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It is worth noting that in the wider community and other jurisdictions, the acts of child abduction, harmful indoctrination of minor children, perjury, and non- compliance of court orders, are regarded as abusive acts of family violence, child abuse, and violations of human rights.
But in the context of Family Law, such behaviours astonishingly, are not recognized as abusive acts of family violence and abuse, and in fact the perpetrators are rewarded for their actions. If they were to be accepted as abusive acts, the gender landscape and ratio of perpetrators and victims would look entirely different.
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The term ‘family violence’ has been defined in different ways. To appreciate the context in which courts exercising family law jurisdiction approach this issue, it is important to know how the definition used in the FLA.6
The FLA definition is contained in section 4AB. This definition came into effect on 7 June 2012 and is significantly broader than the definition that formerly appeared in the Act.
Section 4AB states: For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
Examples of behaviour that may constitute family violence include (but are not limited to): an assault, or a sexual assault or other sexually abusive behaviour, or stalking, or repeated derogatory taunts, or intentionally damaging or destroying property, or intentionally causing death or injury to an animal, or unreasonably denying the family member the financial autonomy that he or she would otherwise have had, or unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support, or preventing the family member from making or keeping connections with his or her family, friends or culture, or unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child: overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family, or seeing or hearing an assault of a member of the child’s family by another member of the child’s family, or comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family, or cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family, or being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
While the definition includes examples of particular behaviour, it is not an exhaustive list. Even though conduct may not be specifically mentioned in the FLA definition, the courts (through section 60CC(3)(m)) may still take such conduct into account.
Unlike the earlier definition, there is no requirement that any fear experienced by the victim of the violence is reasonable. Thus the new definition has objective and subjective elements.
The courts understand that family violence is not homogeneous in its qualities and can arise in a variety of contexts. It is recognised that family violence is widespread and can occur in all socioeconomic and ethnic groups.
The definition of family violence in the FLA is expressed in gender neutral terms. It encompasses abusive acts committed by men and women in heterosexual and same-sex relationships. The courts recognise that women and men can experience family violence. Nevertheless data suggests that women are more often victims of personal violence than men. For example, the Australian Bureau of Statistics’ Personal Safety Survey (2005) found that of women who had reported being physically assaulted in the 12 months prior to interview, 73,800 or 31 per cent reported being assaulted by a current and/or previous partner. This compares to 21,200 or 4.4 per cent of men who reported being assaulted by a current and/or previous partner in the 12 months prior to interview. The Personal Safety Survey also found that 16.6 per cent of women had experienced violence by a partner (including physical threat, physical assault, sexual threat and sexual assault by a current and/or previous partner) since the age of 15 as compared to 5.7 per cent of men.
Importantly, the FLA does not require independent verification of allegations of family violence (such as police or medical reports) for a court to be satisfied that it has occurred. As the Full Court of the Family Court said in Amador & Amador (2009) 43 Fam LR 268:
Where domestic violence occurs in a family it frequently occurs in circumstances where there are no witnesses other than the parties to the marriage, and possibly their children. We cannot accept that a court could never make a positive finding that such violence occurred without there being corroborative evidence from a third party or a document or an admission.
The victims of domestic violence do not have to complain to the authorities or subject themselves to medical examinations, which may provide corroborative evidence of some fact, to have their evidence of assault accepted.
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