Submissions and consultations

A common definition or shared understanding of family violence?

5.54 In the Consultation Paper, the Commissions put forward two alternative proposals concerning the definition of family violence across family violence legislation. One was that state and territory family violence legislation should contain the same definition of family violence covering specified physical and non-physical violence, with the definition of family violence in the Family Violence Protection Act 2008 (Vic) being used as a model. The other was that the definitions of family violence in state and territory family violence legislation should recognise the same types of physical and non-physical violence, including sexual assault, economic abuse, emotional or psychological abuse, kidnapping and deprivation of liberty, damage to property, harm or injury to an animal irrespective of whether the animal is technically the property of the victim, and exposure of children to violence.^[85]

Support for proposal and for Victorian definition to be used as a model

5.55 There was overwhelming support for this proposal, although many stakeholders did not specify which of the two alternatives they preferred.^[86] Specifically, there was strong support for the definition in the Victorian legislation to be used as a model.^[87] For example, the Domestic Violence Prevention Council (ACT) submitted that its support for either of the two proposals

is strongly linked to the definition in the [Victorian legislation] being used as a model. Without this model as the aim, the states and territories with more progressive legislation could be at a disadvantage regarding the outcome of negotiations.^[88]

5.56 The Victorian Government noted that the Victorian Department of Justice had received positive feedback on the definition contained in its legislation, when undertaking a six month review of the legislation, to June 2009. For example, the review found that:

• the expanded definitions of family violence to include the non-physical forms of violence are being used in support of applications for [protection] orders where other types of abuse have also been a feature of the violence; … and

• the changes to the definition within the Act are being utilised in Men’s Behaviour Change Programs, as an opportunity to talk about the impact of family violence, such as the impact of controlling behaviours.^[89]

5.57 The Magistrates’ Court and the Children’s Court of Victoria submitted that the definition of family violence in the Victorian family violence legislation had proved itself to be workable.

The introduction of the [Act] and, including this definition, has resulted in a significant increase (approximately 10 per cent) in the number of applications to the Courts for family violence [protection] orders. The definition encourages magistrates to broaden their thinking about the risks associated with the history and dynamics of the relationship between the applicant and the respondent.^[90]

5.58 Family Relationship Services Australia noted that individuals seeking support from family and relationship services are often ambivalent about recognising and naming violence within their relationships, and that perhaps one of the reasons for this is ‘because violence is seen as part of the family dynamic and not clearly identified as unacceptable behaviour’.^[91]

The development of a model definition would … be instructive for service systems and professionals working with families who are sometimes confronted with diverse community expectations and debate over what constitutes family violence. … A clear definition would help professionals in their role of educating people and explaining service system responses.^[92]

5.59 The Australian Domestic and Family Violence Clearinghouse expressed a preference for the definition in the South Australian family violence legislation to be adopted—because of its focus on harm, but stated that its alternative preference was the Victorian definition because it expanded the availability of orders ‘to a wider range of abusive behaviours than does a purely conduct based definition’.^[93]

5.60 Of those submissions that expressed a preference for one of the two alternative proposals, opinions were divided as to whether the definition should be the same or should be based on a common understanding.

Support for same definition

5.61 Some stakeholders, including Indigenous legal service providers;^[94] advocacy organisations;^[95] legal aid;^[96] service providers;^[97] crisis accommodation services;^[98] individuals associated with advocacy organisations;^[99] and other individuals,^[100] expressed a preference for a common definition. For example, the Ngaanyatjarra Pitjantjatjara Yankunytjatjara Women’s Council Domestic and Family Violence Service submitted:

The Service works across NT, SA and WA and so works within three different sets of legislation. If there was a consistent definition in the state and territory family violence legislation this would make it easier for the Service, especially where caseworkers work with clients from a state or territory that is not their primary area.

Aboriginal people in central Australia are very mobile, and move freely between communities in WA, SA and the NT. A consistent definition would mean that what constitutes family violence is the same in whatever community the violence occurs.^[101]

5.62 Other reasons given in support of the same definition include that it would:

• assist ‘families’ experiences of procedural fairness, particularly if those experiences are complicated … by relocation across state boundaries;^[102]

• address difficulties faced by victims when attempting to register a protection order in another state or territory;^[103]

• give greater clarity. The alternative of allowing for recognition of the same types of conduct that may constitute family violence ‘would make the interpretation of these concepts open to broad interpretation’;^[104] and

• assist in enabling marginalised women to have enhanced access to legal protection—if the uniform definition to be applied were also broad.^[105]

5.63 Support was sometimes expressed, however, with two broad qualifications: that the common definition should not be achieved by adopting the lowest common denominator;^[106] and that it is not pursued simply for the sake of uniformity.^[107]

Opposition to same definition

5.64 The Queensland Law Society specifically opposed a common definition on the basis that it could hamper innovative approaches to family violence.

Domestic and family violence is a topic that governments will keep wishing to legislate in response to. But it is a healthy part of the Australian Federation that different states and territories are able to respond to domestic and family violence in an experimental way to see what works and what does not work, with the benefit that states and territories are able to learn from each other and improve legislation to ensure that this violence is adequately tackled. This process of innovation should not be removed by adopting a uniform definition.^[108]

Support for common shared understanding without the same definition

5.65 Other stakeholders, however, including one state government;^[109] National Legal Aid;^[110] academics;^[111] women’s legal service providers;^[112] general legal service providers;^[113] rape crisis centres;^[114] peak family violence bodies;^[115] representative bodies of specialist domestic violence services;^[116] advocacy coalitions;^[117] councils for single mothers;^[118] police bodies;^[119] education providers;^[120] those working with women with disabilities;^[121] and individuals^[122] expressed a preference for a definition based on a common understanding rather than a common definition. Reasons advanced included that:

• it would go some way to towards ensuring harmonisation of state and territory and Commonwealth laws;^[123]

• developing a shared understanding of what constitutes domestic and family violence within and across jurisdictions is an important component for the development of integrated systems and responses;^[124]

