Defining 'Domestic Violence' in Queensland
Queensland Definition of 'Domestic Violence'
Andrew Anderson

11 June 2019

Andrew is a Principal Lawyer in Anderson Fredericks Turner. As a former Principal Crown Prosecutor and Barrister, Andrew has experience with cases involving domestic violence from the Magistrates Court right through to the High Court of Australia. He assists people with domestic violence applications.

Definition of Domestic Violence

It is important to stress from the outset that the definition of domestic violence varies across states and territories in Australia. My attention is really on the definition in Queensland, although I will also compare the definitions in other parts of Australia as well.

Today I am going to go through some of the decisions by courts that have interpreted the definition of domestic violence in Queensland. Hopefully this will be of benefit to anybody seeking to know a little more about how ‘domestic violence’ is defined in practice. What it is not intended to do is act, in any way, as legal advice or a substitute for legal advice. If you are looking to apply this information to a specific case, you should contact a lawyer for specific advice.

How Domestic Violence is Defined

At one level the definition or meaning of domestic violence for domestic violence proceedings is straightforward. In Queensland, the term ‘domestic violence’ is defined in the Domestic and Family Violence Protection Act 2012 (Qld). However, at the margins, some important decisions from courts have clarified some of the uncertainties around the meaning of ‘domestic violence’ in Queensland.

In Queensland, domestic violence is defined to mean

“behaviour by a person (the first person) towards another person (the second person) with whom the first person is in a relevant relationship that—

  1. is physically or sexually abusive; or
  2. is emotionally or psychologically abusive; or
  3. is economically abusive; or
  4. is threatening; or
  5. is coercive; or
  6. in any other way controls or dominates the second person and causes the second person to fear for the second person’s safety or wellbeing or that of someone else.

The law does not just capture behaviour directly done by a person. It also captures indirect behaviour as well. A person who counsels or procures (meaning asks, encourages, etc.) someone else to engage in behaviour that, if engaged in by the person, would be domestic violence is taken to have committed domestic violence.

In Queensland specific words are given a specific meaning under the domestic violence laws. For instance, coerce is defined to mean “compel or force a person to do, or refrain from doing, something”. There are specific meanings given to other words used in the definition also, which I want to address in some detail.

Emotional or Psychological Abuse

Guidance is given by the law in Queensland about what is meant by ‘emotional or psychological abuse’, which is defined to mean “behaviour by a person towards another person that torments, intimidates, harasses or is offensive to the other person”.

In a decision by McGill SC DCJ (GKE v EUT [2014] QDC 248), the notion of something being ‘offensive’ was observed to involve a subjective consideration at [39]:

Indeed, it seems to me that it would be possible for some conduct to satisfy the definition of “domestic violence” even if it would not be generally regarded in the community as involving grave moral delinquency. For example, conduct may qualify as “emotional or psychological abuse” simply because it is offensive to the aggrieved, even if it would not be regarded by the community in general as offensive, if the aggrieved, for idiosyncratic, subjective reasons does regard it in that way. [Emphasis added]

So it can be seen that in interpreting the definition of what is ‘domestic violence’ it is important not to lose sight of the fact parts of the definition certainly take account of the personal experiences of individuals. For what it’s worth, such an interpretation appears consistent with the other parts of the law in Queensland that require a court to consider the subjective characteristics and vulnerabilities of people.

I should also mention that in another decision by McGill SC DCJ (DGS v GRS [2012] QDC 074), in which it was concluded that because domestic violence legislation is remedial in nature, it ought to be given a broad interpretation. So with respect to what may ‘intimidate’ or ‘harass’, it was observed that “as long as conduct does harass or is intimidating, it seems to me that almost anything could in principle amount to harassment or intimidation”. In that same decision, an earlier case (BBB v RAB [2006] QDC 80) was referred to where it was stated:

Intimidation refers to a process where the person is made fearful or overawed, particularly with a view to influencing that person’s conduct or behaviour. There can I think be a single incident of conduct which amounts to intimidation …. Harassment on the other hand involves a repeated or persistent form of conduct which is annoying or distressing rather than something which would incite fear. The other consideration is that I think that the matter needs to be of some significance to qualify as domestic violence, bearing in mind the other elements of the definition, and the examples that are given for paragraph (c) in the Act.

