Commissions’ views

Gender neutrality in definition

5.163 Definitions of family violence should be gender-neutral. As any person can be a victim of family violence or use family violence, family violence legislation must be capable of operating to protect all victims of violence—whether female or male—and to prevent further commission of violence by anyone—whether female or male. However, as discussed in Chapter 7, it is appropriate and important for state and territory family violence legislation to contain a provision that explains the features and dynamics of family violence, including that while anyone can be a victim of family violence or use family violence it is predominantly committed by men.

Core definition to describe context of family violence

5.164 The Commissions note the conclusion of the AGS in Domestic Violence Laws in Australia that the family violence legislation of states and territories

does not appear to be ‘substantially different’ across the jurisdictions in respect of crucial matters such as … the types of conduct that may constitute domestic violence.[321]

5.165 Nonetheless, the Commissions consider that there are some key differences that ought to be addressed. The Commissions agree with the following recommendation made by the United Nations Department of Economic and Social Affairs Division for the Advancement of Women:

Legislation should include a comprehensive definition of domestic violence, including physical, sexual, psychological and economic violence.[322]

5.166 However, 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.

5.167 The Commissions are of the view that family violence should be defined in state and territory family violence legislation 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—the approach recommended by the Victorian Law Reform Commission in its 2006 Report.[323] As discussed further below, the definition should then set out a non-exhaustive list of types of physical and non-physical behaviour that may fall within this definition. The Commissions note that there was strong support among stakeholders for the definition of family violence in the Victorian family violence legislation—which includes both physical and non-physical violence—to be used as a model.

5.168 Emphasising the coercive, controlling nature of family violence and how it engenders fear serves an important educative function, as well as a dual pragmatic function. First, it allows new behaviours—including seemingly ‘minor’ events which may have a particular significance to victims—to be included, provided that they meet this definition. As stated by one stakeholder, having a definition based on the dynamics and impact of family violence avoids the technicalities of definitions becoming obstacles to protection, especially give that a common form of family violence is the use of strategies of intimidation and symbolic actions which have specific meaning for the victims, but may appear relatively harmless to others.

5.169 Secondly, it can filter out instances of abuse committed outside the context of controlling or coercive behaviour—for example, by excluding verbal abuse committed by men or women in the course of an intimate relationship or acts of violent resistance by victims, where such abuse or resistance does not engender fear or does not form part of a pattern of controlling or coercive behaviour. To focus only on discrete incidents of violence devoid of context risks the civil protection order scheme replicating the limitations of the criminal law in responding to family violence.[324] It further risks trivialising the meaning of family violence and having the definition being co-opted and misused in contexts to which it was never intended to apply.

Shared understanding of potentially relevant types of conduct

5.170 The Commissions note varying stakeholder views about whether the definition of family violence should be the same across state and territory family violence legislation, or merely share a common understanding of what constitutes family violence. The Commissions have taken a hybrid approach to this issue. The Commissions consider that it is desirable for the contextual core of the definition of family violence—as described above—to be consistent across state and territory jurisdictions. However, insofar as the definition should include a non-exhaustive list of examples of specific types of physical and non-physical types of conduct that may fall within the concept of family violence, the Commissions consider that it may be more pragmatic and feasible for each state and territory family violence statute to reflect a common understanding of such conduct. Examples of such conduct need not necessarily be drafted in precisely the same terms. As illustrated by the discussion of the purposes of family violence legislation and protection orders in Chapter 4, the underlying purposes of family violence legislation across the states and territories are substantially similar,[325] so the adoption of a shared understanding of what may constitute family violence is uncontroversial.

5.171 The Commissions acknowledge that drafting a uniform definition acceptable to all states and territories may be a significant task, and that the model definition proposed in the Model Domestic Violence Laws Report was not adopted.[326] The protection of victims of violence should not be compromised by achieving a consistent definition, if consistency represents the lowest common denominator. However, the Commissions consider that it is more achievable for the states and territories to agree to a consistent core definition together with a shared understanding of conduct that may meet that definition, than it is for the states and territories to agree on an entirely uniform definition. For example, in illustrating particular types of conduct that may constitute family violence, states and territories should have the flexibility to incorporate specific types of examples that accommodate local or demographic-specific issues.