• it is more achievable^[125]—attaining the same definition may be particularly difficult to realise in practice given that many jurisdictions have reviewed their family violence legislation in recent years;^[126]

• the political effort required to achieve a uniform definition may not be warranted, especially in light of the failure of the model laws proposed in the Model Domestic Violence Laws Report; ^[127]

• drafting a uniform definition acceptable to all state and territories would be a significant task and would risk limiting protection for victims of violence to the lowest common denominator;^[128]

• there is merit in leaving room for states and territories to adapt definitions to meet local concerns, provided that there is agreement that the same types of physical and non-physical conduct are recognised;^[129]

• a consistent approach across all jurisdictions would be useful, and recognition of protection orders between jurisdictions would provide better protection for women and children;^[130] and

• it is more likely to capture the nuanced differences experienced by victims of family violence with a disability.^[131]

5.66 National Legal Aid emphasised that such a common understanding should reflect contemporary understandings of family violence and include all behaviours that evidence-based research have found to be damaging.^[132]

5.67 One stakeholder, while acknowledging that a uniform definition could support ‘consistency in implementation’ submitted that:

there are some varying circumstances in different states—for example, issues and nuances specific to … Indigenous population[s] … A core uniform definition with additional provisions as individual states and territories see fit would allow for geography/demographic specific issues. Alternatively, we would support [a definition based on a common understanding] to allow for jurisdiction specific examples in definitions. ^[133]

Opposition to proposal

5.68 Professor Patrick Parkinson expressed strong opposition to a common definition or shared understanding of family violence based on the Victorian definition for a variety of reasons, including:

• It takes characteristics of coercive controlling violence which represent interrelated aspects of women’s experience of control and treats them as independent forms of ‘violence’ with applications outside of the context of coercion and control.

• An expansion of the definition of family violence could have very substantial net-widening effects, with the consequence that the courts may be distracted by the sheer numbers of allegations of violence from focusing both attention and resources on the areas where careful assessment and decisive intervention is most necessary.

• Any expansion of the definitions may have significant resource implications for state and territory magistrates’ courts.

• An expansion of the grounds for family violence orders may undermine efforts at reducing conflict between parents after separation without doing much to improve safety.

• There is a risk that certain forms of abuse will be extremely hard to define, being very reliant on personal opinion and subjective perception.^[134]

5.69 Parkinson recommended an alternative formulation of family violence, which is considered separately below in the context of the discussion of family violence as coercing or controlling behaviour.

Family violence as coercing or controlling behaviour

5.70 In the Consultation Paper, the Commissions asked whether the definition of family violence in state and territory family violence legislation, in addition to setting out the types of conduct that constitute family violence, should provide that family violence is violent, threatening behaviour or any other form of behaviour that coerces, controls or dominates a family member or causes that family member to be fearful.^[135]

5.71 There was overwhelming support for this approach from a wide spectrum of stakeholders, including Indigenous legal and advocacy services; non-government organisations involved in the disability sector; legal service providers; courts; legal aid; victims’ groups; academics; crisis accommodation services; and individuals.^[136] Various reasons were advanced in support including that:

• ‘it is essential that the definition used is consistent with understanding the coercive control elements of family violence and shifts beyond the limited incident based approach commonly used in legal settings’;^[137]

• it would assist women living in remote communities who are particularly vulnerable to controlling behaviour and find it difficult to break free from that control;^[138]

• the inclusion of these matters is important to ensure that all aspects of an abusive relationship are caught by the legislation,^[139] and assists in recognising the complexity of family violence;^[140]

• understanding the dynamics of the use of power and control is critical to understanding family violence;^[141] and such a definition would perform an educative role;^[142]

• it allows new forms of behaviour to be included, provided that they meet this definition;^[143]

• having a definition based on the dynamics and impact of family violence avoids the technicalities of definitions becoming an obstacle to protection, especially given that a common form of family violence is the use of strategies of intimidation and symbolic actions which have specific meaning for the victim but appear relatively harmless to others;^[144]

• it acknowledges how family violence can result from situations where a person is increasingly dependent on support from family or others, and is therefore relevant to people living with a disability who can be particularly vulnerable to family violence;^[145] and

• this approach is consistent with the definition in the Victorian family violence legislation, which has been reviewed and found to be working well in practice.^[146]

5.72 It was also submitted that the definition should not capture the normal disciplinary actions of parents.^[147]

5.73 On the precise wording of the definition, a partner violence counsellor submitted that:

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.^[148]

5.74 Two academics submitted that family violence should be defined more or less along these lines—that is, providing the overarching context for other aspects of the definition—rather than being an additional category in itself. Dr Jane Wangmann suggested that

the definition of family violence in civil protection order legislation should, in addition to setting out a non-exhaustive list of the types of behaviour falling under the purview of the legislation, explain the context of those acts by providing that ‘family violence is violent or threatening behaviour or any other form of behaviour that coerces, controls or dominates a family member or causes that family member to be fearful’ …

For the civil protection order system to better respond to family violence—it needs to do more than simply respond to incidents of violence/abuse perpetrated by a person in a familial relationship. To remain focused on incidents creates the risk that civil protection order schemes: replicate the limitations of the criminal law; fail to acknowledge the way in which acts and behaviours are inextricably related; and fail to appreciate the way in which otherwise ‘minor’ events are in fact of critical concern to many women.

