The 2009 report of the National Council to Reduce Violence Against Women and Their Children—Time For Action—identified the complex interaction between state and territory family and domestic violence and child protection laws and the Family Law Act 1975 (Cth). The National Council made a number of recommendations, including that the ALRC should undertake an inquiry into these laws.
The Terms of Reference directed the ALRC to consider:
- the interaction in practice of state and territory family and domestic violence and child protection laws with the Family Law Act 1975 (Cth) and relevant Commonwealth, state and territory criminal laws; and
- the impact of inconsistent interpretation or application of laws in cases of sexual assault occurring in a family/domestic violence context, including rules of evidence, on victims of such violence.
In relation to both issues, the ALRC was to consider what, if any, improvements could be made to relevant legal frameworks to protect the safety of women and their children.
The protection of women and children has predominantly been dealt with under state and territory family and domestic violence laws and child protection laws. These laws have varied across the jurisdictions, with the possible result of women and children being subject to different levels of protection depending upon where they lived. There also may have been problems recognising and enforcing apprehended violence orders across state and territory borders.
Another issue was how these laws interacted with Commonwealth laws touching on family violence, such as the Family Law Act. The ALRC explored whether the complexity of Australia’s federal system causes problems, such as inconsistent or incompatible protective orders; any duplication of effort by federal, state and territory courts; or any gaps or inadequacies in the cooperation between those courts and state and territory agencies.
The ALRC also considered how the law should enable women and children to report family and domestic violence, participate in legal processes, and access appropriate remedies; as well as facilitate the rehabilitation of perpetrators and the prevention of family violence in the first place.
Many of the issues raised by this inquiry cut across previous work by the ALRC. The ALRC completed a major inquiry into domestic violence in 1984, and has also considered violence against women and children and related matters in a number of previous reports, including those focusing on the legal rights of children (1997), women’s equality before the law (1994) and uniform evidence laws (2005).
The ALRC was directed to work jointly with the New South Wales Law Reform Commission with a view to developing agreed recommendations and consult with other state and territory law reform bodies as appropriate.
The Report is extensive, presented in two volumes with a Summary Report. Recommendations are focused on improving safety through:
- A common interpretative framework—establishing a shared understanding of what constitutes family violence across relevant legislative schemes.
- Corresponding jurisdictions—expanding the jurisdiction of courts dealing with family violence to maximise the chance that families will be able to get all the legal protections they need from any court they approach.
- Specialist family violence practice—fostering expertise within magistrates courts with staff who understand the dynamics of family violence and the complex array of legislation that applies.
- Improving police and prosecutorial practice—to produce safe, fair and just outcomes for victims.
- Integrated responses—ensuring that the many services needed by those who suffer family violence work together, building a better and shared understanding of violence and a national system of registration of family violence orders.
- Alternative dispute resolution—developing ADR responses, but with careful and appropriate protections for those who are the victims of violence.
- Training and information—underpinning legal changes by better understandings of family violence across the whole system, including a national family violence bench book and a national register of relevant orders.
The Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011
The Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) (the amending Act) has introduced two amendments to the Family Law Act responding to the Family Violence Report—in particular, Recommendations 6–4 and 17–1.
Recommendation 6–4 set out a new and significantly broader definition of ‘family violence’ for the Family Law Act. The amending Act has introduced a revised definition of ‘family violence’ substantially consistent with the recommended definition.
Recommendation 17–1 stated that s 60CC(3)(k) of the Family Law Act should be amended. This section previously provided that courts must, in determining parenting matters, consider relevant final or contested family violence orders. The Commissions recommended that the Family Law Act should instead require consideration of evidence provided, and findings made, in relevant family violence order proceedings. The Commissions did not limit such consideration to cases where final or contested orders are made.
The amending Act has amended s 60CC(3)(k) in line with this recommendation, providing that courts must consider ‘relevant inferences that may be drawn’ from family violence orders—not limited to final or contested orders. This reflects a formulation suggested by Professor Richard Chisholm and supported by the ALRC as capturing the principle of the Commissions’ recommendation.
These changes to the Family Law Act came into effect on 7 June 2012. The other Family Violence Report recommendations remain under consideration by the Australian Government.
- Submission to inquiry into the partial defence of provocation – 8 August 2012
- Submission to the inquiry into the Family Law Legislation Amendment (Family Violence and Other Measures) Bill – 28 April 2011
- Family Violence - A National Legal Response (ALRC Report 114) – 11 November 2010
- Family Violence - A National Legal Response (ALRC 114 Summary) – 11 November 2010
- Submission to the Australian Government Attorney-General’s Department on the Family Violence Bill – 17 October 2010
- Family Violence - Improving Legal Frameworks (CP 1) – 2 July 2010
- Family Violence—Improving Legal Frameworks (ALRC CPS 1) – 22 June 2010
3 August 2012
19 December 2011
25 November 2011
18 May 2011
16 March 2011
17 December 2010
28 November 2010
11 November 2010
11 November 2010
11 November 2010