Summary and effect of Commissions’ overall approach

6.156 The Commissions note the substantial stakeholder support for consistent definitions across different legislative frameworks. The overall effect of the Commissions’ approach, reflected in Recommendations 5–1 to 5–5 and 6–1 to 6–4, is that there should be the same core definition of family violence which describes the context in which behaviour takes place, as well as a shared common understanding of the types of conduct—both physical and non-physical—that may fall within the definition of family violence in the following legislation:

  • state and territory family violence legislation;

  • the Family Law Act;

  • the criminal law—in the limited circumstances where ‘family violence’ is defined in the context of defences to homicide; and

  • potentially, the Migration Regulations.

6.157 The Commissions remain of the view that conduct is either family violence or it is not. That is not to say that all types of conduct that constitute family violence should be criminalised, nor that family violence should be given the same treatment in the various legal frameworks under consideration. In each case, the severity and context of particular family violence may carry varying weight in different legal proceedings, depending on the reasons for advancing evidence of family violence and the purposes of the respective legal frameworks.

6.158 The Commissions do not consider that the adoption of the same core definition of family violence, together with a shared common understanding of the types of conduct that may constitute family violence—including, as proposed in Chapter 7, a common understanding of the features and dynamics of family violence—in any way compromises the objects and purposes of the legislative schemes that are the subject of this approach.[203] It is imperative that common definitions of family violence are supported by a consistent and shared understanding of the concepts that underlie them.

6.159 The Commissions consider that significant systemic benefits would flow from the adoption of a common interpretative framework, across different legislative schemes, promoting the foundational policy principles of seamlessness and effectiveness underlying the approach to reform advocated by this Inquiry.[204] It would also deliver benefits to victims. Currently, a victim of family violence involved in multiple proceedings has to contend with the fact that conduct recognised in one jurisdiction as family violence may not necessarily be recognised as such in another. One stakeholder noted that this may not only cause confusion but may ‘even feel like systemic abuse’.[205]

6.160 The adoption of a common understanding of family violence is likely to have a positive flow-on effect in the gathering of evidence of family violence for use in more than one set of proceedings. This is likely to be of practical importance given the frequency, for example, of family violence allegations in the federal family courts,[206] and the frequent overlap of family law proceedings and protection order proceedings.

6.161 Such adoption is also likely to overcome the potential for family violence to be treated differently in family law proceedings depending on whether or not a party to those proceedings—who is a victim of family violence—has, in fact, obtained a state or territory protection order.

6.162 Another significant benefit of adopting a commonly shared understanding of family violence is that it will facilitate the registration and enforcement of protection orders under the proposed national registration of family violence orders scheme.[207]

6.163 In addition, it will facilitate the capture of statistics about family violence based on a commonly shared understanding of family violence, thereby providing more useful and comparable data upon which policies to address family violence can be advanced.[208]

6.164 The Commissions also consider that the adoption of a commonly shared understanding of what constitutes family violence will complement the recommendations made by the Family Law Council to establish a common knowledge base regarding family violence.[209]

6.165 The Commissions agree with the views expressed by the Magistrates’ Court and Children’s Court of Victoria that adopting consistent definitions of family violence across different legislative schemes allows the courts to send clear messages about what constitutes family violence.

6.166 In particular, the Commissions consider that their approach of recommending a core definition of family violence which emphasises the context in which family violence occurs—as opposed to focusing on discrete incidents of violence devoid of a context—should play a significant role in minimising the risk of litigation abuse—especially in the vexatious use of cross applications for protection orders.

6.167 Finally, the Commissions consider that there is stronger case for uniformity of the definition of family violence across an individual state or territory’s family violence and criminal laws, in the limited circumstances where family violence is defined in the context of defences to homicide. Uniformity of the definition within an individual state or territory—as opposed to a core definition with a shared understanding of what constitutes family violence—has the advantage of clearly conveying a legislative intention for a consistent interpretation of family violence across criminal and civil jurisdictions. Moreover, this will also facilitate the proper recognition in the criminal law of the broad ambit of family violence, as discussed in Chapter 14, in the context of defences to homicide.

[203] The purposes of the various legislative schemes relevant to family violence are discussed in Ch 4. As noted above, the Commissions do not propose to apply this approach to legislation establishing victims’ compensation schemes.

[204] See Ch 3.

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

[206] A 2007 study found that more than half of the cases in the Federal Magistrates Court and the Family Court involved allegations of violence: L Moloney and others, Allegations of Family Violence and Child Abuse in Family Law Children’s Proceedings: A Pre-reform Exploratory Study (2007), prepared for the Australian Institute of Family Studies, vii.

[207] This scheme is discussed in Ch 30.

[208] Australian Bureau of Statistics, Conceptual Framework for Family and Domestic Violence (2009).

[209] 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), pt 6.