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

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


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

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

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

The Family Violence work of the ALRC

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

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

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

Dear Government people,

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

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

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

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

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

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

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

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

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

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

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

The power of integrated responses

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

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

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

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

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

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

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

Summary of key recommendations

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

The improvement of legal frameworks will be achieved through:

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

The improvement of practice will be achieved through:

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

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

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

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

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

Dear Government people,

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

**             President, Australian Law Reform Commission; Professor of Law, Macquarie University (on leave for the duration of the appointment at the ALRC).

[1]             Justice for Children, Submission No 177 to the Australian Law Reform Commission, Family Violence Inquiry, 25 June 2010.

[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]              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.

[4]              Australian Institute of Family Studies, Evaluation of the 2006 Family Law Reforms (2009), [4], 21. This separation of practice or silos was reflected, eg, in one submission in this Inquiry, where different committees of the one Law Society came to strongly divergent conclusions with respect to a number of matters raised in the Consultation Paper: Law Society of New South Wales, Submission FV 205, 30 June 2010.

[5]             Alison Hay, ‘Child Protection and the Family Court of Western Australia: The Experiences of Children and Protective Parents’ (Paper presented at Child Sexual Abuse: Justice Response or Alternative Resolution Conference, Adelaide, 1–2 May 2003), 11.

[6]             Confidential, Submission No 49 to the Australian Law Reform Commission, Family Violence Inquiry, 5 May 2010.

[7]              Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth)