SOUTH AUSTRALIAN DOMESTIC VIOLENCE LAWS

DISCUSSION AND 
OPTIONS FOR REFORM



Maurine Pyke QC

9 February 2007



INVITATION TO COMMENT

Your comment on the questions and options for reform contained in this paper is invited.

Make sure your comment does not include confidential information, because all comments will be treated as being public.  They may be referred to or quoted in future discussion or debate on the matters raised in this paper, and may be released to an applicant under the Freedom of Information Act 1991.

Your comment is invited no later than 21 May 2007.

Comment should be posted to: 

Review of SA Domestic Violence Laws 
C/- Justice Strategy
Policy Planning and Legislation Division 
Attorney-General's Department 
GPO Box 464 
Adelaide SA 5001

or emailed to:

ppld@agd.sa.gov.au



INTRODUCTION


GOVERNMENT POLICY

1. The Government has announced a whole of Government policy initiative called Our Commitment to Women's Safety in South Australia.  As part of that initiative, the Premier, the Attorney-General and the Minister for the Status of Women announced on the 9th November 2005 that it would 'pursue a comprehensive overhaul of South Australia's rape, sexual assault and domestic violence laws, building on legal reforms already approved by Cabinet to help victims.

2. A review of the South Australian rape and sexual assault law was undertaken by Liesl Chapman, her report has now been completed.  

3. The Government has now commenced the second stage of the independent review and has asked for a review of the South Australian domestic violence laws so that it can hear a range of views and consider the interests of those affected by these laws.  

4. The terms of reference are to develop options and seek comments on these topics:

* Whether the Domestic Violence Act 1994 (the Act) should contain a preamble of guiding principles, and if so, what they should be;

* Whether the Act is effective in protecting children who are at risk of experiencing or witnessing domestic violence;

* Whether the Act provides an appropriate range of penalties to ensure that the perpetrator takes sufficient responsibility for the consequences of and prevention of their domestic violence;

* Whether the grounds for making restraining orders under the Act adequately reflect the experience of victims of domestic violence;

* Whether there is a need to broaden the relationships to which the Act applies to better reflect the situations in which domestic violence occurs;

* Whether the law governing the expiry of domestic violence orders, the dismissal of complaints, and the time limits and expiry of summonses adequately takes into account the possibility of a continuing risk of domestic violence;

* Whether the Act should give greater emphasis to the removal of the alleged perpetrator or defendant rather than the victim from the victim's usual place of residence, and in particular whether police should have authority to remove an alleged perpetrator of domestic violence from the victim's home to prevent ongoing abuse;

* Whether police powers to investigate and intervene in situations of domestic violence are effective to protect victims and their children;

* Whether the sentencing principles and penalties that apply to offenders who contravene domestic violence restraining orders are appropriate and give sufficient weight to the offender's past history of domestic violence;

* Whether victims of domestic violence should be liable for offences of contravening domestic violence restraining orders or aiding or abetting such offences; 

* Whether there is a need for a community-based public awareness program on domestic violence laws;

* Whether there are adequate procedures and/or it is desirable for there to be a procedure for the exchange of information when a court has granted a domestic violence restraining order with other courts exercising jurisdiction in relation to families and violence e.g. the Youth Court, the Family Court and the Federal Magistrates Court.

* Whether the Act is effective and provides appropriate processes and penalties in circumstances where the perpetrator or the alleged perpetrator is a juvenile.

5. The recommendations of the review will take into account:

* The review of the Domestic Violence Restraining order process prepared by the South Australian Department of justice under the sponsorship of the commissioner for Police in 2006;

* Domestic violence prevention strategy, legislation and legislative proposals in other Australian jurisdictions; and 

* Relevant court decisions and research into domestic violence prevention policy and domestic violence law, law enforcement and processes. 

6. This discussion paper addresses those terms of reference. 

7. The issues for discussion and options for reform in this paper do not necessarily reflect the views of the Attorney-General or the Government. Those views will be formed after a consideration of this paper and comments received in response to this paper.  This paper is published for discussion and should not be taken as an indication of what, if any, changes might be made to the law in the future.


REPORTS AND PUBLICATIONS REFERRED TO IN THE REVIEW

* Victorian Law Reform Commission
Review of Family Violence Laws Report (2006)

* New South Wales Law Reform Commission
Apprehended Violence Orders Report No. 103 (2003)

* Model Domestic Violence Laws Report (1999)

* Australian Bureau of Statistics Personal Safety

* SAPOL Domestic Violence Strategy

* The Men's Project (WA)
Exploring responses to men who are victims or
Perpetrators of Family and Domestic Violence 

* Staying Home Leaving Violence.  Promoting choices for Women leaving Abusive Partners;  Robyn Edwards 2004

* Carolyn, Harris Johnson, Come with Daddy, child murder-suicide after Family break down.

* Responding men who perpetrate Domestic Violence;  Dr Lesley Laing

* Trends in Inter-Ageing Work; Jane Mulraney


8. The role of this paper is to encourage discussion about issues arising from the terms of reference relating to the Domestic Violence Act 1994 and related matters.

9. The primary aim of the paper is to focus upon areas for potential legislative reform, although some procedural and other issues are discussed.

10. The Domestic Violence Act commenced on the 1st of August 1994.

11. Since that time there has been increased public recognition of family violence as a social problem and there has been ongoing research about its nature, dynamics and effects.

12. The Victorian Law Reform Commission in 2006 and the New South Wales Law Reform Commission in 2003 reported in relation to Family and Domestic Violence.  

13. Some jurisdictions including New South Wales and Western Australia have undertaken substantial legislative reform.

14. Domestic violence for women and children continues to be a serious and ongoing problem.

15. The 2005 Australian Bureau of Statistics (ABS) Personal Safety Survey found that 5.8% of women had experienced violence in the 12 months preceding the survey in 2005.

16. The Survey also found that 49% of men and women who experienced violence by their current partner reported they had children in their care and 27% said that these children had witnessed the violence.

17. The method adopted in the paper is to consider the terms of reference with particular regard to the literature, proposals for reform and legislative interventions in other Australian jurisdictions and New Zealand.  

18. Arising out of those considerations, issues for discussion and options for reform evolve and are discussed in the paper.  

19. Questions are posed at the conclusion of each chapter to assist in focusing the discussion.

20. Options for reform have been framed with the intention of drawing upon the issues for discussion developed in the paper.  Comment is sought on both the questions and these options for reform.  They are not intended to stifle or limit the discussion and do not represent any concluded view.  

21. As the terms of reference are substantially referenced to the Domestic Violence Act, legislation in other jurisdictions can be an important guide.  There are often significant differences in the various legislative approaches.

22. Legislation in other jurisdictions is often summarized in some detail if not set out in full within the text of the paper.  



SUMMARY OF ISSUES FOR DISCUSSION

Chapter 1 focuses upon the purposes and content of objects and principles.  It also discusses whether courts and individuals, in the exercise of the powers conferred under the Act, should act in accordance with those objects and principles.  A number of options for the inclusion of particular objects and principles are developed.

Chapter 2 looks at the grounds for the making of restraining orders.  Issues canvassed include expanding the definition of domestic violence to incorporate non-physical forms of domestic violence including emotional psychological and economic abuse.  A further issue discussed is a specific ground of domestic violence in circumstances where an act of domestic violence takes place in the presence of a child.    Issues about fear and apprehension are also discussed.

Chapter 3 looks at the nature of the relationships presently covered by the Act and whether there is a need to expand those relationships.  Issues canvassed include an extended definition of family and spousal relationships, incorporating a broader definition of relative and an extension of the Act to intimate or carer relationships. 

Chapter 4 considers the experiences of children as victims and perpetrators. The chapter considers the desirability of the Act extending to adolescents as offenders and whether jurisdiction should be extended under the Act to the Youth Court.  The special requirements for children who are applicants, respondents or witnesses are discussed including prohibition on publication of details about children and closure of the Court. 

Chapter 5 discusses issues and options about the removal of a perpetrator from the family home and whether priority should be given to the needs of women and children in relation to their accommodation.  Occupation, exclusion and tenancy orders are discussed and options developed.  

Chapter 6 considers the powers of the police to investigate and intervene in situations of domestic violence.  The chapter addresses issues of police intervention orders, police power to enter and search premises without warrant and their powers to investigate and charge.  Options in respect of mandatory investigation and charging by police in certain circumstances are considered, together with the requirement to make a written record of reasons for not proceeding in certain circumstances.  

Chapter 7 considers some procedural difficulties with the process of complaint and summons. Issues relating to the service of summonses, the duration and expiry of domestic violence orders are discussed and options developed.  Consideration is given to a simplified procedure for complaints without summons.  The making of location orders by the Courts are discussed and options developed.

Chapter 8 considers the issue of the offence of aiding and abetting and in particular whether it is appropriate for such an offence to apply where the person is the subject of an order.  If the offence is to apply, whether the applicant should be warned of the potential for criminal prosecution and whether the approval of a service police officer should be sought prior to laying a charge.

Chapter 9 looks at issues relating to penalties for offenders including an escalating range of penalties, exacerbating and mitigating factor as to penalty and addresses also the issue of responsibility and accountability with particular reference to mandated perpetrator programs.  

Chapter 10 discusses the interface of family violence orders made in the State courts and parenting and other orders made by Family Law Courts exercising jurisdiction under the Family Law Act.  The chapter also canvasses issues about registration and enforceability of orders between Australian jurisdictions and the exchange of information between courts generally, including the establishment of a national data base.

Chapter 11 discusses a number of issues about community education programs.



QUESTIONS AND OPTIONS FOR REFORM


Chapter 1 - Whether the Domestic Violence Act 1994 ("The Act") should contain a Preamble of Guiding Principles, and if so, what they should be.

Questions:

1. Should the Act contain objects and principles clauses?

2. If so, what should be incorporated into objects and principles respectively?

3. Is it desirable that there be reference to international treaty obligations?

4. Should Courts and individuals be guided by the objects and principles in the exercise of their powers?

Options for reform:

5.	Whether the Act should be amended and objects and principles clauses should be inserted.

6.	Whether the objects of the Act should incorporate the following:

6.1	to ensure the safety and protection of all persons including children who fear, experience, or witness domestic violence;

6.2	to reduce and prevent violence between persons, family members and persons who are in a domestic relationship with each other by recognising that domestic violence in all its forms is unacceptable behaviour;

6.3	to provide people who experience or fear violence with more effective sanctions and enforcement in the event that a protection order is breached;

6.4	to ensure that access to the Courts is speedy, inexpensive, safe and simple as is consistent with justice.

7.	Whether the principles of the Act should incorporate the following:

7.1	In deciding an application for a domestic violence order the Court should treat the protection and safety of victims of domestic violence as paramount and should also have regard to the following matters:

7.1.1	the particular characteristics and dynamics of domestic violence including that domestic violence is predominantly perpetrated by men against women and children;

7.1.2	that domestic violence extends beyond physical violence and may involve patterns of abuse over many years;

7.1.3	the particularly vulnerable position of children who are exposed to domestic violence as victims or witnesses and the impact that such exposure can have on their current and future physical, psychological and emotional wellbeing;

7.1.4	the need to ensure that victims of domestic violence are treated with dignity and respect;

7.1.5	the need to ensure that perpetrators of domestic violence are held properly accountable for their actions.

8	Whether a Court or any person who exercises any power conferred by or under the Act in relation to domestic violence should be required to be guided in the exercise of that power by the objects and principles of the Act.

Chapter 2 - The Grounds for making Restraining Orders.

Questions:

9.	What conduct constitutes emotional and psychological abuse?

10.	Should the Act be amended to include emotional and psychological abuse as conduct constituting domestic violence?

11.	Should the words emotional and psychological abuse be defined in the Act?

12.	What conduct constitutes economic abuse? 

13.	Should the Act be amended to include economic abuse as conduct constituting domestic violence? 

14.	Should economic abuse be defined in the Act?

15.	Should the Act be amended to include as conduct constituting domestic violence:

      15.1	offences contrary to the Road Traffic Act?

15.2	coercive behaviours (if so should coercive behaviours be defined)?

