The new meaning of 'family violence'

Transcription

1 (Law Society Journal, March 2013, pages 69-71) The new meaning of 'family violence' By LIZZIE MCLAUGHLIN Recent changes to the definition of family violence in the Family Law Act should be carefully read, particularly when preparing to rely upon or respond to allegations in court. NEED TO KNOW Family violence Definition now includes familial, emotional and financial manipulation. It does not require the family member to feel fear as a consequence, or that the fear be reasonable. Protection of children is paramount. Procedural changes include circumstances when the court must be notified of family violence and when to file a Form 4 notice and supporting affidavit. Amendments to the Family Law Act 1975 (Cth) (the Act) by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) (the amending Act) aim to ensure that the Act reflects the reality of the experience of family violence and that the legal system has the tools to deal with it effectively. Changes that came into effect on 7 June 2012 include: redefining "family violence" to include economic abuse and other forms of non-physical harmful behaviour; prioritising the primary considerations contained in s.60cc(2) of the Act so that the protection of children is paramount; extending the definition of abuse in relation to a child to include serious psychological harm as a result of exposure to family violence and serious neglect; strengthening the obligations of practitioners, consultants and counsellors to ensure the child's safety; and creating various checks, balances, obligations and notifications within the litigation process to better ensure that "parenting orders will protect children from harm. 1 The reality for family law practitioners, unfortunately, is that family violence is a common feature of parenting applications under the Act so the diligent practitioner must take positive steps to familiarise themselves with the new legislation and its consequences.

2 What does family violence mean? Section 4AB(1) of the Act now defines "family violence" in a stand-alone provision as "violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful". The section must be read in conjunction with s.4ab(2) which provides a non-exhaustive list of examples which include, as well as the criminal behaviours that were contained in the original definition, examples of what can be broadly described as familial, emotional and financial manipulation: "(g) unreasonably denying... financial autonomy that he or she would otherwise have had; or (h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or (i) preventing the family member from making or keeping connections with his or her family, friends or culture." The changes to the section broadens the definition of family violence to "better capture harmful behaviour" and to match what has been academically and anecdotally recognised as the reality of family violence. For the family law practitioner, however, this means that family violence cannot be simply reduced to a consistent set of criteria that, once fulfilled, means the definition is established. Section 4AB(1) is clear in its generality: the existence of the relevant behaviour alone may constitute family violence. It doesn't necessarily require the family member to feel fear as a consequence of that behaviour, let alone for that fear to be assessed using an objective standard such as reasonableness. While, as a matter of practice, this would be superfluous where the asserted behaviour falls into the violent or threatening category, the definition is sufficiently broad to include other behaviour that brings about the coercion or control of the family member. In those situations, there is no legislative requirement that the family member feel a particular emotion in response to the behaviour, or that their response to the behaviour be assessed by a consistent, objective standard such as reasonableness. Indeed, the breadth of s.4ab(1) is such that family violence may be established even if the family member does not recognise or acknowledge the nature or extent of the behaviours being perpetrated against them. Section 4AB(2) gives weight to this interpretation as the listed examples do not rely on the victim feeling any particular emotion or having a response but on the actions of the perpetrator and their state of mind. So, not only must there be some sort of action or result (such as the restriction of financial

3 support) but an intention to do so in circumstances that, for example, make the behaviour unreasonable. The only available decision that touches upon the new definition is Carra v Schultz [2012] FMCAfam 930 where the applicant father argued that he was subjected to family violence because the respondent mother prevented him from spending time with his daughter. Hughes FM rejected this argument on the basis that there was no evidence of a family member being coerced, controlled or feeling fearful. This decision does not touch on the complexity of the language used in the definition. But it is nonetheless still a useful (and mercifully brief) read for practitioners, as Hughes FM comments on what may constitute family violence through withholding access to a child: "a scenario in which a parent flees from violence and does not take a child with him or her through lack of opportunity or because they have no immediate arrangements for appropriate alternative accommodation. If the other parent prevents the fleeing parent from spending time or communicating with the child as a means to coerce or control the fleeing parent or to cause them to be fearful about their own or the child's safety, it may well amount to family violence." 2 Legislative Chinese Whispers The derivation of s.4ab sheds some light on its interpretation: Section 4AB followed the recommendations of the NSW Law Reform Commission 3 (NSWLRC) and Australian Law Reform Commission's 4 recommendations on the wording of a new definition. Indeed, the (then) Attorney-General Robert McClelland MP stated this explicitly in his Second Reading Speech. 5 The NSWLRC's recommendations on a new definition of family violence were based on the recommendations made by the Victorian Law Reform Commission (VLRC) in its 2006 report (the 2006 Report); 6 and The 2006 Report's recommendations were then adopted by the Victorian government when it passed the Family Violence Protection Act 2008 (Vic) (the Victorian Act). This should mean that s.4ab of the Act matches the definition of family violence in the Victorian Act - but it doesn't. There is one tiny but critical difference: the use of the word "and" rather than "or". Section 5 of the Victorian Act states: "[Family violence is] behaviour by a person toward a family member of that person that is physically or sexually abusive, emotionally or psychologically abusive, economically abusive, threatening, coercive, or any other way controls or dominates the family member and causes that family member to feel fear for the safety or wellbeing of that family member or another person [emphasis added]."

