Published on 15 August 2010.

Professor Rosalind Croucher, President, Australian Law Reform Commission, Stamford Plaza Brisbane

 6–8 August 2010

Opening remarks

Chief Justice Diana Bryant, Madame President (Olivia Perkiss), your Honours, fellow conference delgates. It is a great pleasure to be here today. The first time I had the opportunity to speak about the ALRC’s Family Violence inquiry it was at the AIJA conference last year.  Now, as then, I am move by how beautiful Brisbane is – as we look out across the river. I learned at that conference how important it was, in acknowledging the traditional custodians of this land, to pay my respects to the elders, past and present, of both the Turrbal and Yuggara peoples, on both sides of this beautiful river.

In reflecting upon elders I notice the banner of the Australian Women Lawyers, with the predominantly purple colouring, and also the hints of white and green. Many of you in the room would appreciate the significance of these colours. But for those of you who do not, it is worthwhile reminding you, as it is a very important inheritance. Think of the colours as violet -- a particular shade of purple – green and white: ‘V, ‘G’, ‘W’, or rather, ‘G’, ‘V’ and ‘W’. It is a mnemonic. Think back to the 1890s.  Women did not have the vote – but they wanted it. The suffrage campaign had begun in earnest.  It was also just at the time when the aniline dye had been invented – a gorgeous purple. The women loved it. It was the perfect centrepiece for their floral rosettes: ‘Give Votes to Women’ – G, V, W. Green, Violet and White. The mnemonic and its symbolism have blurred into purple as the ubiquitous feminist colour.  But it is worth remembering its history. The attaining of the suffrage was the beginning of the introduction of many law reforms for and by women. That we are here today is due to their work. We don’t so much stand on the shoulders of giants, to coin an old metaphor, but rather very elegant shoulder-pads!

The Chief Justice and I were both on the program for the AIJA conference last year, and it is timely that we are both here together again as the Family Violence inquiry nears its completion. Chief Justice Bryant is notable not only in her leadership of the Family Court but also in her contribution to this inquiry, by personally making a submission, together with Chief Federal Magistrate Pascoe. This is a singular contribution, a mark of her own commitment to responding to family violence, and I wish to acknowledge it publicly in this forum.

In my contribution to this session I have taken up the first four dotpoints in the program list: responding to the terms of reference; reaching stakeholders; the law reform challenges; and other concerns being expressed in other reviews, such as the one conducted by Professor Richard Chisholm—the Family Court Violence Inquiry.

Background

By way of background, what prompted the Australian Law Reform Commission (ALRC) 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).[1] Time for Action focused on ‘strategies and actions for prevention, early intervention, improved service delivery, and justice’[2] and identified twenty-five outcomes with 117 strategies to achieve them. What was particularly alarming was the 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’.[3] It is the staggering size of this which quite clearly demonstrates that family violence is a public concern—and a national responsibility—notwithstanding the historical treatment of family issues and disputes as a largely ‘private’ matters in law. Compounding factors for women and children include being Indigenous, being of a culturally and linguistically diverse background, and suffering an intellectual disability. Compounding factors in the violence—just to mention a few—include alcohol, drugs and poverty.

Time for Action included recommendations that the ALRC be given references on two specific tasks, which are reflected in the Terms of Reference.[4]

A lot of concern = a lot of activity

The ALRC and NSWLRC are not alone in looking at the problem of family violence and seeking appropriate policy responses. First, the Attorney-General commissioned a review by Professor Richard Chisholm, former Justice of the Family Court of Australia, of the practices, procedures and laws that apply in the federal family law courts in the context of family violence (the Family Court Violence Review).[5] The review was completed at the end of November 2009, and released on 28 January 2010.[6] Secondly, the Family Law Council provided an advice to the Attorney-General on the impact of family violence on children and on parenting, which was also released at the same time as the Chisholm Review.[7] Thirdly, at about the same time, the Australian Institute of Family Studies (AIFS) released its Evaluation of the 2006 Family Law Reforms,[8] which provided empirical data about the impact of the 2006 changes to the Family Law Act 1975 (Cth). The ALRC/NSWLRC inquiry therefore takes place in the context of very active contemporary scrutiny of the legal system and its engagement with families and family violence. Even at the time of 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] The Family Court Violence Review is a simple illustration of current parallel thinking.

