What is Family Violence according to the Family Courts?

Julie cheung

Julie cheung

Online Legal Information Author at Family Law Express
I am undertaking my third year of a Bachelor of Combined Arts/ Law at the University of New South Wales with a major in philosophy and minor in sociology.  I am interested in pursuing a legal career particularly in Family Law or Criminal Law, especially aiming to improve and ensure equal access to justice by addressing the issues in these areas of law and difficulties faced by the people.
Julie cheung

what-exactly-is-Family-ViolenceFollowing 2012 family law reforms (often referred to as the family violence amendments to the family law act), the definition of family violence  has significantly expanded.

This article will look at the definition of family violence (also known as domestic violence) in more detail to see what kinds of behaviour could fall under this new definition.

More generally, this article aims to create a greater awareness of the different types of family violence that are now considered by the family law courts as family violence.

This includes a range of behaviours that most people would not typically consider to be a form of ‘physical assault’ or a ‘threat’ of violence.

Family Violence as Defined in Family law

Family violence can be defined in different ways depending on the jurisdiction.1.

For the purposes of the family law jurisdiction, the courts apply the new definition contained in section 4AB of the Family Law Act 1975(FLA) 2.as amended by the Family Law Legislation Amendment (Family Law and Other Measures) Act 2011.3

Section 4AB(1) defines family violence as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member ), or causes the family member to be fearful.”4

Essential components to the definition of family violence: 5

  • – Violence or threatening (or similar behaviour)
  • – Coercive or controlling
  • – Causing a family member to be fearful

It is important to note that this new definition has removed the requirement of “reasonableness.” Prior to the amendments of the FLA, the previous definition of family violence had a requirement for the conduct to cause a person “reasonably to fear for, or reasonably to be apprehensive about” their safety.6

The test used now is a factual one, involving a discernible link between action and response rather than a ‘subjective’ test of the mind of the victim. In other words, the courts will look at the facts of each individual case to see if there is enough evidence to suggest there was family violence.

The legislation also provides a list of examples considered as family violence. Section 4AB(2) lists: 7

(a)    an assault; or

(b)    a sexual assault or other sexually abusive behaviour; or

(c)    stalking; or

(d)   repeated derogatory taunts; or

(e)    intentionally damaging or destroying property; or

(f)     intentionally causing death or injury to an animal; or

(g)    unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

(h)    unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

(i)      preventing the family member from making or keeping connections with his or her family, friends or culture; or

(j)      unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.

However, these are simply illustrations of family violence and the conduct doesn’t need to be in this list. As long as the conduct fits in with the above criteria in section 4AB(1), it can be seen as family violence.  Nevertheless, this list recognises that family violence can take many forms including physical, psychological and emotion.

The amendments also included a child’s exposure to violence to the family violence definition. Under section 4AB(3), 8 if a child sees or hears family violence or otherwise experiences the effects of family violence, this is considered a type of family violence. First, there must have been family violence as described above, and the child must have seen it or heard it, or been exposed to the effects of it. So it is possible for the child to be distressed from the exposure of the violence which has not caused fear or coercion in the ‘victim.’

As outlined in section 4AB(4), examples of situations that may constitute a child being exposed include (but not limited to): 9

(a)    overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or

(b)    seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or

(c)    comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or

(d)   cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or

(e)    being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.

It is also important to note that under section 4(1AB), this extensive definition of family violence also applies in the context of other family members, including step-parents and relatives.10

Family Violence Case Examples

There have been numerous cases following the amendments which highlight the focus of the definition is now veryfactually based. Different conduct will be defined differently depending on the nature of the context and the factual circumstances.

The courts must examine the context in which concerns about violence have arisen. In Labine and Labine,11 the judge stated it is necessary for the court to both assess the degree of risk for the child when coming into contact with the alleged perpetrator and the consequences of any contact for the child and the other parent or victim.

