ANROWS Public lecture opening address: The ALRC’s Family Violence work

ANROWS Public lecture series with Professor Leigh Goodmark, 10 August 2015, Sydney. Opening address by Rosalind Croucher AM**

Introduction

It is a great pleasure to be invited to open proceedings today and have the very pleasant task of introducing Professor Leigh Goodmark. I was delighted to be invited by ANROWS, whose CEO, Heather Nancarrow, is an absolute legend in the family violence scholarship and advocacy world.

At the outset let me respond to Aunty Millie Ingram’s very warm welcome to country by acknowledging the traditional custodians of the land, the Gadigal people of the Eora nation, and pay my respect to their elders, past and present as well as acknowledging any Indigenous people in attendance today.

In opening, and in the few minutes allowed for me to speak, I want to draw attention to the work that drew me into Heather Nancarrow’s orbit and here today: the work of the Australian Law Reform Commission on family violence. I personally led the two inquiries as the Commissioner-in-charge (a task on the first inquiry shared with Hilary Astor, as the New South Wales Law Reform Commissioner and Magistrate Anne Goldsbrough from Victoria as a part-time Commissioner of the ALRC). Given the focus of Professor Goodmark’s work, I wish particularly to draw attention to the ALRC’s work in the first report, which grappled with the vexed problems of system interaction, particularly state and federal.

The Family Violence work of the ALRC

In November 2010, the NSW and Commonwealth Attorneys-General launched Family Violence—A National Legal Response. This inquiry (the Family Violence Inquiry) had occupied fully—and intensely—two institutional law reform bodies (the ALRC and NSWLRC), for over a year.

The expectations of all involved in that inquiry were huge. The brief, as one to law reform bodies, necessarily reflected our functions, and, on our own, we could not, nor cannot, possibly meet the expectations of the all those in the Australian community who have been victims of family violence.

Such expectations are captured in this simple plea—one of many submissions received in the course of the inquiry:

Dear Government people,

We women, we mothers, we look at you for the solutions and answers …^[1]

In speaking about the Family Violence Inquiry and the complex questions the ALRC and NSWLRC had to navigate, we found lots of stories. Every day—and particularly on the weekends—the newspapers are full of stories involving violence in families, especially ones involving death—or sporting personalities. They are all tragic. They are all horrifying. The messages they send are complex—of the families and the relationships involved as much as of the interest of the press in reporting the stories—and the ‘angle’ that is given in them.

This year’s Australian of the Year is Rosie Batty. The violence in her relationship took her son from her, when her former husband killed her son Luke.

And who can forget the story that led to the conviction in 2010 of Arthur Freeman. In January 2009 he pulled over during the morning rush hour while driving his 4WD car across Melbourne’s busy West Gate Bridge. As stunned motorists looked on, he lifted his young daughter Darcey out of the car then dropped her over the side before driving away with his two sons, Ben, 6, and Jack, 2.

Darcey survived the 17-storey fall, was pulled from the water and moved to the embankment, where police and paramedics attempted to resuscitate her for 45 minutes. She was then airlifted to nearby Royal Children’s Hospital, but died from massive internal injuries in the early afternoon.

Minutes earlier, Arthur had told Peta Barnes, his ex-wife, over the phone: ‘Say goodbye to your children’. The couple, who divorced in 2008 after seven years of marriage, had been involved in a custody dispute. Freeman, 37, was convicted of murdering his daughter and he was sentenced to life in prison, with 32 years without parole.

But we know that it is not only fathers who kill children. The ancient Greek story of Medea reflects this. When Jason left her for another woman she killed her own children in revenge against him.

The common thread in these stories is that they start with love. Family violence so often starts in love. That is what makes it so difficult. It is not defined by an incident, where so much of law is incident-based. It is arises from a relationship that started in loving.

The women who seek refuge in places such as those provided by the NSW Women’s Refuge Movement, and who end up in the Family Court and at the door of other support services, most likely identify with such a narrative.

What prompted the ALRC’s Family Violence Inquiry was the report, Time for Action, released in March 2009 by the National Council to Reduce Violence against Women and their Children (the National Council). What was particularly alarming was the cost of family violence in Australia. In January 2009 KPMG prepared a forward projection of costs to 2021–22 and concluded that an estimated 750,000 Australian women ‘will experience and report violence in 2021–22, costing the Australian economy an estimated $15.6 billion’.[2]  It is the staggering size of this that quite clearly demonstrates that family violence is a public concern—and a national responsibility. Compounding factors for women and children include being Indigenous, being of a culturally and linguistically diverse background, suffering an intellectual disability. Compounding factors in the violence—just to mention a few—include alcohol, drugs and poverty.

While our focus was on legal frameworks, what we observed through our own research and the many consultations conducted and submissions received, is how much the problems—and perhaps expectations of solutions—go beyond the brief we received. The inquiry concerned only a narrow slice of the vast range of issues raised by the prevalence of family violence—when women and children encounter the legal system in its various manifestations. It is just the tip of an iceberg.[3] And as one solicitor working in a domestic violence service in the Northern Territory said, ‘You can have the perfect law, but ….’  So much hangs in that ellipsis that follows the ‘but’.

The power of integrated responses

One of the answers we came up with was that integrated responses are essential to achieve the four policy aims that we identified that relevant legal frameworks in this Inquiry should express: seamlessness, accessibility, fairness and effectiveness:

1. Seamlessness—to ensure that the legal framework is as seamless as possible from the point of view of those who engage with it.
2. Accessibility—to facilitate access to legal and other responses to family violence.
3. Fairness—to ensure that legal responses to family violence are fair and just, holding those who use family violence accountable for their actions and providing protection to victims.
4. Effectiveness—to facilitate effective interventions and support in circumstances of family violence.

Integrated responses offer clear benefits for service delivery to victims, including improving the experience of victims involved in multiple proceedings across different legal frameworks. Integration may also help in overcoming the problem of silos—the legal system has been described by some as operating in ‘silos’, with consumers feeling bounced around from one agency to the next or alternatively falling into the cracks in the system—or on a ‘roundabout’ as described in the AIFS evaluation—particularly where concerns about child protection interventions arise.[4]

The impact on children may be especially severe, as reflected through the eyes of a nine-year old child speaking of the uncertainty of ongoing Family Court proceedings:

I felt worried that mum was going to go back and forth and back and forth and it wasn’t going to stop … [I felt] freaked out, I couldn’t get to sleep I had nightmares, I was crying a lot … [It was just all] horrible and frightening.^[5]

The sense of being bounced between systems was described by one contributor to this Inquiry as feeling ‘like a ball on a pool table’.^[6]

The difficulty in this context is the sharing of jurisdiction between the states and Federal governments. The system is fragmented and hard to navigate.

Summary of key recommendations

This is a brief summary of our recommendations. The overarching, or predominant principle is that of seamlessness, and to achieve this both perspectives must be connected, to the greatest extent possible, within the constitutional and practical constraints of a federal system. This seamlessness is expressed in recommendations focused on improving legal frameworks and improving practice.

The improvement of legal frameworks will be achieved through:

• a common interpretative framework, core guiding principles and objects, and a better and shared understanding of the meaning, nature and dynamics of family violence that may permeate through the various laws involved when issues of family violence arise;
• corresponding jurisdictions, so that those who experience family violence may obtain a reasonably full set of responses, at least on an interim basis, at whatever point in the system they enter, within the constraints of the division of power under the Australian Constitution;
• improved quality and use of evidence; and
• better interpretation or application of sexual assault laws.

The improvement of practice will be achieved through:

• specialisation—bringing together, as far as possible, a wide set of jurisdictions to deal with most issues relating to family violence in one place, by specialised magistrates supported by a range of specialised legal and other services;
• education and training;
• the development of a national family violence bench book;
• the development of more integrated responses;
• information sharing and better coordination overall, so that the practice in responding to family violence will become less fragmented; and
• the establishment of a national register of relevant court orders and other information.

And there has been some implementation already on the definition[7] and the national register, especially.

In leading change, it is also important to recognise is the role of ‘champions’—key people driving cultural change. I note here the work of Magistrate Anne Goldsbrough and also of Libby Lloyd, who has led the ‘white ribbon’ campaign.

Support is also crucial. Women benefit. Children benefit. The family courts benefit. And the ex-partners ultimately benefit through the smoother resolution of the matters that are before the court.

To meet the problems of family violence requires enormous co-operation, trust, respect, patience and commitment. In the Family Violence Inquiry, the ALRC and the NSWLRC undertook consultations nationwide and received over 240 submissions from a wide range of stakeholders. The expectations of our work were considerable. I keep that simple but eloquent submission as a permanent reminder:

Dear Government people,

We women, we mothers, we look at you for the solutions and answers.

12th Australian Institute of Family Studies Conference: Family Transitions and Trajectories, Plenary Session: Family law/family violence, Professor Rosalind Croucher^* President, Australian Law Reform Commission

Abstract: Family Violence has received a lot of attention in recent years. The ALRC has conducted two inquiries on this topic: the first focused on federal/state interactions (2010); the second, on Commonwealth laws (2011). At the same time that the ALRC was undertaking the first inquiry, Professor Richard Chisholm, former Justice of the Family Court of Australia, conducted his review of the practices, procedures and laws that apply in the federal family law courts in the context of family violence. Secondly, the Family Law Council provided an advice to the Attorney-General on the impact of family violence on children and on parenting. Thirdly, the Australian Institute of Family Studies (AIFS) released its Evaluation of the 2006 Family Law Reforms, providing empirical data about the impact of the 2006 changes to the Family Law Act 1975 (Cth). These concurrent inquiries—all released in 2010—were focused on the Family Law Act. The ALRC’s inquiry, conducted jointly with the NSWLRC, took us beyond the Family Law Act. When the other legislative regimes specified in the Commissions’ terms of reference were brought into consideration the challenges increased exponentially. Four key law reform challenges included: reaching stakeholders; the federal system; international responsibilities; and different planets. The first three are ones of general relevance to law reform work; the last was specific to this inquiry. This presentation explores the challenges for responding to family violence in a federal system within the constraints of a law reform body.

Introduction

Thank you Dr Higgins for your kind introduction and thank you to my co-panellist, Professor, the Hon Nahum Mushin for your excellent presentation on the role of family violence in making parenting decisions in the Family Courts. It is a real pleasure to be back in Melbourne and to take part in this important event of that fine body, the Australian Institute of Family Studies, in its 12^th Family Studies Conference.

