Persons protected

7.137 In order for a person to obtain a protection order under family violence legislation, that person needs to be in a defined relationship with the person engaging in violence. This section discusses the relationships covered by family violence legislation across the states and territories, and considers whether there should be greater consistency in response to persons protected generally, and in relation to certain categories of relationships—Indigenous concepts of family, members of culturally recognised family groups, and carers.

7.138 The United Nations Department of Economic and Social Affairs Division for the Advancement of Women has recommended that family violence legislation should apply at a minimum to:

individuals who are or have been in an intimate relationship, including marital, non-marital, same sex and non-cohabiting relationships; individuals with family relationships to one another; and members of the same household.^[169]

7.139 Relationships covered by family violence legislation across the jurisdictions differ in some key respects. Table A sets out a summary of the relationships that are covered across the jurisdictions.

7.140 Family violence legislation in the Northern Territory expressly includes dating relationships, as does the Queensland legislation where the lives of the parties are or have been enmeshed.^[170] While same sex relationships are not expressly included in most family violence legislation, the language of the Acts does not exclude same sex couples.^[171]

7.141 Most state and territory family violence legislation includes relatives within their ambit—although the class of persons is variously defined. Some jurisdictions recognise violence between persons who live together in the same household (that is, without being in a relationship) as family violence.^[172] Other jurisdictions recognise meaningful personal relationships between people outside conventional definitions. In Victoria, a family member can include any person whom the relevant person regarded as being like a family member having regard to the circumstances of the relationship.^[173] In Western Australia, a ‘personal relationship of a domestic nature in which the lives of the persons are, or were, interrelated and the actions of one person affects or affected, the other person’ is within the scope of the family violence legislation.^[174]

7.142 The Tasmanian Family Violence Act 2004 covers the narrowest range of relationships, in that it applies only to spouses and unmarried couples.^[175] The legislation does not cover relations between parents and children, persons and ancestors, or siblings. Persons in these types of relationships and other relatives can seek restraining orders under the Justices Act 1959 (Tas), but the grounds for obtaining a restraining order under this Act are more limited than those under the family violence legislation.^[176] In addition, the penalties for breaching restraining orders under the Justices Act are significantly lower than those that attach to breaches of an order under the family violence legislation.^[177] In effect, this means that people in certain family relationships are given less protection from violence by the law than others.

7.143 The 2008 Review of the Family Violence Act 2004 referred to criticisms by some stakeholders that the definition was too narrow to capture

the range of relationships which should attract the protection of the Act; and that the definition of family relationship should be sufficiently broad to cover all intimate personal relationships … people who are ordinarily members of the household and family relationships which reflect the extent of kinship within Indigenous and culturally and linguistically diverse communities.^[178]

7.144 In the Consultation Paper, the Commissions proposed that the Tasmanian Government should review the operation of the Family Violence Act 2004 (Tas) and the Justices Act 1959 (Tas) pt XA to establish equality of treatment of family members who are victims of family violence.^[179]

Submissions and consultations

7.145 Most stakeholders who commented on the proposal supported it.^[180] One stakeholder stated that ‘equality of treatment is vital for all family members who are victims of family violence’.^[181]

7.146 The Commissioner for Children (Tas) expressed the view that the Family Violence Act 2004 (Tas) provides inadequate protection for children, and that violence against children by parents and their partners should be included within the definition of family violence .^[182]

7.147 The Department of Premier and Cabinet (Tas) objected to the proposal. It expressed the view that ‘family violence legislation should only relate to individuals sharing an intimate relationship and should not be used to cover other types of family relationships’.^[183] It considered that family violence legislation may not be the most appropriate response to violence within broader categories of relationships, and submitted that alternative responses should be explored. The Legal Aid Commission of Tasmania also expressed this view.^[184] Both stakeholders cited concerns that including a broader range of relationships in family violence legislation may dilute the message about inter-spousal violence.

Commissions’ views

7.148 The Commissions’ view remains that persons in family relationships should have an equal level of protection both within and across jurisdictions. This position attracted widespread stakeholder support. One way of addressing this concern is to specify a core set of relationships that state and territory family violence legislation should cover.

7.149 The Commissions favour a modern, inclusive approach to the definition of family. Therefore, the categories recommended by the Commissions below constitute an essential core, to which states and territories may add consistently with the objective of ensuring equality of protection within the jurisdiction.