15.3	causing or allowing a child to see or hear the physical, sexual or other conduct perpetrated towards the child's parent who is the person with whom the child lives;

      15.4	patterns of behaviour as constituting abuse?

16.	Should the Act be amended to include that the Court need not be satisfied that a person's fears or is apprehensive if they have been subjected to personal violence and there is a reasonable likelihood that the person may commit violence again?

Options for reform:

17.	Whether Section 4(2) (c) of the Act should be amended by deleting reference to "if on two or more separate occasions" and including the following behaviour:

      17.1	kidnapping or depriving a person of his or her liberty;

17.2	behaving in a manner that is intimidating or offensive or harassing towards a person, including:

      17.2.1	threatening to withdraw care;

      17.2.2	the matters set out s.2(C) i - vi;

      17.2.3	verbally abusing a family member;

      17.2.4	following a family member;

18.	Whether Section 4(2) of the Act should be amended to include as conduct constituting domestic violence:

18.1	specified offences contrary to the Road Traffic Act in particular, those addressed to negligent driving, furious reckless or dangerous driving, where directed at the victim;

18.2	causing or allowing a child to see or hear the physical, sexual or other conduct defined as domestic violence pursuant to the provisions of the Act towards a person with whom the child has a domestic relationship or puts the child or allows the child to be put at real risk of seeing or hearing the abuse occurring;

      18.3	coercive behaviour including:

      18.3.1	sexually coercive behaviour 

18.3.2	coercing a person to relinquish control over assets or income;

18.3.3	coercing a family member to sign a document for the purchase of goods and services or for the provision of finance, loans and/or credit or for a contract of guarantee or any legal documents for the establishment and incorporation of businesses;

18.3.4	coercing a family member to claim social security payments.

18.4	injuring or threatening to injure a pet whether or not the person owns the pet.

19.	Whether Section (4) of the Act should be amended to include:

19.1	That a single act may amount to abuse and that a number of acts that form part of a pattern of behaviour may amount to abuse even though some or all of those acts when viewed in isolation may appear to be minor or trivial.

19.2	That the Court need not be satisfied that a person fears or is apprehensive of an offence or conduct if they are a child, below average intelligence or the person has been subjected to personal violence and there is a reasonable likelihood the person may commit violence again and the order is necessary to protect the person.

20.	Whether the Act should be amended to include as a definition of property:

20.1	property owned by the person or in the care or custody of the person;

20.2	property used or enjoyed by the person or available for the person's use or enjoyment; or

      20.3	property on premises where the person lives or works.

Chapter 3 - Whether there is a need to broaden the relationships to which the Act applies.

Questions:

21.	Should the definition of the defendant's family or family member be extended to include persons who are or have been in an intimate personal relationship with the defendant?  If so, should intimate personal relationship be defined?

22.	Should the definition include a domestic partner pursuant to the provisions of the Domestic Partners Act 2006?

23.	Should the definition include persons who are in a carer relationship?

24.	Should the definition include people who are ordinarily members of the household?

25.	Should the definition include relatives, if so who should be included in the definition.

26.	Should the definition of spousal relationship take into account traditional and cultural differences.

Options for reform:

27.	Whether Section 3 of the Act should be amended:-

27.1	to include in the definition of member of the defendant's family or family member:-

27.1.1	a domestic partner of that person as defined by the Domestic Partners Act 2006 (SA);

27.1.2	a person who has had an intimate personal relationship with the defendant;

      27.1.3	a relative.

27.2	to define a child as a child of whom the defendant or a spouse or former spouse of the defendant have a parenting order pursuant to the provisions of the Family Law Act 1975 (Commonwealth) or a parenting plan.

27.3	to define a spouse to include someone who according to the person's Aboriginal or Torres Strait Islander or other culture or tradition the person considers to be the person's spouse or previously considered to be the person's spouse.

28.	Whether an intimate personal relationship should be defined as:-

28.1	A person who has or has had an intimate personal relationship with a defendant including:

28.1.1	the biological parents of a child regardless of whether there is or was any relationship between the biological parent;

      28.1.2	persons who are engaged or betrothed;

28.1.3	an intimate personal relationship can exist whether or not their relationship is of a sexual nature if the lives of the persons are or were enmeshed to the extent that the Actions of one of them affect or affected the Actions or life of the other.  Two persons are not enmeshed merely because they date or dated each other on a number of occasions;

28.1.4	an intimate personal relationship can exist where the two persons are of the same or are of the opposite sex;

28.1.5	in determining whether there is an intimate personal relationship the level of commitment the length of time of the relationship the frequency of contact between the persons and the level of intimacy are to be taken into account;

29.	Whether a relative should be defined and include:-

29.1	all relatives of the relevant person whether by blood, marriage or other personal relationship and includes persons who are a relative according to Aboriginal or Torres Strait Islander tradition or contemporary social practice or cultural tradition;


Chapter 4 - Children and the Domestic Violence Act 1994 - Whether the Act is effective in: Protecting children who are at risk of experiencing or witnessing domestic violence; Providing appropriate processes and penalties where the perpetrator is a juvenile.

Questions:

30.	Should the Youth Court be granted jurisdiction to hear and determine matters involving children under the age of 18?

31.	Should the Youth Court have exclusive jurisdiction in relation to children or should that jurisdiction be exercised concurrently with the Magistrates Court?

32.	Should proceedings be commenced in the Youth Court where the child is a respondent?

33.	Should children under 10 be excluded from the Court's jurisdiction under the Act?

34.	Should special procedures apply for children as applicants, witnesses and respondents, in particular as to the giving of evidence, the publication of names and details and the closing of Courts?

Options for reform:

Whether the Domestic Violence Act should be amended to incorporate the following:-

35.	That the Youth Court be granted jurisdiction for the purposes of the Domestic Violence Act.

36.	That the Youth Court and Magistrates Court exercise concurrent jurisdiction in the manner provided in Section 34 of the Crimes (Family Violence) Act 1987 (Vic), including that proceedings involving children can be readily transferred between jurisdictions.

37.	That any proceedings where a respondent is under the age of 18 must be commenced in the Youth Court.

38.	That there be no restraining order against a child under the age of 10.

39.	Before a Court makes a Violence Restraining Order where the respondent is a child under the age of 16 and the person protected is a parent, guardian or person responsible for the day to day care of the child, that the CEO of Families SA (or equivalent) to be notified and if an order is made, that the CEO cause inquiries to be made for the purpose of determining whether action should be taken to safeguard or promote the child's wellbeing.

40.	That any proceedings (other than in the Youth Court) where a child is involved as applicant or witness be a closed Court unless the Court orders otherwise.

41.	That there be a total prohibition on the publication of any details which may identify a child before, during or after proceedings have concluded whether the child is an applicant, witness or respondent or otherwise named in the proceedings.

42.	In any interim proceedings that an order which may prohibit a child from being on premises where the child normally receives care including education or protection must only be made if the Court is satisfied that adequate arrangements have been made for the child's care (including education) and safety.

43.	Where a respondent is under the age of 16, that the application must be served upon their parent or guardian.

44.	That the child must not be given the document in the vicinity of the child's school unless there is no other place where service may be reasonably effected.  

45.	That the Court, on its own initiative have capacity to make orders for the protection of children where they have been subjected to or have heard or witnessed violence.

46.	If a child is an applicant or respondent that the Court must adjourn the hearing of the application unless it is satisfied that the child has had a reasonable opportunity to obtain representation by a lawyer and has decided not to be represented by a lawyer.

47.	That the Act provide for who can make application for a child eg parent, guardian, Police officer, CEO Families SA.  That a child over the age of 16 be able to make application if the Court considers that they understand the nature of the proceedings.

48.	That proposed amendments to the Evidence Act already approved by Cabinet, where relevant to children, should apply to proceedings pursuant to the Domestic Violence Act where a child is to give evidence or is a victim, as if the proceedings were criminal proceedings.

Chapter 5 - Whether the Act should give greater emphasis to the removal of the alleged perpetrator or defendant rather than the victim from the victim's usual place of residence

Questions:

49.	Should the Act be amended to afford priority to the accommodation needs of the applicant and any children whether of the applicant or respondent as a factor of primary importance?

50.	Should the Act be amended to grant jurisdiction to the Courts to make orders for occupation, tenancy and consequential furniture orders in similar terms to the Domestic Violence Act (NZ).

51.	Should consideration be given to ways in which South Australian Housing Trust Tenancy Agreements can be amended in a similar way to Residential Tenancies Agreements.

Options for reform:

52.	Whether section 6 of the Act should be amended to include the needs for accommodation of the applicant and any children of the applicant or respondent as a factor of primary importance.

53.	Whether the Act should be amended to grant jurisdiction to the Courts to make orders for Domestic Violence Act New Zealand, save and except Section 53(2) which positively requires the Court to be satisfied it is necessary for the protection of the applicant or is in the interests of a child of the applicant.

54.	Whether such order should be in addition to the power of the Courts to make an exclusion order.

55.	Whether such application should be made by way of Complaint and Summons and whether such order should not be made on an ex parte basis, unless the Court is satisfied that the respondent has physically or sexually abused the applicant or child and that the delay that would be caused by procedures to a notice would or might expose the applicant child to physical or sexual abuse.

56.	Whether the Court in exercising jurisdiction should be granted any necessary jurisdiction in respect of the Residential Tenancies Act to make orders amending Residential Tenancy Agreements.

57.	Whether in respect of public housing with the South Australian Housing Trust, consideration should be given to the manner in which applicants may be substituted in South Australian Housing Trust Tenancy Agreements in a similar manner to Residential Tenancy Agreements.

Chapter 6 - Whether Police should have authority to remove an alleged perpetrator of domestic violence from the victim's home to prevent ongoing abuse.  Whether Police powers to investigate and intervene in situations of domestic violence are effective to protect victims and their children.

Questions:

58.	Should there be a mandatory obligation on Police to investigate in circumstances where they reasonably believe that domestic violence has been/is being/or may be committed? 

59.	Should there be a mandatory obligation on Police officers to make a written record if after investigation a complaint is not made or if a Police officer suspects on reasonable grounds that a person has contravened an order or a complaint has been made that a person has contravened an order, and a charge is not subsequently made for a contravention or is subsequently withdrawn?;

60.	Should there be mandatory obligations upon the Police to lay a complaint for a domestic violence order if a Police officer reasonably believes that domestic violence has been committed, if so upon what conditions?;

61.	Should Police officers have power to enter, search and arrest without warrant- if so, in what circumstances and upon what conditions? - Should they require approval of a Senior Police officer?

62.	Should Police have power to issue Police restraining orders, if so, in what circumstances and for what duration?

Options for reform:

Whether the Act should be amended to incorporate the following:

63.	That a Police officer be empowered to make a Police order for 24 hours or 72 hours in similar terms to the Restraining Order Act (WA)  ss.30A-30G.

64.	That appropriate accommodation options be provided for men, the subject of 24 hour or 72 hour restraining orders particularly in regional and country areas.

65.	That Police officers have a mandatory obligation to investigate whether an act of domestic violence is being or has been committed or is likely to be committed if the officer reasonably suspects that a person is committing or has committed an act of domestic violence which is either a criminal offence or has put the safety of the person at risk.

66.	That in considering whether to make an application for a domestic violence order the reluctance of a person to make an application should not of itself constitute a reason why the Police officer does not  make application if the person has been a victim of violence or there is a significant threat of violence or the person has an intellectual disability and has no guardian.

67.	That, if a Police officer, after investigation, does not make an application for a domestic violence order or restraining order then a written record must be provided detailing reasons why he or she did not take such action.

68.	That Police Officers have an obligation to make a written reason for not commencing criminal proceedings for breach or not to proceed with criminal proceedings for a breach if a Police Officer suspects on reasonable grounds a person has committed an offence or if the alleged contravention has been reported to the Police.

69.	That premises be defined in similar terms to section 2 of the Model Domestic Violence Laws.

70.	That a Police Officer have power to enter premises without warrant similar terms to S62B of the Restraining Orders Act (WA).