Although we cannot see much of the landscape of Melbourne from inside this venue, it is important that, as the head of a government agency and on behalf of the Australian Law Reform Commission (ALRC), I acknowledge the traditional custodians of this land, the Wurundjeri people of the Kulin nation, and pay my respect to elders past and present. I notice that the colours of the Conference Centre perhaps reflect the colours of the land, so there is perhaps some echoes of its original state.

In my presentation I will explain a little of the work of the ALRC and the challenges of responding to family violence in a federal system.

The ALRC’s Family Violence Reports

Developing law reform recommendations for improving legal frameworks to protect the safety of victims of family violence has been a principal focus of the inquiries undertaken by the Australian Law Reform Commission (ALRC) since late in 2009. What prompted this work was the report, Time for Action, released in March of that year by the National Council to Reduce Violence against Women and their Children,^[1] and the alarming cost of family violence. In January 2009, KPMG prepared a forward projection of costs to 2021–22 and concluded that an estimated 750,000 Australian women ‘will experience and report violence in 2021–22, costing the Australian economy an estimated $15.6 billion’.^[2] While the violence may begin in a private space, with figures like these it is very much a public issue and a national responsibility.

On 7 February 2012, the second major instalment in our work was tabled in parliament, Family Violence and Commonwealth Laws—Improving Legal Frameworks,ALRC Report 117(2011), following on from the joint report with the New South Wales Law Reform Commission (NSWLRC), tabled on 11 November 2010, Family Violence—A National Legal Response, ALRC Report 114 (2010). Both reports were launched by the Attorney-General of the day.^[3] Assisting us with the first inquiry I should pay tribute to Victorian Magistrate Anne Goldsbrough, who was appointed a Part-time Commissioner of the ALRC. Anne has worked tirelessly in the area of improving responses to family violence and I am sure her work is known to many of you here today.

Together, these two reports provide 289 recommendations for reform, amounting to a major contribution to the Australian Government’s law reform agenda in this troubling area. But there is so much to do. In undertaking the first inquiry with the NSWLRC we recognised that we were concerned with only a particular slice of the vast range of issues raised by the prevalence of family violence—when parents and children encounter the legal system in its various manifestations. A comment made by the Family Law Council in its advice to the Commonwealth Attorney-General in January 2010 was equally apt as a comment with respect to the problems of family violence in a much wider sense. The Council, noting that it was only focusing on family violence ‘when it becomes visible in the Family Law system in Australia’, stated that:

This visible pattern is only the tip of the iceberg of family violence, alcoholism, drug addiction and mental illness which is apparently entrenched in Australia.^[4]

Under the Terms of Reference we were required to consider ‘what, if any, improvements could be made to relevant legal frameworks to protect the safety of women and their children’. Although in this sense it was a limited brief, even so, the range of interactions was extensive, involving—at least—8 family violence laws; 8 child protection laws; 9 criminal laws; and—at least—one federal law, the Family Law Act 1975 (Cth)—ie, at a minimum, 26 legislative regimes plus all the exponential multipliers of their various interactions. The inquiry occupied fully—and intensely—both our institutional law reform bodies (the ALRC and NSWLRC), for over a year.

The expectations of all involved in that inquiry were huge. The brief, as one to law reform bodies, necessarily reflected our functions; and, on our own, we could not, nor cannot, possibly meet the expectations of the all those in the Australian community who have been victims of family violence. Such expectations are captured in this simple plea—one of many submissions received in the course of the inquiry:

Dear Government people,

We women, we mothers, we look at you for the solutions and answers …

This really made an impression on me and it has stayed with me as a reminder about the importance of our work.

Tragic stories

In speaking about the inquiry and the complex questions the ALRC and NSWLRC had to navigate, we found lots of stories. Every day—and particularly on the weekends—the newspapers are full of stories involving violence in families, especially ones involving death—or sporting personalities. They are all tragic. They are all horrifying. The messages they send are complex—of the families and the relationships involved as much as of the interest of the press in reporting the stories—and the ‘angle’ that is given in them.

Who can forget the story that led to the conviction in 2011 of Arthur Freeman—especially here in Melbounre? In January 2009 he pulled over during the morning rush hour while driving his 4WD car across Melbourne’s busy West Gate Bridge. As stunned motorists looked on, he lifted his young daughter Darcey out of the car then dropped her over the side before driving away with his two sons, Ben, 6, and Jack, 2.

Darcey managed to survive the 17-storey fall—just. She was pulled from the water and moved to the embankment, where police and paramedics attempted to resuscitate her for 45 minutes. She was then airlifted to nearby Royal Children’s Hospital, but died from massive internal injuries in the early afternoon.

Minutes earlier, Arthur had told his ex-wife, Peta Barnes, over the phone: ‘Say goodbye to your children’. The couple, who divorced in 2008 after seven years of marriage, had been involved in a custody dispute. In April last year, Freeman, 37, was convicted of murdering his daughter and he was sentenced to life in prison, with 32 years without parole.

We know that it is not only fathers who kill children. The ancient Greek story of Medea reflects this. When Jason left her for another woman she killed her own children in revenge against him.

What I find so desperately sad is that the common thread in these stories is that they generally start with love. Family violence so often starts in love. That is what makes it so difficult. It is not defined by an incident, where so much of law is incident-based. It is arises from a relationship that started in loving. This also makes the problem of definition much harder.

A lot of concern = a lot of activity

The ALRC and NSWLRC were not alone in looking at the problem of family violence and seeking appropriate policy responses. The Freeman case was a principal catalyst for the review by Professor Richard Chisholm, former Justice of the Family Court of Australia, commissioned by the Attorney-General, of the practices, procedures and laws that apply in the federal family law courts in the context of family violence.^[5] The review was completed at the end of November 2009, and released on 28 January 2010.^[6] Secondly, the Family Law Council provided its advice to the Attorney-General on the impact of family violence on children and on parenting, that I referred to earlier.^[7] Thirdly, at about the same time, the Australian Institute of Family Studies (AIFS) released its Evaluation of the 2006 Family Law Reforms,^[8] providing empirical data about the impact of the 2006 changes to the Family Law Act 1975 (Cth). The ALRC/NSWLRC inquiry was therefore taking place in the context of very active contemporary scrutiny of the legal system and its engagement with families and family violence. Even as we were writing, the report of another major research project into family violence and family law in Australia was released, focusing on the impact of the changes made to the Family Law Act in 2006.^[9] A lot of concern led to a lot of activity.

In acknowledging the challenges for the family law system in cases concerning violence—involving ‘more than half the parenting cases that come to the courts’—Chisholm reiterated in his opening remarks that ‘[v]iolence is bad for everyone, and particularly dangerous for children, whether or not it is specifically directed at them’. He identified a theme that recurred throughout his review: ‘that family violence must be disclosed, understood, and acted upon’.^[10] It was a simple, but powerful, expression of the central theme.

Key recommendations focused on risk identification^[11] and the provisions dealing with parental responsibility in the Family Law Act and the guidelines included in the legislation—primary and additional considerations—for determining what is in the child’s best interests.^[12] As noted by Chisholm, this is ‘a large and controversial topic’.^[13] The package of reforms introduced by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth), emphasised two main concerns as the primary considerations:

1. the benefit to the child of having a meaningful relationship with both of the child’s parents; and
2. the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.^[14]

Although these two matters were principal motivating concerns behind the 2006 amendments, ‘the “twin pillars” formula is not an ideal guide to children’s best interests’.^[15] There is a clear tension between them, Chisholm preferred instead guidelines that did not include ‘the artificial distinction … between “primary” and “additional” considerations’.^[16]

In addition, a central issue in the lead-up to the 2006 reforms was whether there should be a presumption in favour of ‘equal time’ in relation to parental responsibility.^[17] The formula, that when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have ‘equal shared parental responsibility’,^[18] has created considerable controversy, particularly a confusion between ‘equal responsibility’ and ‘equal time’. Such misunderstandings were also evident in the AIFS evaluation:

This confusion has resulted in disillusionment among some fathers who find that the law does not provide for 50–50 ‘custody’. This sometimes can make it challenging to achieve child-focused arrangements in cases in which an equal or shared care-time arrangement is not practical or not appropriate. Legal sector professionals in particular indicated that in their view the legislative changes had promoted a focus on parents’ rights rather than children’s needs, obscuring to some extent the primacy of the best interests principle (s 60CA). Further, they indicated that, in their view, the legislative framework did not adequately facilitate making arrangements that were developmentally appropriate for children.^[19]

Chisholm preferred instead a presumption simply of each parent having ‘parental responsibility’.^[20]

Chisholm also considered that particular provisions of the Act should be amended, the so-called ‘friendly parent’ provision, (s 60CC(3)(c)), because there was a sense that if you sought to protect yourself and your children from violence by seeking a protection order, you would be perceived as ‘unfriendly’ in the context of parenting decisions in the Family Court. This was a clear area of concern, echoed throughout the ALRC inquiry.

I note that some of Chisholm’s concerns are reflected in a number of the amendments to the Family Law Act that commenced on 7 June this year: the ‘friendly parent’ provision has been recast; the greater weight in parenting decisions is to be given to the safety of children over the importance of the child having a meaningful relationship with both parents—ie a recalibration of aspects of the 2006 amendments.

The law reform challenge

The concurrent inquiries were focused on the Family Law Act. This Act has its own distinct dynamics, particularly in relation to parenting orders, with a focus on determining ‘the best interests’ of the child. When the other legislative regimes are brought into consideration—as they were required to be in our inquiry—the challenges for law reform bodies were increased exponentially. For the purposes of this morning’s talk I have singled out what I see are four key law reform challenges:

• reaching stakeholders
• the federal system
• international responsibilities
• different planets

The first three matters are of general relevance to law reform work; the last was specific to the ALRC/NSWLRC inquiry.

Reaching stakeholders

Commitment to widespread consultation is a hallmark of best practice law reform.^[21] For this Inquiry, we adopted a multi-faceted consultation strategy—using a broad mix of face-to-face consultations and roundtable discussions; online communication tools and the release of a Consultation Paper together with a companion Consultation Paper Summary.

Our face-to-face consultations took us all over the country—both because the ALRC is a federal body, but also to reach many key stakeholders. In this inquiry it was particularly important to go to Darwin and Alice Springs, to meet with groups representing Indigenous clients. NSWLRC took particular responsibility for speaking with groups in regional New South Wales. Consultations were undertaken with individuals, legal services and support agencies, courts, police. Cross-sectional roundtables and forums were conducted in Sydney, Melbourne, Perth, Hobart and Darwin. They comprised a range of groups involved in aspects of responding to family violence, including child abuse and sexual assault, as well as across the family law system.