Family Court Violence Review

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]

In order to ensure disclosure of family violence, Chisholm targeted the document that is used to alert the court of allegations of violence or abuse (‘Form 4’), and concluded that ‘this system is not working’.[11] He suggested, instead, moving to a system of risk identification and assessment that applies to all parenting cases.[12]

Key recommendations also focused on 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.[13] As noted by Chisholm, this is ‘a large and controversial topic’.[14] 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.[15]

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’.[16] There is a clear tension between them, Chisholm preferred instead guidelines that did not include ‘the artificial distinction ... between “primary” and “additional” considerations’.[17]

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.[18] 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’,[19] 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.[20]

Chisholm preferred instead a presumption simply of each parent having ‘parental responsibility’.[21]

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 has been a clear area of concern, echoed throughout the ALRC inquiry.

Terms of Reference

In July 2009 both Commissions were given terms of reference in parallel terms, to consider the issues of:

  1. the interaction in practice of State and Territory family/domestic violence and child protection laws with the Family Law Act 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, we were asked to consider ‘what, if any, improvements could be made to relevant legal frameworks to protect the safety of women and their children’. A group such as is assembled today would appreciate how much we are constrained by the Terms of Reference to legal frameworks, and how much the problems—and perhaps expectations of solutions—go beyond this brief. The inquiry concerns 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.[22]

The terms of reference are clearly gendered—in their focus on women and children. This has been a source of concern for—and complaint from—some stakeholders. However, in defending a focus on women, the National Council acknowledged that while women as well as men can commit—as well as be victims of—family violence or sexual assault, the research shows that ‘the overwhelming majority of violence and abuse is perpetrated by men against women’.[23] Put very simply, ‘[t]he biggest risk factor for becoming a victim of sexual assault and/or domestic and family violence is being a woman’.[24] For the future, Time for Action identified as perhaps one of the most important things needed to address family violence in the long term was not to deal with the end product of family violence but to tackle relationships themselves, highlighting the need to build respectful relationships as a foundation for the future.[25]

The terms of reference also refer to specific laws; and they have a particular lens—family violence. In particular, the inquiry is not one ‘at large’. In any law reform project that is based on terms of reference, mapping out what is required by the terms is an essential preliminary. It can also be a challenge, particularly in an inquiry like this one, where community expectations are high, and political motivation strong, to ensure that we communicate clearly the limit on our brief.

The first term of reference: interaction in practice

The first term of reference requires us to consider ‘interactions in practice’ of specific laws—

  • state and territory family violence laws with the Family Law Act;
  • state and territory child protection laws with the Family Law Act;
  • state and territory family violence laws with relevant Commonwealth, state and territory criminal laws;
  • state and territory child protection laws with relevant Commonwealth, state and territory criminal laws; and
  • state and territory family violence laws with child protection laws.

This amounts to—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.

There are other laws that intersect with family violence, many of which are federal, such as those regulating workplace relations, immigration, social security and child support. We have not been asked to look at these, but they would be a good project for a follow-up reference after the current inquiry is completed, once all relevant ministerial support is secured. Just before the election was called we were given the terms of reference we suggested, with a report due in November 2011.

The second term of reference: impact of inconsistent interpretation

The lens of family violence requires particular analysis in understanding the second term of reference. First, that we are not required to undertake social science research—‘impact analysis’—but rather to consider the interpretation/application issues in terms of potential impact. Secondly, we are required to focus on two key facets of sexual assault legal responses: (1) inconsistency in the interpretation or application of laws; and (2) a specific focus on sexual assaults perpetrated by a person in a family violence context.

The focus on sexual assault in a family violence context provides an important opportunity to focus on the category of sexual assault that comprises the majority of sexual assaults experienced by women and children—and yet which may be the most underreported, and even when it is reported, it is more likely to fall out of the legal system and less likely to result in conviction.

The law reform challenge

The concurrent inquiries were focused on the Family Law Act. It 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 must be in this inquiry—the challenges for law reform bodies are increased exponentially. For the purposes of this morning’s talk I have singled out what I see are five key law reform challenges:

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

The first three dotpoints are ones of general relevance to law reform work; the last is specific to this inquiry.