5.172 Advocating a standard core definition, together with a shared understanding of particular conduct that may comprise family violence, across states and territories has a number of advantages. These include: playing a significant educative role in communicating with clarity what family violence is to those within the legal system, as well as the broader community; forming an important component for the development of integrated systems and responses and thereby improving seamlessness—including for service providers who assist mobile Indigenous people who move freely across communities in Western Australia, South Australia and the Northern Territory—and assisting in the recognition of protection orders across state and territory borders.

5.173 Importantly, it will also facilitate equality of treatment of victims of family violence—by ensuring that they are able to access protection order schemes to protect them from similar types of violence—irrespective of which state or territory they reside in or may flee to. It will address the unsatisfactory situation that victims of violence can only presently seek protection for certain types of violence if they live in a particular jurisdiction that recognises that violence as family violence.[327]

5.174 The Commissions express views on particular family violence legislative schemes, and certain elements of the definition of family violence, below.

Need for a definition of family violence in NSW family violence legislation

5.175 The NSW family violence legislation is notable in its omission to define ‘domestic violence’—although it defines a ‘domestic violence offence’. The Commissions reiterate the view, previously expressed by the NSW Law Reform Commission, that there should be a definition of ‘domestic violence’ in the NSW family violence legislation which should include reference to psychological harm.[328] It is important for the definition to capture conduct which, of itself, may not amount to a criminal offence, expanding the circumstances in which victims of violence may seek protection.

5.176 The Commissions note that there was considerable support for the proposal that the Crimes (Domestic and Personal Violence) Act 2007 should be amended to include a definition of ‘domestic violence’ in addition to the current definition of ‘domestic violence offence’. However, the Commissions make no separate recommendation about the NSW family violence legislation in this regard. The need for that state’s legislation to contain a particular definition of family violence is now contained within the ambit of Recommendation 5–1, set out below—which sets out how all state and territory family violence legislation should define family violence, and the types of conduct that may constitute family violence.

Types of potentially relevant conduct

Sexual assault and other sexually abusive behaviour

5.177 In the Commissions’ view, sexual assault should be expressly recognised in the definitions of family violence in the family violence legislation of each state and territory. Specifically including sexual assault in the definitions may go some way to addressing the general ‘invisibility’ of sexual assault as a form of family violence, and may encourage increased reporting of sexual violence within a family violence context. It may also assist in addressing unhelpful social attitudes surrounding sexual assault in intimate partner relationships.[329]

5.178 The Commissions agree with the conclusions of the VLRC in this regard that:

Including sexual forms of family violence in the definition serves two main purposes. First, it makes it clear to family violence victims that they do not have to endure sexual assault, that it is not considered acceptable in our society and that legal protection is available. Secondly, it educates the community about sexual violence within family relationships and that it is unacceptable.[330]

5.179 In addition, the definition of family violence should include other sexually abusive behaviour—which may fall short of an assault. Including other sexually abusive behaviour has the advantage of capturing other potentially relevant behaviour—including conduct the subject of federal offences, such as sexual grooming or sexual servitude.

5.180 The definition of family violence in the family violence legislation of Western Australia should be amended as it does not expressly recognise sexual assault or other sexually abusive behaviour. The general definition of ‘domestic violence’ in s 13 of the ACT family violence legislation should also be amended to include express reference to sexual assault and sexually abusive behaviour, even though various offences of sexual assault are included in sch 1 as ‘domestic violence’ offences. Finally, the Queensland Government may wish to consider whether the current reference to ‘indecent behaviour without consent’ adequately captures sexual assault and all forms of sexually abusive behaviour—including those that may be the subject of state and federal offences.

Economic abuse

5.181 Economic abuse should be expressly recognised in the definitions of family violence in the family violence legislation of each state and territory. This will necessitate amendment to the family violence legislation of NSW, Queensland, and Western Australia.

5.182 The Commissions consider that particular stakeholder concerns about extending the definition to recognise economic abuse are met by the Commissions’ recommendation to place economic abuse in the context of coercive or controlling behaviour or behaviour which causes fear.

