Published on 3 August 2012.

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 12th 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 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.

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.


* President, Australian Law Reform Commission and Professor of Law, Macquarie University (from which position I am on leave for the duration of my appointment at the ALRC). This presentation draws upon the work of the ALRC in its two Family Violence Inquiries.

[1]National Council to Reduce Violence against Women and their Children, Time for Action: The National Council’s Plan for Australia to Reduce Violence against Women and their Children, 2009–2021 (2009).

[2]The National Council to Reduce Violence against Women and their Children, Background Paper to Time for Action: The National Council’s Plan to Reduce Violence against Women and their Children, 2009–2021 (2009), 43; KPMG, The Cost of Violence against Women and their Children Department of Families, Housing, Community Services and Indigenous Affairs on behalf of the National Council to Reduce Violence Against Women and their Children (2009).

[3] The 2010 report was launched by the Hon Robert McClelland MP (Commonwealth Attorney-General) and the Hon John Hatzistergos (NSW Attorney General). The 2011 report was launched by the Hon Nicola Roxon MP (Commonwealth Attorney-General).

[4]Family Law Council, Improving Responses to Family Violence in the Family Law System: An Advice on the Intersection of Family Violence and Family Law Issues (2009), 7.

[5]Australian Government Attorney-General’s Department, Family Courts Violence Review (2009) <http://www.ag.gov.au/www/agd/agd.nsf/Page/Families_FamilyCourtsViolenceReview> at 28 January 2010.

[6]Ibid.

[7]Family Law Council, Improving Responses to Family Violence in the Family Law System: An Advice on the Intersection of Family Violence and Family Law Issues (2009).

[8]Australian Institute of Family Studies, Evaluation of the 2006 Family Law Reforms (2009); Australian Institute of Family Studies, Evaluation of the 2006 Family Law Reforms: Summary Report (2009); R McClelland (Attorney-General), ‘Release of Family Law Reviews’ (Press Release, 28 January 2010); Rae Kaspiew et al ‘The Australian Institute of Family Studies’ Evaluation of the 2006 Family Law Reforms: Key Findings’ (2010) 24 Australian Journal of Family Law 5.

[9] D Bagshaw, T Brown et. al. Family Violence and Family Law in Australia: The Experiences and Views of Children and Adults From Families Who Separated Post-1995 and Post-2006, April 2010, (released July 2010): <http://www.ag.gov.au/www/agd/agd.nsf/Page/Families_FamilyRelationshipServicesOverviewofPrograms_ResearchProjectsonSharedCareParentingandFamilyViolence> at 14th July 2010.

[10]R Chisholm, Family Courts Violence Review (2009), 5.

[11]R Chisholm, Family Courts Violence Review (2009), 70–80.

[12]Ibid, pt 3.5. Section 60CC sets out the matters that must be considered in determining what is in a child’s best interests.

[13]Ibid, 120.

[14]Family Law Act 1975 (Cth) s 60CC(2).

[15]R Chisholm, Family Courts Violence Review (2009), 127.

[16]Ibid, 8; Rec 3.4.

[17]Ibid, 121–124.

[18]Family Law Act 1975 (Cth) s 61DA(1).

[19]Australian Institute of Family Studies, Evaluation of the 2006 Family Law Reforms: Summary Report (2009), 24.

[20]R Chisholm, Family Courts Violence Review (2009), Rec 3.3.

[21] B Opeskin, ‘Measuring Success’ in B Opeskin and D Weisbrot (eds), The Promise of Law Reform (2005), 202.

[22]Family Law Council, The Best Interests of the Child? The Interaction of Public and Private Law in Australia—Discussion Paper (2000) provides a useful discussion of the constitutional context of family law in Australia: ch 2.

[23]Australian Constitution s 51(xxi).

[24]Ibid s 51(xxii).

[25]Ibid s 51(xxxix).

[26] Section 109 of the Australian Constitution provides that: ‘when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid’. This provision may operate in two ways: it may directly invalidate state law where it is impossible to obey both the state law and the federal law; or it may indirectly invalidate state law where the Australian Parliament’s legislative intent is to ‘cover the field’ in relation to a particular matter.

