Domestic Violence Essay Example

  • Category:
    Law
  • Document type:
    Assignment
  • Level:
    Undergraduate
  • Page:
    3
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    2179

Family law

Student name: Kelly Broderick

Legal studies

Family law

Introduction

The issue under investigation here is whether laws in Queensland recognize abusive text messages as a form of domestic violence. According to the law, domestic violence is physical or sexual abuse, emotional or psychological abuse, economic abuse, threatening behavior, coercive behavior or behavior that dominates or controls or causes a person to fear for their personal wellbeing or safety especially if it is done by one individual targeting another with whom they have a relationship. It is worthy to note that relationships that are covered by the law under domestic violence act are not limited to husband and wife relationships.

On the contrary, they span various intimate relationships ranging from spousal to engagement to couple relationships. The first type of relationship, spousal relationship is defined as a De facto relationship, or the one involving registered spouses, or former spouses that have ceased to be spouses. Engagement relationships, on the other hand, refer to a couple who had mutually consented that they would get married in the future under religious or cultural setting. Couple relationship refers to the relationship between two people who considered themselves a couple, which may be justified by a number of facts, including the frequency of their contact and the how intimate hey were with each other.

Brief background

There are a number of laws that have been enacted in regard to the issue of domestic violence in Queensland. The relevant laws that apply to domestic and family violence in Queensland include Domestic and Family Violence Protection Act 2012, Family Law Act 1975 in particular the revision Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011) this also provides a definition of Family Violence,2010, the Criminal Code (Abusive Domestic Relationship Defense and another Matter) Amendment Act 2010 (Qld).

Other laws that play a fundamental role in the Australian system include Property (Relationships) Act 1984 and Property Law Act 1958both of which affect de facto relationships. Similarly, there is Domestic Partners Property Act 1996 and Family Court Act 1997, Part 5A which are related to domestic relationships in general. Moreover, the Shared Parental Responsibility act, which is known by the more common term, Family law amendment of 2006, is one of the laws that affect children directly in domestic law.

The laws named above and additional others play an instrumental role in the area of family and domestic violence as is briefly discussed below. Firstly, the laws provide the parameters under which events are considered as domestically violent. The law further provides an exact definition of domestic violence as should be used in the courts of law so as to avoid confusion and ambiguity in the matter due t its sensitive nature. In addition, the law provides ways in which people found guilty of breaching such law should be punished, or otherwise shown justice.

There are a number of social reasons for this area of law including the need to make families exist in peace and harmony. This is because of the unity that is assured in the law, without which some people may be victims of violence in their relationships without knowing where to turn to for help. It is also because of the laws that families can now solve their disputes without having to fear biasness that may result if the cases were solved within a family setting rather than in court.

Section 4 of the Family Law Act 1975 (Cth) defines family violence as constituting actions or intentions of an individual towards a family member or their property that makes a family member to get scared or concerned for their safety. Based on this definition, family violence can be interpreted to mean any behavior, whether threatened or actual, of a family member that caused other family member(s) fear. It can also include stalking. These include threat to injure a child or damage property, harassment or intimidation through verbal abuse of phone calls. It also amounts to cyber-bullying through text messages or internet (Arnold, 2008; Commonwealth of Australia, 2009).In this case, cyber-bullying refers to an intentional or a hurtful conduct carried out via SMA,emails, instant messages, Facebook or discussion board.

Recent event in family law

In Queensland, Section 245 of Criminal Code 1899 states that ‘threatening physical gestures’ amount to bullying behaviour, which would seem to prevent text messages (Cyber-bullying in Australia, 2013; Queensland Government, 2013).In the landmark case specifies that an assault is committed when an intentional threat causes fear in a victim, causing the victim harm or the perpetrator to use unlawful force.Stephens v Myers (1830) 172 ER 735, the Australian High Court ruled that psychological harm caused by such threats such as cyber-bullying warrants compensation. In the case Gifford v Strang Patrick Stevedoring Pty Ltd. (2003) 198 ALR 100

Relevant Australian Law

The Family Law Act was ratified in 1975 by the Australian government. It has been amended severally to incorporate several issues. Initially, it only dealt with matters concerning children. A great number of amendments in 2006 brought in the issues involving family violence and social connections of families. Among the most notable of the amendments that exist to date are separations in domestic relationships, which were previously covered in the 1984 Property (relationships) act. It also includes the caring relationships and personal relationships which were initially covered under the Relationships act of 2003.

