Professor Rosalind Croucher, President, Australian Law Reform Commission. University of Melbourne
The text below does not include the original footnotes. Download PDF for full version.
In speaking to you today I will be looking at law reform, using the ALRC’s current inquiry into family violence as the illustration, in order to demonstrate the challenges of law reform projects, the manner of their execution, and the significance of law reform work in the longer term, in particular, the enduring nature of law reform. Although the title speaks of ‘navigating the maze’, it is perhaps better titled as ‘navigating the mazes’—as there are several.
I will start with a story. There are 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 involves as much as of the interest of the press in reporting the stories—and the ‘angle’ that is given in them.
The common thread in these stories is that they all start with love. Family violence so often starts in love. That is what makes it so difficult.
This story was reported on the ABC’s 7.30 Report last month. It will set the scene.
In March 2010 a victim of family violence Deanne Bridgland, was found guilty of conspiracy and attempting to pervert the course of justice, following a five week trial. She was sentenced in the County Court of Victoria to a two year suspended sentence.
Ms Bridgland had been subjected to severe family violence—described by one psychologist as some of the worst that she had ever come into contact with. Her partner—Nicholas Pasinas—had repeatedly bashed her—on two occasions he snapped her arms. He had also repeatedly raped her and locked in the garage with her mouth taped shut. Mr Pasinas was remanded in custody for serious assault charges, and despite a protection order being made against him, he called Ms Bridgland up to 12 times a day, and arranged to have her followed.
The police recorded his phone calls to her in which he persuaded her to withdraw her statement against him. While in prison he arranged for a friend of his—Paul Coralis—to pick her up and take her to the police station where she provided police with a statement of ‘non-complaint’ against him, pursuant to his instructions. Evidence was led that she had no choice but to give the statement. She also provided a letter supporting his release on bail. A psychologist commented that Ms Bridgland did what she did in order to survive. The police officer who laid the charges reportedly testified that she thought Ms Bridgland would be killed if she did not escape the relationship. Ms Bridgland was known to be suffering from battered woman syndrome and learned helplessness.
Ms Bridgland was essentially charged with agreeing with her partner to aid him in either having him released from prison or in reducing his culpability. Her lawyers requested the prosecution not to proceed with the charges on the basis that there was no public interest in prosecuting her. The prosecution refused.
Mr Pasinas pleaded guilty to the conspiracy charge and helped the prosecution in its case against Ms Bridgland, for which he received a discount on sentence—his sentence was reduced in half to two and years imprisonment with a 15 month non-parole period. Mr Coralis was found not guilty.
How could the legal system come up with this answer? Without offering any specific comment on this particular set of facts, A story like this one prompts us to focus on understandings of the nature of family violence—what did the police and the prosecutors think, or understand, was going on in a case like this? What does it tell us about the nature of evidence, and who is to be believed? What messages does the conviction of a person in a position like Ms Bridgland send to victims? Instead of being compensated in some way for the horrendous violence inflicted upon her, she ends up being convicted of perverting the course of justice and the person who used violence against her gets a discount on sentence. The facts are a practical illustration of some of the challenges at the intersection between family violence and criminal laws—and particularly with respect to the interaction in practice of such laws. This is precisely the kind of problem that the ALRC and NSWLRC have been asked to consider in the inquiry into family violence.
Maze I—Terms of reference
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). Time for Action focused on ‘strategies and actions for prevention, early intervention, improved service delivery, and justice’ 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’. It is the staggering size of this which quite clearly demonstrates that family violence is a public concern.
Time for Action included recommendations that the ALRC be given references on two specific tasks, which are reflected in the Terms of Reference. It was accompanied by a background paper providing a fuller discussion of the matters in the report, with more detailed references.
On 17 July 2009, the Attorney-General of Australia, the Hon Robert McClelland MP, asked the Australian Law Reform Commission (ALRC) to conduct an inquiry together with the New South Wales Law Reform Commission (NSWLRC) into particular questions that had arisen from the 2009 report of the National Council to Reduce Violence against Women and their Children, 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. 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.
The first law reform challenge was to untangle the terms of reference. This is the first major step in ‘navigating the maze’.