5.183 Economic abuse has particular impacts on older persons, those with a disability and Indigenous persons—particularly through the practice of ‘humbugging’. Ideally, legislation should set out examples of economic abuse. Such examples help to educate judicial officers, lawyers and those engaging with the legal system. The family violence legislation of Victoria, South Australia and the Northern Territory provide instructive models in this regard. Examples given may be tailored to meet the exigencies of local jurisdictions.

5.184 The Commissions also recommend that s 44 of the Crimes Act 1900 (NSW)—a ‘domestic violence offence’ dealing with failure to provide any wife, apprentice, servant or insane person with necessary food, clothing or lodgings—should be amended to ensure that its underlying philosophy and language are appropriate in a modern context.[331] The Commissions consider that the proposed inclusion of economic abuse in the family violence legislation of NSW may be more appropriate.

Emotional and psychological harm/abuse

5.185 The Commissions note the various formulations of emotional or psychological abuse—or conduct that ‘intimidates’ or ‘harasses’—referred to in the family violence legislation of the states and territories. While specific descriptions of this type of behaviour might vary, the Commissions consider that, at the least, the emphasis should be on a shared understanding that emotional and psychological abuse may fall within the broader proposed definition of family violence. 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. In particular, it will address concerns expressed by stakeholders that the inclusion of offensive conduct in the absence of such context is problematic.

5.186 While stalking can be an example of emotional or psychological abuse, the Commissions consider that, for the sake of clarity, stalking should be identified separately as behaviour which may constitute family violence. This is, in any event, consistent with the approach taken in four jurisdictions.

5.187 Use of legislative examples. The Commissions endorse the recommendation made by the VLRC that the definition of family violence ‘should be broad enough to include abuses specific to certain groups in the community’.[332] The category of violence covering emotional or psychological abuse or intimidation is one that, in particular, is likely to have differing impacts on various groups in the community. It is therefore desirable that the family violence legislation of each state and territory include examples of such conduct that would affect diverse groups in the community. Such examples should be developed in consultation with these groups.

5.188 Examples of such conduct, as they affect various groups, may include:

  • threatening to: institutionalise a person; withdraw care on which the person is dependent; withhold medication or prevent the person accessing necessary treatment or aids and equipment used in the person’s daily life—potentially relevant to aged persons and those with a disability or illness;

  • racial taunts; and preventing a person from making or keeping connections with the person’s family, friends or culture, including cultural or spiritual ceremonies or practices—potentially relevant to migrants, Indigenous people and persons from culturally and linguistically diverse backgrounds; and

  • threatening to disclose a person’s sexual orientation against the person’s wishes—relevant to those from the gay, lesbian, bisexual, transgender and intersex communities.

5.189 Highlighting such examples in legislation will serve an important educative function, and may assist in achieving more consistent responses from the justice system in response to family violence. However, the Commissions agree with the views expressed by Women’s Legal Service Victoria that, to the greatest extent possible, such examples must be provided in general terms and without reference to specified groups. For example, while threatening to withhold medication or care may occur more often in family relationships involving aged persons or those with a disability, it can also occur in any other family relationship where one person in that relationship falls ill and is dependent on the other for a period of time. Similarly, while the Commissions have heard that threats to commit suicide—as a means of coercion and control as opposed to a genuine cry for help—occur in the context of Indigenous family relationships, they can also occur more broadly.

5.190 In addition, although the Commissions make no formal recommendation in this regard, they consider that there is merit in legislation providing examples of emotional abuse committed via technological means, such as harassment in the forms of constant texting, cyber-bullying, and ‘sexting’. The South Australian family violence legislation provides potentially useful examples in this regard, including publishing or transmitting offensive material by means of the internet in such a way that the offensive material will be found by, or brought to the attention of, the person.[333]

5.191 Family violence legislation should make it clear that examples of conduct which may constitute emotional or psychological abuse are illustrative and not exhaustive. Failure by judicial officers to interpret such express legislative intent is appropriately addressed by judicial and legal education.

