Redefining family violence

1.12 The ALRC’s comments on Item 3 of the Exposure Draft legislation are set out below. By way of background, a key plank of the Commissions’ recommendations in ALRC Report 114 is the adoption of a common interpretative framework in relation to family violence across state and territory family violence legislation, the Family Law Act and, in limited circumstances, the criminal law.^[3] This includes establishing a shared understanding of family violence, and the nature, features and dynamics of family violence. The common interpretative framework is based on the same core definition of family violence, describing the context in which behaviour takes place, as well as a shared understanding of the types of conduct—both physical and non-physical that may fall within the definition of family violence in the following legislation:

• state and territory family violence legislation;
• the Family Law Act; and
• the criminal law—in the limited circumstances where family violence is defined in the context of defences to homicide.

1.13 The Commissions recommended, in Chapters 5 and 6 of ALRC Report 114, that each legislative regime should provide that 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:

1. physical violence;
2. sexual assault and other sexually abusive behaviour;
3. economic abuse;
4. emotional or psychological abuse;
5. stalking;
6. kidnapping or deprivation of liberty;
7. damage to property, irrespective of whether the victim owns the property;
8. causing injury or death to an animal irrespective of whether the victim owns the animal; and
9. behaviour by the person using violence that causes a child to be exposed to the effects of behaviour referred to in (a)–(h) above.^[4]

1.14 The Commissions noted the numerous benefits that would flow from adopting a common interpretative framework.^[5]

1.15 In formulating the recommendation for a definition of family violence in the Family Law Act, the Commissions expressed the view that the semi-objective test of reasonableness should be removed on the basis that in determining whether conduct is violent, it is inappropriate to apply such a test to the experience of fear. To do so ignores the psychological impact of family violence, especially within the context of a controlling relationship.^[6] The Commissions noted that this approach was consistent with that recommended by the Family Law Council in its December 2009 advice to the Attorney-General of Australia.^[7]

1.16 The ALRC therefore supports the removal of the semi-objective test of reasonableness in the proposed definition of family violence in the Exposure Draft legislation. We also welcome the expansion of the current definition of family violence to include specifically physical and non-physical forms of violence.^[8] However, the ALRC urges the Government to consider the matters outlined below.

• It is essential that the context in which violence takes place is emphasised up-front, forming the core definition. As stated in ALRC Report 114:

The Commissions are persuaded by arguments that the definition of family violence needs to describe the context in which acts take place—rather than merely listing specific incidents of violence or abuse. The imperative to provide a contextual background in the definition of family violence is heightened by the recommended broadening of the definition to include non-physical forms of violence, particularly emotional and economic abuse.^[9]

• Family violence should be defined as 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—and non-exhaustive types of violence that may fall within that core definition should then be set out.^[10] The ALRC considers that some of the matters the subject of paragraphs (e), (f) and (g)—namely, behaviour that coerces, controls, causes fear or is threatening—are more appropriately the subject of the core definition, rather than examples of violence.^[11] The ALRC is, in particular, concerned that the definition in the Exposure Draft legislation is exhaustive—although the particular examples of violence in paragraphs (d) and (e) are non-exhaustive. It is impossible to itemise with certainty the precise ways in which violence can manifest. In contrast, the definition recommended in ALRC Report 114 lists examples of conduct that may fall within the definition in a non-exhaustive manner.

• The basis upon which the concept of ‘deception’ has been introduced in the definition of family violence in paragraph (e) is unclear. The Commissions received a significant number of submissions and consulted widely on the appropriate definition of family violence during the Family Violence Inquiry. ‘Deception’ did not arise as part of a suggested definition of family violence. The ALRC also notes that the definition of family violence recommended by the Family Law Council in December 2009 did not include the concept of deception.^[12] The ALRC therefore has some reservations about this proposal.

• The ALRC notes that paragraph (e) refers to behaviour which ‘dominates’ unreasonably. The Commissions had included the concept of domination in the proposed definition of family violence in the Consultation Paper in the Family Violence Inquiry, but did not do so in the recommended definition of family violence in ALRC Report 114. One stakeholder—a partner violence counsellor—made the following persuasive submission to the Family Violence Inquiry about the proposed inclusion of the word ‘dominate’, which the ALRC brings to your attention:

Use of the term ‘dominate’ is superfluous when the words ‘coerces’ and ‘controls’ are also used. The range of meanings of the word ‘dominate’ is broad and it can constitute behaviour which is not necessarily harmful to another person, but which because it is conflated with coerces and controls, can be subject to misuse. It is more appropriate in the context of relationship dynamics and relationship counselling rather than in the context of family violence law.^[13]

• Economic abuse should be set out as an example of behaviour which may fall within the core definition and the definition should set out non-exhaustive examples of economic abuse, including those listed in paragraphs (e)(i) and (ii). Other examples of economic abuse 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—a practice which was brought to the Commissions’ attention during the course of the Family Violence Inquiry.

