While pursuing model family violence laws is beyond the scope of this Inquiry, the Commissions consider that there are a number of discrete areas of family violence laws that ought to be the subject of best practice approaches across the jurisdictions.
Guiding principles and a human rights framework
There is some precedent in family violence legislation—and criminal legislation—for the articulation of principles to guide legislative interpretation and to educate those applying or engaging with the law. In the Commissions’ preliminary view the family violence legislation of each state and territory should contain guiding principles that include express reference to a human rights framework. The principles contained in the preamble to the Victorian family violence legislation provide an instructive model in this regard—although the principles should also refer expressly to relevant international conventions.
The endorsement of a human rights framework is particularly relevant, for example, for Indigenous peoples and those from culturally diverse backgrounds, by reinforcing that customary laws or cultural practices do not override the rights of family members to be safe and live free from violence and fear.
The adoption of guiding principles across family violence legislation will serve an educative function, as well as promote a common interpretative framework—complementing the proposed adoption of a commonly shared understanding of the meaning of family violence.
The family violence legislation of each state and territory should also contain a provision that explains the features and dynamics of family violence—including its gendered nature, detrimental impact on children, and the fact that it can involve exploitation of power imbalances, and occur in all sectors of society. Both the NSW and Victorian family violence legislation provide an instructive model in this regard.
In addition, the Commissions consider that, just as the Victorian and NSW family violence legislation highlight the particularly damaging effects on children of exposure to family violence, family violence legislation should also acknowledge the particularly damaging impact of family violence on other groups in society including: Indigenous persons; those from a culturally and linguistically diverse background; those from the gay, lesbian, bisexual and transgender community; older people; and victims with disabilities. These categories are not mutually exclusive, and some persons may suffer the compounding effect of multiple disadvantages.
Highlighting the impact of violence on these groups complements the Commissions’ proposal that family violence legislation include examples of emotional or psychological abuse that would affect diverse groups in the community. The Commissions consider that the combined effect of these proposals may assist in the challenging task of ensuring that experiences of family violence of such groups is properly recognised across the legal system.
The Commissions have not determined precisely how the legislative provisions might refer to the impacts of family violence on diverse groups. It may well be that the precise formulation could be informed by the processes recommended by the Family Law Council to establish a common knowledge base about family violence. Some preliminary thoughts, by way of illustration, are that family violence legislation could refer to the following:
- the fact that there is a disproportionate level of family violence among Indigenous communities, and the particular dynamics of Indigenous family violence such as violence within extended kinship networks;
- the barriers faced by victims from culturally and linguistically diverse backgrounds, including communication and language difficulties, and cultural barriers such as beliefs about traditional gender roles and the importance of the family;
- the features of elder abuse—that it commonly consists of economic abuse, as well as the withholding of medication, involuntary social isolation, and neglect;
- the particular problems faced by victims with disabilities because of their dependence on others for support, the compounding effect of their disability on their lack of power and control in a relationship, and the fact that their disability is exploited by their abusers; and
- the problems faced by the gay, lesbian, bisexual and transgender community—including the fear of homophobia, transphobia, the fear of being outed and the fear of discrimination from the legal system due to their gender or sexual orientation.
The Commissions are interested in hearing views from stakeholders in this regard.
Finally, in the Commissions’ preliminary view, the Family Law Act should also include a section detailing the features and nature of family violence. This would complement the proposed approach of adopting a commonly shared understanding of family violence across the family law and family violence legislative schemes.
The Commissions note that this approach is also consistent with an alternative recommendation made by the Chisholm Review for the provisions in the Family Law Act referring to family violence to be strengthened, including more detail about the nature and consequences of family violence.
An articulation of core common purposes across state and territory family violence legislation is a critical pillar of a common interpretative framework. Objects clauses therefore serve an important role in complementing proposed provisions setting out guiding principles and the features and dynamics of family violence. They also serve an educative function. It is essential that they are given some prominence in family violence legislation.