While the scope of the problem of family violence is extensive, the brief in this inquiry is necessarily constrained both by the Terms of Reference and by the role and function of a law reform commission. Under the Terms of Reference the Commissions are required to consider ‘what, if any, improvements could be made to relevant legal frameworks to protect the safety of women and their children’.
The Commissions recognise that 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. 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.
Certainly the Commissions in their consultations to date have noted the widespread concern about the link between alcohol and family violence, and recognise that any serious attempt to develop preventative measures in the area of family violence must tackle the problem of alcohol abuse in Australian society.
The range of legal frameworks is also not ‘at large’, but limited, in the first Term of Reference, to specified areas of interaction; and, in the second, to the impact of inconsistent interpretation and application of law in relation to sexual assault.
The ALRC was asked 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, the ALRC was asked to consider ‘what, if any, improvements could be made to relevant legal frameworks to protect the safety of women and their children’.
Observations? The terms of reference are gendered—in their focus on women and children; they 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 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’. 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’.
Focus on specific laws
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.
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 have suggested that they would be a good project for a follow-up reference after the current inquiry is completed.
Family violence lens
The family violence lens is included expressly in both terms of reference. This 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 with whom the complainant is in a domestic or family relationship.
The Personal Violence Survey conducted by the Australian Bureau of Statistics (ABS) in 2005 found that of those women who had been sexually assaulted in the 12 months prior to the survey, 22 per cent had been assaulted by a stranger in the most recent incident, 21 per cent by a former partner, 39 per cent by a family member or friend, and 32 per cent by another known person. Thus in 60 per cent of cases, women were sexually assaulted by a former partner, family member or friend. The 2004 ABS report on sexual assault noted that ‘all available data sources indicate that over half of perpetrators … are known to their victims’. Deanne Bridgland falls into those stats.
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. It also provides an opportunity to focus more intently not only on the largest category of sexual assault, but the one that is more likely to remain unreported; and when it is reported is more likely to fall out of the legal system and less likely to result in conviction.
The intersecting nature of the Terms of Reference
There are areas of intersection between the two Terms of Reference, as sexual assault can also constitute family violence. At the intersection of all the areas under consideration, however, sits the issue of sexual assault of children, potentially bringing together all the areas of law under consideration in this inquiry—child protection, criminal law, the Family Law Act, and family violence laws.
Maze II—encountering the system
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 present as silos. Some of the systemic problems that need to be navigated are summarised as follows. These represent the second of the mazes—encountering and navigating the system.
Federal versus state laws
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. The Australian Constitution gives the Commonwealth government the power to make laws with respect to: (1) ‘marriage’; and (2) ‘divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants’. 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’.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.
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.
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.
The Commonwealth Parliament did not race into the field. The first Commonwealth legislation was the Matrimonial Causes Act 1959 (Cth), followed two years later by the Marriage Act 1961 (Cth). 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. 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’. 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. The states did not, however, refer to the Commonwealth their power to legislate with respect to child protection and adoption.
In 1996, the Family Law Act was amended to include a ‘welfare power’ in relation to children. 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. 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.
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.
Where and how do issues of family violence arise? 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, 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. It was a response to 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. 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.
The boundaries between the various parts of the system are not always clear and jurisdictional intersections and overlaps are ‘an inevitable, but unintended, consequence’. 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.
The dilemmas that these provisions potentially create for victims of family violence are illustrated where family violence proceedings are operating concurrently with child protection matters and parenting disputes. One participant in the ALRC’s Family Violence Online Forum provided an illustration of this dilemma:
For instance, the [child protection department] get contacted in relation to the safety of a child due to family violence allegations etc. They advise the mother to take out an intervention order excluding the father from the home or they will have no choice but to remove the child from her care. The mother then takes out an intervention order excluding the father. The department then make an assessment that their involvement is not warranted in the case as they deem the mother to be acting protectively.
The problem … arises when an application is made in the family court jurisdiction by the father to spend time with the children.
At the Family or Federal Magistrates Court, the mother explains why she is seeking that the father have no contact or supervised contact with the children. She says she was advised by [the child protection department] to restrict contact. [The child protection department] however have not provided any written evidence of this advice, except to advise the court that they have no reason to be involved where the mother is acting protectively.