Chapter 7 - Whether the law governing the expiry of domestic violence orders, the dismissal of complaints and the time limits and expiry of summonses adequately takes into account the possibility of a continuing risk of domestic violence

Questions:

Complaints and Summons

71.	Should there be two procedures for making an application:

* one procedure for more serious matters to proceed by way of complaint and summons, with a return date after 14 or 21 days unless the court orders an earlier return date;

* a simplified procedure for less serious matters (at the election of the applicant) to provide for proceeding by way of complaint with the respondent to endorse a copy of the order once served, with their consent, and the Court to administratively advise the parties of the adjourned date if the respondent wishes to contest the order.  If the respondent does not return the endorsed order the interim order is administratively confirmed?

Duration of Orders

72.	Should orders endure for a specified period of time?

73.	Should a Court be able to make an order for indefinite duration?

74.	Should the Act provide criteria for magistrates in determining the duration of orders?

75.	Should applicants be asked as part of the application process and by the Court for the period of time they seek the order to last?

Variation and extension of orders

76.	Should the Act specifically provide for the extension of orders?

77.	If the Act provides for extension of orders should the applicant have to prove that further family violence occurred during the period of an intervention order?

78.	Should there be provision that an order is about to expire and application is made for extension for the order that the order is automatically extended until the determination of the application for extension?

79.	If an intervention order has expired, should there be a presumption in favour of the making of a fresh order if the application is made within three months (or some other time) of the expiry of the order?

Service

80.	Should there be specific provisions for substituted service of applications including service by post or in other ways as the Court may direct that is reasonably likely to bring the application to the attention of the defendant?

81.	Should the Act provides for restraining Orders to be served non-personally including orally?

82.	Should service of orders be deemed to have taken place if the defendant was in Court when the order was made and should service be made by way of service by post if the orders are of a less serious nature and made by complaint?

83.	Should the Act should be amended to provide for the making of location orders directed to State Government Departments and agencies in similar terms to section 97N of the Family Law Act 1975?

Options for reform:

Whether the Act should be amended to provide: 

Complaint and Summons

84.	That the applicant have the option to proceed by way of complaint and summons or by way of complaint in the absence of the respondent.

85.	That applications for exclusion orders, occupation orders or tenancy orders must be made by way of complaint and summons.

86.	That if an interim order is made on complaint in the absence of the respondent, then the respondent must be served and within 21 days of being served, the respondent must complete the endorsed copy and return it by:

86.1	Indicating he does not object to the final order being made in which event the interim order becomes final.

86.2	If the endorsed copy is not returned the interim order becomes final within 21 days of service.

86.3	If the respondent objects to the final order by endorsing same, a hearing date is fixed and parties are notified.

87.	That the return date for the return of a summons be as soon as practicable to the intent that the Court has some discretion about such date taking into account the particular circumstances.

Duration of Orders

88.	Whether the Act should be amended to specifically provide with respect to the duration of orders that a domestic violence order continues in force for the period of time stated in the order unless it is sooner revoked by the Court or set aside on appeal.  If no time is stated in the order whether it should continue until it is revoked by the Court or set aside on appeal.

89.	In determining the duration of orders, whether the Court should have regard to:

      89.1	The views of the applicant.

      89.2	The objects and principles of the Act.

Extension of Orders

90.	Whether the Act should be amended to specifically provide for the extension of an existing domestic violence restraining order.

91.	Whether, if an application is made to extend the duration of a domestic violence order, then:

91.1	despite anything else in the Act, the order is not to expire before the application is determined if a person bound by the order has been given a copy of the application.

91.2	a Court is not to refuse to extend a domestic violence restraining order by reason only of the fact that the defendant has not committed an act of domestic violence during the currency of the domestic violence order.

      91.3	the Court must have regard to a continuing fear of violence.

92.	Whether, if an application for extension of an intervention order is made within 3 months of the earlier intervention order expiring, the Court should be required to treat the application in the same way as an application to extend an order which has not expired. 

Service

93.	Whether the Act should be amended to enable an application to be made for a location order in similar terms to Section 97N of the Family Law Act 1975 (CW) directed to State and Government agencies.

94.	Whether, in addition to service of orders personally, service should be able to be effected by:

      94.1	Oral service if authorised.

      94.2	Service by post of continuing orders including:

      94.2.1	orders made by consent; or 

94.2.2	orders made in the absence of the defendant when previously served with an order;

94.2.3	orders where the defendant has endorsed the copy that he consents to the order; and 

94.2.4	a final order that was preceded by an interim order that was served and still in force.

95.	Whether a restraining order should deemed to have been served if the person who is bound by the order is present in Court when the order is made.

96.	Whether applications should be able to be served by:

      96.1	Post;

      96.2	Any other means the Court deems appropriate;

      96.3	Oral service if the Court directs.

Chapter 8 - Whether victims of domestic violence should be liable for offences of contravening domestic violence restraining orders or aiding or abetting such offences

Questions:

97.	Should there be an offence of aiding and abetting a breach of an intervention order by a person who is protected by an order?

98.	If there is to be a charge of aid and abet should that charge be authorised by a Senior Officer or someone associated with the Police Family Violence Unit or similar?

99.	If there is an offence of aiding and abetting should the applicant be warned that they are liable for aiding and abetting the contravention of an Order.

Options for reform:

100.	Whether the Act should be amended to provide:

"A person is not guilty of an offence of aiding, abetting, counselling or procuring the commission of an offence against the relevant section for contravention, if the person is a protected person under the order."

101.	Whether the Act should be amended to provide that the respondent (and if option for reform 1 is not supported the applicant) be warned of the consequences of a breach of domestic violence order.

102.	If a victim is to be charged with the offence of aiding and abetting, whether the Act should be amended to require that such charge be authorised by a Senior Officer or a member of the Police Family Violence Unit (or equivalent).

Chapter 9 - Whether the Act provides an appropriate range of penalties to ensure that the perpetrator takes sufficient responsibility for the consequences of and prevention of their domestic violence. 

Whether the sentencing principles and penalties that apply to offenders who contravene domestic violence restraining orders are appropriate and give sufficient weight to the offender's past history of domestic violence.

Questions:

103.	Should there be escalating penalties for second and subsequent offences?

104.	Should there be mandatory  imprisonment for a second or subsequent offence of contravening an order?

105.	Should contraventions which involve violence be subject to a penalty of imprisonment whether for a first or subsequent offence?

106.	Are mandatory perpetrator programs a suitable sentencing option particularly when the matter is determined in a family violence Court?

107.	Should there be aggravating factors in respect of sentencing that a child was present on the premises or that the victim was pregnant?

108.	Should failure to attend at a mandated perpetrated program be treated in the same way (as to penalty) as any other breach of contravention order?

Options for reform:

Whether the Act should be amended as follows:

109.	To provide escalating penalties for second and subsequent offences.

110.	That in respect of second and subsequent offences, the Court to provide reasons, if it does not impose a term of imprisonment.

111.	That there be a term of imprisonment for any breach of a domestic violence order which involves violence.

112.	That in determining sentence a Court may take into account as an aggravating factor the fact that the defendant knew or was reckless as to whether a child was present on the premises at the time of the offence or knew that the affected person was pregnant.

113.	That the Court must take into account the results of any rehabilitation program assessment undertaken.

114.	That the Court be provided with a sentencing option when the matter is heard in a family violence Court to mandate attendance at a perpetrator program.

115.	If the Act is amended to include mandatory attendance at a perpetrator program that failure to attend such program or to be assessed for a suitable program, be treated for the purposes of penalty, in the same way as any other breach of restraining order.

Chapter 10 - Whether there are adequate procedures and/or is it desirable for there to be a procedure for the exchange of information when a Court has granted a domestic violence restraining order with other Courts exercising jurisdiction in relation to families and violence eg. Youth Court, Family Court and Federal Magistrates Court.

Questions:

116.	Should there be a national database of orders made in State Courts and Federal Courts whether as part of CrimTrak or otherwise? If so:

117.	Should that database include all orders made in Family Law Courts directed to the personal protection of parties or children and all parenting orders?

118.	Should the national database include all domestic violence orders made in Courts exercising State jurisdiction?

119.	Should the database be accessible to all Courts State and Federal and Police officers?

120.	Should South Australian Courts have ready access to all family violence orders made in other South Australian Courts?

Options for reform:

121.	Whether the database of the State Courts (Magistrates Court, Youth Court, District Court and Supreme Court) should enable immediate access by those Courts and the Police to:

121.1	Orders made by the Family Court inconsistent with family violence orders and provided to the Registrar pursuant to s.68P(3) of the Family Law Act.

121.2	Orders made in each of the State Courts, Supreme Court, District Court, Magistrates Court and Youth Court in family violence matters and child protection proceedings.

122.	Whether there should be consultation with the Federal Government to facilitate the making of Regulations to enable State orders to be registered in the Family Court.

123.	Whether the State Government, in consultation with other State Governments and the Federal Government, should pursue the establishment, as part of CrimTrak (or otherwise), a national database of all State and Federal orders in respect of domestic violence orders, injunctions or orders for the personal protection of parties or children and orders in respect of parenting.

Chapter 11 - Whether there is a need for a community based public awareness program on domestic violence laws.

Question:

124.	Should there be a community education program, if so, what should the aims strategies and underlying principles of such programs be?

Option for reform:

125.	Whether a community education program (including programs working with young people in schools) should be undertaken with the aim of educating the community that violence is not acceptable and whether such education programs should be designed to change attitudes, awareness, behaviours or values with respect to domestic violence.



CHAPTER 1
Whether the Domestic Violence Act 1994 ("The Act") should contain a Preamble of Guiding Principles, and if so, what they should be.


1. Whilst the Act does not have a preamble of guiding principles, some guidance is provided to the Court in the exercise of its powers.  The Court must have regard, in considering whether to make, or the terms of, a domestic violence restraining order, inter alia:

* the need to ensure that family members are protected from violence; and

* the welfare of any children affected, or likely to be affected, by the defendant's conduct.1

2. The Court must consider those factors as being of primary importance.2

OBJECTS AND PRINCIPLES CLAUSES

3. The inclusion of objects and principles in domestic violence legislation assists in identifying the purpose behind the justice system's response to family violence.

4. Objects and principles would assist in consistency in decision making by Magistrates and the Police.  A clear philosophy is necessary to underpin a consistent approach to family violence.3

5. The VLRC observed that a statement of objects and principles:

"... will serve both symbolic and practical purposes.  At a symbolic level it will explain the aspirations of the Legislation and provide the basis for changes in the attitudes of Police, Courts and the community.  This is particularly important in the context of family violence which the law has traditionally failed to treat seriously.

At a practical level a principles clause will provide guidance to Police, magistrates and family violence victims about how the Act should be interpreted and applied and contribute to greater consistency in decision-making." 4

6. The Australian and New Zealand, jurisdictions that have objects (or purposes) and principles clauses in their legislation, have adopted a number of different approaches.  There is not necessarily consistency of approach eg objects in one Act are principles in another, in other cases they are substantive provisions of an Act.


Australian Capital Territory

7. The Domestic Violence and Protection Orders Act (2001) includes both objects and principles. The objects include:

* to prevent violence between family members and others who are in a domestic relationship recognising that domestic violence is a particular form of inter personal violence that needs a greater level of protective response; and

* to facilitate the safety and protection of people who fear or experience violence by:

* providing a legally enforceable mechanism to prevent violent conduct; and

* allowing for the resolution of conflict without the need to resort to adjudication.5

8. The principles for making a domestic violence order are:

* The paramount consideration is the need to ensure that the aggrieved person, and any child at risk of exposure to domestic violence, is protected from domestic violence. 

* If a protection order is to be made, it must be the protection order that is least restrictive of the personal rights and liberties of the respondent as possible that still achieves the objects of the Act and gives effect thereto.6

9. The Act also includes a principle about procedures, which are to be as simple, quick and inexpensive as is consistent with achieving justice.7


New South Wales

10. The Crimes Amendment (Apprehended Violence) Act 2006 was assented to on 27 October 2006.  The Act is not yet in force.  The Act sets out specific objects and contains a strong statement by the Parliament about domestic violence and its impacts.

11. The objects of Division 2 (apprehended domestic violence orders) set out in s.562E include:

* to ensure the safety and protection of all persons including children who experience or witness domestic violence; and 

* to reduce and prevent violence between persons who are in a domestic relationship;

* to enact provisions that are consistent with The Declaration on the Elimination of Violence Against Women and the United Nations Convention on the rights of the child.