I should also note that the law in Queensland itself provides a list of examples as to what may ‘emotional or psychological abuse’.

Examples of domestic violence:

  • following a person when the person is out in public, including by vehicle or on foot
  • remaining outside a person’s residence or place of work
  • repeatedly contacting a person by telephone, SMS message, email or social networking site without the person’s consent
  • repeated derogatory taunts, including racial taunts
  • threatening to disclose a person’s sexual orientation to the person’s friends or family without the person’s consent
  • threatening to withhold a person’s medication
  • preventing a person from making or keeping connections with the person’s family, friends or culture, including cultural or spiritual ceremonies or practices, or preventing the person from expressing the person’s cultural identity
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Economic Abuse

The term ‘economic abuse’ is defined in Queensland as follows:

Economic abuse means behaviour by a person (the first person) that is coercive, deceptive or unreasonably controls another person (the second person), without the second person’s consent—

  1. in a way that denies the second person the economic or financial autonomy the second person would have had but for that behaviour; or
  2. by withholding or threatening to withhold the financial support necessary for meeting the reasonable living expenses of the second person or a child, if the second person or the child is entirely or predominantly dependent on the first person for financial support to meet those living expenses.

From my experience I can say I see claims involving economic abuse quite frequently and there is often a component during the relationship and often issues start as a relationship may be breaking down, or if there are any financial difficulties. Often, questions about whether there has been ‘economic abuse’ are highly fact specific and require a careful articulation of the specific context in which any claim may arise.

The law provides a number of examples of what may fall within this definition.

See List of Examples for Economic Abuse

  • coercing a person to relinquish control over assets and income
  • removing or keeping a person’s property without the person’s consent, or threatening to do so
  • disposing of property owned by a person, or owned jointly with a person, against the person’s wishes and without lawful excuse
  • without lawful excuse, preventing a person from having access to joint financial assets for the purposes of meeting normal household expenses
  • preventing a person from seeking or keeping employment
  • coercing a person to claim social security payments
  • coercing a person to sign a power of attorney that would enable the person’s finances to be managed by another person
  • coercing a person to sign a contract for the purchase of goods or services
  • coercing a person to sign a contract for the provision of finance, a loan or credit
  • coercing a person to sign a contract of guarantee
  • coercing a person to sign any legal document for the establishment or operation of a business
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Examples of Domestic Violence

In Queensland, the relevant law actually sets out a range of examples of what is to be included as being domestic violence (note it is a non-exhaustive list of examples). So, to quote directly from the law:

…. domestic violence includes the following behaviour—

  1. causing personal injury to a person or threatening to do so;
  2. coercing a person to engage in sexual activity or attempting to do so;
  3. damaging a person’s property or threatening to do so;
  4. depriving a person of the person’s liberty or threatening to do so;
  5. threatening a person with the death or injury of the person, a child of the person, or someone else;
  6. threatening to commit suicide or self-harm so as to torment, intimidate or frighten the person to whom the behaviour is directed;
  7. causing or threatening to cause the death of, or injury to, an animal, whether or not the animal belongs to the person to whom the behaviour is directed, so as to control, dominate or coerce the person;
  8. unauthorised surveillance of a person;
  9. unlawfully stalking a person.

Associated Domestic Violence

In domestic violence proceedings, the term ‘associated domestic violence’ essentially means behaviour that is alleged to constitute ‘domestic violence’ by a respondent towards:

  • a child of an aggrieved; or
  • a child who usually lives with an aggrieved; or
  • a relative of an aggrieved; or
  • an associate of an aggrieved.

The term “associate of an aggrieved” really is the catch-all phrase as it incorporates a very wide class of people, essentially:

  • a person whom the aggrieved regards as an associate; or
  • a person who regards himself or herself as an associate of the aggrieved

If a person is subject to associated domestic violence, then a court may name them as part of a protection order (domestic violence order).

Comparison of Domestic Violence Definitions (Australia)

In Australia, each State and Territory sets the law for domestic violence or family violence proceedings within its own jurisdiction. Whilst there is now national recognition and enforcement of domestic violence orders, there are still variations between the definitions.

Some time ago – about 20 years now – the Domestic Violence Legislation Working Group proposed a national model domestic violence definition. This has not been adopted, so we are left to look at each State and Territory individually to understand the terms ‘domestic abuse’, ‘domestic violence’ or ‘family violence’.

Section 8 of the Family Violence Act 2016 (ACT) sets out the definition of ‘family violence’ in the Australian Capital Territory:

Meaning of family violence

(1) In this Act:

“family violence” means—

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

(i)     physical violence or abuse;

(ii)     sexual violence or abuse;

(iii)   emotional or psychological abuse;

(iv)   economic abuse;

(v)     threatening behaviour;

(vi)     coercion or any other behaviour that—

(A)     controls or dominates the family member; and

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

(b)     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

Note     An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

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

(a)     sexually coercive behaviour;

(b)     damaging property;

(c)     harming an animal;

(d)     stalking;

(e)     deprivation of liberty.

(3)     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—

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

(b)     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

The definition of ‘family violence’ in the Australian Capital Territory is similar to the definition of ‘domestic violence’ found in Queensland and quite similar to the law in Victoria.

New South Wales is the only State or Territory in Australia that does not specifically define ‘domestic violence’ or ‘family violence’ (or like phrases) in legislation. In the Crimes (Domestic and Personal Violence) Act 2007 (NSW), it does define ‘domestic violence offence’ to mean as follows:

11   Meaning of “domestic violence offence”

(1)  In this Act, domestic violence offence means an offence committed by a person against another person with whom the person who commits the offence has (or has had) a domestic relationship, being:

(a)  a personal violence offence, or

(b)  an offence (other than a personal violence offence) that arises from substantially the same circumstances as those from which a personal violence offence has arisen, or

(c)  an offence (other than a personal violence offence) the commission of which is intended to coerce or control the person against whom it is committed or to cause that person to be intimidated or fearful (or both).

(2)  In this section, offence includes an offence under the Criminal Code Act 1995 of the Commonwealth.

Individuals can seek apprehended domestic violence orders in New South Wales, with the court being required to apply the relevant legal tests under the Crimes (Domestic and Personal Violence) Act 2007.

Part 1.2, Division 2, of the Domestic and Family Violence Act 2007 (NT) sets out the relevant definitions and concepts of ‘domestic violence’ in the Northern Territory.

Domestic violence is any of the following conduct committed by a person against someone with whom the person is in a domestic relationship:

(a) conduct causing harm;

Example of harm for paragraph (a)

Sexual or other assault.

(b) damaging property, including the injury or death of an animal;

(c) intimidation;

(d) stalking;

(e) economic abuse;

(f) attempting or threatening to commit conduct mentioned in paragraphs (a) to (e).

Note

Under Part 2.2, a DVO may be sought, and made, against a person if the person counsels or procures someone to commit the domestic violence, see section 17 .

Without looking further into the definitions set out in the Domestic and Family Violence Act 2007, it may not be clear whether ‘harm’ includes ‘mental harm’. However, there is a clear intent for it to be considered by courts, given the definition of ‘intimidation’ in section 6:

Intimidation

(1)     Intimidation of a person is:

(a) harassment of the person; or

Examples of harassment for paragraph (a)

1. Regular and unwanted contacting of the person, including by mail, phone, text messages, fax, the internet or another form of electronic communication.

2. Giving or sending offensive material to the person.

(b) any conduct that causes a reasonable apprehension of:

(i) violence to the person; or

(ii) damage to the property of the person, including the injury or death of an animal that is the person’s property; or

Example of conduct for paragraph (b)(i)

Sexually coercive behaviour.

(c) any conduct that has the effect of unreasonably controlling the person or causes the person mental harm.

(2) For deciding whether a person’s conduct amounts to intimidation, consideration may be given to a pattern of conduct (especially domestic violence) in the person’s behaviour.

