Common interpretative framework

Concepts of family violence

3.3 There is no single nationally or internationally agreed definition of family violence. As noted in Chapter 2, the United Nations Declaration on the Elimination of Violence against Women defines violence against women as

any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life.^[1]

3.4 As the Australian Bureau of Statistics has noted, definitions of what constitutes family violence are inherently likely to differ across the legal sector, researchers and service providers. These definitions do not always necessarily align with community understandings, or victim and offender perspectives, of what constitutes family violence.^[2]

3.5 In Family Violence—A National Legal Response,ALRC 114 (2010), the ALRC and New South Wales Law Reform Commission (the Commissions) undertook a detailed review of the various definitions of family violence—or ‘domestic violence’ or ‘domestic abuse’ as it is referred to in some jurisdictions—as a first step in the consideration of the interaction issues across and within jurisdictions that was required by the Terms of Reference for that inquiry. The Commissions identified the wide variations in definitions of family violence in Australia in: family violence legislation, the Family Law Act 1975 (Cth), the criminal law, and other types of legislation such as victims’ compensation legislation and migration regulations.^[3]

3.6 A key plank of the recommendations in Family Violence—A National Legal Response was the adoption of a common interpretative framework across the legislation under review. The recommendations included establishing a shared understanding of what constitutes family violence across these legislative schemes—and of the nature, features and dynamics of family violence. In relation to state and territory family violence legislation, the recommendations also involved the adoption of core guiding principles based on a human rights framework, the adoption of core purposes, and striving for equality of treatment of family violence victims by establishing common grounds for obtaining protection orders and a core set of persons to be protected.

Towards a common definition

3.7 In developing a definition of family violence in Family Violence—A National Legal Response, the Commissions noted that, whatever form family violence takes, a central feature is that it involves a person exercising control and power over the victim by inducing fear, for example by using threatening behaviour.^[4] Definitions of family violence usually recognise that violence can constitute more than single ‘incidents’. It can involve ‘a continuum of controlling behaviour and violence, which can occur over a number of years’.^[5]

3.8 The Commissions considered that the critical assessment of definitional issues was relevant to the important question of when it is appropriate for the law to intervene to provide protection or other forms of redress to victims. On the one hand, excessively narrow definitions of family violence might cause gaps in protection to victims. On the other, excessively broad definitions may detract from the significance of family violence or devalue the experience of its victims or facilitate the abuse of the protection order system.^[6]

3.9 The common interpretative framework recommended in Family Violence—A National Legal Response is based on the same core definition of family violence, describing the context in which behaviour takes place, as well as a shared common understanding of the types of conduct that may fall within the definition of family violence in the following legislation:

• state and territory family violence legislation;

• the Family Law Act; and

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

3.10 The Commissions recommended that each legislative regime should provide that family violence is 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) above.

3.11 The Commissions considered that adopting consistent definitions of family violence across different legislative schemes allows the courts to send clear messages about what constitutes family violence.

Nature, features and dynamics of family violence

3.12 The Commissions also recommended that the common definition be complemented in family violence legislation by a provision that explains the nature, features and dynamics of family violence, including: while anyone may be a victim of family violence, or may use family violence, it is predominantly committed by men; it can occur in all sectors of society; it can involve exploitation of power imbalances; its incidence is underreported; and it has a detrimental impact on children. In addition, the Commissions recommended that family violence legislation should refer to the particular impact of family violence on: Indigenous peoples; those from a culturally and linguistically diverse (CALD) background; those from the gay, lesbian, bisexual, trans and intersex communities; older persons; and people with disability. The Commissions recommended the adoption of a similar provision in the Family Law Act.^[7]

3.13 The Commissions did not recommend 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 considered in the report. 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, which were also considered.^[8] The Commissions further considered that the adoption of a shared understanding of what constitutes family violence would not compromise the objects and purposes of the legislative schemes reviewed. What was considered crucial, however, is that common definitions of family violence reflect a consistent and shared understanding of the concepts that underlie the legislative schemes, reinforced by appropriate and regular training.

3.14 The Commissions considered 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 in the report. The Commissions considered that embracing a common understanding of family violence is also 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. Another significant benefit of adopting a commonly shared understanding of family violence is that it will facilitate the registration and enforcement of family violence protection orders under the proposed national registration of protection orders scheme, also considered in the report,^[9] and provide more useful and comparable data upon which policies to address family violence can be based.