Published on 28 November 2010.


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

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

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

MP: So what are the key recommendation?

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

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

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

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

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

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

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

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

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

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

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

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

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

MP: By both sexes?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

RC: Indeed. Indeed.

MP: Thanks Ros.

RC: My pleasure. Thank you very much Michael.