Common interpretative framework

Definition of family violence

9.61 As discussed in Chapter 3, the child support legislation does not include a definition of family violence. A broad definition is, however, contained in the Child Support Guide:

Family violence covers a broad range of controlling behaviours. They are commonly of a physical, sexual, and/or psychological nature, and 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.^[42]

9.62 The Child Support Guide also provides definitions for the following non-exhaustive list of behaviours that may be involved in family violence: physical abuse; sexual abuse; emotional abuse; verbal abuse; social abuse; economic abuse; and spiritual abuse.^[43]

9.63 In Chapter 3, the ALRC has proposed that the following definition of family violence be included in the Child Support Assessment Act and the Child Support (Registration and Collection) Act, in addition to other Commonwealth legislation:

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:

•  physical violence;
• sexual assault and other sexually abusive behaviour;
• economic abuse;
• emotional or psychological abuse;
• stalking;
• kidnapping or deprivation of liberty;
• damage to property, irrespective of whether the victim owns the property;
• causing injury or death to an animal irrespective of whether the victim owns the animal; and
• behaviour by the person using violence that causes a child to be exposed to the effects of behaviour referred to in (a)–(h) above.^[44]

 

9.64 In the ALRC’s preliminary consideration, the definition of family violence in the Child Support Guide should be amended to reflect this definition. This enhances consistency across the policy and legislative basis of the scheme. It provides victims with clarity and the certainty that family violence will be recognised and treated similarly across Commonwealth laws. It also provides increased certainty and a consistent training-basis for staff—particularly those who work across legislative regimes, such as Centrelink social workers. Further, a consistent definition across legislation and guidelines may foster a shared understanding across agencies, jurisdictions, courts and tribunals.

Nature, features and dynamics

9.65 In Family Violence—A National Legal Response, ALRC Report 114 (2010), the ALRC and the New South Wales Law Reform Commission (the Commissions)recommended that provisions regarding the nature, features and dynamics of family violence should be contained in state and territory family violence legislation. The recommended provision was:

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, family violence legislation should refer to the particular impact of family violence on: Indigenous persons; those from a culturally and linguistically diverse background; those from the gay, lesbian, bisexual, transgender and intersex communities; older persons; and people with disabilities.^[45]

9.66 The Commissions also recommended that the Family Law Act should be amended to include a similar provision.^[46]

9.67 The ALRC does not consider that such a provision is necessary in the child support legislation—as discussed above, prevention of family violence is not the primary purpose of child support legislation. However, there may be merit in including such a statement in the Child Support Guide. This would serve an important educative function—complementing proposals in relation to training in Chapter 4—and provide a contextual basis for case-management and screening.Such a measure also complements proposals regarding definitions in Chapter 3, by establishing a common interpretative framework around family violence across agencies and legal frameworks.