The mother is then left in court by herself, without [the child protection department] providing support to the mother’s position. The mother then has to explain why she is acting as an ‘unfriendly parent’ (as per the Family Law Act) by not facilitating contact.
… In one jurisdiction—the Magistrates Court—she is doing the right thing acting protectively while in the Family Court jurisdiction it can sometimes be used against her as ‘not facilitating contact’ by the other party unless the department makes a representation in that matter which is not always the case.
There is a danger, moreover, that issues concerning violence may fall into the cracks between the systems:
To the extent that State and Territory child protection authorities do not investigate such matters because there are proceedings under the Family Law Act, there is a Catch 22. The family law system is to some extent predicated on an assumption that State or Territory child protection authorities will investigate all serious cases of intrafamilial child abuse and make the results of those investigations available to the Court. State and Territory child protection authorities may in some cases decline to allocate significant resources to the case because it is already proceeding in the family law system. There is certainly a perception that State and Territory child protection authorities are reluctant to get involved when a matter is in the family law system already.
Child protection may decide not to investigate, because the mother is behaving ‘protectively’, but the Family Court does not investigate either. 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’.
State and territory child welfare laws take precedence over Family Court orders. 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.
The constitutional position is that the Family Law Act governs the resolution of private disputes about the parenting of all children in Australia, while state and territory ‘child protection laws’—that is, laws that aim to protect children from abuse and neglect—govern the resolution of public disputes between state or territory governments and individuals about the care and protection of their children. 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.
Problems arise when allegations of child abuse and neglect are made in proceedings under the Family Law Act. For example, there is no investigative arm of family courts. Hence the problem of the abuse or neglect of a child can be dealt with under two different pieces of legislation—the Family Law Act and the relevant state or territory child protection legislation. The problems caused by jurisdictional overlap in the area of child protection are compounded by the fact that the family law system is federal, while the child protection and family violence protection order systems are the province of the states and territories. However, as Professor Richard Chisholm has noted, ‘to some extent the issues would arise in any system which had a child protection system that is separate from the system of the adjudication of family disputes relating to children’.
The result is a fragmented system with respect to children:
At a Commonwealth Family Law Act level, the referral of powers has certainly minimised the disorderliness and complexity of jurisdiction in relation to Australian children. Regrettably, however, fragmentation characterises child protection issues. Child protection issues are frequently raised in Family Court proceedings, even though the Family Court does not have jurisdiction. How has this situation arisen? On one view, it is consistent with the ideology of liberalism … Disputes about the care and protection of children are regarded as public disputes with the state acting as an applicant, but disputes under the Family Law Act are regarded as private disputes between parents or family members. The states have been far less reluctant to legislate in ways which directly affect the family, or redefine the family, for example, the Property (Relationships) Act 1984 (NSW) and the Children and Young Persons (Care and Protection) Act 1998 but … the Commonwealth has been far more reluctant.
One family, multiple systems
That families may be involved in proceedings in more than one jurisdiction is a recurring theme of the interactions in practice under review in this inquiry. Not only does this increase the possibility of inconsistent orders—particularly in relation to children—but also of ‘putting family members at risk of further violence and abuse and exacerbating an already strained situation’:
The jurisdictional divide has also perpetuated a culture of separation between States and Territories as administrators of public aspects of family law and the federal family courts as adjudicators of [private] disputes. There is inadequate communication, coordination or information sharing between courts and authorities despite significant overlap.
How can a bifurcated system overcome this fundamental problem? 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’. If we can’t do this, then we need to find other ways through the system. The inquiries conducted at the same time as the present inquiry tried to find some answers—which we have to be conscious of so as not to duplicate their work.
Maze III—Concurrent inquiries and actions
The ALRC and NSWLRC are not alone in looking at the problem of family violence and seeking appropriate policy responses. Several other inquiries, state and federal, are being conducted at the same time as this inquiry. In particular, the ALRC has been directed not to duplicate:
- the other actions being progressed as part of the Immediate Government Actions announced by the Prime Minister on receiving the National Council’s report in April 2009;
- the evaluation of the Family Law Amendment (Shared Parental Responsibility) Act 2006 reforms being undertaken by the Australian Institute of Family Studies; and
- the work being undertaken through SCAG on the harmonisation of uniform evidence laws, in particular the development of model sexual assault communications immunity provisions and vulnerable witness protections.