We utilised internet communication tools both to provide information and obtain comment—an e-newsletter, an online forum and a blog. We published a large Consultation Paper together with a Consultation Paper Summary and received 240 submissions in response from a wide range of people and agencies including: individuals; academics; lawyers; community legal centres; law societies; women’s centres and legal services; support services for men, women and children; Indigenous legal and other services; directors of public prosecutions, both Commonwealth and state and territory; state governments; government departments and agencies, both state and federal; victims’ support groups and rape crisis centres; and judicial officers, including heads of jurisdiction.

The federal system

Given that many in the audience today are not lawyers, it helps to give context for the challenges of law reform in relation to family violence to explain the place of family law in Australia. We have a federal system of government in which legislative power is divided between the Commonwealth and the states and territories. In the area of family law, neither the Commonwealth nor the states and territories have exclusive legislative competence.^[22] The Australian Constitution gives the Commonwealth government the power to make laws with respect to: (1) ‘marriage’;^[23] and (2) ‘divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants’.^[24] It also has the power to legislate with respect to ‘matters incidental to the execution of any power vested by this Constitution in the Parliament’.^[25] The power of the states to legislate in relation to family law is not limited in the same way, but where a state law is inconsistent with a Commonwealth law, the Commonwealth law prevails.^[26]

As a general principle, private rights were regarded as more appropriately a matter for the states, while questions of status—marriage and divorce—needed uniformity across Australia and hence were more appropriate for allocation to federal power.^[27] But it was not until the Matrimonial Causes Act 1959 (Cth), followed two years later by the Marriage Act 1961 (Cth), that the Commonwealth entered the field. This was only 50 years ago. These laws superseded the laws of the states and provided a uniform Commonwealth law on marriage and divorce. The Family Law Act 1975 (Cth) and the establishment of the Family Court of Australia ushered in the current framework of federal family law.

The federal framework was later expanded by the referral of legislative power from the states to the Commonwealth.^[28] A major addition to federal power was the referral to the Commonwealth of the power to make laws with respect to the children of unmarried parents—‘ex-nuptial children’.^[29] Between 1986 and 1990, all states (with the exception of Western Australia) referred state powers with respect to ‘guardianship, custody, maintenance and access’ in relation to ex-nuptial children to the Commonwealth.^[30] The states did not, however, refer to the Commonwealth their power to legislate with respect to child protection and adoption.^[31] In 1996, the Family Law Act was amended to include a ‘welfare power’ in relation to children.^[32] A further referral of power led to the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth).

Western Australia took a different approach from the other states by availing itself of the opportunity provided in the Family Law Act for the creation of a state family court exercising federal and state jurisdiction.^[33] Given that Western Australia has kept family law matters within the state, it provides, in some respects, a ‘control jurisdiction’ for a consideration of some of the issues generated by the fragmentation between the state and federal spheres in the other states and territories. As remarked by the Family Law Council,

Western Australia is uniquely placed, as the only State Family Court in Australia with a single court for family law matters, to be the first State in Australia to develop and implement a unified Family Law/Child Protection Court to manage all cases involving the welfare of children with the same judicial officers able to determine both public [child protection] and private [disputes about parenting] family law matters.^[34]

Where and how do issues of family violence arise in such a context? The primary mechanism exercised at state and territory level in relation to family violence is that of protection orders under family violence legislation, variously described as: apprehended violence orders (AVOs), family violence intervention orders, violence restraining orders, family violence orders, domestic violence orders, and domestic violence restraining orders. They are essentially a response of the civil law to immediate concerns of safety—although police get involved in many jurisdictions.

Family violence legislation was enacted in most states and territories in the 1980s and 1990s—largely as a result of two decades of feminist pressure and lobbying, highlighting in particular the inability of the criminal justice system to protect women from future violence.^[35] It was a response to the growing recognition that existing legal mechanisms failed to protect victims—predominantly women—from family violence.

A key area of intersection of federal and state jurisdictions is the way that protection orders may interact with the Family Law Act. There is an inherent tension between the focus of AVOs and parenting orders. On the one hand, the protection order may direct a person to keep away from a named person and children. On the other hand, the parenting order is focused on time that children are to spend with or live with their parents—a focus on the longer term. As noted by the Family Law Council in its advice to the Attorney-General:

There is often interplay between State Protection orders which provide for the protection of a parent and their children by prohibiting the alleged perpetrator (the other parent) from coming within a defined distance of the parent and child, and federal family court orders that provide for the child to spend time with that parent.^[36]

The boundaries between the various parts of the system are not always clear and jurisdictional intersections and overlaps are ‘an inevitable, but unintended, consequence’.^[37] The fragmentation of the system has a particular impact in relation to child protection issues:

In essence, at least two court systems are potentially involved in any child protection dispute: the State and Territory children’s courts, and the federal Family Court. With the introduction of the Federal Magistrates Service, this fragmentation now extends to three courts. Further, if a dispute extends across State and Territory borders, more than one children’s court may be involved. Family violence issues are also often relevant when child protection issues are raised, but the State and Territory courts that deal with violence issues are usually the generalist magistrates’ courts. This can add a further layer of complexity.^[38]

Further, while state and territory child welfare laws take precedence over Family Court orders,^[39] as there was no referral of such powers, in contrast, in the area of family violence, contact and residence orders made under the Family Law Act can be used to defeat state and territory family violence protection orders dealing with such issues.^[40] As noted in the Family Law Council’s advice to the Commonwealth Attorney-General in December 2009:

The reality for a separating family experiencing contentious issues in respect of parenting capacity is that there is no single judicial forum that can provide them with a comprehensive response to address their disputes, particularly where there are underlying issues of family violence and/or child abuse.^[41]

The result is a fragmented system with respect to children.^[42] Then there is the challenge of ensuring that Australia’s international responsibilities are also met. There is a danger, moreover, that issues concerning violence may fall into the cracks between the systems,^[43] described by Daryl Higgins and Rae Kaspiew of AIFS in an article using the analogy of the London Underground warnings of ‘mind the gap’.^[44] Where the relevant child protection authority may decide not to investigate, because the mother is behaving ‘protectively’, the Family Court does not investigate either—because it can’t. As noted by the Family Law Council in December 2009, the division of powers means that ‘neither the Commonwealth nor the States’ jurisdiction provides a family unit with the complete suite of judicial solutions to address all of the legal issues that may impact on a family in respect of their children’.^[45]

International responsibilities

A number of international conventions are relevant to the legal framework in relation to violence against women and children in a family violence context: the International Covenant on Civil and Political Rights (ICCPR); the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW);^[46] the Convention on the Rights of the Child (CROC).^[47] In particular, these reflect the acknowledgment that violence against women and children is a violation of human rights. In addition there is the Hague Convention on Civil Aspects of International Child Abduction (the Abduction Convention), to which Australia became a signatory on 1 January 1988.^[48] In using a law reform lens on the issues in question in this inquiry, the ALRC has to use an international covenant ‘filter’ in considering recommendations for reform.

A number of articles of the ICCPR are of particular relevance in the context of a consideration of family violence. Article 23 provides that ‘[t]he family is the natural and fundamental group unit of society and is entitled to protection by society and the State’;^[49] and art 17 includes protection for the family in stipulating that:

No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.^[50]

With respect to children, art 24 provides that:

Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.

Another key right that must not be overlooked is the right to a ‘fair and public hearing’ in art 14 with minimum procedural guarantees in the case of criminal charges.^[51]

A further international instrument of key relevance in this inquiry is CROC—‘the most comprehensive statement of children’s rights ever drawn up at the international level’.^[52] Following ratification by Australia on 17 December 1990, CROC has proved of significance in ‘shaping the first wave of reforms to Pt VII of the FLA effected under the Family Law Reform Act 1995 (Cth)’.^[53]

A number of CROC provisions are particularly relevant to this inquiry. First, ‘the best interests of the child’ is a central principle:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.^[54]

Secondly, the maintenance of contact between a child and his or her parents is affirmed, subject to the ‘best interests’ principle:

States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.^[55]

Of particular note is the rider in the above provision—that separation of a child from a parent may be in the child’s best interests where the child is subject to abuse or neglect by a parent. However, notwithstanding this qualification, it is also stated that:

States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.^[56]

The risk of violence and abuse to a child is given specific attention, States Parties being required to

take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.^[57]

CROC also includes articles concerning protection from sexual exploitation and sexual abuse;^[58] and promoting physical and psychological recovery from, amongst other things, any form of neglect, exploitation or abuse.^[59] I note that the Family Law Act has been amended in the recent package of reforms to refer expressly to this important covenant.^[60]

The 1980 Hague Convention on Civil Aspects of International Child Abduction (the Abduction Convention), to which Australia became a signatory on 1 January 1988,^[61] sought to provide for the return of children under the age of 16 years who have been wrongfully removed from, or retained outside, their country of habitual residence.^[62] The recent case in Brisbane in May this year is an illustration of this convention in practice, where a woman had removed her children from Italy to flee, as she said, the abusive nature of her husband. Fear of return of the children under the Hague Convention led initially to the hiding of the children.^[63]

The Convention was implemented in Australia through the Family Law (Child Abduction Convention) Regulations 1986 (Cth). The Secretary of the Attorney-General’s Department is designated as the Commonwealth Central Authority under the Convention with responsibility for coordinating incoming and outgoing requests to and from overseas Central Authorities and liaising with the relevant state or territory Central Authority in Australia to perform Australia’s obligations under the Convention.^[64]

The objects of the Convention are set out in art 1:

1. to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
2. to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.

There are a number of exceptions set out in art 13, in particular where there is ‘a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation’.

