What is family violence?

Contributed by SarahBright and current to 27 July 2018

Language used

The phrase family and/or domestic violence is used widely and it is common to hear the phrase used in the media, in day to day life and in professional settings. It is reasonable to assume that the phrase ‘family violence’ has a plain language or even a consistent meaning.

However, this is not always the case.

What a person may mean by that phrase largely depends on:

• Who the person is and what their experiences are (e.g. a person who has not been personally affected by family violence may think it only means when someone hits their partner. It is common for a person to see a lawyer and to answer ‘no’ when asked if they have experienced family violence because they do not understand all of the behaviour which could be family violence according to the legal definitions used in Western Australia and elsewhere in Australia).
• If they are a professional, the type of professional they are and what training and experience they have had in family violence (e.g. a non-legal service provider may not understand or be able to identify financial abuse which can be family violence)
• Even if they are a lawyer, it depends on which area they practice in and what training and experience they have had in family violence (not just their area of practice or specialisation) (e.g. a family lawyer who has had no training in family violence may not view behaviour by one family member towards another as a stand-alone acceptable act rather than stand back and assess the pattern of behaviour to understand that the actions of that family member is ultimately to coerce and control the other).

Laws dealing with family violence in WA

In Western Australia, the main laws which together may deal with family violence include:

• Restraining Orders Act 1997 (WA)
• Criminal Code 1913 (WA)
• Family Law Act 1975 (Cth) or for parties who were not married the Family Court Act 1997 (WA)
• Criminal Injuries Compensation Act 2003 (WA)

In this chapter we will focus on the Restraining Orders Act 1997 (WA).

For more information about:

• the Criminal Code 1913 (WA) refer to the Crime section in this Handbook;
• Family Law Act 1975 (Cth) or for parties who were not married the Family Court Act 1997 (WA) refer to the Family section in this Handbook.
• Family violence where children are the persons affected or the perpetrators also read the Children and Young People section in this Handbook.

Legal definition

The legal definition of “family violence” is different depending on:

• which Act (which law) you are referring to and the jurisdiction you are in (e.g. State or Territory or Commonwealth); and
• the type of proceeding (which Court) you are in.

The definition of family violence does vary between States and Territories.

However, luckily. changes were made in Western Australia in 2017 to make the definition of family violence in WA more consistent with how it is defined in family law (which for the most part is Commonwealth).

Practical Tip: If you or the other party is in another State (or if you plan to move to another State or Territory) it is best to get independent legal advice from a lawyer in that other State or Territory about this.

Since 2017, the Restraining Orders Act 1997 (WA) defines family violence,

See s5A of the Restraining Orders Act 1997 (WA) at http://classic.austlii.edu.au/au/legis/wa/consol_act/ro82a1997200/s5a.html

What behaviours could be family violence?

While the legal definition of family violence does not refer to specific behaviour, section 5A (2) of that Act helpfully includes some examples of behaviour which may be family violence.

You should read the definition in the Act yourself but as a summary the listed behaviour includes:

• assaults (including sexual assaults);
• stalking (and cyber-stalking);
• repeated derogatory remarks;
• damaging or destroying property;
• causing death or injury to pets;
• denying the family member financial autonomy (financial abuse).

This is not an exhaustive list.

Behaviour which is not on the list could still be family violence if it causes the affected family member to be coerced or controlled or to feel fearful (scared).

National Family Violence Benchbook

Practical Tip: A very useful guide which explains in more detail the different categories of behaviours which could be family violence is the The National Family Violence Benchbook (available at http://dfvbenchbook.aija.org.au/understanding-domestic-and-family-violence/ ).

This is a publicly available free guide written by judges and family violence experts from around Australia which is intended to be a guide to how lawyers and other professionals respond to family violence across Australia.

The Benchbook lists the behaviours below as examples of the different categories of behaviours which may be family violence. This can be helpful to see the many different ways family violence can be perpetrated. We recommend you read the Benchbook.