The context in which acts and behaviour take place takes on a heightened importance as legislative definitions are progressively broadened to include a range of non-physical and non-visible forms of abuse (for example, emotional abuse, verbal abuse, or economic abuse).^[149]

5.75 Parkinson opposed a definition that would create ‘discrete categories of violence provable by reference to specific incidents or behaviours outside of a context of coercive, controlling violence or behaviour that causes someone to fear for their safety’, noting the significant net-widening effects of such an approach. He submitted that family violence should be defined as

violent or threatening behaviour or any other form of behaviour, including sexual, economic or psychological abuse, which has the purpose of coercing, controlling or subjugating a family member or causing that family member to be fearful, or which is reasonable likely to have these consequences.^[150]

5.76 The importance of context was also emphasised by Professor Patricia Easteal, who noted that:

Any one ‘incident’ is in actuality just a small part of a complex pattern of control and cannot be adequately understood nor its gravity measured in isolation from that background. At the centre is disempowerment and degradation.^[151]

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

5.77 In the Consultation Paper, the Commissions proposed that the Crimes (Domestic and Personal Violence) Act 2007 (NSW) should be amended to include a definition of ‘domestic violence’ in addition to the current definition of ‘domestic violence offence’.^[152] This proposal received widespread support.^[153]

5.78 For example, Legal Aid NSW submitted that:

A single definition of domestic violence should be included in the Act. There are currently numerous definitions of domestic or family violence in various pieces of legislation in NSW but no comprehensive definition in the core legislative framework for domestic violence, the Crimes (Domestic and Personal Violence) Act 2007 (NSW).^[154]

5.79 The Women’s Domestic Violence Court Advocacy Service Network Inc (WDVCAS Network) also expressed the view that there was a need for a ‘single definition of domestic and family violence [to] form a core part of the legislative framework for addressing family violence’.^[155] Both Legal Aid NSW and WDVCAS Network also supported a definition that recognises the gendered nature of family violence.^[156]

5.80 The Aboriginal Family Violence Prevention and Legal Service, in supporting the proposal, stated:

The current framing of family violence/personal violence in the NSW legislation is unwieldy to use in terms of being best placed to advise and define domestic violence and family violence. Reference only to offences can create a view in policing that domestic violence and family violence is only actionable where there is likely to be a police charge and it does not create a clear context for victims to be able to rely on police/court assistance in cases of threatening/coercive/controlling behaviour in the absence of assaults. A definition of domestic violence/family violence in the Act would assist this to change.^[157]

5.81 A few stakeholders submitted that the NSW definition should use the terminology of ‘family violence’, for example, to be consistent with the terminology of the Family Law Act 1975 (Cth).^[158]

5.82 One stakeholder—the Australian Domestic and Family Violence Clearinghouse—thought the proposal was unnecessary ‘given that the NSW test for orders does not require a definition’.^[159]

Types of potentially relevant conduct

5.83 The discussion below canvasses stakeholder views on whether a range of behaviours is appropriate to include in the definition of family violence.

Sexual assault

5.84 In the Consultation Paper, the Commissions proposed that state and territory family violence laws should expressly recognise sexual assault in the definition of family violence.^[160]

5.85 This proposal received overwhelming support,^[161] with stakeholders submitting that:

• a large proportion of women experiencing family violence experience sexual assault as part of that violence;^[162] yet casework experience suggests that many sexual assaults in intimate relationships go unreported, even where other forms of family violence are reported;^[163]

• there appears to be a lot of unreported sexual assault that occurs in remote communities;^[164]

• many victims do not recognise sexual assault by partners in the context of a domestic relationship as criminal or family violence, nor do police;^[165]

• because sexual behaviour in an intimate relationship is ‘normal’, it may reduce the likelihood that third parties, including police officers and judicial officers, question the appropriateness of the behaviour;^[166]

• sexual control and domination provides a veil of secrecy because the victim may not want to speak openly and freely about the parties’ sexual behaviour;^[167]

• such a provision would assist in ‘shifting unhelpful social attitudes and myths around intimate partner sexual assault’ as ‘[u]nwilling submission to sexual demands in marriage is still viewed in many parts of society as part and parcel of a marriage relationship’;^[168] and

• expressly recognising sexual assault as family violence may encourage reporting and lead to an increase, for example, in specific sexual assault support for victims.^[169]

5.86 In particular:

• the Queensland Commission for Children and Young People and Child Guardian expressly supported the proposition that the Queensland family violence legislation be amended to recognise sexual assault;^[170] and

• Gosnells Community Legal Centre Inc expressly supported the proposition that the Western Australian family violence legislation be amended to recognise sexual assault to avoid any ambiguity for police officers, the judiciary and legal practitioners;^[171] and

• The Domestic Violence Prevention Council (ACT) agreed that the ACT family violence legislation should include specific reference to sexual assault in the definition of family violence.^[172]

5.87 The Department of Premier and Cabinet (Tas) supported the proposal but noted that:

unless there are practical systems in place to back up the legislation, the legislation itself is not going to improve results for victims of sexual assault.^[173]

5.88 One stakeholder submitted that it was unnecessary to include sexual assault in the definition because it has long been recognised as a violent act by the courts.^[174]

5.89 Some stakeholders submitted that the definition also needs to recognise sexual grooming behaviour.^[175]

Economic abuse

5.90 In the Consultation Paper the Commissions proposed that state and territory family violence legislation should expressly recognise economic abuse in the definition of family violence.^[176] This proposal received overwhelming support—including from groups representing the interests of Indigenous persons and those with a disability^[177]—although a few stakeholders expressed dissent. Stakeholders who expressed support submitted, for example, that economic abuse:

• is commonly used as a method of power and control within a family violence context, and has very serious impacts, including social isolation;^[178]

• makes it very difficult for victims to leave abusive relationships because they are not able to access the funds needed to do so’;^[179]

• is often part of other abuse—such as sexual assault, where sexual services are demanded in return for household money;^[180]

• is a common indicator of elder abuse;^[181]

• may have an increased impact on people with a disability who may be vulnerable to economic exploitation, intimidation and abuse from carers, partners and other family members,^[182] due to their dependence, having impaired decision-making capacity, and their not being afforded sufficient control of their finances by family members, proxies, or service systems;^[183]

• is not adequately addressed in the family violence legislation of Western Australia, which fails to protect victims of such abuse, although in that state it is accepted amongst family violence case workers and service providers that economic abuse constitutes family violence, reflected in publications and information provided to victims;^[184]

• should be included in the definition of family violence on the proviso that repeated, ongoing or persistent behaviour is required to be proved because ‘economic harm is unlikely to occur as a result of a single or occasional event’;^[185] and

• may be difficult to prove—for example, one point in issue from the Tasmanian experience

is the extent to which it is reasonable to control a family member in certain ways, such as circumstances where one party takes control of the finances because the other party is a problem gambler or suffers from a mental illness or disability.^[186]

5.91 A particular example of economic abuse in Indigenous communities in the Northern Territory was brought to the Commissions’ attention, namely ‘humbugging’—the practice of demanding money from relatives, often by the use of standover tactics. For example, one Indigenous family violence service submitted:

The Service receives many reports of women being made to give their money to their partners and other family members to buy alcohol and/or drugs (marijuana), and often with violence against the woman resulting from the consumption of the alcohol and/or drugs.