While this provides some qualification to the ‘prompt return’ principle, the overall emphasis in the Abduction Convention is not on ‘the best interests of the child’—language used, for example, in CROC—but rather on the ‘rights of custody and access’—namely, rights of the parents. Signatories commit to the prompt return of children to the country in which they habitually reside so that issues of parental responsibility can be resolved by the courts in that country. In a study on Abduction Convention cases in Australia, Deborah Fry remarked of this different emphasis that:

While the Convention is generally praised for providing hope and redress for many parents in providing the prompt return of abducted children, it is also criticised for failing to adequately balance the needs and interests of particular children against the needs and interests of all children everywhere. The Hague Convention does not rest upon consideration of the principle of the ‘best interests of the child’ but rather purports to uphold the best interests of children collectively by deterring international abduction. It is Utilitarian at its philosophical base, aimed at enforcing the greatest good for the greatest number.^[65]

Abduction Convention matters may sit at the intersection of Family Law Act, child protection and family violence laws. For example, where there has been violence to the mother of the child by her partner, and the child has witnessed the violence, how might this be considered in relation to an Abduction Convention application for the recovery of the child? How difficult is it for a mother who seeks to escape violence by leaving her partner to argue that the exposure of the child to the violence on her ‘would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation’?^[66]

The concept of the ‘best interests of the child’ is now the dominant principle in dealings with children in both the family law and child protection systems. Making it meaningful at the practical level, at the same time respecting the other competing dynamics of family law, both international and local, was at the heart of our family violence inquiry.

In the context of family violence, there are evident tensions in the way that these articles—and the expectations they engender—might operate. The person accused of committing family violence is entitled to a fair hearing (art 14); the family itself, as a fundamental unit of society, is entitled to protection (art 23); and the child is entitled to the expectation of protection by his or her family and the State (art 24). When, for example, a child is the subject of abuse by a family member, each of these articles, and their inherent expectations, may be in conflict. Similarly, where a woman is the subject of family violence, the protection of the family requires being open to public scrutiny—notwithstanding the right to privacy and the protection of the home (art 17).

Different planets

In the course of the first family violence inquiry we received the clear message that, from the point of view of parents and children engaging with the legal frameworks in which issues of family violence and child abuse arise, the system should be as seamless as possible, so that whatever point a child and his or her parents encounter the legal system it should not feel lost in a maze or that they are always encountering dead ends.

An example of some of the kinds of tensions that we have heard is that a mother hears conflicting messages and meets divergent expectations at different points in the continuum of the broad ‘family law system’ including the concerns of child protection authorities. Marianne Hester, describing the experience in the United Kingdom, refers to the different cultural histories of what she describes as the three ‘planets’ of domestic violence, child protection and child contact.

Within the context of divorce proceedings, mothers must be perceived as proactively encouraging child contact and must not be attempting to ‘aggressively protect’ their children from the direct or indirect abuse of a violent father. The child protection and child visitation/contact planets thus create further contradictions for mothers and children: there may be an expectation that mothers should protect their children, but at the same time, formally constituted arrangements for visitation may be implemented that do not adequately take into account that in some instances mothers and/or children may experience further abuse.^[67]

So, for example, when a mother is experiencing family violence which may have attracted the attention of the relevant child protection authority, she is told that she is expected to be ‘protective’, otherwise she faces the potential that the interest of the child protection authority may lead to her ‘losing’ her children. And yet, if she is drawn into family law proceedings, she is faced by the allegation that she is not being a ‘friendly parent’, so, in order that her children have a ‘meaningful relationship’ with both parents, she is faced with a parenting order that requires contact with the man she fears—particularly at moments of ‘handover’ of the children to their father—and her fear continues ^[68]

Some answers

How can a bifurcated system overcome these fundamental problems? The Family Law Council in its advice to the Commonwealth Attorney-General in December 2009 signalled that a referral of powers should be given so that federal family courts can have concurrent jurisdiction with state and territory courts ‘to deal with all matters in relation to the children including where relevant family violence, child protection and parenting orders’ and that ‘[a]chieving this goal would be the best outcome for people experiencing family violence and may circumvent the disparity between children’s, state and family courts’.^[69] If we can’t do this, then we need to find other ways through the system. The Family Court has introduced a solution in the form of the Magellan case management program. In other parts of the system there are a growing number of other examples of agreements, protocols, MOUs and other ways of regulating relationships between agencies working with family violence. Consequently an issue for the Commissions is to think about what the limits of law may be and whether other forms of regulation can work as well, or better. There is much to be said for the simple mantra advocated by Richard Chisholm—that family violence needs to be ‘disclosed, understood and acted upon’.

The conceptual framework that we developed to underpin the recommendations in the Report was expressed as four specific principles or policy aims that relevant legal frameworks in this Inquiry should reflect: seamlessness, accessibility, fairness and effectiveness:

1. Seamlessness—to ensure that the legal framework is as seamless as possible from the point of view of those who engage with it.
2. Accessibility—to facilitate access to legal and other responses to family violence.
3. Fairness—to ensure that legal responses to family violence are fair and just, holding those who use family violence accountable for their actions and providing protection to victims.
4. Effectiveness—to facilitate effective interventions and support in circumstances of family violence.

The overarching, or predominant principle was that of seamlessness, which was expressed in recommendations focused on improving legal frameworks and improving practice.

We considered that the improvement of legal frameworks could be achieved through:

• a common interpretative framework, core guiding principles and objects, and a better and shared understanding of the meaning, nature and dynamics of family violence that may permeate through the various laws involved when issues of family violence arise;
• corresponding jurisdictions, so that those who experience family violence may obtain a reasonably full set of responses, at least on an interim basis, at whatever point in the system they enter, within the constraints of the division of power under the Australian Constitution;
• improved quality and use of evidence; and
• better interpretation or application of sexual assault laws.

And the improvement of practice could be achievedthrough:

• specialisation—bringing together, as far as possible, a wide set of jurisdictions to deal with most issues relating to family violence in one place, by specialised magistrates supported by a range of specialised legal and other services;
• education and training;
• the development of a national family violence bench book;
• the development of more integrated responses;
• information sharing and better coordination overall, so that the practice in responding to family violence will become less fragmented; and
• the establishment of a national register of relevant court orders and other information.

By way of illustration of how the goal of ‘seamlessness’ could be achieved, the idea of ‘corresponding jurisdictions’ was aimed at implementing in law the concept of ‘one court’, through an expansion of jurisdiction of federal, state and territory courts responding to family law, family violence and child protection issues. In particular, while we concluded that the prospect of a single new specialist court to deal with all legal matters relating to family violence was not practicable, an effective way to achieve the benefits of ‘one court’ is to develop corresponding jurisdictions, in which each of the jurisdictions of courts dealing with family violence correspond to an appropriate degree. Enhancing the ability of courts to deal with matters outside their core jurisdiction will allow victims of family violence to resolve their legal issues relating to family violence in the same court, as far as practicable, consistent with the constitutional division of powers.

So, for example, state and territory magistrates courts are often the first point of contact with the legal system for separating families who have experienced family violence. We therefore considered that it is important that state and territory magistrates courts can deal with as many issues relating to the protection of victims of family violence as possible. Making an interim parenting order at this time may take the heat out of the situation by regulating how separating parents spend time and communicate with their children.

An important start in implementing the recommendations is the package of amendments to the Family Law Act in the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth), which commenced on 7 June 2012. The definition of family violence in the amended s 4AB(1) is not precisely the one recommended by the ALRC and NSWLRC, but it is essentially the same.^[70] It will provide the foundation of the improved understanding that Professor Chisholm identified as fundamental to the family courts’ response to family violence. In our second family violence report we recommended that the definition be included in other Commonwealth laws that we considered in that inquiry.^[71]

On the implementation front I should also mention the inquiry of the Senate Legal and Constitutional Affairs Committee into Marriage Visa classes. We identified the Prospective Marriage Visa as one that had particular difficulties in respect of how family violence was considered. In particular, where the relationship on which the sponsored visa depended had broken down, the sponsored person had effectively no choice but to marry the sponsor in order to obtain permanent residence. Our conclusion was that the inability of Prospective Marriage visa holders to access the family violence exception may encourage someone to marry against their will.^[72]

Conclusion

The first family violence inquiry was one of the biggest challenges for the ALRC to date—given its incredibly complex nature. And there are many involved in trying to find the way out of this particular maze. When speaking in Brisbane in October 2009 at the Australian Institute of Judicial Administration forum on family violence, an image kept coming to my mind of a children’s swimming party—lots of arms and legs and much thrashing in the water, with so many inquiries going on almost simultaneously. But it is a metaphor that may also be applied to the contrasting, even clashing and possibly contradictory way in which the various laws concerning family violence operate, so I will continue it as reflective of the themes of my presentation today. In a conversation where I shared my mental image of the swimming pool with Professor Hilary Astor, the NSWLRC Commissioner, she expressed the aspiration that we should end up as Olympic-level synchronised swimmers. Our recommendations, including the idea of developing corresponding jurisdictions, we hope go some way in this direction.

Professor Rosalind Croucher, President, Australian Law Reform Commission at the Launch of the Evaluation of the Women’s Family Law Support Service, Parliament House, Sydney, 17 November 2011.

Commitment and connections

Looking at everyone who has come here today for the launch of Dr Lesley Laing’s evaluation of the Women’s Family Law Support Service, one thing really stands out—commitment. You can feel it so strongly in this room. Commitment—to finding solutions and pathways to respond to the problems of family violence.

The other thing that is very striking is a sense of ‘connection’. We are meeting for this occasion in Parliament House, the seat of government for New South Wales. The welcome to country by Donna Ingram on behalf of the Metropolitan Land Council reminds us of the power of this land as land of the Gadigal people of the Eora nation, its traditional custodians. I pay my respects to their elders, both past and present. I thank you Donna for your welcome and acknowledge Indigneous guests attending today.

ALRC President Professor Croucher is interviewed on Family Violence laws with other guests

Patrick Parkinson
Professor of Law, University of Sydney, Special Counsel to Watts McCray Lawyers and former Chairperson of the Family Law Council

Samantha Page
Executive Director, Family Relationship Services Australia

Heather Nancarrow
Director, the Queensland Centre for Domestic and Family Violence Research

Listen to the interview >>

By Amanda Alford[1] and Rosalind Croucher[2]. This article was first published in the Indigenous Law Bulletin, January/February 2011 Volume 7 Issue 22

In March 2009, the National Council to Reduce Violence against Women and their Children (National Council) released Time for Action, a report on violence against women in the Australian community. Amongst other things, the National Council found that Indigenous women report higher levels of physical violence during their lifetime than do non-Indigenous women, and that they are much more likely to experience sexual violence and to sustain injury.[3]

Time for Action included a number of recommendations, including that the Australian Law Reform Commission (ALRC) should undertake an inquiry into family violence laws in Australia. In April 2009, the Standing Committee of Attorneys-General agreed that the ALRC and New South Wales Law Reform Commission should work jointly on this project. Subsequently, in July 2009, the Federal and NSW Attorneys-General issued the Commissions with Terms of Reference, to consider:

1. the interaction in practice of State and Territory family/domestic violence and child protection laws with the Family Law Act 1975 (Cth) and relevant Commonwealth, State and Territory criminal laws; and
2. 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 these issues the Commissions were asked to consider, ‘what, if any, improvements could be made to relevant legal frameworks to protect the safety of women and their children’.

