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Domestic violence laws in Australia

1. What constitutes domestic violence

3.1.1. In all Australian jurisdictions, the grounds on which a court can grant a protection order relate to the commission, or potential commission, by the respondent of a particular type of conduct against a person with whom the respondent is in a relevant type of relationship.67The terminology varies from jurisdiction to jurisdiction, but in this Chapter we refer to the conduct that provides grounds for an order as ‘domestic violence’, and to a person in the required relationship as a ‘family member’.68

Types of conduct that constitute domestic violence

3.1.2. The type of conduct that constitutes domestic violence, and so provides the grounds for making a protection order, is generally similar across the various jurisdictions, though there are some differences.

3.1.3. In New South Wales, the conduct that can give rise to a protection order is largely defined by reference to a large number of criminal offences (personal violence offences) in the Crimes Act 1900 (NSW)(the Crimes Act), but in addition a protection order can be granted where a person reasonably fears intimidation or stalking.69 In the other jurisdictions, rather than a link to particular offences under the general criminal law,70there is a description of the type of conduct that constitutes domestic violence. (However, in the ACT, one of the elements within the general description of domestic violence is conduct against a family member that is a ‘domestic violence offence’ against other legislation, e. g. the Crimes Act.71)

3.1.4. In all jurisdictions, domestic violence includes assault/personal injury (including sexual assault) and intentional damage to the protected person’s property (at least for the purposes of intimidation), and threats of such behaviour. In addition, intimidation is included in the definition of domestic violence in all jurisdictions other than the ACT.72 The ACT definition, however, includes conduct that is ‘harassing or offensive’ which may cover some situations of intimidation.73

3.1.5. We point out that a difference in the way the legislative provisions are expressed does not necessarily translate into a substantial difference in practice. For example, four jurisdictions expressly cover kidnapping/deprivation of liberty, and the others do not.74 Although deprivation of liberty is not specifically mentioned in the NT Act, however, it would probably be covered by the definition of ‘intimidation’ under s 6(1)(c), which refers to ‘conduct that has the effect of unreasonably controlling the person’. Deprivation of liberty, in most cases, would probably also amount to ‘intimidation’ which is a form of domestic violence under the Queensland and NZ Acts.75 It may be ‘harassing or offensive’ conduct in the ACT, though this is less clear, and would probably depend on the facts of the particular case. In South Australia, deprivation of liberty would probably be conduct that would reasonably arouse a significant fear or apprehension. Such conduct constitutes domestic violence, but only if it is engaged in on two or more separate occasions.76 Of course, in all jurisdictions if the deprivation of liberty involves assault (or, in some jurisdictions, if it causes a fear of assault) it will be domestic violence on that basis.

3.1.6. We discuss below some of the other differences between the jurisdictions as to the type of conduct that is treated as domestic violence.

Exposure of children to domestic violence

3.1.7. In the Northern Territory, Victoria, Western Australia and New Zealand there is specific provision authorising protection orders to protect a child from exposure to domestic violence against another person.

3.1.8. In Victoria and New Zealand, exposing a child to domestic violence against another family member is, itself, domestic violence against the child. In Victoria, the definition of ‘family violence’ includes ‘causing a child to witness, or otherwise be exposed to the effects of’ domestic violence.77 Therefore, it is not necessary for the child to see or hear the domestic violence against the other family member being committed.

3.1.9. The NZ Act explicitly provides that causing or allowing a child to see or hear, or putting a child at real risk of seeing or hearing, domestic violence against a family member, is ‘psychological abuse’ and is therefore itself domestic violence against the child.78 (However, the victim of the domestic violence is not regarded as having caused or allowed the child to witness it. ) The NZ Act does not refer to the child witnessing the effects of domestic violence.

3.1.10. In Western Australia79 and the Northern Territory80, exposing a child to domestic violence against another person is not defined as domestic violence against the child, but the courts are specifically authorised to make a protection order to protect the child from such exposure. In the Northern Territory, a child is taken to be ‘exposed’ to domestic violence against a family member, not only if the child sees or hears the domestic violence but also if the child witnesses harm resulting from the violence.81 So, for example, if a child’s mother is assaulted while the child is absent, but the child on returning home sees that her face is bruised, an order may be made to protect the child.

