Fractured families, fragmented responsibilities—responding to family violence in a federal system

Presentation by Professor Rosalind Croucher**, President, Australian Law Reform Commission, AIFS Seminar, 9 November 2010

Abstract: The problems of the division of responsibility between the Commonwealth and the states and territories are considerable—and the greatest impact is in relation to children. In 2002 the Family Law Council considered that ‘There is no greater problem in family law today than the problems of adequately addressing child protection concerns in proceedings under the Family Law’. In October 2010, the ALRC and NSWLRC concluded a joint inquiry into the interaction of laws responding to family violence across this federal-state divide. A recurring theme in the inquiry was that families may be involved in proceedings in more than one jurisdiction and often bounced between them—with the potential of falling into the gaps between the systems. This presentation explores the challenges for responding to family violence in a federal system within the constraints of a law reform body and as a joint project by two law reform commissions.

I. Introduction

It is a great pleasure to be invited to provide a presentation for the Australian Institute of Family Studies and to speak of the work of the Australian Law Reform Commission.  At the outset let me acknowledge the traditional custodians of the land, the Wurundjeri people of the Kulin nation, and pay my respect to their elders, past and present as well as acknowledging any Indigenous people in attendance today.

My task in this presentation is to provide a report on one part of a response to the problem presented by family violence in the Australian community. Responses can come from all kinds of places. The particular response I am speaking about is the one that resulted in the joint inquiry—just completed—by the Australian Law Reform Commission (ALRC) and the New South Wales Law Reform Commission (NSWLRC). The Report is to be released later this week by both Attorneys-General—a mark of the commitment of governments to responding to family violence.

What prompted the 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.

On 17 July 2009, the Attorney-General of Australia, the Hon Robert McClelland MP, asked the ALRC to conduct an inquiry together with the NSWLRC into particular questions that had arisen from Time for Action, focusing on interaction in practice of a range of laws in relation to family violence. On 14 July 2009, the NSWLRC received terms of reference in parallel terms from the New South Wales Attorney General, the Hon J Hatzistergos.[4] But we were only able to commence the project properly in January this year.

A joint project of this nature, involving a state law reform body in conjunction with the ALRC, is a practical way of tackling an inquiry in relation to matters many of which lie at the intersections—or indeed fall between—federal and state/territory laws. While the scope of the problem of family violence is extensive, the brief in this inquiry was necessarily constrained both by the Terms of Reference and by the role and function of a law reform commission. The ALRC—as a Commonwealth body—we are principally concerned with Commonwealth laws or matters of uniformity and complementarity of Commonwealth laws with state and territory laws; and the NSWLRC—as a state body—is principally concerned with NSW laws. In this Inquiry, however, both bodies, acting together, were asked to go further in their respective functions. So we were both pushing outside our functions, but with the imprimatur of the Standing Committee of Attorneys-General, we had the legitimacy of looking nationally and into all states and territories. Such support is essential to projects like this.

The Commissions recognised that the inquiry concerned only a particular 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. A comment made by the Family Law Council in its advice to the Commonwealth Attorney-General in January is 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.[5]

Under the Terms of Reference the Commissions 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, 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.

This presentation focuses on one of the critical issues underpinning the analysis of problems and the development of reform recommendations in relation to family violence within the terms of reference—namely the problems of the constitutional division of jurisdiction between the Commonwealth and the states and territories—and draws upon aspects of the discussion in the inquiry. I will also touch upon the challenges of joint law reform projects.

II      Fragmented responsibilities—the effect on families

The Family Law Council advised the Australian Government Attorney-General in December 2009 that:

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.^[6]

The Council was referring to the fact that those who are seeking legal protections and orders in relation to family violence may need to use magistrates courts—and in some cases criminal courts at higher levels; children’s courts; and family courts to deal with the violence.

