Introduction

The search for law reform solutions to a significant and multifaceted issue like family violence is a challenging one. while family violence “knows no geographical, socio-economic, age, ability, cultural or religious boundaries”,^{[483] [484] there is one common characteristic that many people who experience family violence in Australia share — their participation in paid employment.}

The intersection between family violence and the workplace is most Compellingly highlighted by the circumstances of those people in paid employment who experience family violence. For example, the story of Jenny:

Jenny is a very experienced accountant whose employment with a large commercial firm was initially undermined when her abusive partner, Paul, began phoning her workplace to speak to her work colleagues about his failing relationship with Jenny. When Jenny was badly assaulted by Paul in front of her two children, she and the children moved into her mother’s small unit. Police charged Paul with assault, and over the following months, Jenny was required on numerous occasions to take time off work to attend both the local court for the assault charges and related Apprehended Violence Order and the Family Court for parenting orders. Jenny also needed to take time off work to have maxillary surgery as a result of the injuries she sustained in the assault. During the court process, Jenny described herself as desperate to attend counselling with her children, but was afraid to ask for any more time off work.

Stories like Jenny’s informed the Australian Law Reform Commission’s (ALRC) search for law reform solutions in this area in its Family Violence and Commonwealth Laws Inquiry. This chapter draws upon work done by the ALRC in that Inquiry. Beginningwith the premise that workplaces are the new communities, this chapter examines the capacity of the Australian employment and anti-discrimination law systems to identify and respond to family violence. It discusses the challenges of identifying law reform solutions in this area and identifies and responds to three key questions: First, why is family violence a workplace issue? Secondly, should the employment and anti-discrimination law systems identify and respond to family violence? Finally, what is the best approach to reform?

Background to the ALRC's Inquiry

Increasingly, attention has shifted to the connection between family violence and the workplace and subsequently the potential role for employment law in this area. The foundational work of academics,^[487] bodies such as the Australian Domestic and Family Violence Clearinghouse (ADFVC) and unions,^[488] as well as the ALRC has been of particular importance in identifying family violence as an issue in relation to which the employment and anti-discrimination law systems can and should respond.

In July 2010, the then Attorney-General of Australia asked the ALRC to inquire into and report on the treatment of family violence in a number of Commonwealth laws, including employment law. The ALRC was asked to identify what, if any, improvements could be made to relevant legal frameworks to protect the safety of those experiencing family violence.

The Inquiry culminated in the release of Family Violence and Commonwealth Laws—Improving Legal Frameworks, ALRC Report 117 (2011). It followed an Inquiry concluded by the ALRC in conjunction with the New South Wales Law Reform Commission (NSWLRC) in October 2010.7 Both inquiries emanated from the work of the National Council to Reduce Violence against Women and their Children,^{[490] [491] which was tasked with the development of the National Plan to Reduce Violence against Women and their Children 2010-2022 (National Plan). Importantly, several of the strategies under the National Plan, aimed at ensuring that communities are safe and free from violence, are relevant in the employment context. They involve, among other things: promoting community ownership and engagement, including by workplaces; promoting “positive and equitable workplace cultures”; and developing “workplace measures to support women experiencing and escaping” from family violence.[492]}

Defining family violence

In the Australian legislative context, definitions of family violence have come to vary significantly between the Family Law Act 1975 (Cth), criminal law and other Commonwealth, State and Territory legislation. However, the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) amended the Family Law Act to introduce a new and broader definition of family violence,^{[493] [494] substantially implementing a recommendation made by the ALRC and the NSWLRC in their joint 2010 report, Family Violence—A National Legal Response.1}

The two-part definition of family violence contained in the Family Law Act is relied upon for the purposes of this chapter.

(a) an assault; or

(b) a sexual assault or other sexually abusive behaviour; or

(c) stalking; or

(d) repeated derogatory taunts; or

(e) intentionally damaging or destroying property; or

(f) intentionally causing death or injury to an animal; or

(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or

(j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.^[495]