Are you being oversensitive, or does it constitute abuse?

Until recently, I have seldom shared with people that my motivation to study law was actually borne of a desire to understand society on a deeper level and decipher fact from fiction in a world made up of shades of grey. Admittedly, initially, I thought I wanted to practice however, after completing the first year of my degree, I realised that being surrounded by disputes where the key objective was to fight and undermine an opposing party was not something my nature or character was well suited to. It was also very clear to me early on that legal processes do not necessarily lead to justice. I persisted with my degree regardless because I have a lot of respect for the way in which laws and regulations are crafted by judges, lawyers and politicians and have tremendous capacity to completely transform society. It is truly fascinating when you stop to consider that legal disputes, the Parliament and courts ultimately deliberate complex problems with a view to defining what should and should not be tolerated. The legal system is a good means through which you can build and calibrate your moral compass. It also provides helpful insights as to what should be perceived as an exceptional circumstance or situations where lenience should be applied. To this end, I find my legal studies helpful in day-to-day life and use them as a starting point to analyse the complex problems of people who seek out my services as a holistic therapist. 

A theme I have noticed coming up a lot recently, not only in the lives of people with whom I interact, but the media at large, is what actually constitutes abuse as compared to someone being oversensitive? The Megan Markle and Prince Harry vs the royal family saga has society segregated on this very topic. I believe it is a complex problem because emotions and concealed motives can indeed influence the way both parties to a dispute present their arguments. It is helpful to look to legal definitions within various Acts and case law to decipher where to draw the line. 

Below I have listed some content from a legal handbook[1] that offers some helpful and relevant insights that will enable you to properly evaluate whether someone is being overly dramatic and sensitive or calling out an abusive situation: 

Non-domestic abuse intervention orders 

The Intervention Orders (Prevention of Abuse) Act 2009 (SA) recognises that abuse can take many forms including emotional, psychological and economic and is not limited to physical or sexual abuse [s 8(1)]. In order for an intervention order to be issued there must be a reasonable suspicion that the respondent will commit an act of abuse against the victim. An act of abuse is defined as an act resulting in [s 8(2)]: 

• physical injury;
• emotional or psychological harm;
• an unreasonable and non-consensual denial of financial, social or personal autonomy;
• damage to property in the ownership or possession of the person or used or otherwise enjoyed by the person

 Indirect abuse 

Section 8(6) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) states: "If a defendant [respondent] commits an act of abuse against a person, or threatens to do so, in order to cause emotional or psychological harm to another person or to deny another person financial, social or personal autonomy, the defendant [respondent] commits an act of abuse against that other person." For example, if a respondent threatens to harm someone close to the applicant and this causes the applicant distress, the respondent has committed an act of abuse against the applicant. Similarly, a respondent commits an act of abuse if they [s 8(7)]: 

• cause someone else to abuse a person;
• allow someone else to abuse a person;
• cause or allow someone to participate in an act of abuse

Emotional or psychological harm 

Emotional or psychological harm includes mental illness, nervous shock, and distress, anxiety or fear that is more than trivial [s 8(3)]. Examples of such harm include [s 8(4)]: 

• sexual assault or engaging in behaviour designed to coerce the victim to engage in sexual activity;
• unlawful deprivation of liberty;
• driving a vehicle in a reckless manner while the victim is a passenger;
• causing the death of, or injury to, an animal;
• following the victim;
• entering or interfering with property in the possession of the victim;
• loitering outside the place of residence of the victim or some other place frequented by them;
• giving or sending offensive material to the victim, or leaving offensive material where it will be found by, given to or brought to the attention of the person;
• publishing or transmitting offensive material by means of the internet or any other form of electronic communication in such a way that the material will be found by, or brought to the attention of, the victim;
• communicating with a victim, or to others about a victim, by way of mail, telephone, fax or the Internet or some other form of electronic communication in a manner that could reasonably be expected to cause emotional or psychological harm to the victim;
• keeping the victim under surveillance;
• directing racial or other derogatory taunts at the victim;
• threatening to withhold the victim's medication or to prevent them accessing necessary medical equipment or treatment;
• threatening to institutionalise the victim;
• threatening to withdraw care on which the victim is dependent;
• forcing the victim to marry another person;
• preventing the victim from entering their place of residence;
• taking an invasive image of the victim (within the meaning of Part 5A of the Summary Offences Act 1953 (SA)) and threatening to distribute the image without the victim's consent;
• coercing a person to terminate, or not to terminate, a pregnancy;
• threatening to cause the victim physical injury, emotional or psychological harm or an unreasonable or non-consensual denial of financial, social or domestic autonomy or to cause property damage.

