Civil and criminal proceedings

Choice of proceedings

There may be legitimate reasons for opting for a protection order instead of a criminal charge. These include that: a protection order offers a speedier response to violence and therefore protection; the offending conduct may not constitute a criminal offence; and there is a lower standard of proof in civil protection order proceedings. However, one issue of significance in this Inquiry is whether, in practice, relevant decision makers—including police—are favouring the pursuit of either a civil or criminal remedy at the expense of the other in circumstances where both civil and criminal redress is possible.

Question 5–4         As a matter of practice, are police or other participants in the legal system treating the obtaining of protection orders under family violence legislation and a criminal justice response to family violence as alternatives rather than potentially co-existing avenues of redress? If so, what are the practices or trends in this regard and how can this best be addressed?

The boundaries of criminal redress

An issue that arises in assessing the dividing line between civil and criminal responses to family violence is the extent to which traditionally non-criminal behaviour in a family violence context—typically non-physical forms of violence, such as emotional and economic abuse—should be criminalised. Tasmania is the only jurisdiction which criminalises economic abuse in the context of family violence.

The Commissions have some preliminary concerns about the criminalisation of such conduct. First, the policing of such offences may be fraught with difficulties. Secondly, each element of such offences has to be proved beyond reasonable doubt and there may be significant evidentiary challenges to meet this standard. The Commissions note in this regard that there do not appear to have been any prosecutions for emotional and economic abuse under the Tasmanian family violence legislation.

Moreover, given that the breach of a protection order amounts to a criminal offence, any conduct by a person that breached conditions tailored to prevent emotional abuse, intimidation or economic abuse (in jurisdictions whose family violence legislation recognises such forms of behaviour as family violence) would, in any event, be criminal.

Question 5–5         Are criminal offences for economic and emotional abuse in a family violence context necessary or desirable?