[27]L Young and G Monahan, Family Law in Australia (7th ed, 2009), [3.6].

[28] A reference to the Commonwealth is not required from the ACT, the Northern Territory and Norfolk Island because s 122 of the Australian Constitution assigns to the Commonwealth plenary power to ‘make laws for the government’ of the territories.

[29] There was an attempt in 1983 to extend the categories of children covered by the Family Law Act but this was held to be constitutionally invalid, necessitating the referral of power: A Dickey, Family Law (5th ed, 2007), 32. In Re Cormick (1984) 156 CLR 170 it was held that the marriage power could not extend to a child who is neither a natural child of both the husband and wife, nor a child adopted by them.

[30] See Commonwealth Powers (Family Law—Children) Act 1986 (NSW); Commonwealth Powers (Family Law—Children) Act 1986 (Vic); Commonwealth Powers (Family Law—Children) Act 1990 (Qld); Commonwealth Powers (Family Law) Act 1986 (SA); Commonwealth Powers (Family Law) Act 1987 (Tas).

[31] Commonwealth Powers (Family Law—Children) Act 1986 (NSW) s 3(2); Commonwealth Powers (Family Law—Children) Act 1986 (Vic) s 3(2); Commonwealth Powers (Family Law—Children) Act 1990 (Qld) s (3)(2); Commonwealth Powers (Family Law) Act 1986 (SA) s 3(2); Commonwealth Powers (Family Law) Act 1987 (Tas) s 3(2).

[32]Family Law Reform Act 1995 (Cth), introducing a new pt VII. The relationship between the Family Law Act and the child welfare legislation of the states and territories is considered in Ch 14 of the Report.

[33] Family Court Act 1975 (WA), replaced by Family Court Act 1997 (WA): see ss 35–36.

[34]Family Law Council, The Best Interests of the Child? The Interaction of Public and Private Law in Australia—Discussion Paper (2000), 1.

[35]B Fehlberg and J Behrens, Australian Family Law: The Contemporary Context (2008), 198 (citations omitted).

[36]Family Law Council, Improving Responses to Family Violence in the Family Law System: An Advice on the Intersection of Family Violence and Family Law Issues (2009), 54.

[37]Family Law Council, The Best Interests of the Child? The Interaction of Public and Private Law in Australia—Discussion Paper (2000), [2.3].

[38]Ibid, [2.4]. See the discussion of this in the article I wrote with Sara Peel, ‘Mind(ing) the gap—law reform recommendations responding to child protection in a federal system’ (2011) 89 Family Matters 21–30. Sara has a poster in the program for this conference that continues this work.

[39]Family Law Act 1975 (Cth) s 69ZK. See the discussion of s 69K in Family Law Council, The Best Interests of the Child? The Interaction of Public and Private Law in Australia—Discussion Paper (2000), [2.21]–[2.22].

[40]Family Law Council, The Best Interests of the Child? The Interaction of Public and Private Law in Australia—Discussion Paper (2000), [3.9].

[41]Family Law Council, Improving Responses to Family Violence in the Family Law System: An Advice on the Intersection of Family Violence and Family Law Issues (2009), [7.2].

[42]T Altobelli, Family Law in Australia: Principles and Practice (2003), 55.

[43]Family Law Council, Family Law and Child Protection: Final Report (2002), [3.18].

[44]D Higgins and R Kaspiew, ‘“Mind the Gap…”: Protecting Children in Family Law Cases’ (2008) 22 Australian Journal of Family Law 235. In writing about some of the recommendations in our family violence inquiries, ALRC Senior Legal Officer Sara Peel and myself echoed this title in the article ‘Mind(ing) the gap—law reform recommendations responding to child protection in a federal system’ (2011) 89 Family Matters 21–30.

[45]L Moloney and others, Allegations of Family Violence and Child Abuse in Family Law Children’s Proceedings: A Pre-reform Exploratory Study (2007), [7.3.2].