Unreasonable and non-consensual denial of financial, social or personal autonomy 

Examples of unreasonable and non-consensual denial of financial, social or personal autonomy include [s 8(5)]: 

• denying the victim the financial autonomy they would have had but for the abuse;
• withholding financial support necessary for meeting the reasonable living expenses of the victim (or any dependants of the victim) in circumstances where the victim is dependent on the financial support to meet those living expenses;
• preventing the victim from seeking or keeping employment;
• causing the victim through coercion or deception to: relinquish control over assets or income; or claim social security payments; or sign a contract of guarantee or sign a power of attorney enabling their finances to be managed by another person;
• preventing the victim from making or keeping connections with their family, friends or cultural group, from participating in cultural or spiritual ceremonies or practices or from expressing their cultural identity;
• exercising an unreasonable level of control and domination over the daily life of the victim.

The distinction between domestic and non-domestic abuse

The Act covers both domestic and non-domestic abuse [ss 8(8) and 8(9)]. There are two main distinctions between the two types of abuse. In domestic abuse cases, all proceedings must be dealt with as a matter of priority, as far as practicable [s 9]. The Uniform Special Statutory Rules 2022 (SA) also ensure that any adjournments are kept to a minimum in domestic abuse cases [r 86.2(5)]. Domestic abuse is where an act of abuse is committed by the respondent against a person with whom they are or were in a relationship [s 8(8)]. For the purposes of the Intervention Orders (Prevention of Abuse) Act 2009 (SA), two people are in a relationship if: 

• they are married to each other; or
• they are domestic partners under the Family Relationships Act 1975 (SA) - whether declared as such under the Act or not; or
• they are in some other form of intimate personal relationship in which their lives are interrelated and the actions of one affects the other; or
• one is the child, stepchild or grandchild, or is under the guardianship, of the other (regardless of age); or
• one is a child, stepchild or grandchild, or is under the guardianship, of a person who is or was formerly in a relationship (marriage, domestic partnership or intimate) with the other; or
• one is a child and the other is a person who acts in loco parentis in relation to the child; or
• one is a child who normally or regularly resides or stays with the other; or
• they are siblings (brothers or sisters, or brother and sister); or
• they are otherwise related to each other by or through blood, marriage, a domestic partnership or adoption; or
• they are related according to Aboriginal or Torres Strait Islander kinship rules; or
• they are both members of some other culturally recognised family group; or
• one is the carer (within the meaning of the Carers Recognition Act 2005 (SA)) of the other.

For details about what constitutes non-domestic abuse and the considerations taken into account in hearing a non-domestic abuse intervention order application see Non-domestic abuse intervention orders. 

Non-domestic abuse intervention orders 

Under section 8(9) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) non-domestic abuse is defined as an act of abuse committed by a respondent against a person with whom the respondent is not, and was not previously, in a relationship. Notably the definition includes circumstances in which a respondent imagines a relationship exists. Where the application is not made by the police, the court must consider the following [s 21(4)]: 

• whether mediation is appropriate and practicable as a means of resolving any dispute (if one exists);
• whether the application is in the nature of a cross-application (i.e. another intervention order application has been made by the other party or there is another civil matter that has been initiated by the respondent);
• any other matters the court considers relevant.

 If you have a complex problem you are dealing with and want some help evaluating whether you are being oversensitive or abused, feel free to reach out and book in for a one-to-one session so I can help you sort through the facts and your emotions 

   [1] What is abuse? (lawhandbook.sa.gov.au)