5.192 Appropriate use of emotional or psychological abuse category. In some circumstances it will be appropriate for a person to have to establish that certain conduct constituted emotional or psychological harm. However, the definition of family violence in state and territory family violence legislation 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.

5.193 For example, the definition of ‘abuse’ in the South Australian family violence legislation focuses on either the impact of harm to a victim or the intention of the person engaging in family violence. Sexual assault is included as an example of conduct that could result in emotional or psychological harm.[334]

5.194 The Commissions are concerned that requiring a person to prove emotional or psychological harm as the result of sexual assault adds a further evidentiary burden. In particular, cultural and linguistic problems may arise in discussing emotional and psychological injury with Indigenous persons. Proof of emotional harm following sexual assault is not necessary for a criminal prosecution—nor ought it to be to obtain a protection order. The very fact of sexual assault should fall within conduct constituting family violence, without the need to prove that such conduct had a certain effect on the victim.

5.195 The same arguments apply to depriving a person of his or her liberty, which is also cited as an example of conduct that could cause emotional or psychological harm in the South Australian legislation.[335]

Kidnapping or deprivation of liberty

5.196 The Commissions consider that state and territory family violence legislation should include kidnapping and deprivation of liberty as examples of conduct which may constitute family violence. Depriving a person of liberty is an integral form of control. Persons may be deprived of their liberty in circumstances where they have not been kidnapped. For the sake of clarity, the definition of family violence in the family violence legislation of Queensland and the Northern Territory, in particular, should include kidnapping and deprivation of liberty.

Damage to property

5.197 In the Commissions’ view, damage to property should be expressly included as a type of conduct which may meet the broader definition of family violence. As stated in the review of the Tasmanian family violence legislation, property damage is a common feature of family violence incidents. Damage to property may be an example of violent threatening behaviour or of conduct which is used to inflict fear—but equally there may be one-off instances of damage to property which do not fall within the broader definition of family violence because of an absence of context.

5.198 Specifically, the Commissions consider that damage to property should be included as a potential example irrespective of whether the victim owns or jointly owns the property that is damaged. For example, 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. The South Australian family violence legislation provides a useful model in this regard, making it clear that property covers not only property that is owned by the victim but also property in his or her possession or otherwise used or enjoyed.[336]

5.199 The Commissions note that property damage is recognised in most Australian jurisdictions—including the Commonwealth[337]—as a potential form of family violence and that the Commissions’ recommendation will necessitate amendment to the family violence legislation of Tasmania.

Injury to animals

5.200 State and territory family violence legislation should include causing injury or death to an animal, such as a family pet—irrespective of whether the animal is the property of the victim—as an example of conduct which may constitute family violence. The Commissions consider that there is merit in 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.

5.201 Causing injury or harm to an animal can either be included as an example of conduct, in itself, capable of falling within the broader definition of family violence—the Commissions’ preferred approach—or it can be included as an example of conduct which is emotionally abusive.

5.202 It appears that the family violence legislation of the following jurisdictions will need to be amended to capture harm to animals which may not technically be the property of the victim:

  • NSW—its legislation does not refer to such harm, nor does it contain the category of emotional or psychological abuse, nor an expanded definition of property either in s 7—which refers to intimidation—or insofar as it picks up property offences in the Crimes Act 1900 (NSW) s 195, which refers to property ‘belonging to another’.

  • Queensland—its legislation only specifically refers to wilful damage to the other person’s property—including his or her pet—and does not contain a category of emotional or psychological abuse.[338]

  • Western Australia—its legislation links harm to an animal to property belonging to the victim, and although it contains a category covering emotional abuse, it requires such abuse to be ‘ongoing’.[339] One or two instances of killing or injuring a family pet may not qualify as ‘ongoing’.

  • Northern Territory—its legislation allows for injury or death of an animal either on the basis that it damages the victim’s property or intimidates the victim by causing reasonable apprehension of harm to his or her property.[340]

5.203 The Commissions note that some stakeholders opposed the proposal in the Consultation Paper on the basis that animal cruelty should be dealt with by animal cruelty laws or that there should not be a separate offence for cruelty to animals committed in the context of a domestic relationship. However, the issue of punishing someone for cruelty to an animal is separate from that of defining the type of conduct which may constitute family violence for the purpose of obtaining a protection order to protect the person against future violence.