3.1.11. In Western Australia, a protection order may be made for the benefit of a child if the court is satisfied that the child has been exposed, and is likely again to be exposed, to an act of family and domestic violence committed by or against a family member. In addition, the court can make an order for the benefit of the child where the applicant, the child or a family member of the child reasonably fears that the child will be exposed to an act of family and domestic violence committed by or against a family member.

3.1.12. The other jurisdictions do not provide expressly either that exposing a child to domestic violence is domestic violence, or that an order can be made to protect a child from exposure to domestic violence. However, in jurisdictions where the definition of domestic violence (or cognate term) includes emotional or psychologicalabuse, this may in many cases cover a child being exposed to abuse of another person. For example, physical assault of the mother may amount to emotional or psychological abuse of the child, and so constitute domestic violence against the child as well as against the mother. This would allow an application for a protection order to be made on behalf of the child, even if the mother does not apply.

3.1.13. In addition, in most jurisdictions, in deciding whether to make a protection order to protect another family member, the court will take account of the welfare of any child of the family, and the child can be named as a person protected by the protection order, even though there has been no domestic violence against the child itself.82

Economic abuse

3.1.14. In Victoria, Tasmania and the Northern Territory, economic abuse is expressly included as a form of domestic violence. The provisions in those jurisdictions vary according to whether a particular intention on the part of the respondent is required, and according to whether economic abuse can be committed against any family member, or only against a spouse or partner.

3.1.15. In Tasmania,83 to commit economic abuse,84 the respondent must intend to unreasonably control or intimidate his or her spouse or partner, or cause his or her spouse or partner mental harm, apprehension or fear. There is economic abuse if, with that intent, the respondent coerces the spouse or partner to relinquish control over assets or income, disposes of their property without consent, prevents them from participating in decisions over household expenditure or the disposition of joint property, prevents them from accessing joint financial assets for the purpose of meeting normal household expenses, or withholds or threatens to withhold the financial support reasonably necessary for the maintenance of the spouse or partner or an affected child.

3.1.16. In the Northern Territory,85 the type of conduct covered is generally similar to that in the Tasmanian definition, but is not limited to conduct towards a spouse or partner. In the Northern Territory economic abuse could be committed against any family member, e. g. by an adult child against a parent, or a brother against a sister. In addition, in the Northern Territory there is no need for the respondent to intend, by means of the economic abuse, to intimidate or unreasonably control any person, or to cause mental harm, apprehension or fear.

3.1.17. In Victoria,86 ‘economic abuse’ generally covers the same type of conduct as in Tasmania and the Northern Territory. In Victoria, that conduct may be carriedout against any family member (not just a spouse or partner) and must be coercive, deceptive or unreasonably controlling. However, it seems to be sufficient that the conduct have that effect objectively, and that it is not necessary that the respondent intended to coerce, deceive or be unreasonably controlling.

3.1.18. In New South Wales, a protection order can be obtained on the basis of a reasonable fear of a ‘personal violence offence’. One of these is the offence in s 44 of the Crimes Act 1900 (NSW), which makes it an offence to fail to provide ‘any wife, apprentice, or servant or any insane person with necessary food, clothing, or lodging’ in spite of being legally liable to do so, so that ‘his or her life is endangered, or his or her health becomes or is likely to be seriously injured’. This would provide only very limited coverage of economic abuse.

It is possible that some other cases of economic abuse would be covered in New South Wales because the conduct concerned would be ‘intimidation’, but that would depend on the circumstances of the particular case.

3.1.19. Similarly, in other jurisdictions that do not specifically cover economic abuse, some cases could be covered by some more general aspect of domestic violence, such as intimidation, emotional or psychological abuse, or coercion.

Stalking

3.1.20. We discuss here whether, in the various jurisdictions, ‘stalking’ constitutes domestic violence, and so can provide grounds for the making of a protection order. (We deal with stalking as a criminal offence in Part 4 of this Report. )

3.1.21. The NSW87, NT88 and Tasmanian89 Acts, in setting out the conduct that constitutes domestic violence, expressly include ‘stalking’.