• Kidnapping and unlawful deprivation of liberty should be included as examples of conduct that fall within the core definition of family violence. In ALRC Report 114, the Commissions expressed the view (in discussing the definition of family violence in family violence legislation) that the definition should not require a person to prove emotional or psychological harm in respect of conduct against the person which, by its nature, could be pursued criminally—such as sexual assault, kidnapping and unlawfully depriving a person of his or her liberty.^[14] The same arguments can be applied to the definition of family violence in the Family Law Act.

• Stalking should be expressly referred to in the definition. While the explanatory notes to the Exposure Draft legislation state that stalking is intended to be covered by behaviour that is psychologically abusive, the ALRC supports the express inclusion of stalking in the definition for the sake of clarity. As noted in ALRC Report 114, four jurisdictions expressly include stalking as conduct that constitutes family violence in state and territory family violence legislation.^[15]

• The reference to property damage in the Exposure Draft legislation at paragraph (d)(ii) should make it clear that this is relevant irrespective of who owns the property. As stated by the Commissions in ALRC Report 114, 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.^[16] Similarly, the same 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. As a matter of principle, the ALRC strongly supports the position taken in the Exposure Draft legislation of distinguishing harm to animals from damage to property, particularly in light of research which indicates the particular impacts on victims’ behaviours arising from fear of an animal being harmed.^[17]

• The behaviour listed in paragraph (d), that is, behaviour that ‘torments’, ‘intimidates’, or ‘harasses’, is behaviour which the Commissions categorised broadly in ALRC Report 114 as emotional or psychological abuse. The Commissions expressed the view that it was important for such behaviour to be placed in context:

placing such behaviour in the context of behaviour that is threatening, coercive, controlling, or engenders fear will ensure that this category of violence is not open to misuse—for example, by the inclusion of offensive conduct in the absence of a broader context.^[18]

• The Commissions also recommended (in the context of a discussion on the definition of family violence in family violence legislation) that such legislation should include examples of emotional and psychological abuse or intimidation and harassment 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 a disability; and those from the gay, lesbian, bisexual, transgender and intersex communities.^[19] 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 which impact on particular groups, for example:

1. threatening to institutionalise a person;
2. withdrawing care on which the person is dependent;
3. withholding medication or preventing the person from accessing necessary treatment or aids and equipment used in the person’s daily life; and
4. threatening to disclose a person’s sexual orientation against the person’s wishes.^[20]

• In addition, the ALRC considers that the example given in paragraph (h) of the Exposure Draft legislation—threatening to commit suicide or self-harm with the intention of tormenting or intimidating the other person—is more properly to be regarded as an example of emotional/psychological abuse. It therefore should fall under paragraph (d), which specifically deals with behaviour that torments or intimidates, rather than constituting a stand-alone example. The ALRC heard in the Family Violence Inquiry that threats to commit suicide occur in Indigenous family relationships, in the context of exercising coercion and control over a family member—although such threats can also occur more broadly. Accordingly, the ALRC welcomes the inclusion of such an example in the definition of family violence—but as one that is illustrative of emotional or psychological abuse.

• Behaviour by 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. The reasons for including this in the definition are canvassed in ALRC Report 114.^[21] The ALRC notes that the Exposure Draft legislation includes exposure to violence in the definition of ‘abuse’ in relation to a child, but would urge that the legislation include such exposure in the definition of family violence. Clearly, certain behaviour can constitute both family violence and child abuse. The ALRC makes further observations about exposure to violence below.

Nature, features and dynamics of family violence

1.17 To complement a revised definition of family violence, the ALRC supports the inclusion of a provision in the Family Law Act which explains the nature, features and dynamics of family violence. The ALRC notes that the Exposure Draft legislation contains no such provision.

1.18 In ALRC Report 114, the Commissions recommended that a common understanding of family violence across legislative schemes should be complemented by such a provision. In particular, they recommended that state and territory family violence legislation should contain a provision which explains the nature, features and dynamics of family violence including: 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 under-reported; 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.^[22]

1.19 The Commissions recommended that the Family Law Act should be amended to include a similar provision.^[23] They recognised that, unlike state and territory family violence legislation, the prevention of family violence is not the primary focus of the Family Law Act, and the broad range of persons who may avail themselves of protection under family violence legislation may never have cause to be a party to family law proceedings. However, as family violence is a critical concern in many parenting disputes before federal family courts, the Commissions considered it essential that judicial officers, lawyers and parties share a common understanding of its nature, features and dynamics. Further, a common understanding facilitates a seamless approach across jurisdictions. As noted in ALRC Report 114,^[24] this position is consistent with an alternative recommendation made by the family courts violence review undertaken by Professor Richard Chisholm (the Chisholm Review) for the provisions in the Family Law Act referring to family violence to be strengthened by including more detail about the nature and consequences of family violence.^[25]