To illustrate the application of the new definition, some examples of conduct which fell within the definition of family violence include:

  • – A father striking his sister in the face even though that assault did not appear to be witnessed by the father’s children. 12
  • – Threatening someone with facial dis-figuration while holding a knife constitutes as ‘coercive and controlling behaviour of an extremely serious nature.’ 13
  • – A threat to kill is behaviour of a ‘most serious kind.’ 14
  • – Verbal abuse and a physical assault which causes the mother to be fearful 15
  • – Mother making derogatory remarks about the father in the children’s presence.16
  • – Directing profane language towards the children. 17
  • – A parent coaching their children to make unfounded allegations of sexual abuse against the other parent constitutes emotional abuse 18

Implications and Success of the 2012 Reform

The new definition applies from 7 June 2012 across Australia. It also applies in Western Australia from 5 October 2013 as parallel changes were made to the Family Court Act 1997 (WA).19

The family violence reforms have an overriding purpose of protecting children and families within the family law system from family violence and child abuse.20 The new amendments highlight family violence cannot be pinpointed to one quality and can arise in different contexts. It recognises that it is widespread in different forms and can occur in all socioeconomic and ethnic groups.

The amendments are gender neutral, just like the Family Law Act because all family members have the right to be free from harm and to live without fear of violence or abuse. 21

The amendments place children and their safety as a priority. The Family Court aims to deal with those cases involving the most vulnerable children as quickly as possible. 22

Since the reform, there has been a dramatic increase in filing Form 4 notice of Child Abuse, Family Violence or Risk of family violence affidavits. However, The Honourable Justice Steven Strickland and Kristen Murray noted that Form 4s may have been used for tactical or collateral purposes to obtain an earlier return.23

Nevertheless, it does show that there is a greater awareness of the family law reforms generally. 24

In terms of success, the Australian Institute of Family Studies are still in the process of assessing the impact of the amendments. The research is expected to be completed later in 2014 or early 2015. 25

However, the new definition does encompass a wider definition of domestic violence, and generally, there is a greater awareness of different types of violence that can fall under the definition.

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  1. e.g. In state jurisdiction, domestic violence is a crime under their respective crimes act
  2. Family Law Act 1975 (cth) s 4AB(1) http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s4ab.html.
  3. Family Law Legislation Amendment (Family Law and Other Measures) Act 2011 http://www.austlii.edu.au/au/legis/cth/num_act/fllavaoma2011613/.
  4. Family Law Act 1975 (cth) s 4AB(1) http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s4ab.html.
  5. Carra&Carra Schultz 2012 FMCAfam 930 7 http://www.austlii.edu.au/au/cases/cth/FMCAfam/2012/930.html.
  6. Family Law Act 1975 (cth) s 4 http://www.comlaw.gov.au/Details/C2012C00094/Html/Text#_Toc314228487.
  7. Family Law Act 1975 (cth) s 4AB(2) http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s4ab.html.
  8. Family Law Act 1975 (Cth) s 4AB(2) http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s4ab.html.
  9. Family Law Act 1975 (Cth) s 4AB(2) http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s4ab.html.
  10. Family Law Act 1975 (Cth) s 4(1AB) http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s4.html.
  11. Labine and Labine 2012 FMCAfan 1398 http://www.austlii.edu.au/au/cases/cth/FMCAfam/2012/1398.html.
  12. Kusic& Short 201 FamCA 816 13, 23 http://www.austlii.edu.au/au/cases/cth/FamCA/2012/816.html.
  13. McAllister & Day 2012 FMCAfam 863  104 http://www.austlii.edu.au/au/cases/cth/FMCAfam/2012/863.html.
  14. McAllister & Day 2012 FMCAfam 863 104 http://www.austlii.edu.au/au/cases/cth/FMCAfam/2012/863.html.
  15. McAllister & Day 2012 FMCAfam 863 104 http://www.austlii.edu.au/au/cases/cth/FMCAfam/2012/863.html.
  16. Bell & Bell 2013 FMCAfam 6 102 http://www.austlii.edu.au/au/cases/cth/FMCAfam/2013/6.html.
  17. Bell & Bell 2013 FMCAfam 6 102 http://www.austlii.edu.au/au/cases/cth/FMCAfam/2013/6.html.
  18. Gipson & Gipson 2012 FMCAfam 774 http://www.austlii.edu.au/au/cases/cth/FMCAfam/2012/774.html.
  19. Family Court Act 1997 (WA) http://www.austlii.edu.au/au/legis/wa/consol_act/fca1997153/s9a.html.
  20. Explanatory Memorandum  Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 http://parlinfo.aph.gov.au/parlInfo/download/legislation/ems/r4562_ems_50eceb32-d839-4777-8940-b615a6cbc8ab/upload_pdf/353701.pdf;fileType=application%2Fpdf.
  21. Attorney-General’s Department, Family Violence Act FAQ, 6 http://www.ag.gov.au/FamiliesAndMarriage/Families/FamilyViolence/Documents/Family%20Violence%20Act%20FAQ.pdf.
  22. Attorney-General’s Department, Family Violence Act FAQ, 10 http://www.ag.gov.au/FamiliesAndMarriage/Families/FamilyViolence/Documents/Family%20Violence%20Act%20FAQ.pdf.
  23. The Hon Justice Steven Strickland and Kristen Murray, “A judicial perspective on the Australian family violence reforms 12 months on” (2014) 28 Australian Journal of Family Law 47, 60.
  24. The Hon Justice Steven Strickland and Kristen Murray, “A judicial perspective on the Australian famly violence reforms 12 months on” (2014) 28 Australian Journal of Family Law 47, 60.
  25. Australian Institute of Family Studies http://www.aifs.gov.au/efva/index.html.

