Implementation in the Family Law Act

3.17 The first step towards a common definition and a shared understanding of family violence in Commonwealth laws is the proposed amendment of the Family Law Act 1975 (Cth). After the release of Family Violence—A National Legal Response, the Australian Government introduced the Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 (Cth) (Family Violence Bill). Among other things, this Bill proposes an amendment to the definition of family violence in s 4(1) of the Family Law Act. The amended definition, while influenced by the work of the Commissions, was a little different from the definition recommended in the report.

3.18 The definition contained in the Bill, for enactment as s 4AB, provides that:

(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.

(2) Examples of behaviour that may constitute family violence include (but are not limited to):

(a) an assault; or

(b) a sexual assault or other sexually abusive behaviour; or

(c) stalking; or

(d) repeated derogatory taunts; or

(e) intentionally damaging or destroying property; or

(f) intentionally causing death or injury to an animal; or

(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or

(j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.

3.19 The Bill adopts the two-part approach to the definition recommended in Family Violence—A National Legal Response—providing a contextual core definition accompanied by a non-exhaustive list of examples. There are several differences between the definition in the Bill and that recommended by the Commissions, with respect to the list of behaviours that may constitute family violence. The Family Violence Bill sets this list out in proposed s 4AB(2). However, these differences are not necessarily inconsistent with the Commissions’ recommendation, which was flexible in relation to this second component of the definition.

3.20 The Family Violence Bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee (the Senate Committee), which reported in August 2011.^[12] The Committee’s response to the definition is considered below.

The breadth of the definition

3.21 Throughout the Senate Committee’s inquiry, the proposed definition of family violence in the Family Violence Bill attracted broad support from many experts and stakeholders—including on the grounds of its breadth and the range of behaviour captured.^[13] Others, however, opposed the proposed definition including on ‘precisely the same grounds’—that is, on the basis of the breadth and the range of behaviour captured.^[14] For example, the Family Law Practitioners Association of Western Australia argued that the proposed definition was ‘simply too wide and captures behaviour that goes well beyond that which most members of the community would define as “violence”’.^[15]

3.22 In its evidence and submission to the Committee, the ALRC stated that the Commissions’ recommended definition was not too broad. While the definition sets out a wide range of behaviour in its second component, the first component—the contextual core—acts as a ‘filter’ for these behaviours, operating to exclude conduct committed outside the context of controlling or coercive behaviour. For example, the recommended definition would exclude verbal abuse in the course of an intimate relationship, or acts of violent resistance by victims, where such conduct does not engender fear or does not form part of a pattern of controlling or coercive behaviour. This filter function was an important reason for the adoption of a two-part definition in Family Violence—A National Legal Response.

3.23 The ALRC acknowledged, however, that there may be one potentially over-inclusive aspect of the definition. Emeritus Professor Richard Chisholm, a former Justice of the Family Court and the writer of the report for the Attorney-General, the Family Courts Violence Review,^[16] was a key contributor to the Senate Inquiry. While generally supporting the Family Violence Bill definition, in giving evidence to the Senate Committee Chisholm pointed out one way in which the definition may be too broad. In relation to the definitional core included in s 4AB(1), he commented that:

If you focus on the ‘other behaviour’, you have got ‘family violence’ means other behaviour—that is, behaviour—that causes a family member to be fearful. So any behaviour that causes a family member to be fearful literally really fits in with this definition.^[17]

3.24 Chisholm’s submission to the Senate Committee’s inquiry illustrated the way in which this may be over-inclusive:

Suppose a family member tells another, correctly, that the family house is on fire, and this makes the person fearful. Or suppose a family member accidentally frightens another in the course of a practical joke. On a literal reading, such behaviour—telling the family member, carrying out the joke—could be seen as falling within the definition of ‘family violence’, because it is behaviour that causes the person to be fearful, and on a literal reading this would be enough to bring it within the definition of family violence.^[18]

3.25 Chisholm noted that the definition is obviously not intended to include such behaviour, and that courts may interpret it in such a way as to give it a ‘sensible operation’.^[19] However, he considered that the drafting of proposed s 4AB(1) could be improved to ‘preserve its substance, but to eliminate the problem of over-inclusion’.^[20] He suggested several possible improvements, including the following core definition:

For the purposes of this Act, family violence means behaviour by a person towards a member of the person’s family that is violent, threatening, coercive or controlling, or is intended to cause the family member to be fearful.^[21]

3.26 This suggested reformulation appears to sharpen the definition recommended by the Commissions and contained in the Family Violence Bill—addressing its unintended over-inclusiveness. Professor Chisholm’s suggestion was also supported by the Family Law Council^[22] and by Professor Rosalind Croucher and Ms Sara Peel in giving evidence on behalf of the ALRC.^[23] The re-focusing of the definition in the way proposed by Professor Chisholm advances the thinking expressed in this Inquiry and in the Commissions’ earlier work. It also meets some of the criticisms of stakeholders.^[24]

Illustrations of behaviour

3.27 In its submission to the Senate Committee, the ALRC drew attention to the ways in which the definition in the Bill deviated from that proposed in Family Violence—A National Legal Response, including as outlined below.^[25]

