Submission FV 184, 25 June 2010; Queensland Law Society, Submission FV 178, 25 June 2010; N Norris, Submission FV 176, 25 June 2010; Confidential, Submission FV 171, 25 June 2010; Confidential, Submission FV 164, 25 June 2010; Berry Street Inc, Submission FV 163, 25 June 2010; K Greenland, Submission FV 161, 25 June 2010; Justice for Children, Submission FV 148, 24 June 2010; Police Association of New South Wales, Submission FV 145, 24 June 2010; N Ross, Submission FV 129, 21 June 2010; F Hardy, Submission FV 126, 16 June 2010; Domestic Violence Prevention Council (ACT), Submission FV 124, 18 June 2010; T Searle, Submission FV 108, 2 June 2010; Education Centre Against Violence, Submission FV 90, 3 June 2010; Confidential, Submission FV 81, 2 June 2010; Confidential, Submission FV 77, 2 June 2010; C Pragnell, Submission FV 70, 2 June 2010; M Condon, Submission FV 45, 18 May 2010; P Easteal, Submission FV 40, 14 May 2010.

[116] The Central Australian Aboriginal Family Legal Unit Aboriginal Corporation, Submission FV 149, 25 June 2010.

[117] For example, National Legal Aid, Submission FV 232, 15 July 2010; Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; National Association of Services Against Sexual Violence, Submission FV 195, 25 June 2010; Victorian Government, Submission FV 120, 15 June 2010.

[118] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010.

[119] Confidential, Submission FV 171, 25 June 2010.

[120] For example, NSW Women’s Refuge Movement Working Party Inc, Submission FV 188, 25 June 2010; Confidential, Submission FV 77, 2 June 2010.

[121] For example, NSW Women’s Refuge Movement Working Party Inc, Submission FV 188, 25 June 2010; K Greenland, Submission FV 161, 25 June 2010; F Hardy, Submission FV 126, 16 June 2010.

[122] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010.

[123] P Easteal, Submission FV 40, 14 May 2010.

[124] Confidential, Submission FV 164, 25 June 2010.

[125] P Parkinson, Submission FV 104, 5 June 2010.

[126] T McLean, Submission FV 204, 28 June 2010.

[127] Consultation Paper, Proposal 4–18. The Commissions noted that a consultation with some federal magistrates suggests that the reasonableness requirement has little practical impact.

[128] For example, Family Relationship Services Australia, Submission FV 231, 15 July 2010; Women’s Legal Services Australia, Submission FV 225, 6 July 2010; Crossroads Community Care Centre Inc, Submission FV 211, 25 June 2010; National Abuse Free Contact Campaign, Submission FV 196, 26 June 2010; J Stubbs, Submission FV 186, 25 June 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Confidential, Submission FV 184, 25 June 2010; Confidential, Submission FV 183, 25 June 2010; Queensland Law Society, Submission FV 178, 25 June 2010; N Norris, Submission FV 176, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; Confidential, Submission FV 164, 25 June 2010; Confidential, Submission FV 162, 25 June 2010; K Greenland, Submission FV 161, 25 June 2010; National Council of Single Mothers and their Children Inc, Submission FV 144, 24 June 2010; Justice for Children, Submission FV 148, 24 June 2010; Police Association of New South Wales, Submission FV 145, 24 June 2010; Confidential, Submission FV 130, 21 June 2010; N Ross, Submission FV 129, 21 June 2010; Confidential, Submission FV 128, 22 June 2010; Domestic Violence Prevention Council (ACT), Submission FV 124, 18 June 2010; K Johnstone, Submission FV 107, 7 June 2010; Education Centre Against Violence, Submission FV 90, 3 June 2010; Confidential, Submission FV 81, 2 June 2010; Confidential, Submission FV 78, 2 June 2010; C Pragnell, Submission FV 70, 2 June 2010; M Condon, Submission FV 45, 18 May 2010.

[129] For example, Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010.

[130] Berry Street Inc, Submission FV 163, 25 June 2010.

[131] K Johnstone, Submission FV 107, 7 June 2010.

[132] NSW Women’s Refuge Movement Working Party Inc, Submission FV 188, 25 June 2010.

[133] Confidential, Submission FV 171, 25 June 2010.

[134] Ibid.

[135] Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010.

[136] Women’s Legal Services NSW, Submission FV 182, 25 June 2010.