Economic abuse has also resulted in many of the ‘failure to thrive’ cases for children living in remote communities, which can then lead to children being removed by child protection authorities.^[187]

5.92 The Magistrates’ Court and the Children’s Court of Victoria noted that, in their experience, it is rare for applicants for protection orders to rely on economic abuse alone—it is more often referred to in applications in association with other forms of controlling and coercive behaviour.^[188] Those courts were unaware of any charges relating to breach of a protection order based on economic abuse alone. ^[189]

5.93 Women’s Legal Service Victoria noted the following case which involved economic abuse together with other forms of abuse:

In one instance, the inclusion of economic abuse was extremely relevant because the verbal, emotional and psychological abuse was heightened by the economic abuse. The protected persons were a mother and her disabled son, who were living in absolute squalor while the respondent father used all the family’s Centrelink payments for his ongoing addiction to drugs and alcohol. Having legislation that expressly recognised economic abuse, assisted the Magistrate to address the economic abuse. A notation was made in the order indicating that the respondent agreed to open a bank account for the protected person and to deposit a fortnightly specified amount for food and the maintenance of the home.^[190]

5.94 The Commissions heard that protection orders have been obtained in the Northern Territory based on ‘humbugging’.^[191] Further, the Queensland Law Society submitted that, although the family violence legislation of Queensland does not refer expressly to economic abuse in its definition of family violence, it is possible to obtain protection orders for economic abuse on the basis that such conduct constitutes ‘harassment’ or ‘intimidation’. It expressed the view, however, that in the reference to ‘harassment’ and ‘intimidation’

it would be useful to have an example which includes economic abuse so that it highlights specifically for police and magistrates that economic abuse is and can be an example of harassment or intimidation.^[192]

5.95 A few stakeholders opposed the proposal on the basis that it would:

• ‘increase the criminalisation of Aboriginal people and would not serve the fundamental objective of addressing family violence’;^[193] and

• broaden the scope for protection orders to be obtained for conduct not known or proscribed by the criminal law.^[194]

5.96 The Law Society of NSW also opposed the proposal on the basis that it would be difficult to prove:

especially where the parties simply have different spending habits and attitudes towards saving and lifestyle. Economic abuse could be covered by intimidation if it can be proved to be used in an unacceptable controlling way. Otherwise the legislation is taking on the task of scrutinising and possibly criminalising the frugality of one party to a relationship.^[195]

5.97 Parkinson opposed the inclusion of economic abuse as a discrete category of family violence outside of a context of coercive, controlling behaviour or behaviour that causes someone to fear for his or her safety.^[196]

Emotional or psychological abuse

5.98 In the Consultation Paper, the Commissions proposed that emotional or psychological abuse or intimidation or harassment should be recognised in the definition of family violence.^[197] As outlined above, the Commissions’ general proposal about attaining a common understanding of the definition of family violence including specified non-physical violence received overwhelming support.

Use of examples

5.99 In addition, the Commissions proposed that state and territory family violence legislation should include specific examples of emotional or psychological abuse or intimidation or harassment that illustrate acts of violence against certain vulnerable groups including: Indigenous persons; those from a culturally and linguistically diverse background; the aged; and those from gay, lesbian, bisexual, transgender and intersex communities.^[198] The Consultation Paper noted that instructive models of such examples were included in the family violence legislation of Victoria and South Australia.

5.100 This proposal received strong support,^[199] although a few stakeholders expressed dissent.^[200]

Support for the proposal

5.101 Stakeholders that supported the proposal submitted, for example, that the inclusion of specific examples:

• could possibly assist in achieving more consistent responses from the justice system in relation to family violence;^[201]

• provides clarity^[202] and ‘an opportunity to expand the applicability of laws to disadvantaged groups whose experiences would otherwise be outside the realm of understanding of judicial officers’;^[203]

• raises awareness of violence against disadvantaged groups and serves an important educative function;^[204]

• would give police confidence that protection orders are appropriate in circumstances where there is not a physical altercation;^[205] and

• allows for ‘sensitivity and accommodation of the specific circumstances of women in Indigenous communities and from other social groups’.^[206] In particular, some stakeholders noted that threats to commit suicide are used by Indigenous persons who use violence as a form of coercion and control to stop victims from taking action against them.^[207]

5.102 The educative role of such examples was also considered important. The Magistrates’ Court and Children’s Court of Victoria stated that the inclusion of specific examples has been very useful to magistrates in explaining to parties the range of behaviours that may constitute family violence. It has also been helpful to those interpreting legislation such as police, lawyers and court staff.^[208]

5.103 In a joint submission, Domestic Violence Victoria and others submitted that:

In our experience it has been especially important to spell out in the legislation examples of family violence that impact particularly on victims from Indigenous, CALD and/or LGBTI communities, as well as on those who are aged or live with a disability, because despite the fact that these groups often suffer higher rates of violence than the rest of the population, violence that takes an emotional or psychological form is not commonly understood to fall under the legal definition of family violence, and therefore victims of such violence are under-served in policy and practice …

Embedding acknowledgment of social context in legislation and policy has also assisted the development of a risk assessment framework used by service agencies. For example, in the two-week March 2009 period, police identified harm, … threats or attempts by the perpetrator to commit suicide in 27 incidents (3%).^[209]

5.104 ACON strongly supported the proposal, noting the unique aspects of same-sex violence, such as the ‘use of societal homophobia as a tool of control’ and the barriers of access to health and legal services due to fears of homophobia and breaches of confidentiality.