12. The division aims to achieve its objects by:

* empowering Courts to make apprehended domestic violence orders to protect people from domestic violence, intimidation, stalking and harassment; and 

* ensuring that access to Courts is speedy, inexpensive, safe and simple as is consistent with justice.

13. The objects go on to state that in enacting the division, Parliament recognizes: 

* that domestic violence in all its forms is unacceptable;

* that domestic violence is predominantly perpetrated by men against women and children;

* that it occurs in all sectors of the community;

* that it extends beyond physical violence and may involve the exploitation of power imbalances;

* that it occurs in traditional and non traditional settings;

* the particularly vulnerable position of children who are exposed to domestic violence as victims and witnesses and the impact that such exposure can have on their current and future physical, psychological and emotional wellbeing;

* that domestic violence is best addressed through an integrated framework of prevention and support and in certain cases, may be the subject of appropriate intervention by the Court.

14. The exercise by the Court or any person of any power conferred by or under the division in relation to domestic violence must be guided in the exercise of that power by the objects of the division.8

New Zealand

15. The New Zealand Domestic Violence Act 1995 includes an object which is to reduce and prevent violence in domestic relationships by:

* recognising that domestic violence in all its forms is unacceptable behaviour; and 

* ensuring that where domestic violence occurs, there is effective legal protection for its victims.9

16. The Act aims to achieve its object by:

* empowering the Court to make orders to protect the victims of domestic violence;

* ensuring that access to the Court is speedy, inexpensive and simple as consistent with justice;

* providing appropriate programs for victims of domestic violence;

* requiring respondents and associated respondents to attend programs that have the primary objective of stopping or preventing domestic violence; and

* providing more effective sanctions and enforcement in the event that a protection order is breached.10

17. Any Court or any person who exercises any power conferred by or under the Act must be guided in the exercise of that power by the specified objects.11


Queensland

18. The Domestic and Family Violence Protection Act 1989 provides that the main purpose of the Act, is to provide for the safety and protection of a person in the case of domestic violence committed by someone else if a specified domestic relationship exists.12  

19. The way in which the main purpose of the Act is to be achieved, is by allowing a Court to make a domestic violence order to provide protection for the person against further domestic violence.13


Tasmania

20. The Family Violence Act 2004 specifies the objects of the Act expressed as, in the administration of the Act, the safety, psychological wellbeing and interest of people effected by family violence are the paramount considerations.14

Discussion

21. The approaches adopted in the different jurisdictions range from a short statement of objects (Tasmania), to a comprehensive statement of objects and principles (New South Wales).

22. There are a number of themes that emerge from the various legislative approaches:

Objects:

* the reduction and prevention of domestic violence between family members and others in a domestic relationship;

* the recognition that domestic violence is a particular form of inter personal violence that needs a greater level of protective response;

* that domestic violence in all its forms is unacceptable;

* to ensure the safety and protection of all persons including children who experience or witness domestic violence;

* to ensure that where domestic violence occurs there is effective legal protection for victims.

Principles:

* the paramount consideration is the need to ensure that the protected person and any child at risk of exposure to domestic violence is protected from domestic violence;

* that procedures are to be as simple, quick and inexpensive as is consistent with achieving justice;

* the particularly vulnerable position of children who are exposed to domestic violence as victims and witnesses and the impact that such exposure can have on their current and future physical, psychological and emotional wellbeing;

* the provisions of effective sanctions and enforcement in the event that a protection order is breached;
* Courts or persons exercising power conferred by or under the Act must be guided in the exercise of that power by the specified objects and principles.

Victorian Law Reform Commission

23. The VLRC recommended an objects clause and statement of guiding principles.  

24. The purposes (objects) in addition to these themes summarised in the preceding paragraphs included to promote non violence as a fundamental social value.15

25. The principles in addition to some of the themes summarised in the preceding paragraphs included:-

* the particular characteristics and dynamics of family violence including that family violence is predominantly perpetrated by men against women and children;

* the need to ensure that victims of family violence are treated with dignity and respect;

* the need to ensure that perpetrators of family violence are held properly accountable for their actions.16

26. These purposes and principles whilst framed in similar terms to some of the State Legislation include stronger statements about the gendered nature of violence, the dignity of victims and the accountability of perpetrators.

27. If it is accepted that objects and principles have, as some of their primary purposes, to assist in guiding Courts and individuals in the exercise of powers conferred under the Act, and to provide a basis for attitudinal change, arguably such objects and principles should be comprehensive but concise and provide a strong, clear message about the aspirations and intentions of the parliament.

28. Reference to international treaty obligations in objects clauses may contribute to uncertainty in that not many judicial officers, legal practitioners or individuals would be well informed about the terms of those treaties and would find little guidance from reference to them.



QUESTIONS


5. Should the Act contain objects and principles clauses?

6. If so, what should be incorporated into objects and principles respectively?

7. Is it desirable that there be reference to international treaty obligations?

8. Should Courts and individuals be guided by the objects and principles in the exercise of their powers?


OPTIONS FOR REFORM


5.	Whether the Act should be amended and that objects and principles clauses be inserted.

6.	Whether the objects of the Act should incorporate the following:

6.1	to ensure the safety and protection of all persons including children who fear, experience, or witness domestic violence;

6.2	to reduce and prevent violence between persons, family members and persons who are in a domestic relationship with each other by recognising that domestic violence in all its forms is unacceptable behaviour;

6.3	to provide people who experience or fear violence with more effective sanctions and enforcement in the event that a protection order is breached;

6.4	to ensure that access to the Courts is speedy, inexpensive, safe and simple as is consistent with justice.

7.	Whether the principles of the Act should incorporate the following:

7.1	In deciding an application for a domestic violence order the Court should treat the protection and safety of victims of domestic violence as paramount and should also have regard to the following matters:

7.2	the particular characteristics and dynamics of domestic violence including that domestic violence is predominantly perpetrated by men against women and children;

7.3	that domestic violence extends beyond physical violence and may involve patterns of abuse over many years;

7.4	the particularly vulnerable position of children who are exposed to domestic violence as victims or witnesses and the impact that such exposure can have on their current and future physical, psychological and emotional wellbeing;

7.5	the need to ensure that victims of domestic violence are treated with dignity and respect;

7.6	the need to ensure that perpetrators of domestic violence are held properly accountable for their actions.

8.	Whether a Court or any person who exercises any power conferred by or under the Act in relation to domestic violence should be required to be guided in the exercise of that power by the objects and principles of the Act.



CHAPTER 2
The Grounds for making Restraining Orders


1. The grounds for making a domestic violence restraining order under the Act provide that the Court may make a domestic violence restraining order against the defendant if:

* there is a reasonable apprehension that the defendant may, unless restrained, commit domestic violence; and 

* the Court is satisfied that the making of the order is appropriate in the circumstances.17

2. Whilst there is no definition of domestic violence, the Act provides that: For the purposes of the Act a defendant commits domestic violence:

* if they cause personal injury to a member of the defendant's family;

* if they cause damage to property of a member of the defendant's family;

* if on two or more separate occasions:

* the defendant follows a family member; or
* the defendant loiters outside of the residence or a place frequented by a family member; or
* the defendant enters or interferes with property occupied by or in the possession of a family member; or
* gives or sends offensive material or publishes or transmits same electronically in such a way that the offensive material will be found by and brought to the attention of a family member; or
* communicates with a family member or to others about a family member; or
* keeps a family member under surveillance; or
* engages in other conduct 
* so as to reasonably arouse in a family member apprehension or fear of personal injury or damage to property or any significant apprehension or fear.18

3. The wording of the Act places significant, though not sole, emphasis upon acts of domestic violence which involve personal injury and damage to property or fear or apprehension of such injury or damage.

4. There must be a course of conduct (ie. on two or more occasions) if the complaint alleges fear or apprehension as the basis for the application.

5. The requirement to establish fear or apprehension for the purposes of s. 4(2) (rather than just the commission of the act itself) is the subject of much criticism by victims of domestic violence. Why they ask, should they need to establish fear or apprehension of future conduct if past conduct is an act of domestic violence.  The countervailing argument is that a Domestic Violence Order has as its primary purpose the prevention of domestic violence in the future.

6. The Act is capable of quite broad interpretation as to what conduct constitutes domestic violence.

7. The breadth of interpretation of "domestic violence" is achieved by the words "so as to reasonably arouse in a family member any significant apprehension or fear" in s.4(2)(vi) coupled with the words "the defendant engages in other conduct" in s.4(2).

8. The Act effectively provides that any conduct of the defendant which reasonably arouses in a family member any significant apprehension or fear, constitutes domestic violence.

9. There is no guidance however, in the Act, as to what may constitute significant apprehension or fear on what, if anything, it must relate to. The decision in Sleeman v Police19 to the effect that the apprehension or fear must relate to fear of personal injury or damage to property, pre dates the amendment to the Act incorporating the words "or any significant apprehension or fear." 

10. There is certainly complaint from victims of domestic violence that the Courts tend to interpret these words narrowly and generally require as a starting point fear for personal safety.

11. As discussed in Chapter 1, there are no objects and principles in the Act to provide guidance in interpreting those words.  The Court must however have regard to the need to ensure that family members are protected from violence.


WHAT CONDUCT CONSTITUTES DOMESTIC VIOLENCE

12. Whilst there are different views about what constitutes Domestic or Family Violence it is accepted that Domestic violence extends beyond personal injury, damage to property or any fear or apprehension in relation thereto.
13. A number of approaches are discussed in the following paragraphs.

VICTORIAN LAW REFORM COMMISSION

14. The VLRC considered that the definition of family violence should clearly extend to non physical forms of abuse, particularly because non physical family violence is rarely a crime.  Emotional violence can include extreme acts of control.20

15. Submissions to the VLRC pointed out that not including non physical forms of family violence in legislation perpetuates community views that it is not as serious as physical violence despite research consistently showing it can have severe effects on victims.  Non physical forms of family violence can also be a prelude to, as well as part of physical violence.21

16. The VLRC recommended a broad definition of family violence:

* family violence is violent or threatening behaviour or any other form of behaviour which coerces, controls and/or dominates a family member(s) and/or causes them to be fearful;

* family violence includes causing a child to see or hear or be otherwise exposed to such behaviour.22

17. The VLRC recommended that non physical violence, including psychological, emotional, verbal and financial violence, should be included in the definition of family violence.23

18. In its recommendations, the VLRC included in, but did not limit the definition of family violence to:

* assault or personal injury;

* sexual assault and other forms of sexually coercive behaviour;

* damage to a person's property;

* kidnapping or depriving a person of his or her liberty, for example, forced social isolation;

* emotional, psychological and verbal abuse;

* economic abuse.
(economic abuse and emotional abuse were defined separately).24

19. Emotional abuse was defined to include:

* behaving in a manner that is intimidating or offensive or harassing towards a person;

* causing or threatening to cause the death of or injury to an animal, whether or not the animal is the applicant's property or not;

* repeatedly using other coercive or controlling behaviour including verbal abuse;


* using other incidents of emotional and psychological torment, for example, outing homosexual partners when they do not wish to be;

* threatening to withdraw the care of an elderly person or to withdraw a visa application to coerce a person.25

20. Economic abuse was defined to include:

* coercing a person to relinquish control over assets or income;

* disposing of property owned by a person or jointly owned with a person against that person's wishes;

* preventing a person from having access to joint financial assets for normal household expenditure, or withholding or threatening to withhold financial support reasonably necessary for meeting normal living expenses for a person and their children;

* coercing a family member to claim Social Security payments;

* coercing a family member to sign a contract for the purchase of goods and services for the provision of finance loans and/or credit for a contract of guarantee or any legal documents for the establishment and incorporation of businesses;

* otherwise controlling access to money or finances.26

OTHER JURISDICTIONS

21. Quite diverse approaches have been taken to the definitions of domestic or family violence in other jurisdictions in Australia and New Zealand.

22. All jurisdictions include physical or personal injury, damage to property, threats to cause physical or personal injury or damage to property within the definition.

23. In the following discussion, emphasis will be placed upon those elements of the definition of domestic violence in the particular jurisdiction that are points of difference or otherwise of special interest.