In November 2010, the Commissions published the Final Report, Family Violence — A National Legal Response[4] (the Family Violence Report), a two-volume report that contained 187 recommendations for reform.

Following an Inquiry of this breadth and importance, the ALRC considers that it is useful to reflect on how we went about the task. As part of this, the ALRC would like to acknowledge the contributions made by many Indigenous organisations and individuals and, in recognition of the ALRC’s responsibility to our Indigenous stakeholders and as a means of facilitating an ongoing conversation, would like to report back on the Inquiry. Consequently, this article discusses and reflects on the ways in which the Commissions engaged with Indigenous stakeholders; presents a selection of the key overarching issues and perspectives of particular relevance to Indigenous people that emerged; and outlines the ALRC’s work moving forward and the way Indigenous people can be actively involved in the process of law reform. 

The Family Violence Inquiry — Indigenous engagement

In the course of the Family Violence Inquiry, the Commissions were conscious of ensuring that the experiences and concerns of Indigenous people were appropriately recognised and addressed.

In light of this, the Commissions adopted an integrated approach to the incorporation of the experiences and concerns of Indigenous people throughout the Consultation Paper and Final Report, raising them throughout the documents rather than potentially ‘othering’ or marginalising the issues by including a separate chapter on Indigenous concerns. However, the ALRC is aware that this approach caused difficulties for some stakeholders working with Indigenous groups in identifying the particular issues to address and is working on strategies to ensure an appropriate way of dealing with issues affecting Indigenous stakeholders in future inquiries. The ALRC would welcome input from Indigenous communities on ways to achieve this aspiration. 

In endeavouring to engage with Indigenous stakeholders the Commissions were also conscious of what has been referred to as ‘consultation fatigue’, expressed in consultations and submissions as a frustration by Indigenous communities about the frequency with which individuals and organisations are consulted, without meaningful outcomes or feedback for communities. In addition to recommendations made in the Family Violence Report, the release of a Summary Report, this article and a podcast[5] reflect the ALRC’s commitment to ensuring that the information and experiences shared by Indigenous people with the ALRC produce meaningful outcomes and stakeholders are aware of the use to which such information has been put.

In terms of the consultation process, from the beginning of the Inquiry, the ALRC sought guidance from its Indigenous Advisory Committee (established as part of the Commission’s Reconciliation Action Plan) about consultation strategies and developed an Indigenous Consultation Plan.

The focus of the Inquiry was on the interaction of, and improvements to, legal frameworks and laws in Australia.  In line with this, the Commissions’ approach throughout the Inquiry (including with respect to consultation of Indigenous people) was to consult with experts and representative organisations that were best placed to comment on the interaction of relevant laws and their operation in practice, rather than affected individuals within communities. The Commissions took this approach for a number of reasons, including the legal framework-based focus of the Inquiry, the relatively short timeframe, available resources and the need to manage stakeholder expectations about what the Commissions could consider and subsequently recommend.

At the conclusion of the Inquiry, the Commissions had consulted with numerous Indigenous organisations across Australia, as well as participated in key events such as the National Indigenous Legal Conference and National Indigenous Family Violence Prevention Forum. However, the ALRC recognises several elements of the consultation process during the Family Violence Inquiry could be improved, but notes that these are subject to resource and government-imposed timeframe constraints. With respect to Indigenous people, the ALRC is acutely aware of the need to build upon the relationships forged with Indigenous organisations during the Family Violence Inquiry and to foster new relationships with organisations relevant to particular terms of reference in future inquiries.

Family Violence—Indigenous perspectives

In many respects, problems with relevant legal frameworks in the context of family violence affect all people experiencing family violence. However, the Commissions’ research and consultations, as well as written submissions received, revealed a number of common threads with respect to the particular experiences and concerns of Indigenous victims of family violence.

Overall, the Commissions heard that the importance of a historically and culturally-sensitive understanding of the causes and nature of Indigenous family violence, as well as the specific interactions between Indigenous people and the legal system cannot be underestimated. In the context of family violence, there appear to be two key access to justice issues for Indigenous people: first, a number of barriers impede access to assistance; secondly, services and legal frameworks do not adequately recognise and respond to Indigenous experiences of family violence. A more nuanced understanding of family violence in Indigenous communities requires recognition of:

• the cumulative effects of ‘poor health, alcohol, drug abuse, gambling, pornography, unemployment, poor education and housing and general disempowerment [which] lead inexorably to family and other violence and then on to sexual abuse…’;[6]
• Indigenous peoples’ relationship with police, government agencies and courts;
• cultural, systemic and institutional barriers faced by Indigenous people in seeking assistance, including to adequate and/or culturally appropriate services and facilities;
• the geographical isolation of some Indigenous communities;
• the endemic and intergenerational nature and ‘normalisation’ of violence;
• the impact of Indigenous concepts of family and community;
• general inadequacies in data collection with respect to Indigenous people; and
• the importance of framing family violence in a human rights context, in particular to ensure that violence against Indigenous women and children cannot be minimised by reference to cultural practices or arguments which supposedly condone violence.

The Commissions were also aware that it was important to recognise that experiences of family violence are diverse and that, if any real outcomes were to be achieved, Indigenous organisations and communities must be actively engaged in discussion surrounding which processes and mechanisms are most likely to assist Indigenous victims of family violence.

The Family Violence Inquiry covered a range of legislative regimes and made numerous recommendations for reform, many of which the Commissions consider will assist in ensuring justice for all victims of family violence. However, in making recommendations the Commissions also necessarily recognise the limits of law and the need for responses that go beyond legal frameworks in responding to and addressing family violence.

The next section considers examples of the Commissions’ approach and the response to Indigenous concerns, as addressed in the Family Violence Report. 

Forms and definitions of family violence

At the outset of the Inquiry the Commissions identified the need for a common interpretative framework with respect to family violence. This framework necessarily encompasses a broader definition of family violence that would acknowledge the experiences of Indigenous victims in light of current definitional inadequacies. By way of example, Indigenous stakeholders expressed particular concern about the use of economic abuse as a method of power and control, for instance through ‘humbugging’ — the practice of demanding money from relatives. Similarly, in relation to emotional abuse, some stakeholders noted that threats to commit suicide are sometimes used as a form of coercion — as opposed to as a genuine cry for help — to dissuade victims from taking action.

The Commissions formed the view that adopting consistent definitions of family violence across different legislative schemes sends a clear message about what constitutes family violence. As a result, the Commissions recommended that state and territory family violence legislation as well as the Family Law Act 1975 (Cth) should provide that family violence is: ‘violent or threatening behaviour, or any other form of behaviour, that coerces or controls a family member or causes that family member to be fearful’. The Commissions recommended that such behaviour may include, but is not limited to, a range of things including: physical violence; sexual assault; economic, emotional or psychological abuse; kidnapping or deprivation of liberty; damage to property; and exposure of a child to the effects of family violence.[7]

Further, with respect to emotional and psychological abuse or intimidation and harassment, the Commissions recommended that legislation should include examples illustrating conduct that would affect certain vulnerable groups, including Indigenous persons. For example, a form of abuse that to which Indigenous people may be particularly vulnerable is one involving the prevention of a person from making or keeping connections with the person’s family, friends or culture, including cultural or spiritual ceremonies or practices.[8]

Access to services and facilities

Difficulties with the accessibility and availability of culturally-sensitive and appropriate services and facilities was emphasised by numerous stakeholders throughout the Inquiry. Concerns related to the impact of linguistic and cultural barriers as well as broader access issues, including to: designated services for Indigenous women; legal services and advice; support services; liaison and contact office positions within government and non-government services. Further, in light of the importance of written Family Reports in informing decisions within the Family Court system, Indigenous stakeholders identified the need for accessible and culturally-sensitive Family Report Writers. The Commissions heard, for example, about the cultural and linguistic problems which arise in discussing emotional and psychological injury with Indigenous persons. One particular recommendation was that state and territory governments should ensure that support services are in place to assist persons in need of protection to apply for a protection order without involving police, and that these should include services specifically for Indigenous persons.[9] Throughout the Family Violence Report, the Commissions emphasised the need for the legal system to be alive to cultural and linguistic diversity and the vital importance of culturally appropriate service provision. In particular, the Commissions strongly suggested or recommended:

• providing cultural awareness education and training for police, prosecutors, the legal profession, judicial officers, and victim referral and support services;
• prioritising the provision of, and access to, culturally appropriate victim support services such as legal advice (including specialised legal advice and representation for Indigenous women), counselling and other support services, but ensuring victims are able to choose whether to access culturally-specific services;[10]
• ensuring the provision of professional translating and interpreting services where required and/or requested; and
• introducing or re-introducing Indigenous-specific victim liaison, support and advocacy positions throughout the legal system, including within the police, the courts and service providers.

Court proceedings

A key element of the challenge to victims of family violence in accessing legal remedies is the fragmentation of the legal system. For example, a victim of family violence may potentially be involved in legal proceedings in a court with jurisdiction under the Family Law Act, a Magistrates Court as well as a Children’s Court. As a result, a victim may be required to attend or give evidence in a range of jurisdictions.

In addition to the difficulties faced by all victims of family violence in such circumstances, there are many compounding factors faced by Indigenous people in attending or participating in court proceedings. These include:

• logistical difficulties, including transportation and movement between communities;
• fear of giving evidence in open court and thus a preference for the court to be closed on the request of the applicant or protected person as it is a factor in determining whether women are willing to proceed with a hearing;
• feelings of guilt, blame and privacy concerns associated with not wanting issues publicly aired as well as community/family pressure through presence in court;
• language barriers and difficulties in giving oral evidence, including judicial attitudes towards the necessity of interpreters; and
• the potential for cross-examination of a victim by a person who has allegedly used violence.

Where possible the Commissions made comments and recommendations as to procedures and services that may assist in ameliorating these difficulties, including provision of: information and assistance; safe rooms and other safety measures; Indigenous Liaison Officers; and interpreters; as well as the use of pre-recorded evidence closed courts.[11]

Indigenous concepts of family and community 

While the term ‘family’ is seldom used explicitly in Australian law, it is apparent that the notion of the nuclear family — comprising a mother, father and their children — still underlies the Family Law Act and other legislative regimes. The Commissions heard numerous stories about the unique impact of Indigenous concepts of family and community in a family violence context. For example, Indigenous people may have differently constructed parenting arrangements, where children will be ‘brought up’ by a number of different ‘mothers’ and grandparents may play a significant role.