The Commissions are of the preliminary view that the Restraining Orders Act 1997 (WA) should be amended to include an objects clause.
Objects clauses in family violence legislation do not need to express purposes using precisely the same wording, nor is there a need for every purpose in one jurisdiction to be replicated in the others. However, there should be a cluster of core purposes that are commonly acknowledged and articulated across each of the states and territories. The Commissions consider that the Queensland family violence legislation, in particular, should state its other core purposes. The Commissions also consider that the Tasmanian family violence legislation should articulate its purposes more clearly.
The Commissions tend to the view that core purposes should include—apart from the main one of ensuring or maximising the safety and protection of persons who fear or experience family violence—the following aims:
- ensuring that persons who use family violence accept responsibility for their conduct, or promoting the accountability of those who use family violence for their actions; and
- reducing or preventing family violence and the exposure of children to the effects of family violence.
There should be flexibility for states and territories to articulate purposes in addition to core ones. The Commissions are also interested in hearing views from stakeholders about the need to include other purposes that are not currently referred to in any of the state and territory family violence legislation.
The Commissions seek stakeholder views about whether family violence legislation should articulate a purpose concerning the desirability of minimising disruption to the lives of families affected by violence. The Commissions are interested in whether giving this objective some prominence is likely to encourage judicial officers to make exclusion orders in appropriate circumstances, and go some way to addressing the fact that family violence is a leading cause of homelessness for women and children who flee from it.
Proposal 4–24 The Restraining Orders Act 1997 (WA) should be amended to include an objects clause.
Proposal 4–25 State and territory family violence legislation should articulate a common set of core purposes which address the following aims:
- to ensure or maximise the safety and protection of persons who fear or experience family violence;
- to ensure that persons who use family violence accept responsibility—or are made accountable—for their conduct; and
- to reduce or prevent family violence and the exposure of children to family violence.
- Theobjects clause in the Domestic and Family Violence Protection Act 1989 (Qld) should be amended to specify core purposes, other than the existing main purpose of providing for the safety and protection of persons in particular relationships; and
- the objects clause in the Family Violence Act 2004 (Tas) should be amended to specify more clearly the core purposes of the Act.
Question 4–8 Are there any other ‘core’ purposes that should be included in the objects clauses in the family violence legislation of each of the states and territories? For example, should family violence legislation specify a purpose about ensuring minimal disruption to the lives of those affected by family violence?
Grounds for obtaining a protection order
There are two broad approaches to setting a threshold for obtaining a protection order. One approach is to focus on the commission of past family violence as well as the likelihood that the person engaging in violence will do so again. This is the approach taken in Victoria and Queensland.
The second broad approach focuses on the effect on the victim. This is the approach taken in NSW and the Northern Territory where the grounds focus on fear. In NSW a person has to have reasonable grounds to fear, and must in fact fear, the commission of a personal violence offence. The subjective test of fear is not however required to be met in certain cases. These include if the protected person is a child or below average intelligence. Importantly, another exception is where the victim has been subjected to past family violence by the person against whom the order is sought and there is a likelihood that the person engaging in violence will do so again—and the court is satisfied that the making of the order is necessary in the circumstances. The Northern Territory legislation only requires an objective standard of fear.
The South Australian family violence legislation articulates the test as reasonable grounds to ‘suspect’—rather than ‘fear’—that the relevant person will commit an act of abuse, and that making an order is appropriate in all the circumstances.
Western Australia, in effect, adopts both approaches in the alternative. That is, a court can make a protection order either because there has been past violence and there is the likelihood of future violence or because the victim has reasonable grounds to fear violence. In each case the court has to be satisfied that the granting of the order is appropriate in the circumstances. The approach of adopting both tests in the alternative is in accordance with the approach ultimately recommended by the Domestic Violence Legislation Working Group in drafting Model Domestic Violence Laws.
The ACT alone allows for a protection order to be made on the basis that the person against whom it is sought has used family violence.