Australian Capital Territory

24. The Domestic Violence and Protection Orders Act (ACT) does not define domestic violence, however, Section 9 provides that certain specified conduct is domestic violence.

25. Such conduct includes, relevantly, a domestic violence offence which is defined in the Act by reference to domestic violence offences in the Crimes Act mentioned in Schedule 1.  Such offences are broadly crimes of violence against the person or property, stalking, offensive or threatening behaviour.  

26. Rather, interestingly, and there does not appear to be a similar provision in any other Australian or New Zealand domestic violence legislation, a domestic violence offence includes certain offences against the Road Transport (Safety and Traffic Management) Act 1999 relating to negligent driving, furious, reckless or dangerous driving27 if directed at the relevant person. 

27. An often made complaint by victims of domestic violence relates to the dangerous, angry and erratic driving behaviour of the defendant, which places the victim and frequently children at risk and causes them significant fear and apprehension. 

28. There is much merit in incorporating specific reference to this type of behaviour in any definition of domestic violence.  Arguably it may be behaviour already caught by Section 4 (2) of the South Australian Act if the conduct occurred on more than one occasion.

29. Domestic violence includes certain offences against the Animal Welfare Act in relation to cruelty, pain, administering poison or electrical devices to animal.28

30. Personal injury is defined to include nervous shock.29

31. The ACT legislation does not specifically include emotional,  psychological or economic abuse or allowing a child to see, hear or otherwise be exposed to family violence as conduct constituting domestic violence.


New South Wales

32. Domestic violence is not defined in the Crimes Amendment Apprehended Violence Act (NSW). 

33. The Court may grant an apprehended domestic violence order if satisfied, on the balance of probabilities, that a person who has or has had a domestic relationship with another person has reasonable grounds to fear and in fact fears the commission by the other person of a personal violence offence or the engagement of the other person in conduct in which the other person:


* intimidates the person or person with whom the person has a domestic relationship; or

* stalks the person 

* being conduct that in the opinion of the Court is sufficient to warrant the making of the order.30

34. The Court need not be satisfied that a person fears an offence or conduct if they are a child, below average intelligence, or the person has been subjected to personal violence and there is a reasonable likelihood the person may commit violence again and the order is necessary to protect the person.31

35. This type of provision may go some way to addressing the issue discussed earlier in this chapter about the need to establish a fear or apprehension (of future conduct) as the prerequisite for obtaining orders pursuant to Section 4(2) (c) of the South Australian Act.

36. A personal violence offence is defined and refers to certain specified offences under the Crimes Act and includes attempting to commit an offence.32  The offences are, broadly, crimes of violence against the person or property.

37. Intimidation is defined and includes:

* harassment or molestation; 

* approach including electronically or by technologically assisted means that causes the person to fear for his or her safety;

* any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship or of violence or damage to any person or property.

38. In determining whether a person's conduct amounts to intimidation, the Court may have regard to any pattern of violence (especially violence constituting a domestic violence offence), in the person's behaviour.33

39. The New South Wales Act does not specifically include emotional abuse, although some elements of emotional abuse would fall within the definition of intimidation, nor does it  include economic abuse.


New Zealand

40. Domestic violence is defined in the Domestic Violence Act (NZ) Section 3.

41. Relevantly, the definition includes psychological abuse which is defined as including, but not limited to:

* intimidation, 

* harassment, 

* damage to property, 

* threats of physical abuse, sexual abuse or psychological abuse.

42. In relation to a child, a person psychologically abuses a child if it causes or allows the child to see or hear the physical, sexual or psychological abuse of a person with whom the child has a domestic relationship or puts the child or allows the child to be put at a real risk of seeing or hearing that abuse occurring.

43. A single act may amount to abuse and a number of acts that form part of a pattern of behaviour may amount to abuse even though some or all of those acts when viewed in isolation may appear to be minor or trivial.34 

44. An issue for many women is that whilst individual incidents are trivial, and there is a tendency for Police and Courts to ignore them, the pattern of behaviour, viewed as a whole is abusive, and can have a cumulatively devastating impact on the victim.

45. The New Zealand Act does not specifically address economic abuse. 


Queensland

46. The Domestic and Family Violence Protection Act 1989 (Qld), Section 11 defines domestic violence to include (relevantly):

* wilful damage to property, for example, injuring a de facto's pet; 

* intimidation or harassment of the other person, examples provided include following someone, waiting outside a residence or place of work, telephoning repeatedly, threatening an aged parent with the withdrawal of informal care, indecent behaviour or a threat to commit an act.

47. The Queensland Act does not specifically include emotional, psychological or economic abuse in the definition of domestic violence.


Tasmania

48. The Family Violence Act 2004 (Tas) Section 7 provides an extensive definition of family violence.

49. It includes economic abuse and emotional abuse or intimidation.35

50. Economic abuse is defined.36   The definition includes many (but not all) of the elements of economic abuse referred to in the VLRC Recommendation.

51. A person must not, with intent to unreasonably control or intimidate or cause mental harm, apprehension or fear, pursue a course of conduct made up of one or more of the following:

* coercing a person to relinquish control over assets or income;

* disposing of property owned jointly, or by the spouse or partner or by an affected child without consent; 

* preventing the spouse from participating in decisions over household expenditure or the disposition of joint property;

* preventing the spouse or partner from accessing joint financial assets to meet normal household expenses; 

* withholding or threatening to withhold the financial support reasonably necessary for the maintenance of his or spouse or partner or an affected child.37

52. Emotional abuse or intimidation is defined.38  

53. A person must not pursue a course of conduct that he or she knows or ought to know 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.  

54. A course of conduct includes limiting the freedom of movement of a person, spouse or partner by means of threats or intimidation.39

55. The definition of economic abuse, in particular, is complex - incorporating concepts of intent and unreasonableness, and requires a course of conduct.  

56. Emotional abuse also requires a course of conduct and knowledge, or implied knowledge, of the effect of the conduct on the victim. Unreasonableness is also a feature of the definition.

57. The very complexity of the definitions of emotional and economic abuse highlight the difficulty of legislating for such conduct and the evidentiary hurdles a complainant would need to overcome to establish the ground.


Victoria

58. The Crimes (Family Violence) Act does not define domestic violence however Section 4 provides that an intervention order can be made where a person has behaved in specified ways.
 
59. The Act provides additional protection for children.  A ground for the making of an intervention order includes where a child has heard or witnessed, and is likely again to hear or witness violence by a person, and that the child is a family member of that person or of the aggrieved family member whose person or property was the subject of the violence.40


Western Australia

60. The Restraining Orders Act 1997, Section 6 includes in the definition of family and domestic violence:

* kidnapping or deprivation of liberty; 

* damaging property including injury to or death of an animal that is the person's property;

* behaving in an ongoing manner that is intimidating, offensive, or emotionally abusive; 

* causing the person or a third person to be pursued with intent to intimidate the person or in a manner which could reasonably be expected to intimidate, and does in fact intimidate the person.41

61. Property is defined in the Legislation and includes property:

* owned by the person in the care or custody of the person;

* used or enjoyed by the person or available for the person's use or enjoyment; or

* at premises where the person lives or works.42

62. Emotional Abuse is not defined in the Act.



DISCUSSION

1. Domestic violence transcends physical and sexual abuse, damage to property and threats in relation to same. 

2. It is now well recognised and documented that emotional and economic abuse can have far reaching impacts upon the victim and children.  

3. If it is accepted (whether incorporated specifically in objects and principles clauses or not), that domestic violence in all its forms is unacceptable, and that there should be effective legal protection for victims of domestic violence, it can be argued that domestic violence should be legislatively defined in a way which more adequately reflects the experiences of victims of domestic violence in relation to the non-physical forms of violence.

4. Some forms of non physical domestic violence can be defined by words already in common usage in the justice system, and which are readily understood, for example, intimidation, harassment, and coercion.  Words such as emotional and psychological abuse and economic abuse are not so readily understood and have a substantial subjective component in their interpretation.

5. If the South Australian Act is to be amended to include emotional or psychological abuse and economic abuse within the definition of Domestic Violence, the Police, Courts, victims and perpetrators will need clear guidance about what conduct constitutes such abuse.

6. The VLRC Report, in their recommendations, provide an inclusive (not exclusive) definition of what conduct may constitute emotional abuse and economic abuse.

7. The Family Violence Act (Tas) requires economic abuse to include one or more of a specific course of actions.43   

8. The Tasmanian Act, in relation to emotional abuse, requires a person not to pursue conduct which they know (or ought to know) is likely to have an effect.44 In relation to economic abuse there must be an intent to unreasonably control etc. or to pursue a course of conduct. 

9. Culpability and accountability in the Tasmanian model depends, not upon the impact of the course of conduct upon the victim, but rather upon the intent or knowledge of the perpetrator (including what they ought to know) about the consequences of the course of conduct.  In the context of family relationships and dynamics it may be very difficult to prove knowledge and intent.

10. The recommendations of the VLRC prescribe actions in terms of specified behaviour and its impact upon the victim without reference to the intent or state of knowledge of the perpetrator about the conduct and its consequences.

11. Currently, Tasmania is the only jurisdiction in Australia and New Zealand that incorporates economic abuse within its definition of domestic or family violence.  

12. Economic abuse, taking either the Tasmanian or VLRC approach, contemplates an ongoing relationship where the parties continue to reside together.

13. From an evidentiary point of view, it would be extremely difficult to establish economic abuse, particularly adopting the Tasmanian model.  

14. To establish a contravention of such an order would be even more problematic.

15. Prosecutions for economic abuse would be resource intensive for  Police and the Courts.  That of course is, unto itself, no reason to exclude economic abuse from a definition of family violence.

16. Anecdotally, there do not appear to have been many applications in Tasmania for a domestic violence order based upon economic abuse.

17. The VLRC and Tasmanian definitions of economic abuse include certain coercive behaviours.  Some of these behaviours could be included in a broader definition of domestic violence without the necessity to categorise them as economic abuse.

18. It may be preferable to avoid using words such as emotional or psychological or economic abuse but rather include particular sorts of behaviour in a definition of what constitutes domestic violence.



QUESTIONS


9.	What conduct constitutes emotional and psychological abuse?

10.	Should the Act be amended to include emotional and psychological abuse as conduct constituting domestic violence?

11.	Should the words emotional and psychological abuse be defined in the Act?

12.	What conduct constitutes economic abuse? 

13.	Should the Act be amended to include economic abuse as conduct constituting domestic violence? 

14.	Should economic abuse be defined in the Act?

15.	Should the Act be amended to include as conduct constituting domestic violence:

      15.1	offences contrary to the Road Traffic Act?

15.2	coercive behaviours (if so should coercive behaviours be defined)?

15.3	causing or allowing a child to see or hear the physical, sexual or other conduct perpetrated towards the child's parent who is the person with whom the child lives;

      15.4	patterns of behaviour as constituting abuse?

16.	Should the Act be amended to include that the Court need not be satisfied that a person's fears or is apprehensive if they have been subjected to personal violence and there is a reasonable likelihood that the person may commit violence again?



OPTIONS FOR REFORM


17.	Whether Section 4(2) (c) of the Act should be amended by deleting reference to "if on two or more separate occasions" and include the following behaviour:

      17.1	kidnapping or depriving a person of his or her liberty;

17.2	behaving in a manner that is intimidating or offensive or harassing towards a person, including:

      17.2.1	threatening to withdraw care;

      17.2.2	the matters set out s.2(C) i - vi;

      17.2.3	verbally abusing a family member;

      17.2.4	following a family member;

18.	Whether Section 4(2) of the Act should be amended to include as conduct constituting domestic violence.

18.1	specified offences contrary to the Road Traffic Act in particular, those addressed to negligent driving, furious reckless or dangerous driving, where directed at the victim;

18.2	causing or allowing a child to see or hear the physical, sexual or other conduct defined as domestic violence pursuant to the provisions of the Act towards a person with whom the child has a domestic relationship or puts the child or allows the child to be put at real risk of seeing or hearing the abuse occurring;

      18.3	coercive behaviour including:

      18.3.1	sexually coercive behaviour 

18.3.2	coercing a person to relinquish control over assets or income;

18.3.3	coercing a family member to sign a document for the purchase of goods and services or for the provision of finance, loans and/or credit or for a contract of guarantee or any legal documents for the establishment and incorporation of businesses;

18.3.4	coercing a family member to claim social security payments.

