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Statutory tort of family violence

Continuing our series looking at the recommendations of the Australian Law Reform Commission’s review into the Family Law System today I am looking at one of the family violence focused recommendations; namely, that the Family Law Act be amended to include the statutory tort of family violence.

Firstly, some legal terminology background.

A tort is a ‘civil wrong’ which allows an individual to obtain a civil remedy such as damages, compared to a crime which is punishable by the state. There can be some overlap however; for example, OJ Simpson was found ‘not guilty’ of the criminal charge of murder but was later found liable for the tort of ‘wrongful death’.

As the odd-sounding name implies torts have been around for a while – largely flowing out of the English medieval period. They have evolved from Court decisions over time – forming an important part of our ‘common law’. However, in more recent legal history a number of torts have been set out in legislation and are thus described as a ‘statutory tort’.

This is what the Commission is recommending; that the Family Law Act be amended to include the statutory tort of ‘family violence’ that would provide remedies.  

This change, if adopted, is in part substantial and in part procedural.

That is because there are already torts available to victims of domestic violence.

However (and this is the substantial part) the tort proposed by the Commission has a much broader base than that which currently exists. The currently available common law tort has traditionally been tied to the criminal notions of “assault” and “battery”. The tort proposed by the Commission is referenced to “family violence” and this could encompass events and behaviours that do not fit the currently available common law tort – such as coercive or controlling behaviour which permeates a lot of family violence.

As for the procedural part – the currently available common law tort is prosecuted in the State Courts and a variation to the Act would mean that the matter would be considered by the Federal Courts. While I have described this as ‘procedural’ there are nonetheless important factors that flow from such a change. For one, there are Judges who sit in the State Courts who have experience in determining remedies (damages paid to the victim) and such experience would be initially lost on the transfer to the Federal Courts. Additionally, the already strained resources of the Federal Courts will be further tested as traditionally lengthy trials are added to the Family Law proceedings. However, it would mean that parties would no longer need to participate in separate proceedings, with the hope that this lessons the emotional and financial burden on victims.

Given the rise in awareness of family violence and its impact it will be interesting to see what happens with this recommendation.

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