Family Law Reform in Australia: Experts and Lobby Groups

Valerie Cortes

Valerie Cortes

Online Legal Information Author at Family Law Express
Valerie is a Bachelor of Business Bachelor of Laws student at the University of Technology Sydney, majoring in International Business. Upon graduating, she plans to work in areas of family law and international human rights law, as well as an interest in international business law and commercial law. She volunteers as an interpreter for clients at a refugee case services.
Valerie Cortes

family-law-reform-experts-and-groupsAlthough there are various government agencies whose specific role it is advise and recommend on family law changes to government, there are also numerous individuals considered experts in the broader field of family law who have been relied upon to provide advise and recommendations.

The federal government has at times relied on research grants afforded to various experts in family law reform, in order to review (and at times endorse) the options available for reform at that point in time.

This approach has however at times been controversial when governments have selected notably partisan experts with established opinions on matters (eg, Professor Richard Chisholm on Family Violence and Dr Jen McIntosh on Shared Care) .

As a counter-balance, organised lobby groups have become a more prominent component of the family law reform fabric in Australia, contributing a unique brand of grass-roots policy reform suggestions via established websites, media announcements, contributions to inquiries and by explicitly lobbying the government of the day on specific reforms.

FAMILY LAW EXPERTS

Professor Patrick Parkinson

Credited as the original architect of John Howard’s Shared Parenting family law reforms,  he is one of the most influential family law experts in Australia, often used by government to review and provide recommendations on reforms.

Parkinson chaired a review of the Child Support Scheme in 2004-05 which led to major changes in the manner that Child Support was calculated.

He has also been the principle behind the 2006 Shared Parenting reforms, and has been quite vocal on matters such as child protection, relocations after separation, and a critic of many government policies that impact the family.

Despite his role within the framework of government inquiries, Parkinson has not been shy about expressing his frustrations about the application of his policy recommendations by the government of the day.

For instance, Parkinson has been a vocal critic of some significant legislative reforms, for failing to properly guide judges, as he put it,

on the appropriate application of the shared parenting notion under the 2006 Amendments. This has been reported in the media1.