The definition of domestic violence is contained in section 8 of the Domestic and Family Violence Protection Act 2012 (Qld). Associated definitions, such as for ‘emotional or psychological abuse’ or ‘economic abuse’ are also contained in the Act.

The Intervention Orders (Prevention of Abuse) Act 2009 (SA) covers both ‘domestic abuse’ and ‘non-domestic abuse’. It will be domestic abuse if a relationship is established to fall within the categories defined in section 8(8) of the Act.

The definition of ‘domestic abuse’ is set out in section 8 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA).

Section 8(1) defines abuse in the following way:

Abuse may take many forms including physical, sexual, emotional, psychological or economic abuse.

Section 8(2) states the following:

An act is an act of abuse against a person if it results in or is intended to result in—

a. physical injury; or

b. emotional or psychological harm; or

c. an unreasonable and non-consensual denial of financial, social or personal autonomy; or

d. damage to property in the ownership or possession of the person or used or otherwise enjoyed by the person.

Section 7 of the Family Violence Act 2004 (Tas) provides the following definition of ‘family violence’:

7. Family violence

In this Act –

family violence means –

(a) any of the following types of conduct committed by a person, directly or indirectly, against that person’s spouse or partner:

(i) assault, including sexual assault;

(ii) threats, coercion, intimidation or verbal abuse;

(iii) abduction;

(iv) stalking within the meaning of section 192 of the Criminal Code;

(v) attempting or threatening to commit conduct referred to in subparagraph (i), (ii), (iii) or (iv); or

(b) any of the following:

(i) economic abuse;

(ii) emotional abuse or intimidation;

(iii) contravening an external family violence order, an interim FVO, an FVO or a PFVO; or

(c) any damage caused by a person, directly or indirectly, to any property –

(i) jointly owned by that person and his or her spouse or partner; or

(ii) owned by that person’s spouse or partner; or

(iii) owned by an affected child.

This definition does cover current or former spousal or partner relationships.

Section 5 of the Family Violence Protection Act 2008 (Vic) states that for the purpose of that Act, ‘family violence’ means:

(a) behaviour by a person towards a family member of that person if that behaviour—

(i) is physically or sexually abusive; or

(ii) is emotionally or psychologically abusive; or

(iii) is economically abusive; or

(iv) is threatening; or

(v) is coercive; or

(vi) in 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; or

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

As may be seen, this definition closely resembles the definition in Queensland.

The Restraining Orders Act 1997 (WA) sets out the meaning of ‘act of family violence’ in section 6:

… “act of family and domestic violence” means one of the following acts that a person commits against another person with whom he or she is in a family and domestic relationship —

a. assaulting or causing personal injury to the person;

b. kidnapping or depriving the person of his or her liberty;

c. damaging the person’s property, including the injury or death of an animal that is the person’s property;

d. behaving in an ongoing manner that is intimidating, offensive or emotionally abusive towards the person;

e. causing the person or a third person to be pursued —

(i) with intent to intimidate the person; or

(ii) in a manner that could reasonably be expected to intimidate, and that does in fact intimidate, the person;

f. threatening to commit any act described in paragraphs (a) to (c) against the person.

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Summary

The key message to take away from all of this is that the definition is more complex than many people may realise – and is probably more complex than it needs to be. To look back on the fact that more than 20 years ago a group was set up to try to develop a nationally recognised definition – an ambition still far from realisation – shows how far we probably can still go to create more consistency.

My own view is that Queensland has one of the more sophisticated frameworks for defining ‘domestic violence’. It is generally easy to understand and that is probably reflected in the way the law has been interpreted by courts in Queensland.

If you are seeking specific advice or representation regarding a domestic violence proceeding, please contact me or another solicitor from the team at Anderson Fredericks Turner. We offer a free initial case assessment for cases of this kind.

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The information contained on this page is general in nature and specific advice ought to be obtained from a lawyer before acting on any general information with respect to any legal matter.

Anderson Fredericks Turner has lawyers across Queensland who can provide specific advice with respect to issues involving domestic violence. Our lawyers are available for all courts throughout Queensland and we operate from local offices in Brisbane, Beenleigh, Maroochydore, Toowoomba and Townsville.

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