3.28 Economic abuse: The ALRC submitted that economic abuse should be expressly recognised as a type of behaviour that may fall within the definition of family violence.^[26] The definition may then be supplemented by a further definition of ‘economic abuse’, with non-exhaustive illustrative examples of such abuse.^[27] Examples may include: coercing a partner to relinquish control over assets; coercing a person to claim social security payments; preventing a person from seeking or keeping employment; and the practice of ‘humbugging’ in Indigenous communities—that is, demanding money from relatives, often by the use of standover tactics.^[28]

3.29 Emotional or psychological abuse: In Family Violence—A National Legal Response, the conduct listed in the proposed s 4AB(2)(d), that is, ‘repeated derogatory taunts’, was characterised more broadly as ‘emotional or psychological abuse’. The ALRC considers that this broader definition is preferable. As discussed above, concerns that specifying emotional or psychological abuse as a type of family violence may lead to misuse are addressed by placing this conduct in the context of behaviour that is violent, threatening, coercive, controlling or causing fear—the core definition.^[29]

3.30 The Commissions recommended (in the context of a discussion on the definition of family violence in family violence legislation) that legislation should include examples of emotional and psychological abuse that illustrate conduct that would affect—although not exclusively—certain vulnerable groups, including: Indigenous persons; those from a culturally and linguistically diverse background; the aged; those with disability; and those from the gay, lesbian, bisexual, trans and intersex communities.^[30] As noted above, the Commissions also recommended that the same definition of family violence be adopted in the Family Law Act. Accordingly, other examples of emotional or psychological abuse should be included in the definition as illustrations of behaviour that affect particular groups, for example:

• threatening to institutionalise a person;
• withdrawing care on which the person is dependent;
• withholding medication or preventing the person from accessing necessary treatment or aids and equipment used in the person’s daily life;
• threatening to disclose a person’s sexual orientation against the person’s wishes; and
• racial taunts; and
• preventing a person from making or keeping connections with the person’s family, friends or culture, including spiritual ceremonies or practices.^[31]

3.31 In its submission to the Senate Committee, the ALRC noted that the Family Violence Bill includes, as proposed s 4AB(2)(i), ‘preventing the family member from keeping connections with his or her family, friends or culture’ as an example of family violence. The ALRC supported the inclusion of this behaviour in the definition of family violence—whether listed as an example of emotional or psychological abuse, as in the Victorian family violence legislation^[32] and recommended by the Commissions, or as a stand-alone example of family violence.

3.32 A further example contained in the Family Law Amendment (Family Violence) Bill 2010—Exposure Draft (the Exposure Draft Bill), was threats of suicide or self-harm with intent to torment or intimidate. While the ALRC did not consider that this example should be framed as a stand-alone example of family violence, it may usefully illustrate emotional or psychological abuse within the definition of family violence. ^[33]

3.33 Property damage and harm to animals: The ALRC strongly supports the position taken in the Family Violence Bill of distinguishing harm to animals from damage to property, particularly in light of research that indicates the particular impacts on victims’ behaviours arising from fear of an animal being harmed.^[34] However, the ALRC submitted that the reference to property damage or destruction in the Family Violence Bill in proposed s 4AB(2)(e) should make it clear that this is relevant, irrespective of who owns the property. As stated in Family Violence—A National Legal Response, if a person violently smashes a chair against a wall in the presence of a spouse or child, and that conduct causes fear, it is irrelevant that the person who smashed the chair owns the chair.^[35] Similarly, this qualification should be made to the reference to ‘causing death or injury to an animal’—that is, it should apply irrespective of whether the victim owns the animal.^[36]

3.34 Exposure of children to violence: The Commissions recommended that behaviour of the person using violence that causes a child to be exposed to the effects of family violence should be included in the definition of family violence. In making this recommendation, the Commissions referred to the ‘considerable amount of research documenting the fact that exposure of children to family violence causes long-term emotional, psychological, physical and behavioural issues’.^[37] The definition of family violence should also clarify that a child is exposed to the effects of family violence by the behaviour of the person using family violence, and not due to the failure of the victim parent to protect that child from such exposure.^[38]

The Senate Committee’s response

3.35 The Senate Committee’s majority report stated that the proposed definition of family violence ‘provides a more descriptive and subjective, but not exclusive, test, which requires decision makers to consider the personal experiences of family members’.^[39] It commended the Australian Government ‘for giving greater recognition to the breadth of behaviours which constitute family violence’.^[40]

3.36 In their additional comments, the Coalition Senators stated that, while they endorsed the objective of giving greater recognition to the breadth of behaviours that may constitute family violence, they held concerns that the definition cast the net too wide.^[41] Referring to Professor Chisholm’s evidence, the Coalition Senators considered that the proposed s 4AB(1) was ‘over-inclusive’, insofar as it captured ‘any behaviour which causes a family member to be fearful’, and made ‘no allowance for the intent of the party giving rise to a “fear”’.^[42] The Coalition Senators endorsed Professor Chisholm’s alternative provision, and recommended that the Bill be amended accordingly.^[43]