7.150 The Commissions consider that state and territory family violence legislation should cover, as the core group of persons protected, the following categories of relationships:

• 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
• members of other culturally recognised family groups.

7.151 This core group reflects the recommendation of the United Nations Department of Economic and Social Affairs Division for the Advancement of Women, with the exception of persons living in the same household. In NSW, where members of the same household are covered by family violence legislation, police have expressed the view that the operation of such a broad definition is problematic.^[185] The Commissions consider that whether to include persons living in the same household in family violence legislation is a matter for the states and territories to achieve consistency in the level of protection in the particular jurisdiction. To this end, where such persons are not covered by family violence legislation, they should have access to protection orders through other legislation.

7.152 The Commissions have concerns about the limited range of relationships covered by family violence legislation in Tasmania. In particular, the Commissions are concerned that certain family relationships—such as between parents and children and between siblings—are afforded less legal protection and redress on breach of a ‘restraint’ order than spouses and couples.

7.153 The Commissions do not make a separate recommendation regarding Tasmanian family violence legislation, as the general recommendation regarding a core group of protected persons applies to all state and territory family violence legislation. However, the Commissions consider that the Tasmanian Government should review the Family Violence Act 2004 to ensure that, at least, the core categories of relationships the subject of Recommendation 7–6 are covered by the Act.

Indigenous concepts of family

7.154 Indigenous women suffer a disproportionately high level of family violence.^[186] As noted in the Time for Action report, Indigenous women report higher levels of physical violence during their lifetime than non-Indigenous women, and they are much more likely to experience sexual violence and to sustain injury.^[187] Indigenous women may experience family violence within families, extended families, kinship networks and communities.

7.155 Family violence legislation in six jurisdictions expressly recognises an extended concept of relative among Indigenous peoples. Western Australian family violence legislation applies to persons who are related ‘taking into consideration [their] cultural, social or religious backgrounds’, which may cover persons who fall within Indigenous concepts of family.^[188] Tasmanian family violence legislation does not cover persons who fall within Indigenous concepts of family. Family violence legislation in Queensland, South Australia, Victoria and Western Australia covers members of other culturally recognised family groups.

7.156 The 2008 review of the Tasmanian family violence legislation stated that it had not tested the extent to which stakeholder views favouring a broadening of the definition to include Indigenous and other kin relationships had ‘thought through’ the implications of a criminal justice response. The Review stated ‘that if a broader definition were to be explored by the Tasmanian government, the implication of a criminal justice response is a critical point to test with stakeholders’.^[189]

7.157 In the Consultation Paper, the Commissions proposed that state and territory family violence legislation should include as protected persons those who fall within Indigenous concepts of family, as well as those who are members of some other culturally recognised family group.^[190]

7.158 There was strong widespread support for the proposal among stakeholders.^[191] Two stakeholders indicated that it was important that the communities affected should be consulted regarding changes to legislation.^[192]

Commissions’ views

7.159 The Commissions consider that persons protected by family violence legislation of each state and territory should include as protected persons those who fall within Indigenous concepts of family. This is particularly important given the high levels of family violence experienced by Indigenous family members, including women and children. The Commissions consider that the Family Violence Act 2004 (Tas) should be amended to capture such persons.

7.160 The Commissions acknowledge that family violence legislation in Western Australia is applicable to those who fall within Indigenous concepts of family. However, the Commissions consider that there is merit in making specific reference to Indigenous concepts of family in light of the disproportionately high rates of family violence in that community. The Commissions consider that the Restraining Orders Act 1997 (WA) should make specific reference to Indigenous concepts of family in provisions regarding persons protected.

7.161 Family violence legislation should also include as protected persons those who belong to culturally recognised family groups. The Commissions consider it important that the nature and details of such amendments are informed by consultation with Indigenous and CALD communities.

Carers

7.162 Family violence legislation in NSW and the Northern Territory protects persons in carer relationships, including paid carers.^[193] In Queensland, South Australia and the ACT, legislation provides that relationships with paid carers or a carer acting on behalf of another person or organisation are not included as a protected category.^[194] In Victoria, relationships with paid and unpaid carers are expressly covered where that relationship is family-like.^[195] Family violence legislation in Tasmania and Western Australia does not address relationships with carers.