The danger that families may fall into the cracks between the systems was also noted by the Family Law Council:

more than one court may be involved in a particular family breakdown. Disputes cannot be neatly divided into private and public areas of law and parties will often have to institute or be engaged in proceedings in various legal forums to have all of their issues determined. … The overlapping jurisdictions cause significant angst for the parties involved and considerable difficulties for the courts.^[7]

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.[8]

The sense of being tossed between systems was described by one contributor to this inquiry as feeling ‘like a ball on a pool table’.[9]

So, there is something systemic in the problems. But there is also a practice issue, in that 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.[10] One women’s legal centre attributed the dropping away of complaints of family violence to this problem:

The small numbers of women who do build the courage to report [family violence] then have to battle their way through the legal and court systems. In [our centre’s] experience, these systems have inherent gaps which ultimately fail to protect women. They fall through the cracks and are left feeling vulnerable and re-traumatised; the reason so many women give up.[11]

Clients with family violence problems may also experience the effects of differences in culture. Professor 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:

Domestic violence work in the UK (and many other countries) has been influenced by feminist understanding of domestic violence as gender based, and tends to see the problem as (mainly) male perpetrators impacting on (mainly) female victims or survivors. The work of child protection services in the UK has a very different history to that of domestic violence, with the family, and in particular ‘dysfunctional’ families, as central to the problem. Within this approach the focus is on the child and her or his main carer, usually the mother. These structural factors, with domestic violence and child protection work on different ‘planets’, have made it especially difficult to integrate practice, and have resulted in child protection work where there is a tendency to see mothers as failing to protect their children rather than as the victims of domestic violence, and where violent male perpetrators are often ignored. These difficulties are made even more complex where both child protection and arrangements for child visitation post separation of the parents intersect. 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.^[12]

An Australian study by Dr Heather Douglas and Dr Tamara Walsh of the University of Queensland found that similar perceptions and juxtaposed dynamics to those found by Hester were evident.^[13]

One of the tensions identified in the Australian family violence legal system is between the family law and child protection systems. There is a clear conflict in the practice and cultures—as identified above. There is also a fundamental systemic problem, where the Family Court has no ability to investigate allegations of child abuse and must refer them back to state and territory child protection systems—but there the perspective is different and the fact that there is a ‘protective parent’ evident may mean that nothing further is done.^[14]  The system, the practice and the culture are arguably at odds. As remarked by the Family Law Council in 2002:

There is no greater problem in family law today than the problems of adequately addressing child protection concerns in proceedings under the Family Law Act. Council’s research and consultations on this issue indicate that the problems in the present system are very serious indeed. Reform is urgently needed, and will require a commitment from governments both at State and Federal levels, to deal with the systemic problems which arise, in no small measure, from the allocation of responsibility between State and Territory authorities, and the federal government under the constitutional arrangements existing in Australia.[15]

From the perspective of the families, how would they be expected to understand why the child protection agency is, or is not, intervening and/or why the family courts do not have resources to investigate allegations of child abuse? This leads me to the main topic of this presentation—the great divide.

III    Constitutional law—the great divide

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 has exclusive legislative competence.^[16]

The Australian Constitution gives the Commonwealth government the power to make laws with respect to: (1) ‘marriage’;^[17] and (2) ‘divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants’.^[18]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’.^[19]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.^[20]

Federal Magistrate Geoff Monahan and Associate Professor Lisa Young comment, with respect to this division between the Commonwealth and the states, that ‘as a general principle, private rights were regarded as more appropriately a matter for the states than for the Commonwealth’. However, questions of status—marriage and divorce—needed uniformity across Australia and hence were more appropriate for allocation to federal power:^[21]

what was chiefly in the minds of the framers of the Constitution was the need to ensure the recognition of such a basic institution as marriage in the different parts of the new Commonwealth and beyond its borders, throughout what was then known as the British Empire. Legislation for marriage necessarily also implied legislation for its dissolution, since the recognition of a person’s status as a divorced person was a necessary precondition to the capacity to remarry.^[22]

While it had legislative competence to do so, the Commonwealth Parliament did not race into the field of family law. The first Commonwealth legislation was the Matrimonial Causes Act 1959 (Cth), followed two years later by the Marriage Act 1961 (Cth). These laws superseded the laws of the states and provided a uniform Commonwealth law on marriage and divorce. Then in the mid 1970s, the Family Law Act 1975 (Cth) and the establishment of the Family Court of Australia ushered in the current framework of federal family law.^[23]