Recognising these unique aspects in legislation … would enable a more socially inclusive sector so that clients who are from same-sex couple families can access the same services and legal protections that the broader community has access to.^[210]

5.105 The Inner City Legal Centre submitted that issues concerning intersex communities should also be addressed. It agreed that listing specific examples of abuse would serve an educative function but cautioned that it could also limit the understanding of family violence for victims and service providers by excluding behaviours that ‘are less understood or less overt’. It urged that any examples to be included be developed in consultation with key stakeholders in the gay, lesbian, bisexual, transgender and intersex communities.^[211]

5.106 The Disability Services Commission (Western Australia) submitted that it would support the inclusion of examples of abuse particularly relevant to people with disability:^[212]

It is the view of the Disability Services Commission that the definition of emotional or psychological abuse in the Family Violence Protection Act 2008 (Vic) does not recognise the particular forms of emotional abuse commonly experienced by people with disability and that the examples given in the Intervention Orders (Prevention of Abuse) Act 2009 (SA) are too limited.

The Disability Services Commission supports the inclusion of the examples given in the consultation summary document as relevant to aged people or people with disability: ‘threatening to: institutionalise a person; withdraw care on which the person is dependent; withhold medication or prevent the person accessing medical equipment or treatment’. However, the term ‘prevent the person accessing medical equipment’ is not sufficiently inclusive to take account of the abuses commonly experienced by victims with disability. In addition to these examples the Disability Services Commission suggests including ‘prevent the person accessing aids and equipment used in the person’s daily life’.^[213]

5.107 The One in Three Campaign noted the experience of men in its submission:

the evidence is incontrovertible that male victims of family violence face unique problems, just like other vulnerable groups. If specific vulnerable groups are to be detailed in legislation, male victims of family violence must surely be added as one of these groups.^[214]

5.108 The Queensland Law Society submitted that there was no question that ‘harassment’ and ‘intimidation’ in the Queensland family violence legislation already included emotional or psychological abuse.^[215]

Opposition to the proposal

5.109 Stakeholders that opposed the proposal expressed the view that:

• the legislation should apply to everyone and that specific groups should not be identified;^[216]

• specific examples ‘give little guidance to magistrates and judges dealing with the vast majority of intimate relationships in which allegations of psychological abuse may occur which do not involve indigenous families, closet gay partners, mixed race partners who are subject to racial taunts, elderly couples, where one is dependent on the other to provide medication, or others covered by these examples’;^[217]

• including ‘offensive’ behaviour within the definition of family violence, as is the case in Victoria and the ACT, is problematic;^[218]

• the examples given did not constitute family violence—for example, the Law Society of NSW submitted that examples of repeated derogatory taunts, including racial taunts essentially amounted to ‘bad manners’, not family violence; and that threatening to disclose a person’s sexual orientation against the person’s wishes is not family violence, although it may possibly amount to defamatory conduct if the disclosure is untrue.^[219]

5.110 A concern was expressed that the risk in including specific examples of emotional and psychological abuse in the legislation is that it will be used as defining ‘violence’ and as a criterion to be proved in order to obtain a protection order.^[220] For example, the Queensland Government noted that some of the feedback received in the review of the Queensland family violence legislation ‘has suggested that the use of examples in legislation can operate to restrict the application and interpretation of the broader definition’.^[221] Other stakeholders submitted however that this was not an issue of which they were aware. For example, the Queensland Law Society said that ‘it has not come to the attention of the [Society] that examples included in legislation are being used as anything other than as examples’.^[222]

5.111 Many stakeholders supported the proposal on the basis that legislation made it clear that such examples are illustrative, not exhaustive.^[223] Another stakeholder submitted that:

Care must be taken in providing illustrative examples of acts of violence against certain vulnerable groups. Such examples must be provided in general terms and not reference back to that particular disadvantaged group so as to avoid the risk of stereotyping. For example, coercing a person to claim social security payments may occur more so in a particular vulnerable group, however such an example must be made in general terms without reference back to that vulnerable group.^[224]

5.112 One stakeholder supported the proposal on the basis that the inclusion of persons from vulnerable groups includes both males and females.^[225]

5.113 While not commenting specifically on this proposal, the Australian Society of Social Workers submitted that a definition of family violence should include consideration of digital abuse or digital harassment, which it said

was an extension of verbal and/or emotional abuse transmitted via emails, instant messaging, mobile phone, voicemails, texts, ‘sexts’, [nude or sexually suggestive pictures sent via mobile phone or online] or social networking websites.^[226]

5.114 It submitted that such ‘abuse by technology’ was particularly common among young people in relationships.^[227]

Appropriate use of emotional or psychological abuse category

5.115 In the Consultation Paper, the Commissions proposed that 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, which by its nature could be pursued criminally—such as sexual assault.^[228]

5.116 This proposal received very strong support.^[229] In addition to supporting the reasons set out in the Consultation Paper,^[230] other reasons advanced included: the difficulty in providing evidence of emotional or psychological abuse;^[231] that requiring this to be proved in the circumstances amounted to ‘systemic abuse’;^[232] that it was unnecessary;^[233] illogical;^[234] and that sexual assault constituted the most intimate abuse of an individual’s dignity, having an indisputable traumatic effect that should not have to be proved.^[235]

5.117 Submissions and consultations also noted the cultural and linguistic problems which arise in discussing emotional and psychological injury with Indigenous persons.^[236] One Indigenous family violence service, for example, submitted that:

It is the Service’s experience that Aboriginal women in remote communities do not seek or have access to psychologists/counsellors after a sexual assault. Further, Aboriginal women can have different coping mechanisms when dealing with sexual assault and may not want to speak to a psychologist/counsellor about what has happened to them.

