Family Law /Domestic Violence Essay Example
All Hallows’ School Independent Study
Year 12 Legal Studies Planning Guide
What is the issue you are investigating?
Do laws in Queensland recognise abusive text messages as a form of domestic violence?
Is there law in relation to this issue? What is the purpose of the law(s) in this area? Are there any social reasons for this area of law?
The relevant laws that apply to domestic and family violence in Queensland are as follows:
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.
Both of the laws above provide a legal definition of domestic and family violence and offer legal options to protect the victims.
What does the law say about the issue? What laws presently deal with this issue in Queensland?
(Which Statutes? What are the leading cases which deal with this issue?)
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 behaviour, 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. 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 Gifford v Strang Patrick Stevedoring Pty Ltd. (2003) 198 ALR 100, the Australian High Court ruled that psychological harm caused by such threats such as cyber-bullying warrants compensation. In the case Stephens v Myers (1830) 172 ER 735, the court held 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.
What is the history of this area? Has it developed over time?
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.
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 a behaviour 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 behaviour by a family member to seek domination or oppress the victim.
What parties can you identify that are affected by this issue?
Families, Courts, Police, Community Services, Legal Services
A number of stakeholder are affected by the issue of cyber-bullying, these include the Family Court, the involved members of the family, the legal services and the police (Lawstuff, 2013).
Are there any recent and current issues relevant to your chosen topic?
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 threat SMS to family members clearly set out in the Act.
What are the positives and negatives about the present law (practical and ethical)?
Do the solutions for stakeholders apply the concepts of justice, fairness, equity and ethics?
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 harm. Its major advantage is that it covers a broad range of controlling behaviour of sexual, physical and psychological nature – emotional deprivation, fear, threats and intimidation (Australian Government, 2009).
What are other possible legal solutions to the problem?
(The law in other states or countries may be useful here as well as proposals for law reform.)
There are various legislations that make it an offense to send abusive text messages. The Commonwealth Criminal Code Act 1995 outlaws misuse of telecommunications serviced. 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).
What are the social justifications (practical and ethical) for these other legal approaches to the issue? Why do the other jurisdictions have different laws?
The various legislations empower the courts to make decisions to specifically protect victims of domestic violence specific to their state policies and legislations.
In pursuing state-legislated offence, there may be questions as to the state police who have the authority to investigate the matter and whether the offence can be persecuted. 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).
What are the positives and negatives of these other legal solutions to the problem?
Concerning the Commonwealth Criminal Code Act 1995, it 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).
What are the non-legal solutions to the problem?
(Is the law the best way to deal with this issue? If not, what are the non-legal alternatives?)
Non-legal solutions such as family dispute resolution and family counselling to 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 counselling or family dispute resolution to resolve family violence (Higgin and Kaspiew, 2011).
Does our legal system adequately address this area of law? Does the current law serve society’s needs? Should the current law be reformed? Should it be retained?
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 recognises 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 extent to cover bullying that takes place by a family member. There is therefore a need to reform the law (Carbonell, 2010).
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. retrieved http://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
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