While the Family Law Act enabled the Family Court to deal with parenting issues concerning children of marriages, there ensued a long series of cases that debated the limits of the category of children of a marriage.^{[24] Ex-nuptial children were not included in the jurisdiction of the court, and the difficulties this created for families who had to go to two different courts to acquire orders in relation to children belonging to the same family meant that a solution was needed.}

One of the most creative schemes for addressing some of the unsatisfactory issues arising out of the constitutional limitations of power between the Commonwealth and the states was the cross-vesting scheme.^[25]But it was fundamentally flawed.

Introduced in 1987 by uniform legislation enacted by the Commonwealth together with all the states and territories,^[26]its purpose—‘as ingenious as it was simple’^[27]—was evident in the preamble to the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth):

WHEREAS inconvenience and expense have occasionally been caused to litigants by jurisdictional limitations in federal, State and Territory courts, and whereas it is desirable—

1. to establish a system of cross-vesting of jurisdiction between those courts, without detracting from the existing jurisdiction of any court;
2. to structure the system in such a way as to ensure as far as practicable that proceedings concerning matters which, apart from this Act and any law of a State relating to cross-vesting of jurisdiction, would be entirely or substantially within the jurisdiction (other than any accrued jurisdiction) of the Federal Court or the Family Court or the jurisdiction of a Supreme Court of a State or Territory are instituted and determined in that court, whilst providing for the determination by one court of federal and State matters in appropriate cases; and
3. if a proceeding is instituted in a court that is not the appropriate court, to provide a system under which the proceeding will be transferred to the appropriate court.

The Explanatory Memorandum accompanying the federal Bill articulated the hope ‘that no action will fail in a court through lack of jurisdiction, and that as far as possible no court will have to determine the boundaries between federal, state and territory jurisdiction’.^[28] State and territory Supreme Courts were vested with federal jurisdiction; federal courts were vested with the full jurisdiction of state and territory Supreme Courts; and from 1988–1999, the scheme ‘overcame constitutional deadlocks that used to bedevil the Family Court’s jurisdiction’.^[29]

The scheme did not withstand constitutional challenge—at least in the direction of the attempt to vest state jurisdiction in federal courts. In the 1999 decision, Re Wakim; Ex parte McNally, the High Court held that Ch III of the Australian Constitution exhaustively defined the ‘matters’ that may be the subject of the judicial power of the Commonwealth—and this did not include exercising the jurisdiction of the states.^[30] That part of the scheme that enabled federal courts to hear state matters—such as the Family Court determining a claim under state based de facto relationships legislation or family provision legislation for example, was unconstitutional.

Re Wakim struck down the cross-vesting scheme in one direction, but not the other. While it held invalid the purported vesting in federal courts of state judicial power, cross-vesting remains valid from the Commonwealth to the states, pursuant to s 77(iii) of the Australian Constitution. In addition, a vesting of jurisdiction between the Commonwealth and the territories is still permissible.^[31] The referral of powers has been described as ‘the practical way in which problems resulting from the division of State and Commonwealth powers have most often been overcome’.^[32]

Section 51(xxxvii) of the Constitution gives the Commonwealth Parliament power to make laws with respect to:

matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law.

A major addition to federal power was therefore the referral to the Commonwealth of the power to make laws with respect to the children of unmarried parents. 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.^[33] The states did not, however, refer to the Commonwealth their power to legislate with respect to child protection and adoption.^[34] These remain the province of the states.

A further referral of power led to the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth). Prior to this legislation, unmarried couples had to seek the resolution of issues arising from the breakdown of their relationship in two different courts: the state system, for property and partner maintenance disputes; the federal system for parenting disputes and child support issues.^[35] For some time the legislation was held up by debate about whether gay and lesbian couples were included in the category of de facto relationships, but these relationships were ultimately included.