3.1.22. Under the ACT Act, domestic violence includes conduct that is directed at a family member and is a ‘domestic violence offence’.90 The offence of stalking under s 35 of the Crimes Act 1900 (ACT) is listed as a ‘domestic violence offence’. Therefore stalking is domestic violence in the ACT. (Section 13(1)(a) of the ACT Act also provides that a person’s conduct is ‘domestic violence’, for that Act, if it ‘is harassing or offensive to’ a family member. )

3.1.23. The SA, Queensland, Victorian and WA Acts do not use the word ‘stalking’. However, the SA Act’s definition of domestic violence covers conduct that can generally be described as stalking.91 Similarly, domestic violence under the WA Act includes intimidation and pursuit, and these are defined in a way that includes certain stalking behaviour.92 Domestic violence under the Queensland Act includes ‘intimidation or harassment’93 and the examples of such behaviour given in the Act include certain types of stalking behaviour. The Victorian Act does not refer specifically to conduct that is normally described as ‘stalking’, but it covers behaviour that is threatening, tormenting, harassing or intimidating.94 Similarly, the NZ Act includes in domestic violence psychological abuse, including, but not limited to, intimidation and harassment.

3.1.24. Therefore, all jurisdictions provide for the making of protection orders on the basis of at least some behaviour that is generally described by the word ‘stalking’.

Emotional abuse

3.1.25. Victoria, Western Australia, Tasmania, and New Zealand refer specifically to emotional abuse or psychological abuse as a form of domestic violence.95

3.1.26. The Victorian Act defines ‘emotional or psychological abuse’ as ‘behaviour by a person towards another person that torments, intimidates, harasses or is offensive to the other person’.96 Examples given in the Act include repeated derogatory taunts, threatening to disclose a person’s sexual orientation, preventing a person from making or keeping connections with family, friends or culture, and threatening suicide or self harm with the intention of tormenting or intimidating a family member.

3.1.27. Some other jurisdictions that do not refer expressly to emotional abuse or psychological abuse would cover at least some of the conduct that could be described by those terms. The ACT Act 97 includes as domestic violence conduct that ‘is harassing or offensive to a relevant person’. ‘Intimidation’ is covered in New South Wales,98 and is defined to include ‘conduct amounting to harassment or molestation of the person’.99 In Queensland, domestic violence includes ‘intimidation or harassment’.100 The Northern Territory legislation covers ‘intimidation’101, which is defined to include harassment of the person, and ‘any conduct that has the effect of unreasonably controlling the person or causes the person mental harm’.102

3.1.28. In South Australia, the definition of ‘domestic violence’ does not explicitly cover emotional or psychological abuse. However, it does cover conduct that is engaged in on two or more separate occasions and that reasonably arouses in a family member apprehension or fear of personal injury or damage to property ‘ or any significant apprehension or fear’.103 The SA Act provides that the type of conduct concerned includes stalking behaviour (eg. following, loitering, sending material), but it is not limited to that behaviour. Also, the effect of the behaviour is not limited to fear or apprehension of injury or property damage, but includes ‘any significant apprehension or fear’. Probably, this would include apprehension or fear of humiliation or emotional distress, so that repeated derogatory taunts and repeated threats to disclose a person’s sexual orientation, for example, would be domestic violence. Probably, repeated threats of suicide or self harm with the intention of tormenting or intimidating a family member would also be domestic violence in South Australia. As noted, conduct must be engaged in on two or more separate occasions to be covered. Also, the focus of the South Australian provision on causing fear or apprehension of something happening in the future may make its scope more limited than the provisions in other jurisdictions relating to emotional abuse and intimidation.

Harm to animals

Comparison

3.1.29. Five jurisdictions104 provide that harming or killing a pet animal constitutes domestic violence. In Queensland,105 Western Australia106 and the Northern Territory,107 harm to the animal is explicitly included as a form of damage to property. In the ACT, domestic violence includes, as a separate item from property damage, conduct that is an animal violence offence directed at a ‘pet of the relevant person’, or a threat to commit such conduct against a pet of the relevant person or of another relevant person.108

3.1.30. In Victoria, ‘family violence’ includes causing or threatening to cause the death of, or injury to, an animal, whether or not the animal belongs to the family member to whom the behaviour is directed, so as to control, dominate or coerce the family member.109

3.1.31. The other jurisdictions do not deal specifically with harm to animals, although such harm may be covered in many cases on the basis that it is damage to property or constitutes emotional abuse.

3.1.32. Generally, causing damage to the property of a person is domestic violence, and this would include injuring or killing an animal that is the property of that person, even if the legislation does not specifically mention animals. However, in that case, harming the animal will only be domestic violence if the animal is, legally, the property of the person to be protected. This is also the case in Queensland and Western Australia, which specifically refer to an animal that is the property of the person to be protected.

