Common interpretative framework

Concepts of family violence

3.3 There is no single nationally or internationally agreed definition of family violence. As noted in Chapter 2, the United Nations Declaration on the Elimination of Violence against Women defines violence against women as

any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life.^[1]

3.4 However, the Australian Bureau of Statistics points out that:

There is no single nationally or internationally agreed definition as to what constitutes ‘family violence’, ‘domestic violence’ or any similar, related term. The broad term ‘Family and Domestic Violence’ is a combination of the terms ‘Family Violence’ and ‘Domestic Violence’. These terms can be defined with reference to various contextual elements such as relationships, location of offences, and/or domestic arrangements; and may be interpreted differently depending on the particular legal, policy, service provision, or research view being taken.^[2]

3.5 In Family Violence—A National Legal Response,ALRC Report 114 (2010), the ALRC and New South Wales Law Reform Commission (the Commissions) undertook a detailed review of the definitions of family violence. This was a first step in considering interaction issues across and within jurisdictions, as required by the Terms of Reference for that inquiry. The Commissions identified wide variation in definitions of family violence in Australia in: family violence legislation; the Family Law Act 1975 (Cth); the criminal law; and other legislation, such as victims’ compensation legislation and migration regulations.^[3]

Towards a common definition

3.6 In developing a definition of family violence in Family Violence—A National Legal Response, the Commissions noted that, whatever form family violence takes, a central feature is that it involves a person exercising control and power over the victim by inducing fear, for example by using threatening behaviour.^[4] Definitions of family violence usually recognise that violence can constitute more than single ‘incidents’ and can involve ‘a continuum of controlling behaviour and violence, which can occur over a number of years’.^[5] As the Department of Human Services commented,

family and domestic violence is not just a series of behaviours, but an underlying attitude and approach to intimate relationships on the part of the person who uses violence, based on an attitude of superiority, entitlement, and an adversarial approach. The experience of family and domestic violence is not simply the experience of a sequence of events, but one which influences and controls all areas of the victim’s life.^[6]

3.7 In Family Violence—A National Legal Response, the Commissions concluded that a critical assessment of definitional issues was a necessary prelude to a consideration of when it was appropriate for the law to intervene to provide protection or other forms of redress to victims. On the one hand, excessively narrow definitions of family violence might cause gaps in protection to victims. On the other, excessively broad definitions may detract from the significance of family violence, devalue the experience of its victims, or facilitate the abuse of the protection order system in civil law.^[7]

The recommended definition

3.8 The common interpretative framework recommended in Family Violence—A National Legal Response is based on a core definition of family violence, describing the context in which behaviour takes place and the types of conduct that may fall within the definition. The context, set out in the first part of the definition, is violent, threatening or other behaviour that coerces or controls a family member or causes that family member to be fearful. The second part of the definition provides a non-exhaustive list of the types of behaviour that may constitute family violence. The Commissions included examples of both physical and non-physical conduct, including:

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

3.9 The Commissions considered that adopting consistent definitions of family violence, across the different legislative schemes under review, would allow the courts to send clear messages about what constitutes family violence. The Commissions recommended that the same core definition be included in state and territory family violence legislation, the Family Law Act, and the criminal law—in the limited circumstances where ‘family violence’ is defined in the context of defences to homicide.^[8]

3.10 The Commissions distinguished the goal of achieving definitional consistency from the consequences that might flow in civil or criminal law. In particular, the Commissions did not recommend that all types of conduct that constitute family violence should be criminalised, nor that family violence should be given the same treatment in the various legal frameworks considered in the report. In each case, the Commissions suggested that the purposes of the respective legal frameworks should determine the appropriate legal response—whether criminal or civil.^[9]

3.11 While the Commissions recommended a consistent contextual core definition, when it came to the non-exhaustive list of examples of specific types of conduct that may fall within the concept of family violence, the Commissions did not suggest that the types of conduct needed to be drafted in precisely the same terms. The Commissions considered that there should be flexibility to incorporate specific types of violence relevant to each jurisdiction, which accommodate, for example, local or demographic-specific issues. This was a pragmatic approach, given that the Commissions were considering all state and territory legislation, as well as the Family Law Act.

3.12 The Commissions further considered that the adoption of a shared understanding of what constitutes family violence would not compromise the objects and purposes of the legislative schemes reviewed. What was considered crucial, however, was that common definitions of family violence should reflect a consistent and shared understanding of the concepts that underlie the legislative schemes, reinforced by appropriate and regular training.

Nature, features and dynamics of family violence

3.13 Consistent definitions inform a shared understanding of what constitutes family violence—one plank of a common interpretative framework. In Family Violence—A National Legal Response the Commissions also recommended that the Family Law Act and state and territory family violence legislation adopt consistent or similar provisions setting out the nature, features and dynamics of family violence. This is the second plank of a common interpretative framework, which should establish a shared understanding of the features of family violence.

3.14 The Commissions recommended a provision that explained that, while anyone may be a victim of family violence, or may use family violence, it is predominantly committed by men; it can occur in all sectors of society; it can involve exploitation of power imbalances; its incidence is underreported; and it has a detrimental impact on children.^[10]

3.15 In addition, the Commissions recommended that family violence legislation should refer to the particular impact of family violence on:

• Indigenous peoples;
• those from a culturally and linguistically diverse (CALD) background;
• those from the gay, lesbian, bisexual, trans and intersex communities;
• older persons; and
• people with disability.^[11]

3.16 The Commissions considered that provisions setting out the nature, features and dynamics of family violence provide a contextual framework for judicial decision-making. They also serve an important educative function. Further, highlighting the impact of violence on particular groups may assist in the challenging task of ensuring that experiences of family violence of such groups are properly recognised across the legal system. The Commissions also considered that such legislative provisions should be developed in consultation with the groups affected.