Identifying abuse of a child

Definitional issues

1.20 The Commissions in ALRC Report 114 did not make any specific recommendations about the definition of ‘abuse’ in relation to a child—although they discussed child abuse, neglect and the interconnectedness of family violence and child abuse.[26] However, given that the proposed definition of ‘abuse’ in Item 1 paragraph (c)ofthe Exposure Draft legislation includes reference to a child being exposed to family violence—an issue canvassed in ALRC Report 114 in the context of the definition of family violence—the ALRC makes the following observations:

  • First, the ALRC welcomes the acknowledgement in the Exposure Draft legislation about the detrimental impact on children of being exposed to family violence. However, the ALRC considers that the legislation should make it clear that a child is exposed to the effects of family violence by the behaviour of the person using family violence and not the failure of the victim parent to protect that child from such exposure.[27] A key stakeholder concern in the Family Violence Inquiry was the potential negative effects of making victims of violence accountable for not protecting their children from violence.[28]

  • The ALRC supports the types of examples that have been included in the definition of ‘exposed’ in Item 8—noting that these are based on the examples provided in the Victorian family violence legislation, and that, as stated in ALRC Report 114, such examples are ‘instructive’.[29]

  • Insofar as exposure of children to violence is to be included in the definition of family violence (a position which the ALRC strongly supports), the ALRC has reservations about linking exposure to family violence with the need to prove serious psychological harm. There has been a considerable amount of research documenting the fact that exposure of children to family violence causes long term emotional, psychological, physical and behavioural issues. The ALRC would support dealing with exposure of children to violence in a separate category from psychological abuse. Moreover, we have reservations about the requirement for the harm to be ‘serious’, because this would import into the definition of family violence judgments about severity of violence, which we consider to be problematic.

Impact of expanded definition on admissibility provisions in the Family Law Act

1.21 The proposed expansion of the definition of child abuse will have an impact on the provisions dealing with disclosures made to Family Dispute Resolution (FDR) practitioners and to family counsellors about a child’s exposure to family violence. Currently such disclosures, in accordance with ss 10E and 10J of the Family Law Act, are inadmissible in evidence.

1.22 ALRC Report 114 considered the issue of whether ss 10E and 10J should be amended to enable such disclosures to be admitted into evidence.[30] The Commissions noted the significant differences in stakeholder views on this issue and gave careful consideration to balancing the courts’ need for evidence of children’s exposure to family violence with the need to protect the integrity of FDR processes and family counselling relationships. The Commissions expressed the view that disclosures about a child’s exposure to family violence, made in the context of a non-forensic FDR process or non-forensic family counselling, are not tested and reviewed with appropriate legal safeguards. The Commissions also expressed the view that such disclosures will, as a consequence, have limited evidentiary value which does not outweigh the public interest in protecting the integrity and ability of FDR and family counselling to secure safe outcomes for victims of family violence.

1.23 In light of this, the ALRC urges the Government to consider expressly the implications of extending the definition of ‘abuse of a child’ to include exposure to violence, including for example, whether there is a need for a provision in the Family Law Act to make it clear that disclosures to FDR practitioners and family counsellors relating to children’s exposure to violence are not admissible.

[26] See Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence—A National Legal Response: Final Report, ALRC Report 114; NSWLRC Report 128 (2010), Ch 19, especially [19.5]–[19.19].

[27] See Ibid, [5.205]–[5.206]

[28] See discussion Ibid, [5.139]–[5.152].

[29]Ibid, [5.207].

[30]Ibid, [22.53]–[22.75].