What is Family Violence according to the Family Courts?


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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.
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
Categories: 2011 Family Violence Amendments, 2012 Family Violence Amendments, Allegations of Child Abuse, Definition of Family Violence, Emotional Abuse, Emotional Stress, Family Courts Violence Review, Family Law Act 1975, Financial Abuse, Improving Responses to Family Violence in the Family Law System, Victims of Domestic Violence
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