The effect of these referrals is that the federal parliament has jurisdiction over marriage, divorce, parenting and family property on separation. However, the states retain jurisdiction over adoption and child welfare. Of particular relevance in the context of family violence is that the states have power to legislate in relation to criminal law. Thus the divide between family law, criminal law, protective legislation and child protection still exists.

Western Australia took a different approach from the other states, however, by availing itself of the opportunity provided in the Family Law Act for the creation of a state family court exercising both federal and state jurisdiction.^[36]The reasons for doing so were explained in the Second Reading Speech to the Family Court Act 1975 (WA):

1. to provide a single court of unified jurisdiction, administering matters of family law, both federal and state;
2. to enable the state to continue to exercise jurisdiction in family law matters which would otherwise have been removed into the Family Court of Australia, with the opportunity of retaining complementary action with other responsibilities in the areas of welfare and counselling services;
3. in the public interest to keep the administration of justice as close as possible to the people it is designed to serve;
4. to obviate the creation of a further Commonwealth court in the state.^[37]

When the states referred power in relation to parenting disputes involving parents who are not married to each other, Western Australia enacted similar laws at a state level, in the Family Court Act 1997 (WA). That Act reaffirmed the separate state Family Court in Western Australia and its expanded jurisdiction on the basis that

the Western Australian Family Court allows us in Western Australia—the tyranny of distance is always a problem with legislation—to be responsive to local demands and needs for the benefit of people using the Family Court.^[38]

The court also has power to exercise jurisdiction under the Children and Community Services Act 2004 (WA) and so, unlike the federal family courts, it may issue care or protection orders in relation to children.

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.^[39]

In consequence, any expansion of Commonwealth power not already covered in the heads of power in the Constitution has to be achieved through the mechanism of referral of power pursuant to s 51(xxxvii). In this case the Australian Government may make laws—as federal laws—within the additional heads of power. It does not give the Australian Government, or federal courts, authority to act under state laws—this was the flaw in the cross-vesting scheme. Only Western Australia, where family law is a state matter, can provide a complete legal framework of family law.

IV    Creating a cohesive system

Those who work within the various parts of the family violence system have worked for some time to try to find ways, short of constitutional change, to make the system more cohesive and effective: through case management; integrated services; specialisation; and agreements of one kind or another—to find agreed ways to make different parts of the system articulate with each other. The Magellan Program at the Family Court of Australia is a good example. Magellan is a case management system, based on agreement, designed to deal with a gap in the system caused by the fact that family cases where there are allegations of abuse generally go to federal courts, whereas investigation of child abuse is carried out by state/territory agencies.[40]

Integrated service delivery programs respond to the fact that legal solutions are only part of what is needed by families dealing with violence. They generally bring together courts, law enforcement agencies and service delivery agencies to collaborate in putting in place processes that are as seamless as possible in domestic violence cases.[41] For example in NSW the Joint Investigation Response Team was set up in 1997 to address the need for an integrated interagency response to child abuse. The program has three partners: the Police Service, the Department of Community Services and the Department of Health. The victim is interviewed once and the information is shared between the three departments. Investigations and decisions about responses are collaborative.

Specialist courts have been created in some locations to ensure that family violence cases have an expert and consistent response. For example, in Victoria, there is the Family Violence Division of the Magistrates’ Court of Victoria, which exercises jurisdiction over protection orders; summary criminal proceedings; committals for indictable offences; civil personal injury claims; compensation and restitution; and (to the extent conferred upon the Magistrates’ Court) jurisdiction over family law and child support.[42] It can also sit as the Victims of Crime Assistance Tribunal to hear applications for statutory victims’ compensation in family violence cases.[43]

There are also ways in which agencies collaborate by agreement, through Agreements, Memorandums of Understanding, protocols, Practice Notes and so on. They are important means for information-sharing between agencies and organisations to facilitate communication and a more integrated approach—based on common objectives and principles—in the family law, family violence and child protection systems. However, such arrangements, protocols and MOUs cannot stand alone and are dependent on the knowledge and involvement of officers and staff. Simply putting such arrangements in place is not sufficient. They must be given an ongoing profile among court and agency officers; they must form the basis of an ongoing and responsive relationship between the parties and must be supported and implemented in practice.