Sexual assault is often not reported straight after it happens, especially for women living remotely, making it harder to link emotional harm to that incident.

Often our clients are in relationships perpetuated by constant violence and assault, so that it may be the case that a particular incidence of sexual assault may not result in provable emotional or psychological harm; however, this should not mean that the sexual assault is not abuse or that it is a less serious assault.^[237]

5.118 The Queensland Law Society also submitted that:

for a person deprived of his or her liberty to have to prove emotional or psychological harm would appear to be burdensome, unnecessary, and might deter those from seeking protection when they might otherwise be entitled to it.^[238]

5.119 In its submission, National Legal Aid expressed the opinion that the family violence legislation of South Australia is not likely to make it difficult for victims of sexual assault to obtain protection orders.^[239]

Kidnapping or deprivation of liberty

5.120 In the Consultation Paper, the Commissions proposed that the family violence legislation of Queensland and the Northern Territory should be amended to recognise kidnapping or deprivation of liberty expressly as a form of family violence.^[240]

5.121 This proposal received widespread support, including from victims who recounted personal stories of having been kidnapped by their partners or of being detained for hours while being physically and emotionally abused and having the telephone removed from them.^[241] One Indigenous family violence service submitted that it

receives reports from women saying that they are unable to leave the house or reports that a woman has been forced to travel to another community by her current or expartner and it needs to be clear that this is a form of family violence with serious consequences.^[242]

5.122 Both the Queensland Law Society and National Legal Aid submitted that, while not referring specifically to kidnapping or deprivation of liberty, the definition of family violence in the Queensland family violence legislation already captured conduct of this kind by including conduct that constituted harassment or intimidation.^[243] However, the Queensland Law Society submitted that it

would support the Commissions’ view that the definition of ‘domestic violence’ in the Queensland Act should specifically refer to kidnapping and deprivation of liberty.^[244]

5.123 Women’s Legal Service Queensland and the Queensland Government also expressed the view that the existing definition was broad enough to capture kidnapping. However, Women’s Legal Service Queensland did not disagree with the Commissions’ proposal, and the Queensland Government noted that the proposal will be considered in the review of the Queensland family violence legislation.^[245]

5.124 National Legal Aid expressed the view that kidnapping or deprivation of liberty would be considered to be family violence under ss 5 and 6 of the Northern Territory family violence legislation, but that ‘the proposed amendment would provide clarification and was supported’.^[246]

5.125 Other stakeholders that supported the proposal submitted that:

• depriving a victim of liberty was an integral form of control;^[247]

• there is a high incidence of unlawful imprisonment of partners and children by the use of threats and intimidation;^[248] and

• many women are kept prisoners in their homes during prolonged incidences of family violence and some women are not allowed out of the house to shop, work or interact with others.^[249]

Damage to property

5.126 In the Consultation Paper, the Commissions proposed that the family violence legislation of Tasmania should be amended to recognise damage to property and threats to commit such damage as a form of family violence.^[250]

5.127 This proposal was supported by the great majority of stakeholders that addressed it,^[251] including a number of legal service providers;^[252] services providing accommodation for family violence victims;^[253] and victims who recounted personal stories about extensive damage to property, including damage committed in front of children, as well as damage occasioned to their cars—such as the cutting of tyre valves.^[254]

5.128 For example, stakeholders stated that damage to property is an example of violent coercive behaviour;^[255] that it is harmful behaviour that is used to inflict fear;^[256] and is used as a standover tactic.^[257] The Queensland Law Society supported the inclusion of damage to property in the definition of family violence:

• That recognition has been in the Queensland legislation since its inception. It is recognition of the use of violence towards property in relationships where one party might, for example:

• punch or kick a hole in the wall;

• throw a phone smashing it, preventing the other party from telephoning the police for safety;

• hit a car;

• poison plants;

• smash a windscreen;

• kick the family pet.^[258]

5.129 However, the Department of Premier and Cabinet (Tas) submitted that:

In relation to damage to property and threats to damage property, the reason why this is not included in the definition of family violence in the Tasmanian legislation is that it is adequately covered by the inclusion of threats in [s] 7(a)(ii) and emotional abuse or intimidation in [s] 7(b)(ii).

Emotional abuse or intimidation, defined in [s] 9, includes a course of conduct that a person knows is likely to have the effect of unreasonably controlling or intimidating or causing mental harm, apprehension or fear in his or her spouse or partner. Obviously, damaging property, including jointly-owned property and property that belongs to someone other than the victim, is sufficient to fall within this definition.

It is noted that this definition circumvents the common problem identified with other jurisdictions, in that children, pets and property to which the victim may be attached yet doesn’t own, may not be covered by that legislation.^[259]

5.130 One stakeholder submitted that the definition should not capture damage to property inflicted by the owner of that property.^[260]

Injury to animals

5.131 In the Consultation Paper, the Commissions proposed that the family violence legislation of NSW, Queensland, Western Australia, and Northern Territory should be amended to ensure that their definitions of family violence capture harm or injury to an animal, irrespective of whether that animal is technically the property of the victim.^[261]

5.132 This proposal was supported by the great majority of stakeholders, including victims of family violence who recounted personal stories of having pets threatened, stolen and tortured; and legal service providers who reported cases of violence against pets as a form of violence against their clients.^[262] For example, one legal service provider recounted an incident of a dog having its throat slit in front of a victim after she refused to have sex with her partner;^[263] and another stated that victims have wanted to withdraw applications for protection orders because of the fear that pets would be harmed.^[264]

5.133 Stakeholders submitted that:

• animal abuse is closely linked to family violence;^[265]

• threats against animals is a very common form of violence,^[266] a powerful way to maintain control over victims^[267] and, in particular, causes fear in victims that they or their children will be treated in a similar way;^[268]

• threats to harm pets and the infliction of injury to pets is a form of violent, coercive and abusive behaviour irrespective of who owns the pets, as anyone in the family can become attached to pets;^[269] and

• research connected with the RSPCA’s Safe Beds for Pets Program has indicated that a significant number of victims of family violence do not report the violence or are lured back home for fear that their animals will be harmed.^[270]

5.134 Toni McLean, a partner violence counsellor, submitted that:

It is appropriate to include harm to an animal in family violence legislation when the animal belongs to any member of the family or has a close association with the family, eg a wild bird which does not belong to the family but is sometimes fed by the family; or if any animal is harmed with the intent of frightening family members or conveying a threat to family members.