4 The consequence of the word "and" being used in the Victorian Act's definition is simple: family violence exists where the perpetrator does something (and has a particular intent or state of mind) and the victim consequently feels fear. There is a consistent focus on the effect or consequence of the behaviour. Interestingly, the Family Court describes the new definition in s.4ab as being distinct from the original definition because there is now "no requirement that any fear experienced by the victim of the family violence is reasonable". 7 This is true but misleading to the extent that it implies that the need to establish the existence of fear is consistent in all possible applications of the new definitions. Perhaps a more accurate description is that the Act contains a generous but complex definition of family violence that mixes subjective and objective criteria depending on the particular behaviour asserted and to note that, in those cases where fear is an element, there is no legislative requirement that the fear be reasonable. Family violence and 'best interests' Section 4AB(3) provides that a child is "exposed" to family violence when "the child sees or hears family violence or otherwise experiences the effects of family violence". Examples of situations that may constitute such exposure are included in s.4ab(4), but they only relate to circumstances that involve actual or threatened physical violence. It is also a non-exhaustive list and provides no guidance to what may constitute a child's exposure to the more subtle types of family violence now included in the definition that involve restriction of financial autonomy, withholding of financial support, or the coercion or control of a family member - the more evidentiary complex forms of family violence. This is unfortunate as the Act has prioritised the issue of family violence when determining parenting applications. Of the two primary considerations for determining what is in a child's best interests, s.60cc(2a) now requires that the court give greater weight to "the need to protect the child from harm from being objected or exposed to family violence", over the "benefit of the child having a meaningful relationship with both parents". 8 This is a major change - and one which family law practitioners need to be mindful of. It would be foolish to interpret this prioritisation as being a short-cut to victory - that once one party can properly articulate and substantiate on the evidence the existence of family violence (and the child's exposure to it), they will automatically be 'in the lead' in terms of persuading the court to favour the orders they are seeking. While the effect of the amending Act is to provide a structured, considered and evidencebased approach to dealing with family violence, it is not a tick-the-box situation. As Professor Parkinson

5 notes, courts will (hopefully) continue to simply focus "attention on the material issues most relevant to the circumstances of the child". 9 As at the time of writing, Chapa v Chapa [2012] FMCAfam 1420 is the only decision that touches on the new prioritisation of the primary considerations, and it demonstrates the complexity in balancing the primary considerations where, as is often the case, there are mutual allegations of family violence and abuse between the parents. It was an interim hearing following the decision of the respondent mother to unilaterally relocate to a new state with the parties' two children. FM Halligan had to determine the matter without the benefit of hearing cross-examination and noted accordingly that the court was "not entitled to simply find that these parties cannot be believed at all". 10 While his Honour stated that he was "satisfied that there is a potential for the children to benefit from a meaningful relationship with both parents", 11 it appeared he ultimately found the new prioritisation structure unhelpful in this particular case. FM Halligan said: "In those circumstances, where each of these parties makes such serious allegations, where neither of them has taken steps in the past to protect these children from what must be an obvious serious risk of physical harm, it makes somewhat meaningless the second of the primary considerations which I am meant to give priority to, the need to protect children from physical or psychological harm. Where neither parent apparently, if I am to accept their evidence is true, has bothered to do so in the past and I am left with the choice of leaving these children to a greater or lesser extent with each of the parents, it would seem I have no option available to me at the present time to protect these children from the risks that both parents allege that the children are subjected to with the other parent." 12 There are two further changes to s.60cc that are important to note as they rework the 'friendly parent' provision. There is now no longer a tension between protecting a party or a child from family violence and legislative obligations to facilitate the other party's (the perpetrator of the family violence) relationship with the child. Section 60CC(4) has been deleted and, in its place, s.60cc(3) now includes two new additional considerations that focus on the extent to which both parents have taken opportunities in relation to the care of the child or fulfilled their obligations in relation to the child's maintenance. Procedural changes A number of procedural changes to the Act and the Family Law Rules 2004 (Cth) that flow from the amending Act require vigilance from family law practitioners as they place a number of obligations on parties and decision makers to ensure that the issue of family violence and related concerns are given appropriate primacy as the matter proceeds through court.