Categories of behaviour that may be family violence

Physical violence (actual or threatened)

• Kicked, slapped, bitten, punched, pushed, grabbed, hair pulled
• Burned, scalded
• Threatened or actual assault with a weapon
• Choking/non-fatal strangulation
• Driving dangerously
• Depriving a person of medication or otherwise
• Acting dangerously
• Locking a person in a room/car or out of accommodation (deprivation of liberty)

Sexual violence and reproductive abuse

• Unwanted sexual touching
• Unwanted sexual penetration
• Technology facilitated sexual violence (e.g. circulation of intimate pictures without consent)
• Genital mutilation (without medical reason)
• Forced abortion
• Insisting on unprotected sex
• Withholding or sabotaging contraception
• Forced marriage

Emotional and psychological abuse

• Threatening to commit suicide and/or threats to harm or kill
• Restricting contact of the victim with persons or things important to them
• Control over access to transport/limitations imposed on autonomy and freedom
• Threats of destruction of property
• Menacing gestures or intimidating behaviour (e.g. staring, silence, ignoring and withdrawal of affection)
• Jealous control, ridicule, put-downs, name calling and humiliation
• Gas-lighting (doing things to make someone feel crazy, e.g. turning their air conditioner, TV or lights on and off without them knowing)

Harassing/monitoring/surveillance

• Electronic monitoring of the whereabouts and movement of the victim or their children in real time (i.e. via apps, tracking devices, GPS, drones, spyware, hacking) – may include letting the victim know the perpetrator knows where they are
• Visiting offensive websites and then making contact with the host or bloggers under guise of the victim, and expressing an interest in violence or abusive pornography or being raped or sexually assaulted
• Fake social media accounts in the victim’s name
• Taking intimate images of the victim and distributing them without consent
• Installing apps/devices on phones/computers/cars/toys to listen in to conversations, access emails or texts, control the physical limits of a car (i.e. remote shutdown), visual recording of victim or children

Social abuse

• Physically isolating the victim from friends/family/workplace/other community networks where they have support
• Hiding the victim’s clothes, keys or mobile phone
• Forbidding the victim to work other than in the home
• Demanding that domestic chores and sexual acts be performed according to a schedule and standard imposed by the perpetrator
• Treated like a servant
• Cancelling appointments/controlling access to medical help
• Turning family and friends against them
• Trying to convince everyone the victim is crazy
• Dominate or regulate the victim’s external activities and connections

Exposing children to family violence

• Assault prior to birth
• Children attempting to stop the violence or defend a parent
• Children being threatened, harmed or abused by the perpetrator in order to control or intimidate the victim (i.e. being used as a weapon or hostage, being blamed for the violence)
• Forcing children to watch of participate in the violence or spy on a parent
• Witnessing the violence
• Witnessing a parent’s physical injuries
• Being neglected as a consequence of a parent’s injuries
• Sleeping during the violence or overhearing the violence from another room and taking measures to avoid being affected (i.e. turning up the volume, sleeping with pillows over their ears, leaving the house and walking the streets)
• Witnessing harm to family pets or becoming aware that a pet has been given away/harmed/killed
• Experiencing the aftermath of the violence (i.e. having to seek emergency assistance, witnessing a parent being interviewed or arrested by Police, attending to a parent’s injuries, having to interact with the perpetrator, knowing a parent is being stalked, coping with their own trauma/distress/injuries, assuming care of family members, missing school, being removed from home/community because they are not safe, being isolated from family and friends)
• Being forced into poverty or homelessness as a consequence of the perpetrator’s economic abuse
• Growing up in an environment of stress without stability or security and without appropriate adult role models
• Witnessing damage and destruction during of after (i.e. to furniture, toys and other family belongings)

Damage to property

• steal, damage or destroy personal property that is shared between the victim and perpetrator, owned by or in the possession of the victim, or otherwise used or enjoyed by the victim or the victim’s children or other family members.
• steal the victim’s ATM or bank account access card and empty the victim’s account of funds to prevent the victim from leaving the abusive relationship.
• cut the telephone cord while the victim attempts to call police;
• vandalise or wreck household furnishings or personal effects (including mobile phones and other digital devices) and clothing that the victim has paid for or are sentimental to the victim.
• steal, or immobilise or tamper with the victim’s car, or use the car as a weapon, for example to run the victim over so as to injure them or hinder their escape.
• attack the victim’s home by breaking windows, chopping holes in the roof, or driving a vehicle into a wall