Such behaviour demonstrates the ability and willingness of a person to carry that act out to cause fear in family members that the act will be carried out on the animal or the family member.^[271]

5.135 In relation to the definition of family violence in the Queensland family violence legislation, the Queensland Commission for Children and Young People and Child Guardian submitted that:

The definition relating to ‘wilful damage to the other person’s property’ would not capture situations where a respondent harms or kills a pet or animal which does not belong to the aggrieved, but is intended to frighten or intimidate him/her. For example, if an animal is not owned by the aggrieved, but the respondent knows that harming the animal (a stray dog or the respondent’s own pet, for example) would intimidate or cause fear in the applicant.

To ensure these types of acts are captured under the Queensland legislation, the Commission recommends that the definition be extended to include instances where a respondent commits any act of harm or damage with an intention to intimidate or cause fear in the applicant.^[272]

5.136 The Queensland Government stated that the issue of ownership of property in general will be considered in the review of the Queensland family violence legislation.^[273]

5.137 However, a few stakeholders opposed the proposal on the basis that:

• animal cruelty should be dealt with by animal cruelty laws;^[274] and

• there are already criminal sanctions available for offences such as cruelty to animals—for example s 530 of the Crimes Act 1900 (NSW)—and that there should not be a separate offence for cruelty to animals committed in the context of a domestic relationship.^[275]

5.138 Parkinson opposed injury to animals as a discrete category of violence outside of a context of coercive, controlling violence or behaviour that causes someone to fear for their safety.^[276]

Exposure of children to violence

5.139 In the Consultation Paper, the Commissions proposed that state and territory family violence legislation should include in the definition of family violence exposure of children to family violence as a category of violence in its own right.^[277]

5.140 Stakeholder views on this proposal were divided between those who supported^[278] or ‘strongly’ supported the proposal;^[279] and those who expressed strong concerns or dissent^[280]—principally because of the unintended consequences which might result if it were implemented.

5.141 Reasons given in support included:

• this would ‘draw an important link to matters before the Family Court where an offender is seeking unsupervised access to children’;^[281]

• too often a violent spouse is not seen as a violent parent;^[282]

• first-hand accounts of victims of violence of the detrimental impact on their children of having been exposed to violence;^[283]

• there is evidence that children who experience and are exposed to family violence are far more likely to use violence or become victims in the future;^[284]

• exposing children to violence amounts to emotional abuse;^[285]

• the inclusion of exposure of children to violence in the definition of family violence in Victoria ‘assists the court to focus on the safety of children in violent relationships both in terms of their physical safety but also their psychological well-being’ and the examples in the Act are useful in addressing the misconception that children are not affected by violence if they are not physically present on each occasion when it occurs;^[286] and

• there is a ‘significant chance that some parents will reconsider their behaviour once they understand how it impacts on their children’.^[287]

5.142 The use of the terminology of ‘being exposed to’ violence, as opposed to ‘witnessing’ violence was also specifically supported.^[288]

5.143 The Queensland Law Society stated in its submission that:

Regrettably, some magistrates have been reluctant to include children on protection orders even when, for example, the father punched the mother in the face whilst she was holding the baby.

Children are the most vulnerable members of society and there ought to be the most stringent measures put in place to ensure their protection.

There are [two] views though as to whether provisions that require the Magistrate, where it has been found that there has been family violence and a protection order is to be made, to automatically include a standard order requiring the perpetrator of violence not to commit acts of domestic violence to the children and to be of good behaviour towards them, would achieve these ends or whether there would be even greater resistance to the making of violence orders in the first place. There does appear to be a need to better educate Magistrates and Family Law Court Judicial Officers as to how violence within the household impacts on children and why orders might contain some better safeguards for children.^[289]

5.144 The Commissioner for Victims’ Rights (South Australia) generally agreed with the proposal and also submitted that children should have the right to fair representation in appropriate cases.^[290]

5.145 In the Consultation Paper, the Commissions expressed an interest in hearing views about whether such a proposal would have negative effects for mothers who are victims of family violence and are held accountable for not protecting children from violence at a time when they are under intense pressure.^[291] The Aboriginal Family Violence Prevention and Legal Service, in supporting the proposal, noted the negative consequences for women in a child protection context:

The adoption of this clause in Victoria has led to a very significant shift in the way Courts view family violence with respect to children. In our experience it has made it significantly more common for Courts to make protection orders to protect children from abusive parents and create a safer environment within which to start family law proceedings/negotiations. However, it has also raised issues … where women who are victims of family violence have been then required to prove to child protection authorities that their victimisation does not harm their children.

… For many Koori women the results have been that they are held accountable for violent action of their partners and experience negative consequences via child protection involvement and child removal despite having taken all legal measures to ensure safety (e.g. called police, got an intervention order, separated from partner). It is critical that culturally appropriate services such as the FVPLS program are available to assist where child protection investigation follows … FVPLS Victoria is also urging a review of the manner in which DHS child protection approaches family violence—the punitive as opposed to supportive attitude toward victim parents (generally mothers) is extremely problematic and results in outcomes not in the child’s best interests. Detailed family violence training for DHS child protection workers is needed.^[292]

5.146 Many stakeholders expressed support on the proviso that persons who use violence are made accountable for their violence and not the parent victims, on the basis of their failing to keep the children safe.^[293] For example, Women’s Legal Service Queensland submitted that ‘best practice guidelines [should be] developed and implemented to ensure priority is on protection of all victims and risk of mother blaming is minimised’.^[294] Family Relationship Services Australia, while strongly endorsing the Commissions’ preliminary views on this issue, submitted that ‘provisions need to avoid any implication that a parent who is the victim of violence could be held responsible for failing to protect children from the violence of the other parent’.^[295]