Professor Richard Chisholm

Professor Richard Chisholm was asked by the previous Labor government to review the protections available to women and children from violence with the Family Law Courts, in the wake of the high-profile Darcey Freeman child murder case.

Professor Chisholm however presented a controversial report entitled Family Courts Violence Review, which highlighted his critique of the 2006 Shared Parenting reforms and the risks he saw in such legislative presumptions in facilitating violence against women and children.

Chisholm claimed that 61DA provided a presumption in favour of ‘equal shared parental responsibility’ (ESPR) when making a parenting order, and he saw this as counter-productive to the principles of protecting women and children against domestic violence. 2

The case of Goode v Goode 3 however was to later clarify the non-presumptive notion of the time spent with each parent, and the subsequent 2011 Domestic Violence family law act reforms, perhaps in part influenced by Chisholm’s report, would further diminish this presumption when violence was concerned.

Jen McIntosh

Professor Chisholm also collaborated with Jen McIntosh to review aspects of the 2006 Family Law Amendment (Shared Parental Responsibility) Act in a report called “A Cautionary Tale from Current Research”.

This report claimed that shared care was detrimental to the welfare of children in the presence of entrenched conflict between the parents.4

McIntosh was to follow up this report with another research study purporting to show that overnight sleeps for toddlers and young children in shared parenting households was harmful to their psychological health and emotional welfare. This claim has since been watered down by McIntosh herself, but the impact of the research resonates to this day.

This report had made quite a significant impact within the broader family law industry during a period when the 2006 shared parenting reforms were still new and unsettled. As a result the research was quoted in a multitude of family mediation sessions, family law cases, and widely reported in the media.

However, the bona-fides of this research have recently been brought into question by a large number of notable psychologists and clinicians for being methodically unsound and unreliable. The notion itself that children can only attach themselves to one primary carer has fallen out of favour within an industry who only years before had considered this notion as gospel. 5

Justice James Wood

Justice Wood, on the other hand, wrote a report consisting of 111 recommendations looking into why child protection services were failing so many children.

This was called the Wood Inquiry Report. 6 In 2009 the Children and Young Persons (Wood Inquiry Recommendations) Act 2009 was passed implementing 106 out of 111 recommendations by the Wood Inquiry.7

POLITICIANS

Senator Rachel Siewert

Greens Senator Rachel Siewert has lobbied for changes to the 2006 Family Law Shared Parenting Amendments in her media release “Green Call for Amendments to Family Law” in early 2010.

This media release reflected her concerns as expressed in her dissenting report as a panel member on the Parliamentary Committee into Shared Parenting. She was the sole objector on the Committee, which otherwise provided bi-partisan support for the proposed recommendations.

Siewert reported that the notion of shared parenting conflicts with the idea of the best interest of the child and thus causes more significant problems in the community.8

Attorney-General Robert McClelland

Attorney-General Robert McClelland accepted her report in late 2010.9

McClelland as Attorney-General also proposed numerous changes to the Family Law Act himself, in response to several reports commissioned by the government on aspects of family law. 

”The reports illustrate that the family law system has some way to go in effectively responding to issues relating to family violence,” Mr McClelland said. 10

Non-Government Organisations (NGOs)

NGOs perform numerous tasks that fall outside the scope of government entities, and their non-government status allows a broader range of roles including filling gaps in services, and providing greater transparency on failures of various governmental agencies.

An example of an NGO is the Family Referral Services who assist children and young people who do not meet the threshold for child protection intervention but would benefit from accessing to address current problems and prevent the problems from getting worse.11

The Media 

The media perform a vital role in facilitating law reform, without have any direct legal means itself to change laws. The media has the strength to shape public opinion and values and provide public scrutiny through reporting current issues such as a family law trial outcomes.

The media seeks to change existing laws in order to provide for the public good. An example of the media’s authority in law reform is primarily through newspaper headlines and articles.

