Family Violence Act 2016

This Act is the Family Violence Act 2016.

The dictionary at the end of this Act is part of this Act.

Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere.

For example, the signpost definition ‘firearm—see the Firearms Act 1996, section 6.’ means that the term ‘firearm’ is defined in that section and the definition applies to this Act.

Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

A note included in this Act is explanatory and is not part of this Act.

Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

Other legislation applies in relation to offences against this Act.

Note 1 Criminal Code

The Criminal Code, ch 2 applies to all offences against this Act (see Code, pt 2.1).

The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability).

Note 2 Penalty units

The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units.

Part 2 Objects and important concepts

Division 2.1 Objects

The objects of this Act include—

to prevent and reduce family violence; and

to ensure the safety and protection of people, including children, who fear, experience or witness family violence; and

to encourage perpetrators of family violence to be accountable for their conduct.

This Act aims to achieve its objects by—

giving the courts power to make family violence orders to protect people from family violence; and

creating offences to enforce family violence orders; and

ensuring that access to the courts is as simple, quick and inexpensive as is consistent with justice; and

by recognising family violence orders made elsewhere in Australia and New Zealand.

Division 2.2 Important concepts

In this Act:

family violence means—

any of the following behaviour by a person in relation to a family member of the person:

physical violence or abuse;

sexual violence or abuse;

emotional or psychological abuse;

economic abuse;

threatening behaviour;

coercion or any other behaviour that—

controls or dominates the family member; and

causes the family member to feel fear for the safety or wellbeing of the family member or another person; or

behaviour that causes a child to hear, witness or otherwise be exposed to behaviour mentioned in paragraph (a), or the effects of the behaviour.

Examples—par (b)

1 overhearing threats being made in another room of the house

2 seeing an assault or seeing injuries on a family member who has been assaulted

3 seeing people comfort a family member who has been abused

Without limiting subsection (1), family violence by a person in relation to a family member of the person includes the following:

sexually coercive behaviour;

damaging property;

harming an animal;

stalking;

deprivation of liberty;

harmful use of, or interference with, technology.

Examples—par (f)

1 use of an electronic device to publish intimate images of a family member without the member’s consent

2 causing a computer system to deny access to a family member who is an authorised user of the system

3 using an electronic messaging system to send abusive or threatening messages or images to a family member

4 using software to track a family member’s whereabouts or computer use

5 creating a false social media account to disseminate adverse information about a family member

6 using social media to publish intimate images of a person without the person’s consent

In this section:

economic abuse, of a family member, means behaviour by a person that is coercive, deceptive or that unreasonably controls the family member without the family member’s consent including by the person’s exploitation of power imbalances between the person and the family member—

in a way that takes away the financial independence or control the family member would have but for the behaviour; or

if the family member is wholly or predominantly dependent on the person for financial support to meet the living expenses of the family member or the family member’s child—by withholding the financial support.

Examples

1 stopping the family member from having access to money to meet normal living expenses

2 requiring the family member to transfer or hand over control of assets or income

3 stopping the family member from trying to get employment

4 forcing the family member to sign a legal document such as a power of attorney, loan, guarantee

5 forcing the family member to claim social security payments emotional or psychological abuse, of a family member, means behaviour by a person that torments, intimidates, harasses or is offensive to the family member including by the person’s exploitation of power imbalances between the person and the family member.

Examples

1 stopping the family member from visiting or having contact with family or friends

2 stopping the family member from engaging in cultural or spiritual practices

3 repeated derogatory or racist comments

4 threatening to disclose personal information about the family member

5 threatening to withhold medication, personal health care items or other things necessary to the family member’s health or quality of life

6 threatening to self-harm as a way of intimidating the family member

In this Act:

family member, of a person, means—

a domestic partner or former domestic partner of the person; or

an intimate partner or former intimate partner of the person; or

a relative of the person; or

a child of a domestic partner or former domestic partner of the person; or

a parent of a child of the person.

Note 1 A domestic partner need not be an adult (see Legislation Act, s 169).

Note 2 Intimate partner—see s 10.

Relative—see s 11.

In section 9:

intimate partner, of a person—

means someone with whom the person has an intimate relationship, whether they are members of the same household or not; but

does not include—

a domestic partner; or

another person with whom the person has a relationship only because a service is provided between them—

for fee or reward; or

on behalf of another person (including a government or corporation); or

on behalf of an organisation the principal objects or purposes of which are charitable or benevolent.

For subsection (1), factors that indicate whether there is an intimate relationship between 2 people include, but are not limited to, the following:

the extent to which each is personally dependent on the other;

the extent to which each is financially dependent on the other (including any arrangements for financial support);

the length of the relationship;

the frequency of contact between each other;

if there is, or has been, a sexual relationship;

the extent to which each is involved in, or knows about, the other’s personal life;

the degree of mutual commitment to a shared life;

if the 2 people share care or support for children or other dependents.

In section 9:

relative, of a person—

means the person’s—

father, mother, grandfather, grandmother, stepfather, stepmother, father-in-law or mother-in-law; or

son, daughter, grandson, granddaughter, stepson, stepdaughter, son-in-law or daughter-in-law; or

brother, sister, half-brother, half-sister, stepbrother, stepsister, brother-in-law or sister-in-law; or

uncle, aunt, uncle-in-law or aunt-in-law; or

nephew, niece or cousin; and

if the person has or had a domestic partner (other than a spouse or civil union partner)—includes someone who would have been a relative mentioned in paragraph (a) if the person had been married to or in a civil union with the domestic partner; and

Note For ACT law, a person acquires relatives through civil union in the same way as they acquire them through marriage (see Civil Unions Act 2012, s 6 (2)).

includes—

someone who has been a relative mentioned in paragraph (a) or (b) of the person; and

if the person is an Aboriginal or Torres Strait Islander person, the following people:

someone the person has responsibility for, or an interest in, in accordance with the traditions and customs of the person’s Aboriginal or Torres Strait Islander community;

someone who has responsibility for, or an interest in, the person in accordance with the traditions and customs of the person’s Aboriginal or Torres Strait Islander community; and

someone regarded and treated by the person as a relative; and

someone with whom the person has a family-like relationship; and

anyone else who could reasonably be considered to be, or have been, a relative of the person.

For subsection (1) (c) (iv), factors that indicate whether there is a family-like relationship between 2 people include, but are not limited to, the following:

the extent to which each is personally dependent on the other;

the extent to which each is financially dependent on the other (including any arrangements for financial support);

the length of the relationship;

the frequency of contact between each other;

the extent to which each is involved in, or knows about, the other’s personal life;

if the people live together or relate together in a home environment;

if the relationship is regarded as being family-like by the community in which each live.

Example a relationship between a person with disability and the person’s carer that has developed into a relationship that is like that between family members

In this section:

Aboriginal or Torres Strait Islander person means a person who—

is a descendant of an Aboriginal person or a Torres Strait Islander person; and

identifies as an Aboriginal person or a Torres Strait Islander person; and

is accepted as an Aboriginal person or a Torres Strait Islander person by an Aboriginal community or Torres Strait Islander community.

Division 2.3 Other important matters

Procedures for this Act are to be as simple, quick and inexpensive as is consistent with achieving justice.

If a court or a judicial officer is required to be satisfied about something under this Act, the court or judicial officer must be satisfied on the balance of probabilities.