5.147 Other stakeholders expressed reservations or opposition to the proposal principally because of current child protection practices in focusing on mothers to protect their children from violence or face their actual or threatened removal.^[296] For example, the National Council of Single Mothers and their Children Inc, while supporting the intent of the proposal, expressed concern that an unintended consequence could be the ‘criminalising ‘of women for failing to protect their children ‘although there is systemic failure to protect and support women’.^[297]

5.148 The Queensland Commission for Children and Young People and Child Guardian, while acknowledging the importance of courts dealing with exposure of children to family violence, expressed the following reservations about this being a category of violence in its own right:

• there would be no additional benefit from listing it as a separate category of violence as the act of family violence that a child is exposed to would itself be grounds to apply for a protection order and would have to be established in any event to determine whether or not a child was exposed to it;

• it puts specific focus on children being harmed as a result of a parent being unable to protect them from exposure to such harm, which may increase the reluctance of women from reporting family violence for fear of child protection intervention; and

• it may put undue pressure on children and young people and draw them into the court proceedings, particularly if this ground is solely relied upon by an applicant when seeking a protection order.^[298]

5.149 The Queensland Commission expressed the view that children being exposed to family violence should be an express legislative factor the courts must take into account when deciding what protection orders and conditions to make.^[299] Wangmann suggested that the negative impact of violence on children could be recognised in other ways—such as a preamble—rather than providing for orders to be made in such circumstances:

This does not mean that there may not be appropriate circumstances when such orders should be made—and thus perhaps we should look at the ways in which a primary victim’s protection order can be extended to cover other people (children or other relatives) in appropriate circumstances.^[300]

5.150 An Indigenous family violence service noted concern about the potential for the proposal to further victimise Indigenous women living in remote communities and subject them to blame for exposing their children to violence.^[301]

5.151 In opposing the proposal, Professor Stubbs referred to research conducted by Bragg that concluded that the majority of family violence victims are not bad, ineffective or abusive parents, although family violence is one of a multitude of stressors that can negatively influence parenting. The research stated that many victims are supportive, nurturing parents who are able to mediate the impact of their children’s exposure to violence. In light of this, Stubbs submitted:

It is inappropriate to treat children who have been exposed to family violence as a single category. It is better to have some mechanism that encourages children to be listed as a protected party on a protection order where needed.^[302]

5.152 Parkinson raised a drafting issue with Proposal 4–10 of the Consultation Paper, stating that it confused exposure to violence with violence itself, creating a definition which did not make sense.^[303]

Linkage of definitions of family violence to criminal law

Linkage to state or territory criminal law

5.153 In the Consultation Paper, the Commissions proposed that where state or territory family violence legislation sets out specific criminal offences that form conduct constituting family violence, there should be a policy reason for the categorisation of each such offence as a family violence offence. To this end, the Commissions proposed that 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 such categorisations are justified and appropriate; and (b) ascertaining whether or not additional offences ought to be included.^[304]

5.154 The Commissions also proposed that, incidental to such review, 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.^[305]

5.155 There was widespread support among stakeholders for both the general and specific proposals.^[306] Reasons for supporting the general proposal included concern that perceptions of serious criminal offences such as murder, attempted murder and sexual assault are not linked to the family violence context in which they occur. Having such offences outlined in family violence legislation highlights that they occur in the family violence context.^[307]

5.156 Legal Aid NSW also submitted that ‘policy reasons need to be broadly stated to ensure that they are not used in court proceedings or as part of legislative interpretation to argue that a specific act of violence does not constitute a family violence offence’.^[308]

5.157 The specific proposal about amending s 44 of the Crimes Act 1900 (NSW) was supported on the basis that ‘contemporary straightforward language assists all those who deal with issues in the legislation’^[309] and that the current language was ‘inherently offensive’,^[310] and should be gender neutral.^[311] In addition, the National Association of Services Against Sexual Violence submitted:

Sexual violence is rooted in concepts of patriarchy. The endorsement or retention of patriarchal attitudes in any form in legislation is unhelpful to the transformation of society away from its patriarchal traditions and assists with greater understanding and applicability in a modern context.^[312]

5.158 The Commissions understand that the Apprehended Violence Legal Issues Coordinating Committee (NSW) is considering a request by the NSW police for an expansion of the list of offences covered by s 4 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) to incorporate other offences which may be committed in the context of family violence—such as break, enter and commit serious indictable offence.^[313]

Linkage to federal criminal law

5.159 In the Consultation Paper, the Commissions proposed 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 offences in the family violence context—such as sexual servitude.^[314]

5.160 Most submissions endorsed this proposal.^[315] Stubbs said this proposal would mean a protection order could be made in relevant circumstances.^[316]

5.161 The Local Court of NSW supported this proposal because, in NSW, ‘domestic violence offence’ is defined largely by reference to state criminal laws. A person’s criminal record is marked with ‘domestic violence offences’, and this has certain outcomes. Therefore:

In the interests of consistency, in the Court’s view it is important that a Commonwealth offence committed in the context of a family relationship should be clearly identifiable on a person’s criminal record as a ‘domestic violence offence’.^[317]

5.162 The Commonwealth Director of Public Prosecutions (CDPP) submitted that while it was ‘conceivable that Commonwealth offences may be committed in a family violence context’, state and territory offences were more relevant. It submitted that Commonwealth grooming and procuring offences and sexual servitude offences are unlikely to be committed by an intimate partner or family member.^[318] But the CDPP recognised that federal offences relating to using a carriage service to make a threat or to menace, or to harass or cause offence, could be committed in the context of family violence.^[319] The Queensland Law Society stated that, in its view,

in light of the daily experience of police and the courts, that the current legislation in Queensland adequately captures relevant federal offences in the family violence context.^[320]