Systems abuse

• Make multiple complaints and applications in multiple systems (including the courts, Child Support Agency, Centrelink)
• “burning off” – depleting the victim’s financial resources and emotional wellbeing and adversely impacting the victim’s capacity to maintain employment or to care for children
• “conflicting out” – seeking preliminary advice from multiple lawyers (this is particularly a concern in regional areas) so as to deny the victim access to legal representation on the basis of conflict of interest
• Court’s failure to respond adequately or appropriately to a victim’s allegations of family violence

Animal abuse

• being skinned alive;
• beaten against a tree with a crowbar;
• punched, beaten, or kicked; shot;
• fed gunpowder;
• hung;
• thrown across the room; or
• subjected to acts of bestiality.
• Animals may also suffer in other ways, for example, exposing themselves to physical harm by attempting to protect their guardians during an abusive episode, and suffering severe anxiety and distress at witnessing the abuse of their guardian

Economic or financial abuse

• Controlling the victim’s access to finances and income
• Exploiting the victim’s finances or coercing the victim to take on debt
• Taking out credit cards in the victim’s name without their knowing
• Coercing the victim to sign a contract for the provision of finance, a loan or credit
• Coercing the victim to sign assets over to the perpetrator or to enable them to access lines of credit (i.e. associated with a mortgage)
• Forging the victim’s signature to sign up for loans, accounts, etc.
• Sabotaging the victim’s employment
• The perpetrator making income and hiding assets to avoid paying child support

Cultural or Spiritual abuse

• Belittling the victim’s cultural or spiritual worth, beliefs or practices
• Violating or preventing the victim’s cultural or spiritual practices
• Denying them access to their cultural or spiritual community
• Causing the victim to transgress cultural or spiritual obligations or prohibitions
• Forcing on them cultural or spiritual beliefs and practices that are in conflict with their own
• Manipulating spiritual readings and practices to justify abuse
• Misusing traditions, practices and expectations of the cultural or spiritual community to which the victim belongs as a means of normalising or suppressing the abusive behaviours, silencing the victim, or preventing the victim from seeking help and support
• Causing the victim to transgress cultural or spiritual belief systems by forcing the victim to drink alcohol or to have intercourse during menstruation
• Withholding a religious divorce or insisting on dowry repayment or ‘keeping the children that have been paid for’ if the victim does not divorce them civilly

Technology-facilitated abuse

• Changing passwords or otherwise restructuring access to the internet or computers
• Using spyware to spy on the victim through their use of keyboard, recording what websites they visit or monitoring their GPS via their mobile phone, children’s toy, electronic devise or car
• Hacking into email or social media accounts
• Distributing images of the victim or a family member without consent (this includes intimate images which may be taken without their consent or obtained during their relationship and distributed after separation without consent).

Practical Tip: How abuse is facilitated via technology is complex and constantly changing – for an up to date example of how it can occur and to know how to keep safe go to Wesnet (https://wesnet.org.au/).

Cycles of family violence

When you are considering behaviours to see if there is or may be family violence, you need to be mindful of when the violence is occurring in terms of the cycle of violence.

For example, you need to know whether the behaviour is happening in:

• a build-up phase (i.e. when tension between the parties is building but not yet at the highest point before the victim is at the highest level of risk);
• or the honeymoon phase (i.e. after an incident of violence has occurred and the perpetrator may be expressing remorse or being overly affectionate towards the victim-survivor as a means of ensuring the victim doesn’t leave and stays in the relationship).

For more information about the cycle of violence and to see an image of this go to https://www.whiteribbon.org.au/understand-domestic-violence/what-is-domestic-violence/cycle-of-violence/

Practical Tip: When assessing the behaviour of someone to identify family violence it is important assess behaviour as a pattern and consider what the driving forces are – is it ultimately about power and control?