3.1.33. By contrast, the Victorian provision expressly covers harm, and threats to harm, an animal regardless of ownership, where the behaviour is directed so as to control, dominate or coerce a family member.110 In the ACT, causing harm to a ‘pet of the relevant person’ is domestic violence. Arguably an animal can be a pet of a person, without being that person’s property.

3.1.34. In New Zealand, ‘property’ of a person is defined to include property that the person does not own but uses or enjoys, or that is available for the person’s use or enjoyment, or that is in the person’s care or custody. This probably has the effect that domestic violence would cover harm to a family pet, on the basis that it is property damage, even if the pet is not owned by the person to be protected.

3.1.35. Harm to an animal may in some cases be covered by more general provisions such as emotional abuse.

Comment

3.1.36. As mentioned above, in certain jurisdictions harm or threats to harm an animal are included in the definitions of domestic violence only if the animal is the property of the person to be protected. It could be argued that this limitation is inappropriate. The legal ownership of a pet animal may often be difficult to establish. Also, although one person (eg. the husband/father) has purchased the animal and is its legal owner, another member of the family may be responsible for its care and have a greater emotional connection to it. Causing or threatening harm to an animal is a form of coercion and causes emotional and psychological harm to a person who is emotionally attached to the animal, regardless of whether that person has a property interest in the animal.

Is it necessary that domestic violence has already been committed?

3.1.37. In the ACT, New Zealand, Tasmania and Victoria, an order can only be made if the court is satisfied that the defendant has already committed, or is committing, domestic violence conduct. However, in all of those jurisdictions domestic violence conduct is defined to include threatening to commit certain behaviour. So, for example, if the court is satisfied that the defendant has threatened to assault a family member, it is satisfied that the defendant has committed domestic violence conduct, even though no actual assault has occurred.

Is it necessary that there be fear, a risk, or a likelihood that domestic violence will be committed in the future?

3.1.38. In the ACT, it is enough that the defendant has committed domestic violence. There is no specific requirement for the court to be satisfied that there is a risk or fear of further domestic violence.111

3.1.39. In New South Wales, where conduct amounts to a ‘personal violence offence’, the fact that it has been committed is enough to allow a court to make a protection order (even if there is no conviction). Equally, if conduct amounting to a ‘personal violence offence’ is likely to be committed (even if it has not been in the past), a protection order can be made.112 However, this does not apply to conduct that is domestic violence, but not a personal violence offence.

3.1.40. In New Zealand, an order may be made if the court is satisfied both

This implies that, to make a protection order, the court must consider that there is some risk of future domestic violence.

3.1.41. In Victoria, Queensland, and Western Australia113 an order it can be made if:

3.1.42. In Tasmania, an order can be granted if the defendant has committed domestic violence and may do so again.

3.1.43. Therefore, there is a lower threshold of risk of future domestic violence in Tasmania than in Victoria, Queensland, and Western Australia, where future domestic violence must be ‘likely’. We point out that the courts have held that the meaning of ‘likely’ varies according to the context. In some contexts, it means more likely than not or more than a fifty per cent chance, but often it refers to a real or not remote chance or possibility even if it is less than fifty per cent, and is equivalent to ‘prone’, ‘with a propensity’ or ‘liable’. In the context of the making of protection orders, probably a fifty per cent probability of domestic violence would not be required, and it would be considered ‘likely’ if there were a real chance that it would occur.114

3.1.44. South Australia, New South Wales, the Northern Territory and Western Australia do not require that the defendant has already committed domestic violence.

3.1.45. In South Australia, a court may make a protection order if ‘there is a reasonable apprehension’ that the defendant may commit domestic violence. In the Northern Territory the court may make a protection order if satisfied that there are reasonable grounds for the protected person to fear the commission of domestic violence. In these jurisdictions, the question is not whether an applicant actually fears domestic violence, but whether, objectively, there are reasonable grounds for fearing that the respondent will commit domestic violence.

3.1.46. In New South Wales, for a protection order to be made, generally the court must be satisfied both that the person to be protected has reasonable grounds to fear domestic violence, and that the person in fact fears domestic violence. However, incertain circumstances, actual fear on the part of the protected person is not required. This includes situations where the protected person is a child under 16, or has been subjected to, or is reasonably likely to be subjected to, conduct amounting to a ‘personal violence offence’.