Conservative newspapers like The Australian and the Daily Telegraph have consistently pushed a “defence of marriage” agenda, which has influenced public opinion. ABC News also released an article entitled “Fears family law reform a safety risk” in 2010 stating that the 2006 Family Law Reforms only benefited the fathers and created dangers to children and women.

This stirred opinions from many lobby groups that are comprised by many fathers. Some journalists became known for their ideological bent on matters related to family law reform, with journalists like Caroline Overington often criticised for attacking the 2006 shared parenting laws, despite overall being considered to be aligned politically with the conservatives.

Bettina Arndt on the other hand had a long history as an outspoken male-sympathiser, and has often talked about the discrimination faced by fathers in the family court. Arndt described the 2006 reforms as a necessarily counter-balance to an increasingly fatherless society.

LOBBY GROUPS

Lobby groups are a collection of individuals with similar interests and specific aims upon which they wish governments to act. They try to raise public awareness for their cause. Parental lobby groups such as the Lone Father’s Association are perceived to have influences on law reform in relation to family laws.

Lone Father’s Association 

The Lone Father’s Association is a recognized body by the Australian Government for separated fathers and their children. They have regularly submitted policy submissions including written and oral evidence to government and Parliamentary Inquiries into family law and related matters such as child custody, poverty issues and many more.

In 2010 the Lone Father’s Association wrote a submission in relation to the Family Courts Violence Review headed by Professor Richard Chisholm. The submission addressed the issue of “bias against men” and for the Family Court to rethink such provisions of the law, as they argue that men are usually likely the be the ones falsely alleged of violence.

According to the Lone Father’s Association, the Family Court’s own statistics have indicated that up to 34% of all women who fail to receive custody of their children have “mental health” problems, whereas only a small proportion of men who are unsuccessful of being awarded custody have same problem.

Accordingly, this highlights the “Man Bad, Woman Mad” presumption by the Court’s themsleves. 12

Fathers4Equality 

Fathers4Equality (F4E), on the other hand is a progressive shared parenting family-law group comprising primarily of parents and grandparents who believe that a child has a natural right to a meaningful relationship with both parents, in the event of separation.13

This lobby group has expressed disappointment in the 2006 family law reforms, which they claim have provided too much emphasis on the benign concept of equal Shared Parental Responsibility, while providing watered-down edicts on the “contact” and “residential” aspects of the legislation, leaving the legislation open to judicial activism.

The subsequent case of Goode v Goode 14

The formation of single mother and women’s groups to lobby for changes to the Family Law are also prominent in Australia.

National Council for Single Mothers and their Children

Examples include the National Council for Single Mothers and their Children, who believe that the ‘best interest of the child’ principle must also include the following provisions:

–     The removal of the “Shared Parenting” provision in the new law.  15

–      Child support to be paid on time and in full.

–      That there be no avenues or process that expose women and children to post-separation abuse, co-ercion and control.

–      That there be acknowledgement of the cost of caring and the economic impact upon the primary carer.

–      That government family payments reflect the increased financial burden on single parent households, in contract to two parents households.

–      The acknowledgement of the increased cost associated with larger families.

Women Everywhere Advocating Violence Elimination

Another women’s lobby group is the Women Everywhere Advocating Violence Elimination (WEAVE), who aims to eliminate all forms of male violence against women and children.16

In their 2011 submission they stated that safety of women and children from ongoing violence and abuse should be essential factor in all decision-making in child custody disputes.17

Australian Christian Lobby

Another lobby group that has influence on family law matters, specifically on the issue of same-sex marriage, is the Australian Christian Lobby.

They presented a report entitled ‘In Praise of Marriage’ arguing that same-sex marriage would lead to allowing close family members to marry via incest, and sought to block any laws in support of same-sex marriage. 18

There are many agencies of law reform that actively seek to instil new amendments and reforms into Australia’s family laws, in order for it to better reflect modern society.

However, law reform initiatives on their own do not necessarily mean that change will be effected.