In all jurisdictions the court has discretion not to make a protection order even if the grounds for the order have been met.
The Commissions consider that each state and territory should have similar grounds for triggering the granting of an application for a protection order. This complements the Commissions’ proposed approach for a common interpretative framework. Just as there should be a common understanding of what constitutes family violence, so should there be a common understanding of when the law should step in to provide protection.
The Commissions have some preliminary reservations about an approach that requires proof of likelihood of repetition, noting the evidential hurdle that this may present to victims. The Commissions are also of the preliminary view that the position in the ACT—where it is only necessary to prove the fact that a person has used family violence to obtain a protection order—is unsatisfactory as it does not attempt to consider whether or not a person is actually in need of future protection, which is the primary function of the legislation.
The Commissions consider that there is some merit in adopting grounds that focus on fear—that is, an approach that focuses on the effect on the victim. In applying for a protection order a victim is, in effect, seeking not only protection from violence but also freedom from fear.
The Commissions express the preliminary view that it is problematic to include an objective test of fear in the definition of family violence in the Family Law Act. Different considerations may apply in adapting such a test for the purpose of meeting a threshold to obtain a protection order. The Commissions are interested in views in this regard.
The Commissions have not decided, at this stage, how to frame precisely the standard grounds for obtaining a protection order. Given the Commissions’ preliminary preference for at least including grounds that focus on the effect on the victim, and the exclusion of grounds that rely solely on proof of likelihood of repetition of violence, there appear to be four options:
- a test similar to that in NSW—which includes an objective test of fear, and a subjective test with the latter capable of being excluded in certain circumstances;
- a test similar to that in the Northern Territory which imposes only an objective test of fear;
- a test similar to that adopted in South Australia, which imposes an objective test of suspicion that the relevant person will use violence plus a requirement that the court is satisfied that making the order is appropriate in all the circumstances;
- an approach similar to that in Western Australia and advocated in the Model Domestic Laws—that is adopting as alternatives the test that focuses on past conduct and likelihood of repetition, and the objective test of fear.
- a person has reasonable grounds to fear, and, except in certain cases, in fact fears family violence, along the lines of the Crimes (Domestic and Personal Violence) Act 2007 (NSW);
- a person has reasonable grounds to fear family violence;
- there are reasonable grounds to suspect that further family violence will occur and the Court is satisfied that making an order is appropriate in all the circumstances, along the lines of the Intervention Orders (Prevention of Abuse) Act 2009 (SA); or
- either the person seeking protection has reasonable grounds to fear family violence or the person he or she is seeking protection from has used family violence and is likely to do so again.
 United Nations Department of Economic and Social Affairs Division for the Advancement of Women, Handbook for Legislation on Violence Against Women, 1 July 2009, [18.104.22.168].
 Victorian Law Reform Commission, Review of Family Violence Laws: Report (2006), Rec 14; Family Violence Protection Act 2008 (Vic) s 5(1)(vi).
 P Memmott, R Stacy, C Chambers and C Keys, Violence in Indigenous Communities (2001) Crime Prevention Branch of the Attorney-General’s Department, 1.
 D Bagshaw, S Wendt and L Zannettino, Preventing the Abuse of Older People by Their Family Members (2009) Australian Domestic and Family Violence Clearinghouse, 5.
 G Hauge, R Thiara, A Mullender and P Magowan, Making the Links: Disabled Women and Domestic Violence Final Report (2008) Women’s Aid (UK), 13–14.
 Inner City Legal Centre—Safe Relationships Project, Submission FV 17, 13 January 2010.
 R Chisholm, Family Courts Violence Review (2009), Rec 3.6.
 Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 16.
 Domestic and Family Violence Act 2007 (NT) s 18.
 Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 6.
 Restraining Orders Act 1997 (WA) s 11A.
 Domestic Violence Legislation Working Group, Model Domestic Violence Laws (1999), s 14(1).
 Domestic Violence and Protection Orders Act 2008 (ACT) s 46(1).