The Commissions are aware that there is a disproportionate level of family violence among Indigenous communities, and of the particular dynamics of Indigenous family violence such as violence within extended kinship networks. Consequently, the Commissions recommended that persons protected by family violence legislation of each state and territory should include as protected persons those who fall within Indigenous concepts of family.[12]

An issue the Commissions examined was whether state and territory family violence legislation should include an express presumption that the interests and protection of victims is best served by their remaining in the home in circumstances where they share a residence with the persons who have used violence against them. The rationale underlying such a presumption was an attempt to minimise disruption and uncertainty faced by victims of family violence, particularly where children are living in the home. However, the Commissions heard that in many instances a number of Indigenous family members will share a residence, or a victim may reside in the home of the aggressor’s family. It was also recognised that often victims of family violence are unwilling to stay in a home rented/owned by the person who has used violence, or known by the latter person who may still have access to the home. Consequently, the Commissions did not make a recommendation in relation to such a legislative presumption, acknowledging that victims should be able to make the choice of whether it is safe for them to remain in the home or flee.

Training, education and awareness 

It is clear there is a need to ensure regular and consistent training for participants in the family law, family violence and child protection systems, in relation to the nature and dynamics of family violence, including its impact on victims, in particular those from vulnerable groups such as Indigenous people.[13] More specifically, in order to ensure the experiences and needs of Indigenous people in those systems are adequately acknowledged and addressed, there is also a need for training and education in relation to:

• Indigenous culture and familial norms/dynamics;
• local Indigenous communities and local issues and circumstances;
• Indigenous experiences of, and responses to, family violence;
• interviewing and working with Indigenous people; and
• Indigenous child sexual assault dynamics, indicators, impacts and reporting.

Limited access to the family law system

Finally, several stakeholders noted that statistics indicate and/or their experiences are that the numbers of Indigenous people accessing the family courts are low. Generally, lack of involvement of the family court may be because separation and parenting matters are not an issue in every case, or may be resolved between the parties. However, it may also be as a result of difficulties in accessing family courts — for example because the costs of legal proceedings or geographic remoteness make access to courts impractical. In addition, the Commissions heard that the low rate of Indigenous use of the family courts may in part be attributed to the failure to identify people as Indigenous, and in part to accessibility issues and the failure of systems to be relevant, accessible or responsive to the needs of Indigenous people.

The ALRC and the Indigneous community—the future

Building on the work done by the ALRC in implementing its Reconciliation Action Plan (RAP) and in engaging with Indigenous stakeholders throughout the Family Violence Inquiry, we acknowledge that more can be done to ensure the experiences and concerns of Indigenous Australians are reflected in the work done by the Commission.

In part, the ALRC can address this through internal strategies, further implementation of the RAP, the involvement of a newly-appointed Indigenous legal officer, and the implementation of an Indigenous internship program. However, the ALRC also needs the support and involvement of Indigenous communities.

As foreshadowed earlier, in 2009 the ALRC established an Indigenous Advisory Committee (IAC) to assist in building stronger relationships with Indigenous peoples, and to ensure that the concerns and perspectives of Indigenous communities are more effectively integrated into the federal law reform process.  The ALRC is currently reviewing the structure and functions of the IAC with a view to ensuring it can be more actively involved in the law reform process and would welcome expressions of interest from people interested in becoming involved.

The ongoing involvement of Indigenous individuals and organisations in the work of the ALRC is vital to ensuring inquiries adequately reflect the experiences, needs and concerns of Indigenous people. The ALRC invites Indigenous communities to engage in an ongoing conversation in order to shape law reform for the benefit of all Australians, but particularly the most vulnerable and disadvantaged members of our society. To paraphrase some comments by our foundation chairman, the Hon Michael Kirby AC CMG, the ALRC is conscious that ‘we are not “there” yet. But we are “here”. And “here” is closer to…’[14] where we were when this conversation began. We look forward to continuing the conversation.

ALRC Report 114/NSWLRC Report 128 and the podcast ‘Indigenous issues and consultation in the Family Violence Inquiry’ are available at: https://www.alrc.gov.au 

Download mp3 file to use in your own media player>>

Professor Rosalind Croucher, President of the ALRC, speaks about some of the ways in which the Final Report for the Family Violence Inquiry, Family Violence – A National Legal Response (ALRC Report 114) addresses Indigenous issues.

Transcript

In this podcast I’d like to tell you about the Family Violence report and our approach to issues that affect, in particular, Indigenous women and children. My name’s Rosalind Croucher and I’m the President of the Australian Law Reform Commission and also I was the Commissioner in Charge of the Inquiry jointly with the New South Wales Law Reform Commissioner, Hilary Astor. I’m making this podcast to give something back. I was very struck during the Inquiry in meeting many Indigenous organisations and individuals about the responsibility of a government body, such as the Law Reform Commission, to give feedback on what we do with the information and stories that we’ve heard and so I thought I would do a podcast as a way of beginning that conversation. I see it also as facilitating not just me talking to you like this but rather as a beginning of a conversation that we can continue over many of our inquiries and hopefully of a long enduring kind.

I’d like to begin by talking about the Indigenous strategy that we used in this Inquiry—the kinds of people that we spoke with and why we did so—because we recognised that it was really important especially in an inquiry concerning family violence which is of particular significance to women and children right across the country, and with an extraordinary detrimental impact on Indigenous women and children, we recognised that whatever we were going to do could not be done in a token way but had to be done seriously and with the people who knew exactly where the problems were happening and how best that we could respond. So we decided the best way of approaching obtaining feedback was to integrate the concerns rather than just have a separate chapter dealing with issues about Indigenous women and children. We integrated our approach so that we weren’t creating a sense of being ‘other’ but rather part of an overall problem. But we know too, that did create some issues with our Indigenous stakeholders because where we did deal with Indigenous issues they were spread throughout the report and weren’t separately and easily able to be found.

We were also conscience about what we heard called as ‘consultation fatigue’ and a certain frustration in Indigenous communities about more government bodies coming and obtaining information and disappearing, the fly-in-fly-out sense, and we wanted to make sure that whatever we did would be done sensitively and in a responsible way. We thought it best rather than try to go into community, which was very difficult for us with a small team and in a limited timeframe, that we should work with those who worked with communities, especially the Indigenous organisations and legal services that represented women and children and especially in the context of family violence.

So I thought now what I should do is perhaps tell you about some of the key issues that we heard about when we spoke to the many groups that we consulted over the country, and I should say that we did approach this nationally. We spent quite a few days in the Northern Territory and in Western Australia and in regional areas in New South Wales and Victoria and we had fantastic contributions from many, many Indigenous organisations and I want once again to publicly acknowledge the fabulous and dedicated input that we got so graciously from the many women’s organisations and Indigenous organisations more generally with whom we consulted. During NAIDOC week we published on our website a tribute to all of the organisations and people that we spoke to, and rather than going through all of those groups again, may I just once more say thank you very much for that fantastic participation.

So, what were some of the issues that we heard about? We heard about many, many concerns: some of them we could deal with, some of them we couldn’t. We are a law reform body and our Terms of Reference, which is our writing instructions, our mandate in this Inquiry was limited to legal frameworks. So while we heard about lots of problems we obviously couldn’t provide recommendations about all of the things we heard. But what we did get from our stakeholders was incredibly valuable information and extraordinary insights and they certainly shaped our thinking in the recommendations that we developed. Perhaps I can give just a few examples of the sorts of things we heard and how they found their way into the recommendations that we ultimately made.

One is in relation to the form and definition of family violence itself. Obviously that was a fundamental issue for us throughout the Inquiry because we were looking at family violence as it appears in legislation in states and territories and at the federal level, so the definition was a really important thing. Some of the examples we heard from our Indigenous stakeholder groups were things like how widespread is economic abuse in the form of ‘humbugging’ and also the power of emotional abuse including threats of suicide. Another one was of kidnapping or deprivation of liberty, forcing women to move to different communities, isolating them from their family networks. Now all of those examples, economic abuse, emotional abuse and kidnapping, each of those found their way into our recommended definitions of family violence in the report. So while they’re expressed in general terms they were things that we heard from the conversations we had, particularly in the Northern Territory, and you can see then how the things that we heard actually found their way through.

Another example is in relation to court proceedings, that the difficulty of giving evidence when you’ve got geographical issues, logistical problems where, for example, in the context of sexual assault, just getting a woman who alleges that she’s been sexually assaulted to give the relevant information to police and to obtain the medical examination that she needs, she might have to stay unwashed for hours and hours and hours before she is able to give that information, her evidence, in an appropriate way. So in making recommendations for, for example, pre-recording evidence and being able to use that pre-recorded evidence obtained, also we recommended by appropriately trained people sensitive to Indigenous concerns, that the information and evidence might be captured much, much earlier and in a way that can be used throughout the proceeding without that woman having to repeat her story over and over again.

Another example is in relation to Indigenous concepts of family and community. We heard, for example that there are great problems where many Indigenous families or an extended Indigenous family group may share the same premises. In the context of family violence and dealing with issues of somebody leaving because of family violence, well in the Indigenous context, who should leave? Who can leave and where can they go? All of these issues are obviously of great relevance, so when we were making suggestions about family violence legislation we suggested that the legislation should include, in terms of defining family relations, those who fall within the Indigenous concepts of family and that should be a core group in any protective family violence legislation.

Another example that we could give is in relation to bail conditions. We were concerned that if a perpetrator was released on bail, that the victim should know about the conditions of that bail and we were thinking about making sure that there was an obligation to tell the victims what those bail conditions were. But when we were in Alice Springs we heard, particularly from the NPY Women’s Council, of the difficulty sometimes of contacting women in communities that range across the NPY lands, and that if we were to recommend a condition that bail conditions were to be communicated to victims that would be very difficult to implement. While a good idea, it would be very difficult to implement in those contexts. So we included in the recommendation that was about bail, that it could be appropriate to send bail conditions to family violence legal and service providers with whom a victim is known to have regular contact and that element in that recommendation specifically responds to the kinds of concerns that the NPY Women’s Council raised with us.