[137] Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010.

[138] One in Three Campaign, Submission FV 35, 12 May 2010.

[139] T McLean, Submission FV 204, 28 June 2010.

[140] Victorian Law Reform Commission, Review of Family Violence Laws: Report (2006), Rec 14.

[141] Rec 5–1.

[142] This view is expressed in the context of defining family violence. However, as discussed in Ch 7, it is appropriate to adopt a reasonableness test in ascertaining whether there are grounds for obtaining a protection order—given the preventative focus of issuing such an order.

[143] 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).

[144] Ibid, 25, Rec 1.

[145] Ibid, 26.

[146] R Chisholm, Family Courts Violence Review (2009), Rec 3.6.

[147] Ibid, 147.

[148] Ibid.

[149]Comment on ALRC Family Violence Online Forum: Women’s Legal Service Providers. See also Eddy v Weaver [2009] FMCAfam, [4], [122], [123].

[150] R Chisholm, Family Courts Violence Review (2009), Rec 4.3. Training and education are addressed generally in Ch 31.

[151] Others who have written in this area include Kathleen Ferraro, Peter Jaffe and Nancy der Steegh. See, eg, N Ver Steegh and C Dalton, ‘Report from the Wingspread Conference on Domestic Violence and Family Courts’ (2008) 46 Family Court Review 454.

[152] B Fehlberg and J Behrens, Australian Family Law: The Contemporary Context (2008), 196.

[153] M Johnson, ‘Patriarchal Terrorism and Common Couple Violence: Two Forms of Violence Against Women’ (1995) 57 Journal of Marriage and Family 283, 285, cited in B Fehlberg and J Behrens, Australian Family Law: The Contemporary Context (2008), 194.

[154] M Johnson, ‘Patriarchal Terrorism and Common Couple Violence: Two Forms of Violence Against Women’ (1995) 57 Journal of Marriage and Family 283, 286.

[155] One in Three Campaign, Submission FV 35, 12 May 2010.

[156] B Fehlberg and J Behrens, Australian Family Law: The Contemporary Context (2008), 195 (citation omitted).

[157] J Kelly and M Johnson, ‘Differentiation Among Types of Intimate Partner Violence: Research Update and Implications for Intervention’ (2008) 46 Family Court Review 476, 483.

[158] Ibid, 485–488.

[159] Ibid, 484–485.

[160] T Altobelli, ‘Family Violence and Parenting: Future Directions in Practice’ (Paper presented at Australasian Institute of Judicial Administration Family Violence Conference, Brisbane, 2 October 2009), 17.

[161] J Kelly and M Johnson, ‘Differentiation Among Types of Intimate Partner Violence: Research Update and Implications for Intervention’ (2008) 46 Family Court Review 476, 487–488.

[162] P Parkinson, J Cashmore and J Single, Post-Separation Conflict and The Use of Family Violence Orders (2009) 1, 10.

[163] M Johnson and K Ferraro, ‘Research on Domestic Violence in the 1990s: Making Distinctions’ (2000) 62 Journal of Marriage and the Family 948, 950.

[164] T Altobelli, ‘Family Violence and Parenting: Future Directions in Practice’ (Paper presented at Australasian Institute of Judicial Administration Family Violence Conference, Brisbane, 2 October 2009), 20.

[165] Ibid, 13, 42.

[166] N Ver Steegh and C Dalton, ‘Report from the Wingspread Conference on Domestic Violence and Family Courts’ (2008) 46 Family Court Review 454.

[167] T Altobelli, ‘Family Violence and Parenting: Future Directions in Practice’ (Paper presented at Australasian Institute of Judicial Administration Family Violence Conference, Brisbane, 2 October 2009), 19.

[168] B Fehlberg and J Behrens, Australian Family Law: The Contemporary Context (2008), 196.

[169] J Wangmann, ‘“She Said …” “He said …” : Cross Applications in NSW Apprehended Domestic Violence Order Proceedings’, Thesis, University of Sydney, 2009, 48.

[170] Consultation Paper, [4.160].

[171] J Wangmann, Submission FV 170, 25 June 2010 (citations omitted).

[172] One in Three Campaign, Submission FV 35, 12 May 2010.

[173] As discussed in Ch 7, to assist in the development of a common interpretative framework, the Family Law Act and each of the family violence Acts of the states and territories should contain a section setting out the features and dynamics of family violence.