Key messages for service providers with clients affected by family violence

• Power and control is the driving force behind family violence.
• The focus is more on the outcome (is it a means of coercion of control) rather than the means by which the perpetrator uses to achieve that control
• Family violence may be inflicted through different means for different people.
• Try to put yourself in the victim-survivor’s shoes to assess whether the behaviour of the other party is such that is has the effect of dominating, controlling or coercing.
• Important to keep an open mind.
• Consider the role you are playing and take steps to explain how you are able to help (or how you may not be able to help and if so who can and how to get such help) – an effective response requires holistic service delivery from a range of professionals. No one professional will be able to provide a complete solution and it is important to avoid further trauma to the client that their expectations are managed and they understand this. This will also assist in terms of managing vicarious trauma that you as the professional may experience from working with clients affected by family violence.
• Ensure you undertake ongoing training and development in dynamics of family violence, risk assessment and trauma informed practice to lessen the risk that your response causes the victim-survivor further trauma or facilitates system abuse.

Effects of family violence

The effects of family violence for those experiencing it directly or otherwise affected by it can be devastating.

The effects can include physical effects, for example:

• Death
• Serious physical injuries
• Ongoing health conditions like chronic pain
• Shortened life span
• Acquired brain injury and traumatic brain injury
• Post-Traumatic Stress Disorder (PTSD)
• Problematic substance use and other stress and trauma related disorders
• Anxiety and depression
• Fertility problems, unwanted pregnancies and even miscarriage

There can also be short and long term economic consequences, including:

• Homelessness (most often cited reason given by women presenting to specialist homelessness services seeking assistance).
• Loss of employment, long term poverty outcomes.
• Costs to the healthcare system.
• Impact on the development of children and perpetuation of the violence into the next generation.

When children are experiencing family violence, including when they are exposed to it by seeing their mother or family member being abused by another family member, the effects can seriously impact on their physical and emotional development.

Effects of family violence for children

For children, the effects of family violence may include:

• Behaviours – they can act out, over-react, be hostile, impulsive, aggressive or defiant. They can also withdraw or run away. This can all be normal for children who have been traumatised by family or domestic violence. It does not mean the children have 'disorders'. Drug and alcohol use can be a problem with older children.
• Development – normal development can be impaired. They can look like they are regressing or acting younger than their age. This can be a subconscious way of trying to get to a state where they are safe and secure. It can also be a result of the harm to the brain’s development caused by exposure to trauma.
• Relationships – they may avoid closeness and push people away. Children may also attach to peers or adults who may be unsafe for them, to try to develop an alternative secure base, if home feels insecure.
• Emotions – children often feel fearful, stressed, depressed, angry, anxious or ashamed. Emotional security is the foundation of healthy relationships later in life. This security can be damaged if attachment between the parent, guardian or primary carer and baby is disrupted by domestic violence.
• Learning – they may not be able to concentrate at school because they are constantly on the lookout for danger. This can be subconscious. Detentions, missed school and frequent changes of schools can also affect learning.
• Cognitions – children may have low self-esteem, and think negatively about themselves or people around them. (For example, they may think, 'everyone hates me'.)
• Physical health – a range of illnesses may be related to domestic and family violence. Headaches, stomach aches, stress reactions (for example rashes or immune system related illnesses) and sleep disturbances (for example nightmares, insomnia or bedwetting) are common.

Responding to family violence

As mentioned before, most people who seek assistance when they are experiencing family violence want the violent to stop and seek help to prevent it from happening and to increase safety for themselves and their children.

Legal options

Some of the legal options may include:

• Restraining orders (which are a civil order which prevents someone from coming to close to another person or to a certain address. The breaches for this are criminal sanctions including imprisonment for serious breaches)
• Bail conditions (for more information about this go to the Crime section)
• Family law injunctions (if there are children – for more information about this go to the Family section)

This chapter will focus on Restraining Orders.