Exposure of children to violence

5.204 The Commissions are of the view that family violence legislation should acknowledge the detrimental impact of family violence on children. In Chapter 7 the Commissions recommend that family violence legislation should expressly acknowledge these effects in a provision setting out the nature, features and dynamics of family violence.[341]

5.205 The Commissions note that stakeholders were divided on the issue of whether exposing children to violence should be included in the definition of family violence. In particular, there was a concern about the potential negative effects of making victims of violence accountable for not protecting their children from violence.

5.206 On balance, the Commissions consider that the definition of family violence in family violence legislation should expressly acknowledge that exposing a child to the effects of family violence by using violence is itself a form of family violence and that other steps should be taken to address concerns about implementation. Practices of child protection authorities—which may focus on a punitive, as opposed to supportive approach to victim parents of family violence—should not compromise the fundamental objective to protect vulnerable children from the damaging effects of family violence.[342] Rather, such concerns need to be addressed by practical measures designed to bring about cultural change in the way child protection workers deal with family violence—including detailed family violence training and changes in policies, practices and procedures. Moreover, family violence legislation should make it clear that a child is exposed to the effects of family violence by the behaviour of the person using violence and not the failure of a victim parent to protect that child from such exposure.

5.207 Exposure of children to family violence encompasses more than just witnessing family violence. Indeed the terminology of ‘witnessing’ may be problematic in the sense that it may have a tendency to downplay the fact that children are living with the reality of family violence. The Victorian family violence legislation provides instructive examples of behaviour that causes a child to hear or witness or otherwise be exposed to family violence, [343] which judicial officers have stated have been useful in addressing the misconception that children are not affected by violence if they are not physically present when it occurs. These include the child comforting or providing assistance to a family member who has been physically abused by another family member, and being present when police officers attend an incident involving physical abuse of a family member by another family member.

5.208 Including this category of conduct in the definition of family violence will play an important educative role not only for judicial officers and lawyers but, as one submission suggested, for family members who care for children who may be prompted to re-evaluate their behaviour once they understand how it impacts on children. In Victoria the inclusion of this category in the definition of family violence has assisted the court to focus on the physical safety and psychological wellbeing of children. In many cases exposing children to the effects of violence will also amount to emotional and psychological abuse

5.209 In making this recommendation, the Commissions have been persuaded by the considerable amount of research documenting the fact that exposure of children to family violence causes long-term emotional, psychological, physical and behavioural issues. The National Council’s report, Time for Action, noted that:

Children and young people exposed to sexual assault and domestic and family violence experience anger, sadness, shame, guilt, confusion, helplessness and despair. Children do not need to be physically present when violence occurs to suffer negative consequences. Living in an environment where violence occurs is extremely damaging to children and there is little difference in outcomes for children whether they see the violence or not.

Living with domestic and family violence can directly affect infants, causing negative developmental, social, emotional and behavioural consequences. At a time of rapid neurological growth, an infant’s development may be compromised by exposure to ongoing violence, whether or not they are the target of the violence. Infants may have symptoms typical of post-traumatic stress.[344]

5.210 The research of Emma Bevan and Dr Daryl Higgins, for example, concluded that:

Physical abuse and witnessing family violence significantly predicted psychological spouse abuse and trauma symptomatology, with witnessing family violence individually predicting the two outcomes. [345]

5.211 Family law judgments have also referred to the dangers of children being exposed to violence. For example, in M v M, Mullane J referred to the risk of injury and fear, as well as the risk that children will learn from the abusive behaviour and ultimately treat it as acceptable.[346] In T v N, Moore J referred to the ‘abundance of research from social scientists about the highly detrimental effect upon young children of exposure to violence and the serious consequences such experiences have for their personality formation’ and went on to catalogue such effects.[347]

5.212 In addition, the Commissions note that Maurine Pyke QC’s review of South Australian domestic violence laws in 2007 identified, as an option for reform, amending the definition of family violence to include causing or allowing a child to see or hear family violence, or putting or allowing the child to be put at real risk of such exposure.[348]

Linkage of definitions of family violence to criminal law

5.213 The Commissions note that family violence legislation in both NSW and the ACT sets out certain offences which are ‘domestic violence offences’. These jurisdictions will need to review the categorisation of these offences in light of the Commissions’ proposed definition of family violence. If offences are to be categorised as family violence offences, they must fall within the definition of family violence. It appears to the Commissions that there are two categories of offences in this regard—those that will always be family violence offences when committed against a family member; and those that may or may not amount to family violence, depending on the circumstances.