3.1.47. In Western Australia, there are two alternative grounds for making a protection order. The first, mentioned above, is that the respondent has committed domestic violence and is likely to do so again. Alternatively, a protection order can be made if either a person seeking to be protected, or another person who has applied for the order on behalf of that person, reasonably fears that the respondent will commit domestic violence against the person seeking to be protected. In effect, as in New South Wales, this requires both an actual fear and that there be reasonable grounds for the fear.

Comment

3.1.48. In practice, the distinction between those jurisdictions where domestic violence must already have been committed (ACT, New Zealand, Tasmania and Victoria), and those where it is sufficient that there be a likelihood or reasonable fear that it be committed in the future, may not be as great as at first appears.

3.1.49. In all of the jurisdictions requiring that it already have been committed, domestic violence conduct is defined to include threatening to commit certain behaviour. So, for example, if the court is satisfied that the defendant has threatened to assault a family member, it is thereby satisfied that the defendant has committed domestic violence conduct, and can grant a protection order even though no actual assault has occurred.

3.1.50. There is probably also not a great difference between requiring a court to be satisfied that the respondent is likely to commit domestic violence, and requiring it to be satisfied that there are reasonable grounds to fear domestic violence.

3.1.51. There could potentially be significant practical issues, however, where a court is required to be satisfied that a person actually fears domestic violence (in New South Wales and Western Australia). This requirement could be easily satisfied if the person concerned gives evidence, but the court might not be able to be satisfied if the person to be protected failed to give evidence, or withdrew the application. We note that the ‘actual fear’ requirement exists in New South Wales only for protected persons of 16 or more who have not been subjected to, and are not reasonably likely to be subjected to, conduct amounting to a ‘personal violence offence’. In Western Australia, if it cannot be established that the person fears domestic violence, the alternative ground that the respondent has committed domestic violence, and is likely to do so again, may be available.

Relationships covered

3.1.52. In most jurisdictions, a wide range of relationships is comprehended in the concept of a family member against whom certain conduct will constitute domestic violence. These include spouses and partners (including de facto and same sex), children and step-children, the child of a person’s de facto partner, and other persons who are generally regarded as relatives. The exceptions are Tasmania and South Australia.

Position in Tasmania

3.1.53. The range of relationships covered by the Tasmanian Act is more limited than that in most jurisdictions. In the Tasmanian Act, ‘family violence’ which can provide grounds for a protection order is limited to conduct against a ‘spouse or partner’. 115 A ‘spouse or partner’ is a person with whom one is, or has been, in a marriage or a ‘significant relationship’ within the meaning of the Relationships Act 2003 (Tas). A ‘significant relationship’ is a relationship between two adult persons (including of the same sex) who have a relationship as a couple and who are not married to one another nor related by family.116 (For the purposes of the Tasmanian Act, a ‘family relationship’ also includes a relationship in which one or both of the parties is between the ages of 16 and 18 and would, but for that fact, be a significant relationship within the meaning of the Relationships Act 2003. )117

3.1.54. A significant relationship is taken to exist if it has been registered under the Relationships Act 2003 (Tas).118 In the absence of registration, the existence of a significant relationship depends on all the circumstances, including the following if relevant:

3.1.55. Persons are ‘related by family’, and therefore cannot have a ‘family relationship’ for the purposes of the Tasmanian Act, if:

3.1.56. Therefore, violent or other abusive conduct by a person against his or her parent, child or sibling does not, in itself, constitute ‘family violence’, so as to provide grounds for a family violence order under the Tasmanian Act. However if, for example, a respondent used a threat of violence against a child in order to intimidate the respondent’s spouse, that would be ‘family violence’ against the spouse, who could obtain a family violence order. Also, a family violence order can be obtained to protect a child whose wellbeing is likely to be affected by family violence against the respondent’s spouse or partner.121

3.1.57. While the Tasmanian Act thus applies in relation to violence between persons in a relatively limited range of relationships, it is important to note that ‘restraint orders’ under the Justices Act 1959 (Tas)(the Justices Act)may be available inconnectio with relationships not covered by the Tasmanian Act. Under the Justices Act, restraint orders may be obtained by a person against someone who has caused or threatened personal injury or damage to property, or who has stalked the person, even if there is no particular relationship between those persons.122

3.1.58. Restraint orders can include similar provisions to those available in an FVO under the Tasmanian Act, including orders that a person cease engaging in certain conduct, and orders in relation to firearms and exclusion from residential premises.123