Reaching stakeholders

Commitment to widespread consultation is a hallmark of best practice law reform.[26] 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, including many groups representing Indigenous clients. 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 also used internet communication tools both to provide information and obtain comment—an e-newsletter and an online forum. Each e-newsletter highlighted an ‘issue in focus’ and sought views, experience or recommendations in relation to the particular topic. Links were provided to give immediate feedback on the issue in focus through the online comment form, as well as to information about how to make formal submissions. In addition, there were links to the other inquiries of immediate relevance to this Inquiry, namely the Family Court Violence Review and the AIFS evaluation. The comments received in response to the issues in focus provided an important additional means of input and eight e-newsletters were published throughout the Inquiry. By the end of the Inquiry there were 965 subscribers.

Another of the internet communication tools was the Family Violence Online Forum conducted from November 2009 to January 2010 amongst women’s legal services, assisted by a grant from the Government 2.0 Taskforce. The Forum was conducted amongst a closed group from the women’s legal services community across Australia to facilitate frank and open discussion in a secure online environment about issues relevant to the concerns and experiences of that stakeholder group.

We also conducted a blog to enable public discussion and debate around questions and proposals contained in the Consultation Document. The invitation to join this discussion was open to all and all comments made on this site were public. One hundred and sixty-five blog posts were made during the Inquiry.

And then there was the Consultation Paper, released late April. It was big. But the problems are big—and the research task in itself was enormous—running to 1,018 pages. To facilitate stakeholder contributions in the restricted time frame for this Inquiry, the Commissions released simultaneously a Consultation Paper Summary of 243 pages.

The production of both documents acknowledges the different audiences to which law reform projects speak. The immediate audience is that of stakeholders and, ultimately, government, into whose hands the Commissions place the recommendations contained in this Report. The other audience is that of the future—the enduring nature of law reform projects is such that the research and evidence base upon which proposals and recommendations sit must be fully explored and reported.

Once we have completed our work on any inquiry, a report is presented to the Attorney-General, who must then table it in each House of Parliament ‘within 15 sitting days’ of that House after having received it.[27] Once tabled in Parliament, the report becomes a public document.[28] The report will not be self-executing—rather, each inquiry provides recommendations about the best way to proceed, but implementation is a matter for others.[29] But we DO keep watch. Each Annual Report now provides a table of ‘Implementation Status’ of all ALRC Reports.[30]

On the one hand, ALRC reports and consultation documents give leverage at a high public level for achieving reform, providing a voice, through the consultative processes and their embodiment in the public documents (consultation papers and Report), in a coherent public way for key stakeholders on the issue the subject of each inquiry.

But law reform reports have a much bigger role than this—and one of which I, as a legal historian, am acutely aware. What I love about law reform work by institutional law reform bodies (like the ALRC and NSWLRC) is that law reform publications—especially the final reports—provide an enormous contribution to legal history, through the mapping of law as at a particular moment in history. This is what I describe as the enduring nature of law reform work. Each law reform commission report not only reviews the past, it also maps the present. In reviewing the submissions and consultations, the reports also provide a snapshot of opinion on the issues being considered—again providing a fabulous contribution to legal history, and increasingly locating them within their particular social context at a given time.

But law reform work also contributes to the future in a very real way. This year, 2010, for example, the Australian Government has introduced a raft of reforms recommended by the ALRC in 1995. Such is the enduring nature of law reform.

The federal system

Australia has 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.[31] The Australian Constitution gives the Commonwealth government the power to make laws with respect to: (1) ‘marriage’;[32] and (2) ‘divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants’.[33] 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’.[34] 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.[35]

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.[36] 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 is 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.[37] 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’.[38] 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.[39] The states did not, however, refer to the Commonwealth their power to legislate with respect to child protection and adoption.[40] In 1996, the Family Law Act was amended to include a ‘welfare power’ in relation to children.[41] 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.[42] 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 [parental responsibility and the care arrangements for children] family law matters.[43]

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—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.[44] 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. As noted by the Family Law Council in its recent 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.[45]

The boundaries between the various parts of the system are not always clear and jurisdictional intersections and overlaps are ‘an inevitable, but unintended, consequence’.[46] 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.[47]

Further, while state and territory child welfare laws take precedence over Family Court orders,[48] 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.[49] 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.[50]

The result is a fragmented system with respect to children.[51] 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,[52] described by Darryl Higgins and Rae Kaspiew of AIFS in an article using the analogy of the London Underground warnings of ‘mind the gap’.[53] 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’.[54]

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);[55] the Convention on the Rights of the Child (CROC).[56] 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.[57] 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’;[58] 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.[59]

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.[60]

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’.[61] 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)’.[62]

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.[63]

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.[64]

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.[65]

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.[66]

CROC also includes articles concerning protection from sexual exploitation and sexual abuse;[67] and promoting physical and psychological recovery from, amongst other things, any form of neglect, exploitation or abuse.[68]

The 1980 Hague Convention on Civil Aspects of International Child Abduction (the Abduction Convention), to which Australia became a signatory on 1 January 1988,[69] 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.[70]

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.[71]

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:

  1. the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention;
  2. 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.