5.214 Many offences against the person—such as assault, sexual assault, inflicting actual bodily harm—are inherently violent and would meet the broader definition of family violence that has been proposed. Other offences against the person—including kidnapping, forcible confinement and stalking—invariably involve behaviour that is either threatening, coercive or controlling or would engender fear—and would also meet the broader definition of family violence that has been proposed.

5.215 However, there are many offences categorised as ‘domestic violence offences’ which are not essentially offences against a person and, in respect of which, it is difficult to conclude unequivocally that all commissions of such an offence ‘directed’ at a family member will amount to family violence. For example, the ACT legislation includes ‘trespass on government premises’ as a ‘domestic violence offence’. A person may trespass on government premises with a view to seeing or contacting a family member. However, it is conceivable that a person could do this outside of the context of threatening, controlling behaviour. Similarly, a person may behave in an offensive or disorderly manner while in or on government premises—a ‘domestic violence offence’ in the ACT—in circumstances where that behaviour is ‘directed’ to a family member on those premises. However, it is conceivable that the person’s behaviour—perhaps due to drunkenness or stupidity—is devoid of any elements of coercion or control.

5.216 A final example is the offence of negligent driving, which is a ‘domestic violence offence’ in the ACT. A person may engage in negligent driving as a way of exercising control over a family member and cause that family member to be fearful—although such behaviour if it is driven by this intent is more likely to be more than mere negligence. However, it is equally possible that a person may drive negligently while there is another family member in the car due to lapse of concentration, poor judgment, fatigue or inebriation, in the absence of threatening or coercive behaviour—and it is possible, that the passenger is not afraid because he or she is drunk or not indisposed to thrill-seeking behaviour. Equally, the passenger may be afraid of the person’s driving skills without being, in any way, afraid of the person.

5.217 For the above reasons, the Commissions consider that it is problematic to describe criminal offences that are not inherently offences against a person—such as the examples described above—as family violence offences on the somewhat contrived basis that they were committed against, or directed to, a person in a defined relationship.

5.218 Where states and territories adopt the approach of designating certain offences as family violence offences, they should also give consideration to including relevant federal offences. However, the Commissions consider that apart from specified offences against a person, it is problematic to attempt to catalogue each and every state, territory and federal offence which could potentially arise in a family violence context. Perhaps an easier way would be for family violence legislation to specify that when an offence, other than an offence against a person, is committed in a family violence context—with specific reference to the definition of family violence—then a judicial officer can classify that offence as a family violence offence.

5.219 The Commissions remain of the view expressed in the Consultation Paper that, in reviewing designated state and territory offences, state and territory governments should ascertain whether any offences require updating or amending. In particular, the language and philosophy of s 44 of the Crimes Act 1900 (NSW) concerning legal liability and failure to provide ‘any wife, apprentice, or servant or any insane person with necessary food, clothing, or lodging’ is archaic and should be amended.

5.220 Finally, the Commissions consider that, in light of their proposed definition of family violence which places potential behaviours in context, there is no need to make a separate recommendation that the definition of family violence in state and territory family violence legislation should be broad enough to capture conduct the subject of potentially relevant federal criminal behaviour. If such behaviour is violent or threatening, coercive or controlling or causes fear, it will fall within the definition. As noted above, the specific inclusion of sexually abusive behaviour as a category of behaviour falling within the broader definition will capture potentially relevant federal sexual offences such as sexual servitude or those relating to grooming and procuring.