3.1.59. The penalties for breaching a restraint order are, however, considerably lower than those for breach of an FVO.124

Position in South Australia

3.1.60. Under the SA Act, ‘domestic violence’ involves causing personal injury or engaging in other types of conduct in relation to a ‘family member’. Section 3 of the SA Act defines ‘family member’ as:

  1. a spouse or former spouse of the defendant;
  2. a domestic partner or former domestic partner of the defendant; or
  3. a child of whom
    1. the defendant; or
    2. a spouse or former spouse of the defendant; or
    3. a domestic partner or former domestic partner of the defendant, has custody as a parent or guardian; or
  4. a child who normally or regularly resides with –
    1. the defendant; or
    2. a spouse or former spouse of the defendant; or
    3. a domestic partner or former domestic partner of the defendant.

3.1.61. A ‘spouse’ of a defendant is a person to whom the defendant is legally married. A ‘domestic partner’ is a person with whom the defendant lives in a ‘close personal relationship’, which is defined in s 3 as:

the relationship between 2 adult persons (whether or not related by family and irrespective of their gender) who live together as a couple on a genuine domestic basis, but does not include—

  1. the relationship between a legally married couple; or
  2. a relationship where 1 of the persons provides the other with domestic support or personal care(or both) for fee or reward, or on behalf of some other person or an organisation of whatever kind.

Note: Two persons may live together as a couple on a genuine domestic basis whether or not a sexual relationship exists, or has ever existed, between them.

3.1.62. This definition would cover same sex partners, and also covers relationships that are not, and have never been, sexual. However, the requirement that, to be a ‘domestic partner’, a person must live with the defendant ‘as a couple on a genuine domestic basis’ is a significant limitation. It would exclude many people who might otherwise fall within the everyday meaning of ‘family member’. For example, if a man lives with his wife in the same household as members of the wife’s family (eg. the wife’s mother and brother), they would not be in a ‘couple’ with the man, and therefore would not be ‘family members’.

3.1.63. In addition, a person is a ‘domestic partner’ of the defendant only if they live together. Couples who are in a sexual relationship, or other close relationship, but who do not live together are not covered by the SA Act.

3.1.64. However, as in Tasmania, in South Australia there may be an alternative remedy available to persons who are not ‘family members’. Such persons may apply for a restraining order under the Summary Procedure Act 1921 (SA)(the Summary Procedure Act).125 A restraining order under the Summary Procedure Act is not confined to particular categories of people or relationships, and can be granted on grounds similar to those on which domestic violence restraining orders may be made under the SA Act for ‘family members’. restraining order may be granted if there is a reasonable apprehension that the defendant may, unless restrained, cause personal injury or damage to property or behave in an intimidating or offensive manner towards the person for whose benefit the order would be made, if the court is satisfied that the making of the order is appropriate in the circumstances.126 Restraining orders can include very similar provisions to those available in an order under the SA Act, including orders that a person cease engaging in certain conduct, and orders in relationto firearms and exclusion from residential premises.127

Other relationships covered by domestic violence legislation in some jurisdictions

People who are considered to be relatives

3.1.65. Apart from Tasmania and South Australia, all jurisdictions define violence committed by a person against the person’s ‘relative’, or a person to whom they are ‘related’, to be domestic violence. These terms are defined in slightly different ways in the various jurisdictions.128 Some Acts rely on the general meaning of the term ‘relative’, or provide a general definition, others set out an extensive list of particular relationships, and sometimes the two approaches are combined.

3.1.66. A number of jurisdictions recognise that in some social, cultural or family contexts, the concept of a relative or family member may be broader than is generally understood.129 In particular, the extended concept of a relative in the context of Aboriginal and Torres Strait Islander culture (and Maori culture in the case of New Zealand) is recognised.130

Carers

3.1.67. Legislation in New South Wales and the Northern Territory classifies violence within caring relationships (including paid carers) as domestic or family violence.131 In Queensland, South Australia and the ACT, the legislation provides that the relationship with a paid carer, or a carer acting on behalf of another person or organisation(eg a charity), is not sufficient.132

3.1.68. Although legislation in the other jurisdictions does not deal directly with carers, it is possible that some relationships between a person and their carer may fall into another recognised category of relationship for the purposes of obtaining a domestic violence protection order. For instance, under the WA Act a person’s relationship with their carer may fall within the meaning of ‘other personal relationship’.133 In New Zealand the relationship may be covered if the carer ordinarily shares a household with the person cared for (but not just as an employee), or has a close personal relationship with that person.134

People who live together but are not in a sexual relationship

3.1.69. If a person is violent towards someone they live with, this will constitute domestic violence in some jurisdictions even if the parties are not spouses, partners(as ordinarily understood)or family members.