So that’s just a handful of examples of the insights that we obtained and how they made their way through into the final recommendations that appear in fairly general terms in the report.

And so now I thought maybe what I should talk about is what happens next. Our report was a very big one, it was 1,500 pages and we had 187 recommendations, so it was pretty big. We also provided a summary report which just included the recommendations themselves and an executive type summary capturing the ideas at a more general level. But what happens then with all of those recommendations? Well when our job as a law reform body, when … we officially finish our work once we hand our reports to the Attorney-General and then the Attorney-General presents it to Parliament and officially that’s the end of our job and then it is up to Government. Parliament and government agencies will be looking at all of those recommendations and deciding what to do with them, but we do keep an interest even though our job’s officially finished. We track the implementation of our work and every year we publish what’s been happening with our reports over many years, we publish it in our Annual Report and so you will be able to see exactly what happens with all of those recommendations in our Family Violence report through our Annual Reports each year.

But I must say both of the Attorney-Generals took the trouble to come to the Australian Law Reform Commission offices in Sydney on 11^th November this year, 2010, and by virtue of their presence and their appearance officially launching the report, it demonstrates a clear commitment at government level to do something about the insidious problems of family violence and we hope to carry forward our work into implementing the reforms.

To conclude I’d like to say that we learnt so much during this inquiry from the Indigenous individuals and organisations who took the trouble and time to share with us their work, their stories and their information and we want to make sure that that conversation continues. We consider that we started well and we want to continue well to ensure that Indigenous concerns and interests find a voice throughout all our work. There are many ways to help and to be involved, our website and e-newsletters provide many channels through which you can communicate with us. Please do get in touch, it’s very important for us that we hear as many insights and experiences that are relevant to each inquiry so that our recommendations that ultimately go to Government can be as informed as possible and never overlook the key role that Indigenous concerns should play in all of our work. We look forward very much to continuing the conversation with you and I appreciate your listening to this, our first podcast of feedback specifically on the Indigenous perspectives and participation in our Family Violence inquiry.

Audio

Download audio

Transcript

Welcome to the Australian Law Reform Commission’s podcast. ALRC President Professor Rosalind Croucher (RC) and journalist Michael Pelly (MP) are discussing the Final Report for the Family Violence Inquiry.

MP: Ros, one issue concerns the visible and invisible patterns of family violence. What is meant by that?

RC: Michael, the problem is that so much of family violence is operating in an area where it never reaches the law. So for instance, one commentator said that it’s only the tip of the iceberg, what reaches the legal system, so there’s a whole undercurrent of alcoholism, drug dependence, mental illness which fits outside the area of law.

MP: So what are the key recommendation?

RC: In this inquiry we had to grapple with a vast area of law, lots and lots of different legal systems, over 26 in fact that we had to consider, and we were trying to find in that interactive space, particularly between state and federal law, what we could do to improve the safety of women and children, which was our brief. So some of the things we came up with, getting everybody to work from the same page, as it were:  a common interpretive framework, core definitional ideas, so that at least the understanding of family violence could permeate through the various legal systems involved – that was one of our main ones. There were a number of other ones as well, based on corresponding jurisdictions, improving practice, educating all of the participants to a much higher standard, generating common understandings through a national benchbook, a whole range of recommendations concerned with better understanding and better implementation in practice.

MP: The report speaks about the fragmentation of family law. Can you give us an example of that?

RC:  Oh, yes. That’s a classic. Because we’ve got a federal/state divide under our Constitution, the federal arena, principally the Family Courts, operate a limited jurisdiction and the state courts operate another jurisdiction. So, for example, let’s take the situation of somebody who may be suffering from family violence and seeks the protection of a state court. They go to a state court and seek a violence protection order, which has various names in the different jurisdictions, and there are 13 being a protective individual. But then if they go to the Family Court, later in the piece usually, to resolve parenting issues, one of the key issues in the Family Court at the moment is that the parents need to show that they’re being ‘friendly’, as it’s described colloquially, and you get a clash of ideas between the two jurisdictions. So you’ve got different laws and what has been described as ‘different planets’ of thinking in the different jurisdictions.

MP: Is that the phrase ‘the law operating in silos’, as I read in the Report?

RC: Ah, well ‘silos’ is another way of describing it. I think the metaphors or similes are very good ones. So you’d have the family law system – the Family Court, the Magistrate’s Court, insofar as it deals with family law matters, family lawyers – all operating, and probably operating very well within that silo. And then you’ve got the Child Protection silo, where the focus of state and territory child protection authorities is a quite different focus from the Family Court and then again, the State and Territory Magistrates’ Courts and Children’s Courts looking at their particular areas. Each may operate very well, but they have a focus on law that doesn’t necessarily work well for the participants in the system.

MP: I noticed one of the recommendations was for a national register of family violence orders. Why is that necessary?

RC: Well, that’s been an initiative of the government to try and facilitate people being able to move across the state and territory borders without having once again to go to the court and register an order which they hope may still give them protection from the person who has committed violence against them.

MP: So is it the case that the victim has to go and register the order themselves?

RC: At the moment there is no easy way for courts in different jurisdictions to have the knowledge of the protection orders that might be in place in other jurisdictions. Hence the idea of ensuring access to relevant information by all courts and other people that are protecting through child protection agencies, victim support systems, so that that information is available readily to improve safety in a more effective way.

MP: You also point out there are different definitions of violence and even of consent across the different jurisdictions.

RC: Yes. The questions of trying to generate a common understanding do come up in the context of definitions. So, for example, in some jurisdictions you might have stalking identified as a relevant issue in the context of family violence, but not mentioned in others. So what we did was try and find the best elements, or the best-practice, most consistent elements, drawn from all over the country and recommend what the core element in those definitions should be. Backed up, I should add, by guiding principles to facilitate a better understanding through all of the courts that have to deal with these very difficult questions.

MP: I see you’ve come up with a definition of violence being anything that causes a family member to be fearful. That is quite wide.

RC: Well, that’s only one element, of course, of the definition. It involves a whole range of elements, including, for example, emotional or psychological abuse. What was interesting was that a range of people who made submissions to this inquiry said, look, it’s not just about physical abuse. That’s a very very narrow understanding, particularly in a family context, of how vicious and cruel emotional and psychological abuse can be.

MP: By both sexes?

RC: Both sexes indeed. Indeed some of our male submitters and stakeholders, or those representing male groups, said that for them one of the big issues is precisely that emotional and psychological abuse.

MP: Now, you also talk about the need to improve the experience for victims of assault. There are some defence lawyers who say perhaps that the pendulum has swung too far against an accused. What do we mean, firstly by the need to improve the experience, and then also, are we perhaps going too far in that direction?

RC: A very good question. And of course for a law reform body one of our principal charges is to ensure that we get the balance right in everything we do. And one of the principal mandates is to ensure that we honour the provisions in the International Covenant on Civil and Political Rights. One plank of which, of course, is the right to a fair trial. Now that was something we actively considered in the area of sexual assault which was the second of our terms of reference in a family violence context. And we had to consider making sure that any of our suggestions about improving the experience for victims also took into account and reflected appropriately, the right of the accused to a fair trial. But one of the common threads, Michael, was the … and this was not just in the criminal context, which of course is where sexual assault is considered, but in the broader civil context about how often victims of family violence were having to retell their experiences over and over again.

MP: In fact you talk about the need to only have, if you like, one telling of the story and let that apply to all proceedings which might be affected by the same incident.

RC: To the greatest extent that that is feasible within the system. Yes, we certainly tried to encourage that through – in the sexual assault context – the facility for pre-recording of evidence, the use of that evidence in the relevant proceedings, unless in the case of an adult victim that the adult victim wanted to provide that evidence first hand. Sometimes, the victim does want to appear before the person that they are accusing and see them face to face. But in other cases that is not the case. But the provision for pre-recording of evidence for those sexual assault trials does capture the information from the first hand, and also helps to facilitate the police and the prosecution’s job in relation to conveying the information where, for instance, the victim themselves is hesitant about proceeding with the matter.

MP: You talk about facilitating the police and the prosecution, what about the defence? Don’t they have a right to test every allegation that comes before them in any forum?

RC: Of course. Hence the need to ensure that the evidence can be appropriately tested by cross-examination. One thing that we wanted to preserve was the special protections for victims in relation to cross-examination and there have been some significant reforms in this area already. For instance, in the area of sexual assault trials, that the victim doesn’t have to face direct cross-examination from the accused.

MP: Also the point you make, is you talk about reducing the attrition or the drop-out rates. Can you speak more to that please.

RC: Certainly. That’s something that we discuss in the sexual assault context. And there’s been a quite a deal of literature on this issue of attrition right from the earliest points of engagement with the legal system, where a person has to give evidence they are forced to go through all of the rape kits and that sort of thing, in the case of penetrative sexual offences. It’s a very very difficult scenario. So, trying to improve the experience of the victim early on, improving the understanding of those who are obtaining evidence by virtue of the specialist training of police and ensuring that the evidence is captured well early on, that they are supported through appropriate victim support. That was a key element that actually came out, how important it was for victims to be supported throughout a sexual assault process through the legal system to provide the reassurance to then be understanding to them of what was going on.

MP: In fact this notion of specialisation seems to run through the Report, the notion of specialised practice in courts, if you like, specialised judges, specialised police.

RC: Yes, the idea being that through the improvement of understanding and the consolidation of expertise, that the result for everybody in the system is likely to be better. That doesn’t mean – and I suppose I could lead this into the idea of a standalone court – that was not something that we recommended. We certainly have advocated the consolidation of expertise in jurisdictions, building particularly on the established expertise in the state and territory Magistrates Courts which deal with family violence issues in all of its permutations and combinations on a daily basis. So the encouragement of specialist training, the acknowledgement of the role that specialist prosecutors, specialist police, specialist support systems, consolidating all of that as much as possible, both jurisdictionally and through dedicated lists or standalone divisions, just improving the whole way that the system responds to family violence.

MP: You’re talking about the whole system – there’s the need to, if you like, manage the relationship between family violence orders, child protection, criminal laws – this whole service delivery question. How does that better improve? Is that the whole integration issue we’re talking about?

RC: There were multiple threads in what you were saying. I mean, integration is about getting a number of services to work well together. There are excellent models – and I should actually say that, as a bouquet to many parts of the systems – and there are systems – dealing with family violence issues …

MP: We’re talking about collaboration generally across the system, is that right?