In addition to these specific areas of concurrent work, there are two further contributions of significance to this inquiry. 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 Chisholm Review). The review was completed at the end of November 2009, and released on 28 January 2010. 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. Important findings and recommendations for this inquiry are as follows.
The AIFS Evaluation of the 2006 Family Law Reforms involved the collection of data from 28,000 people involved in the family law system—including parents, grandparents, family relationship services staff and clients, lawyers, court professionals and judicial officers—and the analysis of administrative data and court files. Of particular relevance in the context of this inquiry are the findings in relation to family violence and safety concerns:
Around two-thirds of separated mothers and just over half of separated fathers indicated that their child’s other parent had emotionally abused them before or during the separation. One in four mothers and around one in six fathers said that the other parent had hurt them physically prior to separation and, among those who report such experiences, most indicated their children had seen or heard some of the abuse or violence. When family court files … were examined, over half of the files contained an allegation of family violence on the written file.
Around one in five parents reported that they held safety concerns associated with ongoing contact with their child’s other parent and over 90% of these parents had been either physically hurt or emotionally abused by the other parent.
Notwithstanding the high incidence of family violence identified, the evaluation also found that:
a majority of separated mothers (62%) and fathers (64%) had friendly and cooperative relationships with each other about 15 months after separation. About a fifth had a distant relationship and a little under a fifth had a highly conflicted or fearful relationship.
Even when there was violence, therefore, a large number of parents separating after July 2006 were able to reach agreement about their parenting arrangements themselves.
The evaluation provided ‘clear evidence’ that the family law system had improved in relation to the identification of concerns about family violence and child abuse, although there were still clear problems. Screening properly to identify family violence and child abuse was another significant theme. While ‘systematic attempts to screen such families in the family relationship service sector and in some parts of the legal sector’ have improved the identification of such issues, the expectation that most families will attempt family dispute resolution (FDR) has meant that ‘FDR is occurring in some cases where there are very significant concerns about violence and safety’.
[There is a] need for professionals across the system to have greater levels of access to finely tuned assessment and screening mechanisms applied by highly trained and experienced professionals. Protocols for working constructively and effectively with state-based systems and services (such as child protection systems) also need further work. At the same time, the progress that continues to be made on improved screening practices will go only part of the way to assisting victims of violence and abuse.
The AIFS evaluation identified a number of areas of concern that were also singled out by Professor Richard Chisholm and the Family Law Council.
In acknowledging the challenges for the family law system in such cases—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’.
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’. He suggested, instead, moving to a system of risk identification and assessment that applies to all parenting cases.
Key recommendations also focused on the provisions dealing with parental responsibility and the guidelines included in the legislation—primary and additional considerations—for determining what is in the child’s best interests. As noted by Chisholm, this is ‘a large and controversial topic’. The package of reforms introduced by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth), emphasised two main concerns as the primary considerations:
- the benefit to the child of having a meaningful relationship with both of the child’s parents; and
- the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
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’. Chisholm preferred instead guidelines that did not include ‘the artificial distinction … between “primary” and “additional” considerations’.
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. 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’, 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.
Chisholm preferred instead a presumption simply of each parent having ‘parental responsibility’.
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.
The Family Law Council was also concerned to address ‘certain widespread misunderstandings’ about the Family Law Act through education, in particular:
- Recurrent gossip that notification of family violence may lead to a judicial perception that the notifier is an ‘unfriendly parent’
- Widespread perception that each parent now has a ‘starting right’ to equal time (50/50) with children
- Common belief that a parent will receive both substantial time with a child, and equal shared parental responsibility, (similar to historic ‘guardianship’), despite a history of poor communication and hostility between parents; and despite the long term health and emotional consequences for children as casualties on such parental battlefields.
Such misunderstandings were also identified in both the Chisholm Review and the AIFS evaluations, considered above.
Like Chisholm, the Council recommended a number of strategies to improve the understanding and identification of family violence, including that:
- the definition of ‘family violence’ in the Family Law Act be widened to include a range of threatening behaviour;
- a common knowledge base be established to assist all those in the family law system to better understand the patterns and effects of family violence;
- the Best Practice Guidelines for Lawyers Doing Family Law Work be revised to incorporate detailed information on family violence; and
- the forms for notifying family law courts about family violence be improved.