3.1.70. In New South Wales, New Zealand and the Northern Territory, orders are available to protect a person from someone else who lives in the same household.135 No further relationship between the protected person and the respondent is required. Legislation in these jurisdictions could apply to people who share a house but are otherwise unconnected by family or personal ties.

3.1.71. In South Australia, adults who live together, without being married, are covered only if they are in a ‘close personal relationship’, which requires that they live together ‘as a couple on a genuine domestic basis’.136 A note in the SA Act states that this need not necessarily be, or ever have been, a sexual relationship, but the requirement that there be a ‘couple’ would seem to exclude persons merely sharing a house with the defendant, the defendant’s parents, parents-in-law or siblings, for example.

3.1.72. Legislation in the ACT, Western Australia and Victoria probably requires more than simply living together to constitute a relationship in connection with which a domestic violence protection order would be available. However, provisions in these jurisdictions are clearly designed to recognise that there can be meaningful personal relationships between people who live together but are not in a ‘marriage-like’ or sexual relationship. For example, the WA Act refers to ‘other personal relationships’, being relationships ‘of a domestic nature in which the lives of the persons are, or were, interrelated and the actions of one person affects, or affected, the other person’.137 This would encompass some people who live together, but is unlikely to apply in all such cases.

People who are in a sexual relationship but do not live together

3.1.73. In most jurisdictions, people who are in a de facto relationship or a ‘dating’ relationship but who do not live together are able to obtain domestic violence orders against their partners. However, the SA Act does not recognise violence committed by a non-resident partner as ‘domestic violence’. In South Australia, domestic violence is committed by a person against a ‘family member’. Relevantly, ‘family member’ includes a domestic partner or former domestic partner, but the definition of ‘domestic partner’ requires that the parties live together in a ‘close personal relationship’.138 Thus, if the parties have a close personal or intimate relationship but do not live together, violence between them will not constitute ‘domestic violence’ for the purposes of the SA Act.

3.1.74. As discussed above, however, in South Australia restraining orders may be available to non-resident partners under other legislation.