RC: Yes. And, particularly say for child sexual assault – there are some good models of integrated investigation and service responses. The difficulty I think is that while you have some excellent models, it’s trying to capture that as best practice and build recommendations that might be taken up nationally.

MP: Now I’ve noticed that governments have identified a clear goal of reducing violence in their communities, but to date there has been very little by way of a national approach.

RC: I think there are a number of examples here that are facilitating the national approach – one is the National Council’s work – the National Council to Reduce Violence Against Women and their Children – which was the trigger for the Inquiry that we’ve just concluded. So that was the beginning, I suppose, of national thinking in recent times, together with a variety of other work that’s been commissioned, particularly in the family law area, which has been a bit of a hot topic in recent years, particularly around the shared parenting reforms that were introduced in 2006. So there’s been a lot of national thinking and a number of national ideas, including the suggestion of a national register. And also the work that the Commissions have just done over this past year has been very much about what can we do in the legal space to improve the response at a federal level to family violence.

MP:  But isn’t there a limit to what the law alone can achieve?

RC: Oh, absolutely. I think one of the key themes throughout our writing was to identify the limits of law. And in a way this is a very difficult problem, Michael, for law reform commissions, because we spoke with stakeholders all around the country and particularly, given our commitment to engage with indigenous communities, we had an indigenous consultation strategy which took us to particularly to Western Australia and the Northern Territory to speak with legal services and other groups working with indigenous communities. And one of the things that we felt so constrained by was that we were hearing about all kinds of family violence nationally, but the difficulty was managing expectations in that context, because we are a law reform body and our brief was about law and legal frameworks. I guess that brings us back to the idea you raised at the beginning about the stuff that’ s visible and invisible and the law as to operate, in a way, in that visible space where … law can only begin to deal with situations. And if I can I’d like to pick up something that Richard Chisholm said in – Professor Richard Chisholm, former Family Court judge – who also did a bit of an Inquiry in this area …

MP: More into the shared parenting laws wasn’t it?

RC: Yes, it was. It was on the Family Law Act, but what he said, and it’s a useful mantra that feeds into this idea of the limits of law: where the law does work, family violence needs to be disclosed, understood and acted upon. And I kept that very much in my mind, and the Commissions did as well – that where the law is working, it has to work effectively and, I think, using Richard Chisholm’s words, family violence needs to be disclosed, it needs to be understood, and it needs to be acted upon.

MP: So Ros, the two Attorneys, Mr McLelland on the federal level and Mr Hatzistergos from New South Wales launched the Report together today, what’s the course now?

RC: Well, now that the Reports are tabled, which is the official ending, if you like, of the law reform commissions’ role, it now becomes a matter for government. And not only government, but all of the other people that we’ve identified as having a relevant role to play. I should flag too, that the ALRC has a follow-on inquiry in relation to Family Violence – one in fact we suggested, and the Attorney-General, Robert McClelland, picked up our initiative here and has given us another brief which is looking at family violence in the context of Commonwealth laws. We touched upon the Family Law Act, which is of course Commonwealth law, but largely our space in the first inquiry was on state and territory law and its interactions with the federal. So, in answer to your question, now it is over to our Attorneys and their governments to get behind the recommendations and see what they can do to meet the objectives that they have articulated to improve the safety of victims of family violence throughout our communities.

MP: Well you’ve given them 187 recommendations for reform, so there’s a lot to think about.

RC: Indeed. Indeed.

MP: Thanks Ros.

RC: My pleasure. Thank you very much Michael.

Speech by ALRC President, Professor Rosalind Croucher, at the launch of the Final Report for the Family Violence Inquiry

Introduction and welcome

• Attorney-General Robert McClelland
• Attorney-General John Hatzistergos
• Chairman, NSWLRC, the Hon James Wood
• NSWLRC Commissioner, Professor Emerita Hilary Astor
• Magistrate Anne Goldsbrough (ALRC part-time Commissioner, Family Violence inquiry),
• His Honour Judge Kevin O’Connor, (NSWLRC part-time Commissioner)
• The Hon Justice Arthur Emmett (newly appointed part-time Commissioner, for the Discovery
  Inquiry)
• Members of the ALRC Indigenous Advisory Committee, Neva Collings and Daryl French
• Dr Rae Kaspiew, Australian Institute of Family Studies
• ALRC and NSWLRC colleagues,
• friends.

Welcome to the Australian Law Reform Commission.

This is an extremely auspicious occasion—to have both the Commonwealth and NSW State Attorney-Generals here with us today. It is a recognition of commitment to a plan of action at the highest level to respond to violence in families.

In the presence of such eminent members of our legal community, the first law officers of this state and the Commonwealth, it is also incumbent on me to acknowledge the Gadigal people of the Eora nation, who are the originators of the customary laws and the traditional owners and custodians of the land on which we meet—and I pay my respects to their elders, both past and present, acknowledging the vital contribution that Indigenous people and cultures have made, and still make, to the nation that we share.  I would also like to acknowledge Indigneous guests attending today.

And now to the occasion of today–

The Family Violence inquiry occupied fully—and intensely—two institutional law reform bodies, for over a year.  And I must say that we were a good choice!

The establishment of the New South Wales Law Reform Commission in the 1960s, following the Law Commission of England and Wales, forms part of a proud history of law reform through established bodies that began in England in the 1830s, generated by the writings of Jeremy Bentham.

The New South Wales Law Reform Commission was the first of the Australian institutional law reform bodies. The Hon Justice Michael Kirby—the ALRC’s first Chairman—considered that ‘It would be impossible to overestimate the impact of the establishment of the law commissions upon the common law world’.[1] In 1975 the Commonwealth government followed suit in the establishment of the Australian Law Reform Commission.

To you, Attorneys-General, may I say that you are the inheritors of this tradition —and, with it, the responsibility for supporting the true value, and long-term contribution of institutional law reform bodies. You should also be proud of your contribution, through the projects initiated by you both, to the impact on the common law world imagined by the foundation Chairman of the ALRC.  

That you gave us this extraordinarily challenging brief at a time of such intense concern about the impact, both in the short and long term, of violence in families, is both a mark of your commitment, both personally and from the perspective of your governments, to providing a response; and a testimony to your appreciation of the impact of institutional law reform commissions to enduring law reform.

As the President of the ALRC may I congratulate you in both respects.

The expectations of all of us in this inquiry have been huge. The brief, as one to law reform bodies, necessarily reflects our functions, and, on our own, we cannot possibly meet the expectations of the all those in the Australian community who have been victims of family violence. Such expectations of each of you, Attorneys-General, and of us, is captured in this simple plea—one of many submissions received in the course of this inquiry:

Dear Government people,

We women, we mothers, we look at you for the solutions and answers…

On this note, may I invite Attorney-General McClelland, to lead the launch.

[Both Attorneys then spoke, after which the report was officially launched. Other speeches were made by the Hon James Wood, Chairman NSWLRC and Professor Hilary Astor, NSWLRC Commissioner.]

Thanks

In an inquiry such as this there are many people to thank.

First, I must single out wonderful work of the team:

• the legal officers of the ALRC and NSWLRC, led in teams by Senior Legal Officers Isabella Cosenza, Carolyn Adams and Bruce Alston—Isabella from the very start, Carolyn and Bruce coming on board later.
• the production team, under the leadership of ALRC Executive Director Sabina Wynn, with Tina O’Brien once again typesetting everything as well as providing key support as Project Assistant.
• NSWLRC Commissioner Hilary Astor (I have enjoyed our double act!)
• Part-time Commissioner Magistrate Anne Goldsbrough who threw herself into the demands of this inquiry around all of the other responsibilities in her life.

Secondly, a huge vote of thanks to all those with whom we consulted, all over the country; and to those who put in submissions. The depth of engagement reflected in this process of consultation is the hallmark of best practice law reform and it lends enormous integrity to the recommendations for reform and the ability of governments to implement them.

Everyone here today has played a part.

Thank you Attorneys-General

Thank you all.

November 2010   View original format

Final Report launched today!

I am thrilled to announce that our Final Report into family violence laws has been launched today by both the Federal Attorney-General Robert McClelland and the NSW Attorrney General John Hatzistergos, and it is now official! The Report, Family Violence—a National Legal Response, makes 187 recommendations for reform, and comes in two volumes—plus a Summary Report to provide an accessible overview of the policy framework and recommendations in the full report (very easy to put into a briefcase for reading on a flight between Canberra and any capital city throughout the country!)

I wanted to take this opportunity to thank all of you who have helped the ALRC and NSWLRC in developing our recommendations, whether through consulting with us, participating in one of our online forums, making a submission or merely by maintaining an interest in this Inquiry through your subscription to this newsletter. As our first Chair said once, ‘law reform is much too important to leave to the experts’ and we are extremely grateful for your engagement in our processes.

It’s worth mentioning that on the same day of the launch, the Commonwealth Attorney-General released a draft of a number of significant reforms to the Family Law Act, drawing upon the work of Professor Richard Chisholm and the Family Law Council, published at the end of January 2010, and also the work in the Consultation Paper in this Inquiry, anticipating the direction of some of the possible reforms.

You are now able to purchase a hard copy and CD-ROM of the Final Report and Report Summary from the ALRC’s website. Both documents are of course freely accessible to read or download at the ALRC’s website. You will also find a podcast interview with myself and journalist Michael Pelly, where we outline the key recommendations of the Report. Any feedback you have on the report and its recommendations is very welcome. Email: feedback@alrc.gov.au.

As the Family Violence Inquiry is now officially over, this is the last e-newsletter you will receive from us. There are links on the right-hand side to publications and media items around the launch, and over the next few days we will be adding more on the website, so please do check in. We also encourage you to subscribe to the e-newsletter for our new follow-on inquiry, Family Violence and Commonwealth laws (see below).

~ ALRC President, Professor Rosalind Croucher

New Inquiry: Family violence and Commonwealth laws

During the Family Violence Inquiry, issues arose that were beyond its scope relating to the impact of Commonwealth laws (other than the Family Law Act 1975) on those experiencing family violence. In July 2010, the ALRC was given new Terms of Reference. The ALRC has been asked to report on the treatment of family/domestic violence in Commonwealth laws, including child support and family assistance law, immigration law, employment law, social security law, superannuation law and privacy provisions in relation to those experiencing family/domestic violence.

Now that the work for the original Family Violence Inquiry is complete, work on this new Family Violence inquiry (FV2) has commenced. The reporting date is November 2011.

If you would like to be kept up to date about this inquiry, please SUBSCRIBE to the new FV2 e-newsletter.