Co-ordination and collaboration between various participants in the system was also seen as being of critical importance, for example:
between the state and territory child protection agencies, and the federal Family Law Act, including: the transportability of state family violence injunctive orders; the establishment of a national register of family violence orders; and the establishment of a network data base which records family violence orders, and a residual family court power to require state Child Protection Agencies to become parties to Family Law Court proceedings about children.
A specific aspect of communication was also whether FDR practitioners should have responsibility for providing to federal family law courts any information about family violence or other related issues disclosed during an intervention.
A recommendation of structural significance is the possibility of a referral of powers to federal family courts so that, in determining a parenting application, federal family courts have concurrent jurisdiction with that of state courts to deal with all matters relating to children including, where relevant, family violence, child protection and parenting orders.
Maze IV—competing discourses
In this inquiry a number of different legislative schemes form the legal framework in which issues of family violence arise—each reflects its history and particular purpose. There are broad themes that run throughout the literature and legislation concerning family violence. There are also competing dynamics. A critical first step in any law reform process is identifying the reasons behind the particular law under review—the rationale, or purposes of particular laws. Such purposes then also have to perform in practice and here certain interpretative dynamics or discourses may arise. Law reformers also have to decode or disentangle such dynamics, particularly when assessing contributions of stakeholders and commentators.
A study of rationale leads in to identifying the particular issue under consideration—a thorough analysis of current law and practice. A literature review complemented by consultations with key stakeholders and commentators, as well as invited experts (as an Advisory Committee), helps inform the identification of key issues that are expressed as questions and/or proposals in consultation documents. Further consultations and then submissions contribute to the final formulation of recommendations for reform. Once the ALRC has completed its 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. Once tabled in Parliament, the report becomes a public document.
Identifying the broad themes and competing dynamics or discourses in the law under review provides the beginning of laying out the landscape for the inquiry.
Criminal v civil
As a broad generalisation, the criminal law may be described as incident-based, where the civil law may be described as ‘relationship-based’. In its focus on incidents the criminal law also requires evidence to a particular standard of proof. The civil law not only includes a different (lesser) standard of proof, but also includes considerable discretion in many of its areas of operation. Further, while a particular emphasis of the Family Law Act is the regulation of future relationships, the criminal law focuses on punishment for past incidents—although with a view to the possibility of further offending.
Public law v private law
Public law concerns the state as a principal actor; private law concerns litigation between individual litigants. Child protection proceedings fall into the former category, while family law proceedings are an example of the latter.
Public v private realms
Professor Stephen Parker remarked that:
The idea that we should distinguish between public and private spheres of life has been a central one in liberal political philosophy since the seventeenth century, although the roots of the idea can be traced back to Aristotle. In classical liberalism, the notion of a private sphere was a crucial part of the belief in limited government. There were certain parts of civil society in which the state had no business. And at the epicentre of the private sphere was the family; more specifically, the patriarchal family.
The idea that the family is a ‘private’ space is a continuing theme in law—and especially family law. Intertwined in the ideas of the private space are ideas of rights. Contemporary discussion about the family reflects both the importance of the family as a ‘fundamental unit’ in society, but also the increasing recognition for the public impact of, and responsibility for, family violence. The public costs of family violence are referred to above. Moreover, international conventions play an increasing role in terms of the characterisation of matters as ‘public’ or ‘private’, particularly in the area of violence against women:
Violence against women is an important issue of concern to women in many countries. Women have worked to ensure that State governments accept responsibility to prevent and deal with such violence as a serious infringement of women’s rights, and to move the issue of violence from the area of private action to that of public responsibility.
The interaction of the various themes can be seen, for example, in relation to children.
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. Her observations have been echoed in the work undertaken in this inquiry to date:
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.
In an Australian study to consider how community workers who work with mothers perceive the response of child protection workers to cases where family violence is a key risk factor, similar perceptions and juxtaposed dynamics were evident. The study, conducted by Dr Heather Douglas and Dr Tamara Walsh of the University of Queensland provides another snapshot of the competing discourses at play, strongly echoing the observations quoted above.