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

While these provide 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.[72]

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’?[73]

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, is at the heart of this 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

We have 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.[74]

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.

Such dynamics, moreover, are compounded by other factors, for example for Indigenous and migrant women:

For many Aboriginal people the intervention of child protection services is a common experience that often goes back several generations. Recently it was reported that child protection workers in Australia have begun removing the fifth generation of Aboriginal children from their parents, meaning that some Aboriginal families have an eighty year history of child protection intervention. ... Many scholars have observed that as a result of the intersecting factors of poverty, race and gender, Aboriginal women, and women who are recent immigrants, are particularly disadvantaged and discriminated against in their engagements with institutional processes.[75]

Some proposals

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’.[76] 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’.

In the Consultation Paper we made a number of proposals that reflect these ideas. The idea of ‘disclosure’ was captured, for example, through proposals to facilitate family courts being informed better about any history or risk of family violence. The Consultation Paper also made a number of proposals promoting a common interpretative framework for what constitutes ‘family violence’ across different legislative schemes—this reflects the idea of ‘understanding’. In relation to the third idea—acted upon—the Commissions focused upon a range of measures, from education and training through to specific obligations on various players in the system, together with a focus on systems working togethers.

Conclusion

The family violence inquiry is one of the biggest challenges for the ALRC to date—given its incredibly complex nature. There are many involved in trying to find the way out of this particular maze.  When speaking in Brisbane in October last year at the AIJA 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.  In a conversation at the end of the day where I shared this observation with Professor Hilary Astor, now the NSWLRC Commissioner, she expressed the aspiration that we should end up as Olympic-level synchronised swimmers. It is a nice image with which to end this presentation.

Professor Rosalind Croucher



[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]           Ibid, 10.

[3]           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 (2009).

[4]           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), 119: Strategies for Action 4.2.1 and 4.1.2 are the background for the first limb and second limbs of the Terms of Reference, respectively.

[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 , last accessed 14th July 2010.

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

[11]         Ibid, 6. The document is the ‘Form 4’: Family Law Rules 2004 (Cth) r 2.04, sch 2.

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

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

[14]         Ibid, 120.

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

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

[17]         Ibid, 8; Rec 3.4.

[18]         Ibid, 121–124.

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

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

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

[22]         As commented by the Family Law Council in its December 2009 advice: 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.

[23]         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), 25.

[24]         Ibid, 26.

[25]         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), Outcome 2.

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

[27]         Australian Law Reform Commission Act 1996 (Cth) s 25.

[28]         Ibid, s 23.

[29]         However, the ALRC has a strong record of having its advice followed. About 59% of the Commission’s previous reports have been fully or substantially implemented, about 29% of reports have been partially implemented, 4% of reports are under consideration and 8% have had no implementation to date: Australian Law Reform Commission, Annual Report 2005–06, 38.

[30]         See the tables in the Annual Reports available on the ALRC website: www.alrc.gov.au.

[31]         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.

[32]         Australian Constitution s 51(xxi).

[33]         Ibid s 51(xxii).

[34]         Ibid s 51(xxxix).

[35]         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.

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

[37]         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.

[38]         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.

[39]         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).

[40]         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).

[41]         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.

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

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

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

[45]         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.

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

[47]         Ibid, [2.4].

[48]         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].

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

[50]         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].

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

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

[53]         D Higgins and R Kaspiew, ‘“Mind the Gap…”: Protecting Children in Family Law Cases’ (2008) 22 Australian Journal of Family Law 235.

[54]         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].

[55]         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).

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

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

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

[59]         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.

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

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

[62]         Ibid, [7.5].

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

[64]         Ibid, art 9(1).

[65]         Ibid, art 9(3).

[66]         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).

[67]         Ibid, art 34.

[68]         Ibid, art 39.

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

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

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

[72]         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.

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

[74]         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).

[75]         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. See also the comment in the online forum quoted at the beginning of this Chapter.

[76]         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].