  1. We deal here with the grounds on which courts can make an order, and have not compared the grounds for the making of a protection order by the police.
  2. As will become apparent later in this Chapter, in some jurisdictions the types of relationships covered by the legislation are considerably broader than those ordinarily understood as familial: see paragraph 3.1.52ff.
  3. NSW Act, ss 4, 16. We note that some of the provisions of the Crimes Act referred to in the definition of ‘personal violence offence’ have been repealed.
  4. Although in some jurisdictions where a court convicts a person of certain criminal offences against a family member, the court may or must make a protection order. We do not deal with such provisions in this Chapter.
  5. ‘Domestic violence offences’ are listed in Schedule 1 to the ACT Act. ‘Animal violence offences’ against a pet of a family member are also covered.
  6. Victorian Act, s 5(1); NSW Act, s 16(1); Queensland Act, s 11(1); s 6(1) (definition of ‘act of family and domestic violence’); Tasmanian Act; s 7; NT Act; ss 5 and 6; NZ Act, s 3. Under the SA Act (s 4(2)), the conduct must be engaged in on two or more occasions so as reasonably to arouse in a family member an apprehension or fear of personal injury or damage to property or any significant apprehension or fear.
  7. ACT Act, s 14(1)(c).
  8. Victorian Act, s 5(2)(d); NSW Act, s 4(a) (referring to Crimes Act 1900 (NSW) ss 86 and 87)); WA Act, s 6(1)(b); Tasmanian Act, s 7(a)(iii).
  9. Possibly there would not be intimidation if the person who is deprived of liberty is not aware of it, e. g. a small child abducted by a non-custodial parent, or a family member who is locked in a room without knowing it.
  10. SA Act, s 4(2)(c).
  11. Victorian Act, s 5(1)(b).
  12. NZ Act, s 3(3).
  13. WA Act, s 11B.
  14. NT Act, s 18(2).
  15. NT Act, s 18(2) (see s 4 for the definition of ‘exposed’).
  16. See NSW Act, s 38(2); Qld Act, s 21(1), SA Act, s 5(1)(b); Tasmanian Act, s 16(2); ACT Act, s 48(2)(h); NZ Act, s 16.
  17. Tasmanian Act, s 8.
  18. This is an offence, as well as a ground for obtaining a protection order (s 8).
  19. NT Act, s 8.
  20. Victorian Act, s 6.
  21. NSW Act, s 16(1).
  22. NT Act, s 5(d).
  23. Tasmanian Act, s 7(a)(iv).
  24. ACT Act, s 13(1)(c).
  25. SA Act, s 4(2)(c).
  26. WA Act, s 6(4) referring to the Criminal Code (WA), s 338D.
  27. Queensland Act, s 11(1)(c).
  28. Victorian Act, ss 5 and 7.
  29. Victorian Act, s 5(1); WA Act, s 6(1)(d); Tasmanian Act, s 9; NZ Act, s 3.
  30. Victorian Act, s 7.
  31. ACT Act, s 13(1)(e).
  32. NSW Act, s 16(1).
  33. NSW Act, s 7.
  34. Qld Act, s 11(1)(c)
  35. NT Act, s 5(c).
  36. NT Act, s 6.
  37. SA Act, s 4.
  38. Queensland, Western Australia, the Northern Territory, ACT, Victoria.
  39. Qld Act, s 11(2).
  40. WA Ac, s 6(1)(c).
  41. NT Act, s 5.
  42. ACT Act, s 13(1)(f ) and (g).
  43. Victorian Act, s 5(2)(e).
  44. Victorian Act, s 5(2)(e). .
  45. Which may be by threatening violence - s 13(1).
  46. NSW Act, s 16.
  47. WA also has an alternative ground of fear of domestic violence.
  48. See, e. g. , Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 42 FLR 331; and see the review of the case law in Attorney-General for the State of New South Wales v Winters [2007] NSWSC 1071.
  49. Tasmanian Act, s 7.
  50. Relationships Act 2003 (Tas), s 4.
  51. Relationships Act 2003 (Tas), s 4.
  52. Relationships Act 2003 (Tas), s 4(2).
  53. Relationships Act 2003 (Tas), s 3.
  54. Relationships Act 2003 (Tas), s 7. Parent/child relationships may be traced through adoption (see s 7(2) and paragraph (c) of the definition of ‘child’ in s 3 of the Relationships Act 2003 (Tas)).
  55. See also Children, Young Persons and Their Families Act 1997 (Tas), ss 23 and 43: where an application is made for an assessment order or care and protection order in relation to a child, the court may instead, or in addition, make a restraint order against a person under Part X A of the Justices Act.
  56. Justices Act 1959 (Tas), s 106B.
  57. Justices Act 1959 (Tas), s 106I.
  58. Justices Act 1959 (Tas), s 106I.
  59. Summary Procedure Act, s 99.
  60. Summary Procedure Act, s 99(1).
  61. Summary Procedure Act, s 99(3)-(4).
  62. ACT Act, s 15(2); Victorian Act, s 10; NSW Act, s 6; NT Act, s 10; Qld Act, s 12B(2); WA Act, s 4(2); NZ Act, s 2.
  63. See ACT Act, s 15(2)(c)(ii); Qld Act, s 12B(4); WA Act, s 4(2); NT Act, s 10(2) (definition of ‘family relationship’).
  64. See NSW Act, s 5(h), as well as the provisions listed in the preceding footnote.
  65. NSW Act, s 5(f ); NT Act, s 9(g).
  66. SA Act, s 3 (paragraph (b) of the definition of ‘close personal relationship’); Qld Act, ss 11A(1)(d), 12C; ACT Act, s 15(3), Domestic Relationships Act 1994 (ACT), s 3(2)(b).
  67. WA Act, s 4(2): ‘other personal relationship’ is defined as ‘a personal relationship of a domestic nature in which the lives of the persons are, or were, interrelated and the actions of one person affects, or affected, the other person’. See also the definition of ‘family member’ in the Victorian Act, s 8(3), particularly s 8(3)(f )-(g).
  68. NZ Act, s 4(1).
  69. NSW Act, s 5(d); NZ Act s 4(1)(c); NT Act s 9(d).
  70. SA Act, s 3.
  71. WA Act, s 4(2).
  72. SA Act, ss 3-4.

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