Family Violence - What does it mean in Family Law?

Warning: this article discusses Family Violence &mbsp; additional resources for Family Violence services are included at the end of this post.

The home isolation requirements current in place as a result of government responses to Covid-19 has led to fears of a spike in incidents of family violence. The scourge of family violence has been a focus of both governments and Courts for some time and been a hot topic in mainstream media. However, the definition of Family Violence in legal matters varies between State based and the Commonwealth.

This difference comes about because of the separation of powers that we have in Australia as a result of the Commonwealth constitution where the states gave some powers to the Commonwealth.

This means for Family Violence, the states retained the powers that have led to laws regarding intervention orders and the criminal consequences of Family Violence whereas the Commonwealth has the power to make laws regarding “marriage and matrimonial causes” and through that has the powers under the Family Law Act.

What that leads to are 2 different levels of government that deal with the legal issues associated with Family Violence and they have slightly different definitions of family violence.

Victoria

We are fortunate to live in Victoria, the state that has led the way with reforms around Family Violence, with the Royal Commission and its 227 recommendations.

In Victoria the legal definition of Family Violence is found in the Family Violence Protection Act 2008 (FVPA). This is the legislation that governs the granting of “Family Violence Intervention Orders” which are more generally referred to as restraining or just intervention orders. (As a Victorian, I detest other Victorians using the term AVO’s (“Apprehended Violence Orders”), that is the New South Wales equivalent and should not be part of the legal vernacular south of the Murray!).

The FVPA defines family violence as:

  (a) behaviour by a person towards a family member of that person if that behaviour—

    (i) is physically or sexually abusive; or

    (ii) is emotionally or psychologically abusive; or

    (iii) is economically abusive; or

    (iv) is threatening; or

    (v) is coercive; or

    (vi) in any other way controls or dominates the family member and causes that family member to feel fear for the safety or wellbeing of that family member or another person; or

  (b) behaviour by a person that causes a child to hear or witness, or otherwise be exposed to the effects of, behaviour referred to in paragraph (a).

Terms such as “psychological and emotional abuse” and “economic abuse” are separately defined. “Emotional and Psychological abuse” is said to be where one “torments, intimidates or is offensive” to the other person.

Economic abuse is defined as “behaviour” that is “coercive, deceptive or unreasonably controls another person without the second person’s consent –   (a) in a way that denies the second person the economic or financial autonomy the second person would have had but for that behaviour; or

  (b) by withholding or threatening to withhold the financial support necessary for meeting the reasonable living expenses of the second person or the second person's child, if the second person is entirely or predominantly dependent on the first person for financial support to meet those living expenses.”

Perhaps as a concession to the imprecise nature of the legal definition, a non-exhaustive list of behaviours are provided in the legislation as to what amounts to family violence which includes:   (i) threatening to remove property from the home,

  (ii) preventing a person from seeking or keeping employment,

  (iii) coercing a person to claim social security payments or documents regarding the preparation of a business,

  (iv) repeated derogatory taunts,

  (v) preventing a person from keeping connections with the persons family and friends.

Commonwealth Level

At the federal level the definition of family violence can be found in the Family Law Act 1975 (FLA). The FLA is the legislation governing what is generally referred to as Family Law comprising primarily of disputes about the care arrangements of children and or property settlements arising from relationship breakdown. The FLA provides a more simplified definition referring to 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.”

Like at the state level, a non-exhaustive list of examples are given as to what constitutes family violence which almost mirror the FVPA examples.

So, what does this difference between State and Commonwealth mean in reality? On a practical level, it means the issue of family violence can be relevant in a number of different legal proceedings for the one family:

• Family Violence giving rise to an application for an intervention order
• Criminal proceedings regarding charges for breaching an intervention order
• In considering what are the arrangements for the children, under the Family Law Act
• In deciding a property settlement, under the Family Law Act

Far too often, I see people delay obtaining legal advice that covers all of these areas, thinking that they just deal with the urgent intervention order first. The difference in definitions, and how family violence is relevant to family law issues makes obtaining advice from an experienced family lawyer critical.

Click here to book an online appointment with Accredited Family Law Specialist Sam McGee phone Sam on 0408 300 105.

If you need assistance as a victim of family violence, or because you are concerned about your own behaviour, we highly recommend the resources suggested by our colleagues at the Centre for Non Violence

If you have any questions about how to stay safe, access support or support someone experiencing abuse, CNV website provides some useful information and they can also be contacted on 1800 884 292 throughout Bendigo and the Loddon area.

The 24-hour statewide safe steps Family Violence Response Centre crisis response line is 1800 015 188. In an emergency, call 000.