18.4	injuring or threatening to injure a pet whether or not the person owns the pet.

19.	Whether Section (4) of the Act should be amended to include:

19.1	That a single act may amount to abuse and that a number of acts that form part of a pattern of behaviour may amount to abuse even though some or all of those acts when viewed in isolation may appear to be minor or trivial.

19.2	That the Court need not be satisfied that a person fears or is apprehensive of an offence or conduct if they are a child, below average intelligence or the person has been subjected to personal violence and there is a reasonable likelihood the person may commit violence again and the order is necessary to protect the person.

20.	Whether the Act should be amended to include as a definition of property:

20.1	property owned by the person or in the care or custody of the person;

20.2	property used or enjoyed by the person or available for the person's use or enjoyment; or

      20.3	property on premises where the person lives or works.





CHAPTER 3
Whether there is a need to broaden the relationships to which the Act applies


1. The Act provides that the Court may make a domestic violence restraining order against the defendant if the defendant commits domestic violence.

2. Domestic violence is committed if the defendant behaves in a particular way to a member of the defendant's family.45

3. A member of the defendant's family or family member is defined as being: 

* a spouse or former spouse of the defendant; 

* a child of whom the defendant or a spouse or former spouse of the defendant has custody as a parent or guardian; 

* a child who normally or regularly resides with the defendant or a spouse or former spouse.

4. Spouse is defined to include a person of the opposite sex who is cohabiting with the defendant as the husband or wife de facto of the defendant.46

5. The Act applies therefore to a defendant, who is an adult, and the victim is the spouse or former spouse of the defendant or a child of the defendant, spouse or former spouse of the defendant or a child who normally resides with the defendant, spouse or former spouse.

6. The class of relationships, covered by the Act, is quite narrow.

7. That does not mean of course that persons in other types of relationships may not be able to obtain a protection order pursuant to the provisions of the Summary Procedures Act.47

8. A number of different approaches have been taken to the types of relationships which should be included in Domestic Violence Legislation.

VICTORIAN LAW REFORM COMMISSION

9. The VLRC received submissions supporting the use of the current definitions in the Crimes (Family Violence) Act (Vic).

10. The Victorian Act defines a family member to include:

* spouse or domestic partner;

* a person who has had an intimate personal relationship with the person.  Intimate personal relationship is not defined;

* a person who is or has been a relative (also defined in the Legislation);

* a child who normally or regularly resides with that person;

* a child of whom that person is guardian or another person who is or has been ordinarily a member of the household of that person.48   

11. Relatives are defined and include:

* people who are relatives through past and present marriages as well as past and present same sex and opposite sex domestic relationships;

* step parents, step children, in-laws, uncles, aunts, nieces, nephews and cousins are included.49

12. The VLRC considered however that some victims of violent relationships in a family or domestic setting were not adequately covered under the Act.50

13. More particularly, the definition in its current form, was seen not to reflect the extent of kinship and family relationships within indigenous communities.  Similar issues also applied to certain CALD communities where situations of extended family clans or tribe may mean that someone not directly related by marriage or blood is still nonetheless considered to be a member of the family.

14. Submissions generally supported the Northern Territory definition of family relationship which included "a relative according to Aboriginal tradition or contemporary social practice". 51

15. The VLRC recommended including carers of people with disabilities.  

16. People with disabilities have added vulnerability.  In addition to family they may have paid and unpaid carers upon whom they depend for intimate physical care, practical and emotional support and social interaction.

17. An unacceptably high proportion of women with disabilities experience violence and abuse by carers.52


Australian Capital Territory

18. For the purposes of the Domestic Violence Protection Order Act, a relevant person, that is a person who may seek to make an application for a domestic violence order, means a domestic partner including a former domestic partner who need not be an adult, a relative or a child of the person or domestic partner, or a parent of a child of the original person.53

19. If a person has had a domestic partner other than a spouse, relative includes someone who would have been a relative if the person had been legally married to the domestic partner.  Domestic partner is as defined in the Legislation Act (ACT) s.169.

20. Relative also includes anyone who could reasonably be considered to be a relative of the original person and examples are given in the  Legislation, eg. If the person is an Aboriginal or Torres Strait Islander.54


Northern Territory

21. In addition to the classes of people referred to in the Victorian and Australian Capital Territory Acts Legislations, the Northern Territory Domestic Violence Act also includes great uncles, grandmothers, grandsons etc. and great great uncles, aunts, grandmothers etc.

22. The definition also includes a relative according to Aboriginal tradition or contemporary social practice.55


Queensland

23. The Domestic and Violence Protection Act 1989 defines domestic relationships as including a spousal relationship, an intimate personal relationship, a family relationship, and an informal care relationship.56

24. A spouse includes a former spouse and also includes the biological parents of a child regardless of whether there is or was any relationship between the biological parents of the child.57

25. An intimate personal relationship is defined58 and includes:

* persons who are engaged or betrothed;

* it can exist whether or not the relationship is of a sexual nature;

* if the person's date or dated each other and their lives are or were enmeshed to the extent that the Actions of one of them affect or affected the Actions or life of the other;

* the Court may have regard to a number of matters in determining whether there is an intimate personal relationship including the circumstances of the relationship, for example, trust and commitment, the length of time of the relationship, the frequency of contact between the persons and the level of intimacy.

26. An intimate personal relationship can exist whether two persons are of the same or of the opposite sex.  

27. Specifically the Act provides that two persons are not enmeshed merely because they date or dated each other on a number of occasions.59

28. A family relationship includes where one is a relative of the other and includes:

* people who have been connected to the person by blood or marriage; 

* a person if it is or was reasonable to regard the person as a relative especially considering that for some people the concept of relative may be wider than is ordinarily understood including: 

* a person who the relevant person regards or regarded as a relative;

* a person who regards or regarded himself as a relative of the relevant person.60

29. An informal care relationship is also defined.61 It exists between two persons if the person is or was dependent on another person (a carer) who helps the person in an activity of daily living (personal care activity).  

30. The activity must have been required because of disability, illness or impairment.

31. A personal care relationship does not exist if the arrangement was entered into via a third party.

32. A person is not in an informal care relationship if the carer is paid other than if the circumstances relating to the payment of the fee include an act of domestic violence, for example, threatening to injure the person unless they paid.



Western Australia

33. The Restraining Orders Act defines family and domestic relationship62 it includes a relationship between persons married, de facto, related to one another, a child who ordinarily or regularly resides, resided or stayed with the other person, a child for whom the other person is a guardian or persons who have had an intimate personal relationship or other personal relationship.

34. Other personal relationship is defined as a personal relationship of a domestic nature in which the lives of the persons are or were inter related and the Actions of one person affects or affected the other.63 

35. Related is defined to include a person who is related to that person taking into consideration the cultural, social or religious backgrounds of the two persons. 

36. Intimate personal relationship is not defined.


New Zealand

37. The Domestic Violence Act 1995 defines domestic relationship.64 The definition includes persons who ordinarily share a household with the other person or have a close personal relationship with the other person.  

38. Specifically excluded are landlord, tenant, employer and employee relationships.65

39. In determining whether there is a close personal relationship the Court is to take into account, inter alia: 

* the nature and intensity of the relationship and in particular, 

* the amount of time the persons spend together, 

* the place or places where that time is ordinarily spent, 

* the manner in which that time is ordinarily spent, 

* but it is not necessary for there to be a sexual relationship between the persons; and

* the duration of the relationship.66

40. Partner is defined to include, inter alia, those persons who are the biological parents of the same person.  Family member includes any person who is a member of the person's Whanau or other culturally recognised family group.67

Model Legislation

41. Personal relationship means a personal relationship of a domestic nature between two persons in which the lives of the persons are or were enmeshed and the Actions of one of them affect or affected the other.  

42. Spouse includes someone else whom according to the person's Aboriginal, Torres Strait Islander or other cultural tradition, the person considers to be the person's spouse or previously considered to be the person's spouse.68

DISCUSSION

1. In some jurisdictions, family and domestic relationships have been defined very broadly.

2. Looked at globally, relationships have been defined to include virtually all blood relatives of whatever degree of the relevant person, all spouses and persons in a spousal relationship including de facto, intimate personal relationships and spousal relationships arising out of cultural perceptions.  

3. Relatives have included relatives of persons connected by marriage or broader domestic relationships and relatives who would be considered so by reason of cultural reasons. 

4. Persons who ordinarily share a household have also been included in the definition, as have persons in an informal care relationship.

5. Definitions have at times become extensive and cumbersome.

6. As discussed in Chapter 1, domestic violence is a particular form of personal violence that needs a greater level of protective response, it occurs in traditional and non traditional settings.  The very fact that such violence occurs within the family context is the defining feature of the violence.

7. The VLRC summarised the individual and social impacts of family violence on individuals they include physical, mental, psychological and economic harms.  They are widespread, often severe and sometimes fatal.

8. Family violence can have profound impact on a victim's sense of self and ability to make choices.

9. Family violence affects the whole community.  Overall, it is the leading contributor to death, disability and illness in women in Victoria aged 15-44 years.

10. It constitutes a profound cause of disadvantage handed from one generation to the next and its effect on children can be devastating.

11. One-quarter of all children have witnessed violent behaviour towards their mother or stepmother.

12. The statistics highlight the effect family violence can have on the health and economic wellbeing of society.69

13. It can be argued therefore that it is important that the definition of family member is not defined too narrowly.

14. It is equally important however that legislation addressing family violence does not diminish the impact of the legislation and the unique features of family violence by extending the legislation to classes of persons who might be more appropriately dealt with pursuant to the Summary Procedure Act eg people who ordinarily share a household, if they are not otherwise in a relationship to which the Act applies.

15. More problematic perhaps is the question of whether legislation should be extended to carer relationships which are not otherwise relationships to which the Act applies, many carer relationships do involve family members, particularly if broadly defined.

16. The benefit of including broader family relationships within the definitions of family member may include accessibility to the family intervention programs the availability of which at the moment only extends to domestic violence interventions between spouses being the only relationships covered by the South Australian Act.

17. There may well be resource implications in extending in the definition of family member to a broader range of family members.

18. However, as the VLRC reported:

"A recent access economics report found that family violence costs Australia about $8bn a year nationally and $2bn a year in Victoria, a substantial proportion of which is borne by the victims themselves."70



QUESTIONS


21.	Should the definition of the defendant's family or family member be extended to include persons who are or have been in an intimate personal relationship with the defendant?  If so, should intimate personal relationship be defined?

22.	Should the definition include a domestic partner pursuant to the provisions of the Domestic Partners Act 2006?

23.	Should the definition include persons who are in a carer relationship?

24.	Should the definition include people who are ordinarily members of the household?

25.	Should the definition include relatives, if so who should be included in the definition.

26.	Should the definition of spousal relationship take into account traditional and cultural differences.



OPTIONS FOR REFORM


27.	Whether Section 3 of the Act should be amended:-

27.1	to include in the definition of member of the defendant's family or family member:-

27.1.1	a domestic partner of that person as defined by the Domestic Partners Act 2006 (SA);

27.1.2	a person who has had an intimate personal relationship with the defendant.

      27.1.3	a relative.

27.2	to define a child as a child of whom the defendant or a spouse or former spouse of the defendant have a parenting order pursuant to the provisions of the Family Law Act 1975 (Commonwealth) or a parenting plan.

27.3	to define a spouse to include someone who according to the person's Aboriginal or Torres Strait Islander or other culture or tradition the person considers to be the person's spouse or previously considered to be the person's spouse.