Douglas and Walsh conclude that the ways that mothers are perceived by child protection workers ‘are often pivotal in determining the approach to be taken’:
if mothers are perceived as unprotective, they may not receive appropriate support. Further, an approach that blames a mother’s failure to protect her child from domestic violence is unlikely to address the perpetrator’s violence, meaning that a violent cycle of domestic abuse is more likely to continue. It has been argued elsewhere that parent blaming and the adoption of a child rescue framework by child protection agencies can be a negative approach as it reduces the possibility of a ‘therapeutic alliance’ between workers and parents that may help to resolve safety issues. This is a particularly important issue in domestic violence situations where work with both parents is important if the cycle of abuse is to be stopped.
The competing dynamics can be summarised as:
- the ‘interpersonal conflict’ misunderstanding—failing to recognise the particular dynamics associated with family violence, with ‘ramifications for the way in which child protection workers respond to abused mothers and their children’;
- the ‘protective parent’ dilemma—if a mother is not perceived as acting protectively, she may be seen as ‘part of the reason for the dangerous environment’ and removal from her care becomes more likely;
- ‘the mother is to blame’ phenomenon—the focus of child protection authorities on the woman and her capacity to protect the children, and not on the father’s ‘capacity to cease using violent or abusive behaviour’;
- the ‘leave’ ultimatum—a choice between moving ‘to accommodation away from the domestic violence perpetrator and continue to care for the children, or stay with their abuser and lose the children’;
- the ‘tightrope’ women walk—between admitting they need care to deal with family violence and yet being seen to be able to care for their children, so long as they are supported.
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.
Under its constituting legislation, the ALRC is directed to have regard to ‘all of Australia’s international obligations that are relevant to the matter’. A number of international conventions are relevant to the legal framework in relation to violence against women and children in a family violence context. In particular, these reflect the acknowledgment that violence against women and children is a violation of human rights. 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.
The International Covenant on Civil and Political Rights (ICCPR) is expressly listed.Described as ‘one of the most important human rights conventions of the United Nations era’, the ICCPR was adopted by the United Nations General Assembly on 16 December 1966 and ratified by the Australian Government in 1980.
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’; 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.
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 is the right to a ‘fair and public hearing’ in art 14 with minimum procedural guarantees in the case of criminal charges.
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 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).
Convention on the Elimination of Discrimination Against Women
The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) specifically targets discrimination against women. CEDAW came into force for Australia on 27 August 1983.
CEDAW defines discrimination as any distinction, exclusion or restriction which prevents the equal exercise or enjoyment by women of human rights and fundamental freedoms ‘in the political, economic, social, cultural, civil or any other field’. It supplements the anti-discrimination provisions in the ICCPR, amongst others. It has been called ‘an international bill of rights for women’ and described as representing ‘a commitment by the international community to equality in the enjoyment of human rights’.
As a party to the ICCPR, ‘Australia must guarantee the equal protection of human rights to men and women without discrimination and equality before the law’. A significant aspect of gender inequality—and therefore of discrimination in contravention of CEDAW—was ‘women’s experience and fear of violence’. This was not a new discovery. As noted by Young and Monahan, academic commentators had been writing about the dynamic of violence in gender inequality ‘for some years’, but
The ALRC’s distinctive contribution was to raise the general public and government awareness of the issue and to act as a mouthpiece for the views of women across Australia.
Although CEDAW does not expressly mention violence as a form of discrimination, parties are asked to report on the protection of women against the incidence of all kinds of violence, ‘including sexual violence, abuses in the family, sexual harassment at the work place, etc’. So, for example, where art 16 calls for the elimination of discrimination in marriage and the family, family violence ‘is clearly a form of discrimination which denies women equality’.
Declaration on the Elimination of Violence against Women
The Declaration on the Elimination of Violence against Women was adopted by the General Assembly of the United Nations on 20 December 1993, to complement and strengthen CEDAW. The commencing articles of the declaration define violence against women:
For the purposes of this Declaration, the term ‘violence against women’ means any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.
Violence against women shall be understood to encompass, but not be limited to, the following:
- Physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation;
- Physical, sexual and psychological violence occurring within the general community, including rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhere, trafficking in women and forced prostitution;
- Physical, sexual and psychological violence perpetrated or condoned by the State, wherever it occurs.