Recommendation 5–1 State and territory family violence legislation 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:

(a) physical violence;

(b) sexual assault and other sexually abusive behaviour;

(c) economic abuse;

(d) emotional or psychological abuse;

(e) stalking;

(f) kidnapping or deprivation of liberty;

(g) damage to property, irrespective of whether the victim owns the property;

(h) causing injury or death to an animal irrespective of whether the victim owns the animal; and

(i) behaviour by the person using violence that causes a child to be exposed to the effects of behaviour referred to in (a)–(h) above.

Recommendation 5–2 State and territory family violence legislation should include examples of emotional and psychological abuse or intimidation and harassment that illustrate conduct that would affect—although not necessarily 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. In each case, state and territory family violence legislation should make it clear that such examples are illustrative and not exhaustive of the prohibited conduct.

Recommendation 5–3 The definition of family violence in state and territory family violence legislation 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.

Recommendation 5–4 The governments of NSW and the ACT should review the offences categorised as ‘domestic violence offences’ in their respective family violence legislation with a view to:

(a) ensuring that the classification of such offences falls within the proposed definition of family violence in Rec 5–1; and

(b) considering the inclusion of relevant federal offences committed in a family violence context, if they choose to retain such a classification system.

Recommendation 5–5 Incidental to the review of ‘domestic violence offences’ referred to in Rec 5–4, s 44 of the Crimes Act 1900 (NSW)—which deals with the failure to provide any wife, apprentice, servant or insane person with necessary food, clothing or lodgings—should be amended to ensure that its underlying philosophy and language are appropriate in a modern context.

[321] Australian Government Solicitor, Domestic Violence Laws in Australia (2009), [1.16].

[322] United Nations Department of Economic and Social Affairs Division for the Advancement of Women, Handbook for Legislation on Violence Against Women (2009), [3.4.2.1].

[323] Victorian Law Reform Commission, Review of Family Violence Laws: Report (2006), Rec 14.

[324] See Ch 13.

[325] Though the extent to which such purposes are articulated in objects clauses differ, and this is the subject of Rec 7–4.

[326] Domestic Violence Legislation Working Group, Model Domestic Violence Laws (1999), s 3, 18–23.

[327] In Ch 6, the Commissions set out further benefits of promoting a common understanding of family violence across family violence legislation and other legislative schemes.

[328] See New South Wales Law Reform Commission, Apprehended Violence Orders, Report 103 (2003), [4.14]–[4.22].

[329] The ‘invisibility’ of sexual assault in family violence cases is discussed in Ch 24.

[330] Victorian Law Reform Commission, Review of Family Violence Laws: Report (2006), 103.

[331] See Rec 5–5 below. For example, the archaic reference to ‘insane persons’ is inappropriate.

[332] Victorian Law Reform Commission, Review of Family Violence Laws: Report (2006), Rec 11.

[333]Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 8(4)(i). See also s 8(4)(j).

[334] Ibid s 8(4)(a).

[335] Ibid s 8(4)(b).

[336] Ibid s 8(2)(d).

[337]Migration Regulations 1994 (Cth) reg 1.21(1). See Ch 6.

[338]Domestic and Family Violence Protection Act 1989 (Qld) s 11.

[339]Restraining Orders Act 1997 (WA) s 6.

[340]Domestic and Family Violence Act 2007 (NT) s 5(b), 6(1)(b)(ii).

[341] Rec 7­–2.

[342] The interaction between child protection laws and family violence laws is discussed in Ch 19.

[343]Family Violence Protection Act 2008 (Vic) s 5.

[344] National Council to Reduce Violence against Women and their Children, Background Paper to Time for Action: The National Council’s Plan to Reduce Violence against Women and their Children, 2009–2021 (2009), 40 (citations omitted).

[345] See, E Bevan and D Higgins, ‘Is Domestic Violence Learned? The Contribution of Five Forms of Child Maltreatment to Men’s Violence and Adjustment’ (2002) 17(3) Journal of Family Violence 223, 241.

[346]M v M (2000) FLC ¶93–006, [94].

[347]T v N (2003) 31 Fam LR 257, [36].

[348] M Pyke, South Australian Domestic Violence Laws: Discussion and Options for Reform (2007), [18.2].