28.	Whether an intimate personal relationship should be defined as:-

28.1	A person who has or has had an intimate personal relationship with a defendant including:

28.1.1	the biological parents of a child regardless of whether there is or was any relationship between the biological parent;

      28.1.2	persons who are engaged or betrothed;

28.1.3	an intimate personal relationship can exist whether or not their relationship is of a sexual nature if the lives of the persons are or were enmeshed to the extent that the Actions of one of them affect or affected the Actions or life of the other.  Two persons not enmeshed merely because they date or dated each other on a number of occasions;

28.2.4	an intimate personal relationship can exist where the two persons are of the same or are of the opposite sex;

28.1.5	in determining whether there is an intimate personal relationship the level of commitment the length of time of the relationship the frequency of contact between the persons and the level of intimacy are to be taken into account;

29.	Whether a relative should be defined and include:-

29.1	all relatives of the relevant person whether by blood, marriage or other personal relationship and includes persons who are a relative according to Aboriginal or Torres Strait Islander tradition or contemporary social practice or cultural tradition;


1. 

CHAPTER 4
Children and the Domestic Violence Act 1994
Whether the Act is effective in: 
Protecting children who are at risk of experiencing or witnessing domestic violence; Providing appropriate processes and penalties where the 
perpetrator is a juvenile


1. The Domestic Violence Act currently addresses the issue of protection of children against domestic violence in a number of respects.

2. As discussed in Chapter 2, a defendant commits domestic violence if behaviours prescribed in Section 4 are caused to the defendant's family.

3. A member of the defendant's family includes a child of whom the defendant or a spouse or former spouse has custody as a parent or guardian etc. or a child who normally or regularly resides with the defendant or spouse.  A child means a person who has not attained the age of 18 years.71

4. Notwithstanding that a child is not the complainant, the terms of a domestic violence restraining order may apply for the benefit of the child if that child is specified in the order.72

5. Section 6(1) of the Act sets out the factors to be considered by the Court in considering whether to make a domestic violence restraining order and  the terms of that order.

6. A number of these provisions apply for the benefit of children including:

* the need to ensure that family members are protected from domestic violence;

* the welfare of any children affected or likely to be affected by the defendant's conduct;

* the accommodation needs of family members and any children of the defendant;

* any relevant family contact order of which the Court has been informed;

* how the domestic violence restraining order would be likely to affect contact in accordance with a relevant family contact order.

7. The Act does not specifically deal with the issue of children as victims, as other participants in the proceedings, or children as perpetrators.

8. The issue of children as perpetrators will be discussed later in this Chapter.

9. Section 3 of the Act defines Court, for the purposes of the Act, as meaning the Magistrates Court of South Australia.

10. The Youth Court does not have jurisdiction under the Act in relation to children as perpetrators of domestic violence, as victims or as applicants. 

THE IMPACT OF VIOLENCE UPON CHILDREN

11. Children and young people may be affected by family violence by being physically and verbally assaulted themselves or by witnessing or being present when their parent or others are being abused.

12. There is a connection between family violence and child abuse.  Even if a child or young person is not a direct victim of family violence, witnessing family violence and living in a household where family violence takes place can be extremely harmful.73

13. Children can become part of the dynamic of power and control in the violent family relationship.  Threatened or actual violence towards children can be a way of controlling a child's parent and can impact upon the decision people make about staying in or leaving a violent relationship.74

14. Child contact can be a way for the perpetrator to maintain contact with a victim of family violence where the victim is the child's mother.  Also, children are at risk of harm on contact visits as a way of harming their mother.75

CHILDREN AS PERPETRATORS

15. Children and young people can of course be perpetrators of family violence.

16. Children can perpetrate violence against their parents including physical and emotional violence and adolescent children in particular can be the perpetrators of family violence towards parents or other people in their household.76

17. Parental abuse may be defined as any act of a child that creates fear in and is intended to their parents.  As with partner abuse, it includes physical, psychological, emotional and financial abuse.77

18. Reports by Police in the western suburbs of New South Wales suggest that perpetrators of violence at home who are under 16 represent between 4-25% of all domestic violence incidents.78

19. Studies have provided evidence to suggest that adolescents who are violent towards their parents have often either been abused as children or have witnessed violence between parents.79

20. The cycle of abuse where victims ultimately become perpetrators is a well documented phenomenon.  Carolyn Johnson in her researches on familicide noted that in 80% of cases where a person has psychosocial familicide they had themselves been the victims of child abuse. 80

21. There are a number of ways in which the reports and other jurisdictions have approached the issue of children as victims and perpetrators of domestic violence.


Australian Capital Territory

22. Whilst the Domestic Violence and Protection Orders Act does not have a specific division relating to children, there are a number of features of that Act that address the specific needs of children.

23. A child can be an applicant.

24. A parent or guardian of a child who is an aggrieved person may apply to make a non emergency protection order on behalf of a child.81

25. Protection for children is afforded in relation to consent orders. If the child (a person with a legal disability) is not separately represented and it appears that they should be represented, the Magistrates Court must not make a consent order.82

26. When the child is a respondent to proceedings, the Act provides that an interim order may prohibit a child from being on premises where the child normally receives care (including education) or protection only if the Magistrates Court is satisfied that adequate arrangements have been made for the child's care (including education) and safety.83    

27. The ACT Act clearly contemplates a child under 18 as a respondent. 

28. There are no specific provisions relating to the way in which a child respondent (or victim) is dealt with in the Court system.


New South Wales

29. The NSW Apprehended Violence Act contemplates children as both perpetrator and victim.

30. A child is defined as a person under the age of 16 years.84

31. Court is defined to mean a Local Court or the Children's Court or the District Court.85

32. In deciding whether or not to make an apprehended domestic violence order the Court must consider a number of matters.86   

33. The interests of children are noted in a number of respects, including the safety and protection of a child directly or indirectly affected by the defendant's conduct.

34. Division 6, of the Apprehended Violence Act is entitled "Measures for protection of children and others in proceedings".

35. In any proceedings, including variation or revocation proceedings, in which an order is sought or proposed to be made for the protection of a child, or any part of the proceedings where the child appears as a witness, the proceedings are to be heard in the absence of the public unless the Court directs otherwise.  Even if proceedings are open to the public, the Court may direct any person, other than a directly interested person, to leave the place.87

36. A child is not to be required to give evidence in any manner about a matter unless the Court is of the opinion that it is in the interests of justice for the child to do so.  The evidence should only be in accordance with the Evidence (Children) Act 1997 and for that purpose, the Act applies in the same way as it applies to criminal proceedings.88

37. The Act also contains specific provision in relation to the publication of names and identifying information about children under 16 involved in AVO proceedings.89  These provisions apply to a child whether victim or perpetrator or who appears or is reasonably likely to appear as a witness or who is or is reasonably likely to be mentioned or otherwise involved in relevant proceedings.

38. The name of the child must not be published or broadcast before the proceedings are commenced or after the proceedings have been commenced and before they are disposed of.

39. A reference to the name of the child includes a reference to information, picture or material that identifies the child or is likely to lead to the identification of a child.  The offence is one of strict liability.

40. The limitation on publication is restricted only to the period of time before the proceedings are disposed of.  The protection does not extend to information being disclosed about the child after proceedings have been concluded.

41. The exceptions to prohibition include if the Court consents to publication, or an official report of proceedings.

42. Limiting the prohibition on disclosure only until the proceedings are disposed of is in contrast to the protective measures afforded to children pursuant to the provisions of the Family Law Act which contains a total prohibition on the publication of any information that identifies a party to the proceedings or anyone related to them, which includes children.90

43. In the case of children, it is difficult to understand why there should not be a total prohibition on publication of any details which may identify them in similar terms to Section 121 of the Family Law Act.


New Zealand

44. As discussed in Chapter 2, the Domestic Violence Act (NZ) specifically includes in the definition of domestic violence, psychological abuse of a child which includes causing or allowing the child to see or hear the physical, sexual or psychological abuse of a person with whom the child has a domestic relationship or which puts the child or allows the child to be put at real risk of seeing or hearing that abuse occurring.91

45. A minor may make an application for a domestic violence order.  Where the child is under the age of 16 years, they must make application by a representative pursuant to the rules of Court.92

46. A minor over the age of 16, if they do not lack capacity or for any other reason are unable to make the application personally, may make an application either on his or her own behalf or by a representative.93

47. A minor who is aged over the age of 17 who wishes to apply for a protection order must make the application on his or her own behalf without a next friend or guardian and orders may be made on the application and enforced as if the minor were of full age.94

48. No application for a protection order may be made against a minor under the age of 17 unless the minor is or has been married or in a civil union or de facto relationship.  If an order is made, the order may be enforced as if the minor were of full age.95

49. The Court exercising jurisdiction under the Act is the Family Court or District Court.96

50. The NZ Act does not apply in circumstances where a child under the age of 17 has perpetrated violence, eg against a parent, sibling or any other person unless they have been married or in a civil union or de facto relationship.

51. A child is defined for the purposes of the Act as being a person under 17.97

52. Proceedings pursuant to the NZ Act are effectively closed Court proceedings and children in proceedings would be afforded protection by those provisions.98


Queensland

53. The Domestic and Family Violence Protection Act 1989 defines a Court exercising jurisdiction as the Magistrates Court.

54. No specific jurisdiction is given to the Children's Court.99

55. The Act recognises however that children may, in certain circumstances, be both applicants and respondents to proceedings under the Act.  A child is defined in the dictionary as meaning "an individual under 18 years of age".

56. A child may be named as the aggrieved or the respondent only if a spousal relationship, intimate personal relationship or informal care relationship exists between the child and the other party.100

57. Those definitions do not include a parent-child or sibling relationship.

58. If the child is under 16 years of age, a copy of the document must also be given to the parent of a child.  The child must not be given the document in the vicinity of the child's school unless there is no other place where service may be reasonably effected.

59. If the child is at least 16 years of age, a person must not give a copy of the document to a parent of the child unless the Court so orders and must give the document to the child as discreetly as practicable.101

60. The Court has certain obligations to children as applicants and respondents.  If a child is a party to the proceedings and is an applicant who is not represented by a lawyer, a Police officer or authorised person or is a respondent who is not represented by a lawyer, the Court must adjourn the hearing of the application unless it is satisfied that the child has had a reasonable opportunity to obtain representation by a lawyer and has decided not to be represented by a lawyer.102

61. The Queensland Act does not appear to otherwise make particular provision for children as applicants.103

62. A number of other provisions of the Queensland Act take into account the interests of children.

63. The Act provides that as well as an aggrieved person, a relative or associate of the aggrieved may be protected by a domestic violence order provided that they are specifically named.  This would include within its definition, a child.104


Victoria

64. The Crimes (Family Violence) Act Victoria specifically grants jurisdiction to the Children's Court both in respect of an aggrieved family member or defendant under the age of 18 years.105

65. Where a child is either an aggrieved or defendant, concurrent jurisdiction is exercised by the Children's Court and the Magistrates Court regardless of anything in the Children and Young Person's Act.

66. Each Court has the capacity to discontinue and transfer proceedings to the other and each Court has the capacity to revoke, vary, extend orders made by the other.

67. These provisions provide a simple, effective and appropriate process for the determination of matters involving children as aggrieved persons and respondents.

68. A determination can be made on an individual case by case basis at any time in the proceedings as to which Court is best suited to hear the proceedings.

69. Section 4A provides additional protection for children.

70. The Court may make an intervention order in respect of a child as an aggrieved family member if the Court is satisfied the child has witnessed and is likely again to hear or witness violence by a person and the child is a family member of that person or of the aggrieved family member whose person or property is the subject of the violence.  Such intervention order may be made whether or not a complaint for an intervention order has been made by or on behalf of the aggrieved family member whose person or property was the subject of violence.  

71. The Court, before making an intervention order under s.4 must consider whether there are any children or any other children who are family members who have been subject to or have heard or witnessed violence and the Court may on its own initiative, make either an order including the child in the order relating to an aggrieved family member or make a separate intervention order.106

72. The Court has substantial capacity to make orders for the protection of a child regardless of whether an application has been made on behalf of the child or on behalf of the person who was the subject of the violence.

73. The Victorian Act provides for certain restrictions on evidence by children.

74. A child who is not a party or seeking to become party to the proceedings must not give evidence by way of affidavit without leave of the Court.  A child other than a child who is a defendant or who is an aggrieved person or family member of an aggrieved person must not be present during or be called as a witness unless the Court makes an order allowing the child to be present or called as a witness.107

75. The Act imposes a total restriction on reports of proceedings involving children as either a party or witness including information as to the venue of the Court, the name, address, school or any particulars leading to the identification of the child or any other person in the proceedings either as a party to the proceedings or as a witness in the proceedings.