It should be recognised that family law experts and lobby groups, as vocal and committed as they be, still only have one hand on the lever of change, and without change being driven by a collective of influencers, it rarely happens, often leading to a lag between a societies expectations of the law, and the law as it is at a given point in time.

  1.  The Australian 2012, ‘Family law expert Patrick Parkinson calls for legislation change’, viewed 2 June 2014,<http://www.theaustralian.com.au/business/legal-affairs/family-law-expert-patrick-parkinson-calls-for-legislation-change/story-e6frg97x-1226435822086#mm-premium>.
  2.  Chisolm, R. 2009, Family Courts Violence Review: A Report by Professor Richard Chisolm, Australian Government Attorney-General’s Department, Canberra.
  3. Goode v Goode (2006) 36 Fam LR 422. 
  4. McIntosh, J & Chisholm, R, “Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale from Current Research’, Australian Family Lawyer, Vol20 No1, viewed 2 June 2014,<http://www.familylawsection.org.au/resource/sharedcare.pdf>.
  5. Arndt, Bettina “Empty Days, Lonely Nights’, The Age,<http://www.theage.com.au/national/empty-days-lonely-nights-20140428-37e3e.html>.
  6.  Council of Social Service of New South Wales, Wood Inquiry Report Into Child Protection Services, viewed 17 May 2014, <http://www.ncoss.org.au/content/view/1516/141/>.
  7. Children Legislation Amendment (Wood Inquiry Recommendations) Act 2009
  8. Siewert, R 2010,’ Greens Call for Amendments to Family Law’, viewed 2 June 2014,<http://rachel-siewert.greensmps.org.au/content/media-releases/greens-call-amendments-family-law>.
  9. Siewert, R 2010, ‘Greens welcome family law changes’, viewed 2 June 2014,<http://rachel-siewert.greensmps.org.au/content/media-releases/greens-welcome-family-law-changes>.
  10. Family Law Changes to tighten Child Protection, <http://www.smh.com.au/national/family-law-changes-to-tighten-child-protection-20101110-17npe.html>.
  11. Relationships Australia, Family Referral Service Western Sydney, viewed 21 May 2014, <http://www.nsw.relationships.com.au/en/ourservices/services-library/family-referral-service.aspx>.
  12. Lone Father’s Association, Family Courts Violence Review, viewed 21 May 2014, <http://www.lonefathers.com.au/index.php?option=com_content&view=article&id=126:family-court-violence-review&catid=88:policy-submissions&Itemid=110>
  13. Fathers4Equality, Child Custody and Fathers in Australia, viewed 2 June 2014,  <http://www.fathers4equality-australia.org/child-custody-and-family-law>. 
  14.  Goode v Goode (2006) 36 Fam LR 422 was to prove F4E correct in a number of their predictions.

    In response, F4E provided an online Shared Parenting Petition on their website to lobby for the incorporation and implementation of a presumption of equal shared care into the Family Law act.[3. Fathers4Equality, Sign the Child Custody- Shared Parenting Petition, viewed 2 June 2014, <http://www.fathers4equality-australia.org/equalparenting/petition.nsf/SignPetition>.

  15. National Council of Single Mothers and Their Children, Submission, viewed 2 June 2014, <http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/Completed_inquiries/2004-07/family_law/submissions/~/media/wopapub/senate/committee/legcon_ctte/completed_inquiries/2004_07/family_law/submissions/sub26_pdf.ashx>.  
  16. WEAVE, About Us, viewed 2 June 2014, <http://www.weaveinc.org.au/about.html>.
  17. WEAVE, Submission, viewed 2 June 2014, <http://www.weaveinc.org.au/Submissions/family_law_legislation_amendment_2011.pdf>.
  18. Australian Christian Lobby 2011, In Praise of Marriage, <http://www.acl.org.au/2011/06/the-anglican-archbishop-speaks-on-same-sex-marriage/>.