V      Challenges of joint law reform projects

Joint law reform projects like the family violence inquiry have particular challenges.[44] Here I will suggest just a few examples. One aspect of contemporary pressure on law reform projects is, it seems, ever-decreasing time frames for inquiries. With a joint project, each issue or challenge we have to navigate magnifies the panic factor that tight timetables can generate. Examples are technology, the division of responsibilities, and reaching stakeholders.

Even between the NSWLRC and the ALRC we experienced significant technology issues. A very simple illustration is that in sending emails to the NSWLRC we could not include bullet-points, as they appeared as big blank spaces! Coordination of style templates, importation of references stored in bibliographic databases (we use Endnote)—all this presented big challenges. We had a whole lot of computers dotted around the ALRC offices with signs like this one: “Do NOT turn off this computer. In use by the NSWLRC”. But remote access like this is not always effortless. Actually, it is quite tricky. The best way through it was by having NSWLRC staff sitting in the ALRC offices—not as remote ghosts accessing our system, but being here, with immediate access to things.

The division of responsibilities can be very thorny. The ALRC, NSWLRC and VLRC divided up the work for the Uniform Evidence project, with the Commissions together commenting on all chapters. As the project was one that was expressed as a harmonisation project, ongoing consultative relationships were also necessary with other law reform bodies. But the resources of each body may not be available in exactly the same way. This can put considerable pressure on joint law reform projects. To go about the family violence brief, the ALRC and NSWLRC divided up the work for the final report, so that the NSWLRC had primary responsibility for the part concerning child protection intersections with the other designated laws.

For the purposes of consultations we were able to divide up the work, particularly during the very busy consultation period in May, and given the importance of national coverage for this inquiry—particularly reaching into the Northern Territory and Western Australia for a number of meetings with a range of Indigenous stakeholders. The ALRC went to WA and NT, while the NSWLRC was able to undertake a round of concentrated consultations in regional NSW. Our part-time Commissioner, Magistrate Anne Goldsbrough of the Victorian Magistrates’ Court also organised a judicial roundtable in Melbourne, and she and George Zdenkowski—a special adviser to the ALRC throughout the inquiry—conducted a round of meetings in Hobart.

VI    Conclusion

The problems of the constitutional division of responsibility between the Commonwealth and the states and territories are considerable. To meet such problems requires enormous co-operation, trust, respect, patience and commitment. The commitment is reflected in part by the range of other work, much initiated by the Commonwealth government, that has been going on at the same time as the joint inquiry—the ALRC and NSWLRC were not alone in looking at the problem of family violence and seeking appropriate policy responses. First, the Commonwealth 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).[45] The review was completed at the end of November 2009, and released on 28 January 2010.[46] 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.^[47] Thirdly, at about the same time, the Australian Institute of Family Studies released its Evaluation of the 2006 Family Law Reforms,^[48] which provided empirical data about the impact of the 2006 changes to the Family Law Act 1975 (Cth). The ALRC/NSWLRC inquiry therefore took 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 final report, 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.[49] There was a lot of activity.

When speaking in Brisbane in October 2009 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, when I shared this observation with Professor Hilary Astor, she expressed the aspiration that we should end up as Olympic-level synchronised swimmers. I loved this idea—and the image it conjures up—and have used it a number of times since. Given that this presentation is on the invitation of another one of the ‘swimmers’, I thought I would share it with you as well.

From the perspective of institutional law reform bodies we have been very conscious of the limits of law, and therefore of our work, to develop legal framework responses to family violence that will improve the safety of victims, and particularly women and children (who were the express objects of the terms of reference). There are also great expectations of our work and that of others in the government space, expressed succinctly in this simple plea:

Dear Government people,

       We women, we mothers, we look at you for the solutions and answers.^[50]

The ALRC/NSWLRC Report is one contribution in response.