76. The restrictions afford similar protection to the child as is available to the child in any proceedings under the Family Law Act.108


Tasmania

77. The Family Violence Act 2004 contains some provisions particularly relevant to children.

78. In determining the sentence for a family violence offence, the Court may consider to be an aggravating feature, the fact that the offender knew or was reckless as to whether a child was present or on the premises at the time of the offence or knew that the person affected was pregnant.109

79. An affected child can make an application for a family violence order if the Court is satisfied that the child is capable of understanding the nature of the proceedings.  If an application is made by or on behalf of a child, a copy of the application is to be sent to the secretary of the responsible department in relation to the Children, Young Persons and Their Families Act 1997.110

80. If an applicant is a child, he or she must be represented by a Police officer, a legal practitioner or a nominee of the secretary of the responsible department in relation to the Children, Young Persons and Their Families Act 1997.111

81. The Magistrates Court may at any stage of the proceedings made under Part 3 or 4 (Police Family Violence Orders and Family Violence Orders) determine that it is appropriate that those proceedings be heard by the Magistrates Court (Youth Justice Division) or the Magistrates Court (Children's Division) and transfer the proceedings to those Courts.  That Court then has jurisdiction to hear and determine those proceedings.112

82. The Court must make an order forbidding the publication of any material under the Act which may disclose the identity of an affected child and has a discretion in relation to the publication of any other material generally.113


Western Australia

83. The Restraining Orders Act 1997 makes certain provision with respect to children.

84. Jurisdiction is conferred upon the Children's Court where the respondent is a child.  Proceedings must be made in the Children's Court if the respondent is a child114 and it includes any proceedings to vary an order made in the Children's Court.115

85. A violence restraining order may be made for the benefit of a child if the Court is satisfied that the child has been exposed to an act of family and domestic violence and the child is likely to be exposed to such an act or a person or the child reasonably fears that the child will be exposed to an act of family and domestic violence and that the making of a violence restraining order is appropriate in the circumstances. 116

86. In considering whether to make a family violence restraining order and the terms of it, the Court is to have regard to the need to ensure that children are not exposed to acts of family or domestic violence, and the wellbeing of children who are likely to be affected by the respondent's behaviour or the operation of the proposed order.

87. Part 6, Division 1 of the Act (ss.50-53F) specifically addresses issues relating to children.

88. Those provisions include: 

* that there is to be no restraining order against a child under the age of 10; 

* a restraining order against a child is not to exceed 6 months;

* before a Court makes a violence restraining order where the respondent is a child under the age of 16 and the person protected is a parent, guardian or person responsible for the day to day care of the child or with whom the child habitually resides, the Registrar is to notify the CEO of Child Welfare that such an order may be made and if an order is made, the CEO is to cause inquiries to be made for the purpose of determining whether action should be taken to safeguard or promote the child's wellbeing;

* a child is not to give oral evidence under the Act without leave unless the evidence is in the Children's Court; 

* if the necessary facilities are available, the use of video link applies;

* a child who gives evidence is entitled to have support, such person to be approved by the Court;

* there are limitations on the cross examination of a child by an unrepresented person in which event, questions must be put via a judicial officer or person approved by the Court; 

* there are certain provisions in relation to admissibility of evidence of children;

* a child is not to be summonsed without leave unless the matter is in the Children's Court.

89. The Western Australian Act has very significant features which take into account the interests of children as perpetrators and victims.  

DISCUSSION

1. A number of issues are raised by the differing approaches: 

* the definition of children.  The Acts variously define children as under 16, 17 or 18.  The South Australian Act defines a child as under 18;

* the capacity of children to make application for an order, ie. are they in a relationship to which the Act applies.  This is discussed in Chapter 3 where the options for reform identified would include children as a relevant family member and relative; 

* the vesting of jurisdiction under the Act in the Youth Court;

* the representation of children, particularly as respondents; 

* the need to protect children directly or indirectly affected by violence as a paramount consideration;

* the need to protect children and the interests of the children whether as applicants, respondents or witnesses by closing the Court;

* in Courts other than the Children's Court limitations and protections for the giving of evidence by children;

* prohibition on publication of names and details;

* the need to provide as a specific act of domestic violence causing or allowing the child to see or hear the physical or psychological abuse of a person with whom the child has a domestic relationship and which puts the child or allows the child to be put at real risk of seeing or hearing that abuse occurring.  (this issue is discussed in Chapter 2 and is included in the options for reform identified);

* the presence of a child whilst an act of domestic violence is committed is an aggravating factor for the purposes of sentence; (this issue is discussed in Chapter 9 and is included in the options for reform identified)'

* the capacity of a Court on its own initiative to make orders in respect of children where they have been subject to or have heard or witnessed violence.



QUESTIONS


30.	Should the Youth Court be granted jurisdiction to hear and determine matters involving children under the age of 18?

31.	Should the Youth Court have exclusive jurisdiction in relation to children or should that jurisdiction be exercised concurrently with the Magistrates Court?

32.	Should proceedings be commenced in the Youth Court where the child is a respondent?

33.	Should children under 10 be excluded from the Court's jurisdiction under the Act?

34.	Should special procedures apply for children as applicants, witnesses and respondents, in particular as to the giving of evidence, the publication of names and details and the closing of Courts?


OPTIONS FOR REFORM


Whether the Domestic Violence Act should be amended to incorporate the following:-

35.	That the Youth Court be granted jurisdiction for the purposes of the Domestic Violence Act.

36.	That the Youth Court and Magistrates Court exercise concurrent jurisdiction in the manner provided in Section 34 of the Crimes (Family Violence) Act 1987 (Vic), including that proceedings involving children can be readily transferred between jurisdictions.

37.	That any proceedings where a respondent is under the age of 18 must be commenced in the Youth Court.

38.	That there be no restraining order against a child under the age of 10.

39.	Before a Court makes a Violence Restraining Order where the respondent is a child under the age of 16 and the person protected is a parent, guardian or person responsible for the day to day care of the child, that the CEO of Families SA (or equivalent) to be notified and if an order is made, that the CEO cause inquiries to be made for the purpose of determining whether action should be taken to safeguard or promote the child's wellbeing.

40.	That any proceedings (other than in the Youth Court) where a child is involved as applicant or witness be a closed Court unless the Court orders otherwise.

41.	That there be a total prohibition on the publication of any details which may identify a child before, during or after proceedings have concluded whether the child is an applicant, witness or respondent or otherwise named in the proceedings.

42.	In any interim proceedings that an order which may prohibit a child from being on premises where the child normally receives care including education or protection must only be made if the Court is satisfied that adequate arrangements have been made for the child's care (including education) and safety.

43.	Where a respondent is under the age of 16, that the application must be served upon their parent or guardian.

44.	That the child must not be given the document in the vicinity of the child's school unless there is no other place where service may be reasonably effected.  

45.	That the Court, on its own initiative have capacity to make orders for the protection of children where they have been subjected to or have heard or witnessed violence.

46.	If a child is an applicant or respondent that the Court must adjourn the hearing of the application unless it is satisfied that the child has had a reasonable opportunity to obtain representation by a lawyer and has decided not to be represented by a lawyer.

47.	That the Act provide for who can make application for a child eg parent, guardian, Police officer, CEO Families SA.  That a child over the age of 16 be able to make application if the Court considers that they understand the nature of the proceedings.

48.	That proposed amendments to the Evidence Act already approved by Cabinet, where relevant to children, should apply to proceedings pursuant to the Domestic Violence Act where a child is to give evidence or is a victim, as if the proceedings were criminal proceedings.


CHAPTER 5
Whether the Act should give greater emphasis to the removal of the alleged perpetrator or defendant rather than the victim from the victim's usual place 
of residence.


1. The Act provides that a Domestic Violence Restraining Order may, inter alia:

2. Prohibit the defendant from being on premises at which a family member resides or works.117

3. A domestic violence restraining order may be made against the defendant in relation to premises or property despite the fact that the defendant has a legal or equitable interest in the premises or property.118

4. In considering whether or not to make a domestic violence restraining order and the terms of such order, the Court must have regard to, inter alia, the following:

* the need to ensure that family members are protected from domestic violence;

* the welfare of any children affected or likely to be affected by the defendant's conduct.

5. These factors are of primary importance.119

6. The Court must also have regard also to: 

* the accommodation needs of family members and any children of the defendant; 

* the hardship that may be caused to the defendant or to any other person as a result of the making of the order;

* any other matter that, in the circumstances of the case, the Court considers relevant.

7. These factors are not of primary importance.

8. There is no requirement, therefore for the Court to give any specific consideration to, or priority in its deliberations to the removal of the defendant from the family home.

9. The Act does not enable Police to remove a perpetrator from the victim's home to prevent ongoing abuse.

10. The Police may, if complaint is about to be made by telephone, require the defendant to remain at a particular place while a telephone complaint is made and dealt with.  If the person refuses to comply, the person may be arrested and detained in custody without warrant for as long as is necessary or 2 hours, whichever is the lesser.120

11. That provision does not specifically relate to the removal of the defendant from the family home and in fact, the Police may well direct the defendant to remain at the family home whilst the victim vacates the home, and the telephone order is made.

WOMEN REMAINING IN THEIR HOME

12. Historically, little has been written on the issue of women and their children remaining in their own homes when they leave a domestic violence relationship.

13. The issue however has increasingly been identified as an important and emerging policy area for consideration.  

14. A Report prepared by Robyn Edwards in 2004 provides a useful analysis of relevant research and literature.121

15. The Report summarises the benefits for women and their children remaining in their own homes as follows:

* stability of accommodation;

* stability and security for the children;

* women are able to continue on with their lives with less disruption;

* a sense that justice has prevailed;

* the innocent party has been able to remain in her home and the guilty party has had to leave; and

* a possible shift in the power relations between the victim and perpetrator where the woman is empowered by reclaiming her own home.122

16. As the Report also notes, there are wider benefits to society in supporting women and their children remaining in their homes.  These include reduced women's homelessness, keeping children out of the Child Protection system, and placing accountability for the violence with the perpetrator.  Supporting women and children to remain in their homes is a cost effective strategy, which deserves the focus and attention of government agencies.123

17. An important finding of the research was that none of the women who remained in their home reported an incident where the ex partner had returned to the home and was physically violent.  This was considered significant because the potential for further violence is often given as the main reason for the woman leaving the home.124

18. The Report also noted that most of the women who left their homes did so because they considered it was their only option.  Many said that they would have preferred to remain if this had been possible.125

19. The Report recommended the adoption of a framework to enable women and their children to remain in their home.

20. The four key elements of framework were:
* the removal of the violent partner from the home;

* keeping the violent partner out of the home over time;

* provision of immediate and longer term safety for the woman and her children;

* longer term support for the women and children and prevention of further violence.126

21. The Report noted that providing alternative housing for the perpetrator may be one of the more effective strategies to enable the woman and her children to remain in their own home.127

22. In the VLRC Report, they reported that, inter alia, amongst Police actions that have each found to be most effective in a crisis were:

* taking the position that condemns perpetrators' violence against their family members;

* removing the violent family members from the home.

23. The consequences for women and children leaving home can be quite devastating and destabilizing.  They can be in transit for many months between emergency accommodation, SAAP accommodation, private rental, perhaps ultimately obtaining SAHT accommodation.  The negative impact on women  and children can only be imagined.

24. There have been various approaches taken to the priority afforded to victims and children in relation to their accommodation needs.


Australian Capital Territory

25. The Domestic Violence Protection Orders Act 2001, Section 41(1)  provides that the Court must, before making a final domestic violence order, consider the following:

* the objects and principles (none of which specifically address the topic of the removal of the perpetrator);

* the welfare of each child, if any, affected or likely to be affected by the respondent's conduct;

* the accommodation needs of the aggrieved person, each child of the aggrieved person and each child of the respondent.

26. Specifically, the accommodation needs of the respondent are not matters to be taken into account save and except as may be encompassed by the additional consideration of any hardship that may be caused to the respondent or anyone else by the making of a protection order.

27. The ACT Act does therefore give some priority to the accommodation needs of the aggrieved and any child, including the respondent, by specifically