Relevant Queensland Law

Domestic and Family Violence Protection Act was enacted on September 17, 2012. It replaced the Domestic and Family Violence Protection Act 1989. The new legislation amended the definition of domestic violence to encompass abehavior exhibited by a family member towards another that is psychologically, physically and economically abusive. Under the initial legislation, the definition of domestic violence was narrow as it comprised an abusive behaviorby a family member to seek domination or oppress the victim (Arnold,2008;Carbonell, 2010; Lawstuff,2013).

There are various categories of people who have been affected by the issue of cyber-bullying, which include the Family Court, which settles the matters as they are brought forward; the involved members of the family, who comprise the victims and the culprits of the abuse; the legal services, and the police (Lawstuff, 2013).

Over the past half a decade, there have been concerns over the non-comprehensive definition of ‘family violence’ by the Family Law Act 1975. This is specifically due totechnological advancements.In December 2009, the Family Law Council recommended to the Australian Government Attorney-General that the Family Law Act 1975 should broaden the definition of Family Violence to include information and communication, dispute resolution, training, safety and decision making. This would see issues concerning cyber-bullying such as sending threatening SMS to family members clearly set out in the Act.

A major disadvantage with the Family Law 1975 is that its definition of the family violence is very narrow that it fails to meet the objectives of the family violence strategy, which include ensuring effective measures are identified and implemented to protect family members from psychological or physical injury as seen in the cases of R v Christodoulou and R v Glen. What it fails to cover are the emerging forms of abuses which were not in existence at the time of its enactment, such as the use of social networks, short message services (SMS), email messaging and other forms of technological mechanisms to abuse one’s partner (Arnold,2008;Carbonell, 2010).

On the other hand, its major advantage is that it covers a broad range of controlling behavior of sexual, physical and psychological nature – emotional deprivation, fear, threats and intimidation (Australian Government, 2009). This is important because it allows the court to have s broad spectrum under which a case can be reviewed and charged without borrowing from criminal law and other legislations.

Legal jurisdictions

However, due to the stigmatization that follows victims of domestic violence, it has not been easy for the government and the judicial system to implement family laws to the latter. This is because some people never come out in the open to report that they are being abused by their spouses, parents or relatives1. Such incidences make it nearly impossible to determine the true number of domestic violence cases, which shows that the current estimates are below the actual incidences (Carbonell, 2010).

Commonwealth Criminal Code ActThere are various pieces of legislation that make it an offense to send abusive text messages. The  1995 outlaws misuse of telecommunications services. Since SMS text messages are also categorized under cyber-bullying, these laws are applicable.Section 474.15 of the Commonwealth Criminal Code Act 1995 makes it an offense to use telecommunications service to harass or threaten other people. The penalty for such as offense is up to three years jail term (Australian Law Reform Commission, 2013). These two acts of law are charges for criminal offenses, but they may be tied together with the new act passed in 2012 known as The Domestic and Family Violence Protection Act. This is because, in case of any unwanted abuses, such as physical, emotional, psychological, or economically abusive. This includes unwanted calls, texts, and emails which contain threats (Arnold,2008).

The various pieces of legislationempower the courts to make decisions to specifically protect victims of domestic violence specific to their state policies. It prevents the need to nullify a case due to the lack of appropriate acts that can be used to incriminate the offender by providing specific guidelines on how justice shall be reached in case of domestic abuses.

In pursuing state-legislated offences, questions normally arise over which police authority can actually arrest the suspect and, whether it is really possible to arrest victims for such an offense. However, this is not the case with Commonwealth offences, since the federal police may undertake the investigation and the federal government can prosecute any offence that takes place within the Australian jurisdiction (Legal Aid Queensland, 2009; Quinn &Scattini Lawyers, 2013).