[46]Convention on the Elimination of All Forms of Discrimination against Women, 18 December 1979, [1983] ATS 9, (entered into force generally on 3 September 1981).

[47]Convention on the Rights of the Child, 20 November 1989, [1991] ATS 4, (entered into force generally on 2 September 1990).

[48]Convention on the Civil Aspects of International Child Abduction, [1987] ATS 2, (entered into force generally on 1 December 1983).

[49] Reflecting art 16 of the Universal Declaration of Human Rights, 10 December 1948, (entered into force generally on 10 December 1948).

[50]International Covenant on Civil and Political Rights, 16 December 1966, [1980] ATS 23, (entered into force generally on 23 March 1976), art 17(1). This article reflects art 12 of the UDHR.

[51]Ibid, art 14. This article reflects art 10 of the UDHR.

[52]L Young and G Monahan, Family Law in Australia (7th ed, 2009), [7.3].

[53]Ibid, [7.5].

[54]Convention on the Rights of the Child, 20 November 1989, [1991] ATS 4, (entered into force generally on 2 September 1990), art 3(1).

[55]Ibid, art 9(1).

[56]Ibid, art 9(3).

[57]Ibid, art 19(1). ‘Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement’: art 19(2).

[58]Ibid, art 34.

[59]Ibid, art 39.

[60] See s 60B(4), which states that: ‘An additional object of this Part is to give effect to the Convention on the Rights of the Child ...’. Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth).

[61]Convention on the Civil Aspects of International Child Abduction, [1987] ATS 2, (entered into force generally on 1 December 1983).

[62]UNICEF, Convention on the Rights of the Child: Introduction <www.unicef.org/crc/index_30160.html> at 18 January 2010, arts 3, 4.

[63] See, eg, the article by D Bathersby, ‘Girls facing deportation vanish’, Sunshine Coast Daily, 14 May 2012.

[64]Attorney-General's Department, International Child Abduction
<http://www.ag.gov.au/www/agd/agd.nsf/Page/Families_Children_Internationalchildabduction> at 16 March 2010

.

[65]D Fry, ‘Children’s Voices in International Hague Convention Child Abduction Cases: An Australian Experience’ (Paper presented at 5th World Congress on Family Law and Human Rights, Halifax, Canada, August 2009), 8.

[66]Convention on the Civil Aspects of International Child Abduction, [1987] ATS 2, (entered into force generally on 1 December 1983), art 13(b).

[67]M Hester, ‘Comment on H Douglas and T Walsh, “Mothers, Domestic Violence and Child Protection”’ (Paper presented at Key Centre for Ethics, Law, Justice and Governance Seminar, Griffith University, 22 April 2009), 50–51. See also H Douglas and T Walsh, ‘Mothers, Domestic Violence and Child Protection’ (Paper presented at Key Centre for Ethics, Law, Justice and Governance Seminar, Griffith University, 22 April 2009).

[68]H Douglas and T Walsh, ‘Mothers, Domestic Violence and Child Protection’ (Paper presented at Key Centre for Ethics, Law, Justice and Governance Seminar, Griffith University, 22 April 2009), 20–21. Such dynamics, moreover, are compounded by other factors, for example for Indigenous and migrant women.

[69]Family Law Council, Improving Responses to Family Violence in the Family Law System: An Advice on the Intersection of Family Violence and Family Law Issues (2009), 61, [7.7].

[70] For a consideration of the differences see the ALRC submission to the Senate Standing Committee on Legal and Constitutional Affairs with respect to the inquiry into the Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011. The submission may be downloaded from the Parliament House website or at <http://www.alrc.gov.au/submission-senate-standing-committee-legal-and-constitutional-affairs%E2%80%94inquiry-family-la> at 25 July 2012.

[71] Other recommendations that are picked up in the Family Law Act amendments are noted at: <http://www.alrc.gov.au/inquiries/family-violence>.

[72] See Family Violence—A National Legal Response, ALRC Report 114 (2010), chapter 20. A note about the proposed amendments is included at: http://www.alrc.gov.au/inquiries/family-violence-and-commonwealth-laws.