7.163 In jurisdictions that exclude paid carers, or do not include carers in the legislation, it is possible that individual relationships may be captured by some other recognised category of relationship.

7.164 In the Consultation Paper, the Commissions asked whether relationships with carers—including those who are paid—should be included in the relationships covered by family violence legislation.^[196]

Submissions and consultations

7.165 Stakeholders expressed a range of views. Some submissions supported the inclusion of paid and unpaid carers in family violence legislation.^[197] For example, in a joint submission, Domestic Violence Victoria and others emphasised that violence in relationships with carers has the same dynamics or characteristics as family violence:

These essential dynamics are an intimate environment and a relationship of ‘power over’ brought about by the dependency of the person in relation to requiring intimate personal care and assistance with basic survival and daily living.^[198]

7.166 Some stakeholders cited concerns about a gap in protection for the most vulnerable people in society—for example, people with disabilities, older persons, children and young people—if relationships with paid carers are not captured by family violence legislation.^[199] Family violence legislation was considered an effective way of providing protection that could be obtained urgently, while potentially maintaining the relationship between the parties.

7.167 Several stakeholders opposed relationships with any carers—paid or unpaid—being included as a separate category of persons protected.^[200] The Commissioner for Victims’ Rights (South Australia) supported the inclusion of relationships with carers in family violence legislation only where the carer is in a family relationship with the person he or she is caring for.^[201]

7.168 The Victorian Government distinguished relationships with carers that were family-like from other relationships involving the provision of care. The Victorian Government supported the inclusion of carers—both paid and unpaid—in circumstances where the carers are in a family-like relationship with the victim.^[202] Its submission referred to the Victorian family violence legislation as a model. This was also the model preferred by Wirringa Baiya Aboriginal Women’s Legal Centre Inc.^[203]

7.169 However, the Magistrates’ Court and Children’s Court of Victoria expressed concern with the Victorian approach. It noted that dealing with relationships with carers under different legislation, depending on whether or not the carer has a family-like relationship with the victim, leads to complexity. The court submitted that ‘it may be preferable if all carer relationships could be dealt with under the one Act’.^[204]

7.170 Other stakeholders distinguished between relationships with carers who are paid, and relationships with carers who are unpaid. These submissions supported the inclusion of relationships with carers in family violence legislation only where the carers are unpaid, or the relationship is an informal care relationship.^[205]

7.171 The Queensland Government expressed concern that including informal carers in the Domestic and Family Violence Protection Act 1989 (Qld) would significantly increase the ambit of the legislation, and suggested that consideration be given to other approaches to deal with abuse in the context of formal care.^[206] The Department of Premier and Cabinet (Tas) also stated that in Tasmania, violence in carer relationships may be dealt with by other legislative schemes.^[207]

7.172 Two stakeholders outlined problems regarding the operation of the NSW family violence legislation, which includes relationships with paid carers.^[208] Legal Aid NSW commented that, in some circumstances, the person using violence may be the person requiring care, and the use of family violence orders by paid carers against the person for whom they are caring may operate to disadvantage vulnerable people.^[209]

7.173 A number of stakeholders who opposed the application of family violence legislation to relationships with paid carers stated that these relationships are of a different nature from the domestic, family or personal relationships which may involve the provision of unpaid care.^[210] For example, Commissioner for Victims’ Rights (South Australia) stated that, in broadening the definition of family violence to include relationships with unrelated paid carers, the concept of family violence is altered.^[211]

Commissions’ views

7.174 Persons in relationships involving the provision of paid or unpaid care are entitled to protection from abuse. Family violence legislation may provide such protection to the most vulnerable in our communities— persons living with disabilities, older persons, children and young people—in an accessible and efficient way.

7.175 However, the Commissions note the difficulties identified by some stakeholders in the operation of family violence legislation which includes paid carers. The Commissions have concerns that including relationships with paid carers in family violence legislation may in some instances operate to further disadvantage persons requiring care.

7.176 In many cases, relationships with carers fall within other recognised categories of family relationships. The Commissions do not consider it essential that relationships with carers which do not fall within those categories should be included in family violence legislation in all states and territories. Legislation other than family violence legislation should provide persons in such relationships with access to protection orders. Therefore the Commissions do not make a recommendation that state and territory family violence legislation should cover relationships with carers.