In 1999, the General Assembly designated 25 November as the International Day for the Elimination of Violence against Women.
Convention on the Rights of the Child
The United Nations Convention on the Rights of the Child (CROC) has been described as ‘the most comprehensive statement of children’s rights ever drawn up at the international level’. 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)’.
CROC sets out the full range of human rights—civil, cultural, economic, political and social rights—pertaining to children under 18 years of age.CROC spells out that children everywhere have the right:
- to survival;
- to develop to the fullest;
- to protection from harmful influences, abuse and exploitation; and
- to participate fully in family, cultural and social life.
The four core principles of the Convention are non-discrimination; devotion to the best interests of the child; the right to life, survival and development; and respect for the views of the child. In a joint 1997 report, the ALRC and the Human Rights and Equal Opportunity Commission stated that:
CROC recognises that children, as members of the human family, have certain inalienable, fundamental human rights. It emphatically endorses the proposition that the family is the fundamental environment for the growth and well-being of children and states that, for the well-being of society, the family should be afforded protection and assistance so as to fully assume its responsibilities. At the same time, it recognises that children need special safeguards and care where the family does not or cannot assume these roles.
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.
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.
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.
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.
CROC also includes articles concerning protection from sexual exploitation and sexual abuse; and promoting physical and psychological recovery from, amongst other things, any form of neglect, exploitation or abuse.
The child’s right to be heard in proceedings involving him or her is also addressed:
States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
The right to express his or her own views may be satisfied by being given an opportunity to be heard in any judicial or administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of applicable national law.
These articles provide the base guidelines for children’s interactions with legal processes. Some aspects of CROC, however, may need further consideration—particularly in relation to the Family Law Act—such as art 12 dealing with the child’s right to be heard in proceedings affecting it, either directly, or indirectly through a representative or appropriate body.
The relationship between CROC and the Family Law Act has been considered by the High Court in the context of mandatory detention of children in immigration detention centres when proceedings for the release of two boys were brought under pt VII of the Family Law Act. The High Court held that the welfare power was constrained by the constitutional head of power under which it was enacted and, accordingly, that the Family Court had no jurisdiction either to order the release of the children from detention or to make general orders concerning the welfare of detained children.
Convention on the Civil Aspects of International Child Abduction
The 1980 Hague Convention on Civil Aspects of International Child Abduction (the Abduction Convention), to which Australia became a signatory on 1 January 1988, 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.
The Convention sets up a Central Authority in each country to deal with requests for the return of children taken to or from each country. 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.
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.
Article 1 sets out the objects of the Abduction Convention:
- to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
- 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 to the requirement to return the child set out in art 13, in particular where:
- 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;
- 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. 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.
The Full Court of the Family Court summarised the effect of the Abduction Convention and Regulations in In the Marriage of Emmett and Perry:
The Family Law (Child Abduction Convention) Regulations impose upon the court a primary obligation to promptly return children wrongfully removed or retained. Matters coming before this court are not to be treated as competing claims for interim custody. Proceedings under the regulations are to be heard in a prompt and summary way and it is only in exceptional circumstances that a court would give consideration to refusing the application of the Central Authority for the return of the children. Regulation 16 does vest in the court a discretion to refuse to return children if certain conditions are established. The onus of establishing those preconditions rests upon the party resisting the order for return of the children and that onus must necessarily be a heavy one.
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’?
The way out of the maze
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.
ALRC Reports are not self-executing documents—rather, each inquiry provides recommendations about the best way to proceed, but implementation is a matter for others. But we DO keep watch. Each Annual Report now provides a table of ‘Implementation Status’ of all ALRC Reports.
On the one hand, ALRC reports and discussion documents also 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 reports), 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) is that it is not just about the future. 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.
When I was working on my PhD, I found the reports of the UK Real Property Commissioners of the 1830s just the most wonderful resource.
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. The independence of the ALRC is its ultimate protection—and the quality of its work is the biggest argument for its retention.
I am delighted to be part of it.
I trust that I have given you a snapshot of the processes that go into that law reform work undertaken by an institutional body such as the ALRC and a sense of how these played out in the context of a particular inquiry.
Professor Rosalind Croucher