6 Section 60CF(1), rule if a party is aware a family violence order applies to a child or a member of a child's family, they must advise the court and file a copy of the order or a written notice containing specific details about the order. Section 60CH(1) - if a party is aware that the child or a member of the child's family is under the care of a person under a child welfare law, they must inform the court. Section 60CI(1) - if a party is aware that the child or a member of the child's family has been the subject of notification, report, investigation, injury or assessment to or by a prescribed state or territory agency, that relates to abuse, or an allegation, suspicion or risk of abuse, they must inform the court of the matter. Section 67ZBA(1) and (2), rule 2.04D(1) and (2) - if a party, an independent children's lawyer or other interested person 13 makes an allegation of family violence or risk of family violence by one of the parties, which is relevant to whether or not the court should make or refuse to make an order, that party must file and serve a Form 4 notice and supporting affidavit. Section 67Z(1) and (2), rule 2.04D(1) and (2) - where a party, an independent children's lawyer or any other interested person alleges that a child to whom the proceedings relate has been abused or is at risk of abuse, they must file and serve a Form 4 notice and supporting affidavit. ENDNOTES 1. Attorney-General R. McClelland MP, Family Law Legislation Amendment (Family Violence and other Measures) Bill 2011, Second Reading Speech, House of Representatives, 24 March Carra v Schultz [2012] FMCAfam 930 at [8]. 3. NSWLRC, Report 128 Family Violence - A National Legal Response, 2010, see Recommendation ALRC, Report 114 Family Violence - A National Legal Response, Above n.1 at VLRC, Review of Family Violence Laws, See also above n.3, Recommendation Family Court of Australia and Federal Magistrates Court, Family Violence Best Practice Principles,3rd edition, October 2012, see tinyurl.com/cvna6t4, at Family Law Act, ss.60cc(2) and (2A). 9. P. Parkinson, "The 2011 Family Violence Amendments: What Difference Will They Make?", 2012, 22(2) Australian Family Lawyer, at Chapa v Chapa [2012] FMCAfam 1420 at [24]. 11. Ibid at [22]. 12. Ibid at [31]. 13. An interested person is defined by s.67zba(a) as an independent children's lawyer, a party to the proceedings or other prescribed person.

7 CHANGES TO FAMILY LAW ACT Hints for the family law practitioner The Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) aims to ensure that the Family Law Act 1975 (Cth) reflects the reality of the experience of family violence and that the legal system has the tools to deal with it effectively. For family law practitioners: Ensure that all clients are advised about the new definition of family violence. Explain the definition and take them through the examples set out in the Act. When taking instructions, be methodical and use the language of the Act to guide your note-taking, for example: identify the relevant acts or behaviours. Be precise - obtain dates, times, places and details of witnesses; categorise the acts or behaviours: are they violent, threatening or other?; identify the effect or consequence of these acts or behaviours: has the victim been "coerced, controlled or felt fear"?; ascertain whether the perpetrator was/is aware of the effect or consequences of their behaviour on the victim; ascertain whether the children "saw, heard or otherwise experienced" the relevant acts or behaviours or their effects or consequences; and if the children did see, hear or otherwise experience family violence, what steps were taken by either parent to protect them from or mitigate that exposure. When preparing for court, including interim hearings, ensure that an appropriate subpoena is issued promptly so that your client's account can be supported by solid, third-party objective evidence. Seek orders that are logical and which coordinate with your client's affidavit material; for example, advise your client against seeking orders for shared care while making serious allegations of recent physical family violence against the other parent. Such applications have the effect of undercutting the veracity of both the orders sought and claims made. Keep abreast of decisions as they are published and keep a record of those fact scenarios and examples where family violence has been said to exist. Unless and until there is some explicit judicial discussion on the precise language used in s.4ab, comparing and contrasting factual matrixes in decided cases against your own matters is one way to get a sense of the law in practice. If you believe that your client may be victim of family violence in terms of financial or economic abuse but the matter is yet to go to court, consider writing to the other party and putting them on notice and requesting that they cease the relevant behaviours. This will reduce the possibility that the other party will simply deny knowledge about the consequences of their 'violent' behaviour if the matter is not raised after proceedings have been initiated. LIZZIE MCLAUGHLIN