Suggested response for Queensland

Commonwealth Criminal Code ActConcerning the  1995, its major strength is that an offence is only established when the bully intends that the recipient of the message builds fear. This means that the recipient does not need to have fear, but only that an intention should exist. Its weakness is that it may be difficult to prove the intention in the courtroom (Quinn &Scattini Lawyers, 2013)2.

The law may be the best was to deal with the issue where the family has been unable to handle it on its own, such as in the case where one group of the family sides against an individual or an obviously weak group who can be easily intimidated. However, where there are no such extremities, non-legal solutions such as family dispute resolution and family counselingshould be used to solve the issue. In fact, section 69ZQ(f) of the Family Law Act 1995 states that if the courts considers it fit, then the parties can use family counseling or family dispute resolution to resolve family violence (Higgin and Kaspiew, 2011).

Conclusions

Throughout the text, it has been shown that domestic violence is, indeed, an issue of concern in the Australian court systems, especially in Queensland. Over six decades, the laws have been put in place to curb incidences of family or domestic violence in the society. However, there has been a continuous evolution of technology, which has caused newer means of abuse than were previously known that spouses or other relationship partners can use against each other. Such developments include the use of telecommunications services such as the phone and he internet.

The legal system does not effectively address the issue of abusive text messages as a form of domestic or family violence. The definition of family violence is very narrow. It is important that it recognizes that bullying and stalking should be clearly addressed as offences (Laing, 2003). Hence, harassment by family members through SMS or email might for instance be dealt with as stalking. These limitations restrict the application of Family Law Act 1975 to SMS, as it fails to cover bullying that takes place by a family member. There is therefore a need to reform the law (Carbonell, 2010).

References

Arnold, B. (2008). Australian Bullying Law. Retrieved from Caslon Analytics bullying website http://www.caslon.com.au/cyberbullyingnote6.htm

Australian Government (2009) Family Law Act 1975: Act No. 53 of 1975 as amended.

Australian Law Reform Commission (2013).Other Statutory Definitions of Family Violence.Australian Government. Retrieved from http://www.alrc.gov.au/publications/6.%20Other%20Statutory%20Definitions%20of%20Family%20Violence%20/family-law

Carbonell, R. (9 Apr 2010). Law falling behind cyber bullying trend. Retrieved from ABC News Website http://www.abc.net.au/news/2010-04-09/law-falling-behind-cyber-bullying-trend/2595778

Commonwealth of Australia (2009).Domestic violence laws in Australia. Retrieved from http://www.fahcsia.gov.au/sites/default/files/documents/05_2012/domestic_violence_laws_in_australia_-_june_2009.pdf

Cyber-bullying in Australia (2013).Where does Cyber-bullying fit in the Current Australian Criminal Framework?.Retrieved http://cybercrime2013.wordpress.com/findings-and-research/where-does-cyber-bullying-fit/

Lawstuff (2013) Cyber Bullying. Retrieved from Lawstuff website http://www.lawstuff.org.au/qld_law/topics/bullying/cyber-bullying

Higgin, D. &Kaspiew, R. (2011). Child protection and family law… Joining the dots.NCPC Issues.retrievedhttp://www.aifs.gov.au/nch/pubs/issues/issues34/issues34.pdf

Laing, L. (2003). Domestic Violence and Family Law.Australian Domestic and Family Violence Clearinghouse Topic Paper. Retrieved from http://www.austdvclearinghouse.unsw.edu.au/pdf%20files/family_law.pdf

Legal Aid Queensland (2009).You and family law: A short guide. Retrieved http://www.legalaid.qld.gov.au/publications/Factsheets-and-guides/Legal-information-guides/Documents/youandfamilylaw_short.pdf

Queensland Government (2013).Cybersafety and cyberbullying. Retrieved http://education.qld.gov.au/studentservices/behaviour/qsaav/docs/cyberbullying-cybersafetyprintfriendlyguide.pdf

Quinn &Scattini Lawyers (2013) A Guide to Family Law in Queensland.retrieved from http://www.quinnscattini.com.au/media/17601/a_guide_to_family_law.pdf

1Hoggett v Lowis [2004] QDC 508

2See R v Bell [2005] ACTSC 123 at [31].