Introduction—the reform challenge

3.1 This Inquiry focuses on areas of intersection and interaction between a wide number of laws, operating in different ways and in different spheres. There are federal as well as state and territory laws; criminal as well as civil laws. Some concern private law matters—between individuals; some concern public law matters—between individuals and the state. As noted in Chapter 2, where people who are experiencing family violence encounter the legal systems across the state and federal division of powers—and even within the state and territory systems alone—there are particular challenges.

3.2 For example, one family in which there is serious, ongoing controlling violence may need to go to three different courts in order to deal with that violence. The family is likely to commence proceedings in a magistrates court for a protection order. The conduct that led to the need for protection may constitute a criminal offence; and there may be a prosecution, often also in the magistrates court—but in more serious cases in the District (County) or Supreme Court. The violence may have alerted family, neighbours or the police to notify a child protection agency, which may commence care proceedings in a children’s court. At the same time, one of the parents may wish to see the children and commence proceedings in a family court for parenting orders governing the children’s living arrangements.

3.3 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.[1]

3.4 The sense of being ‘bounced’ between systems was described by one contributor to this Inquiry as feeling ‘like a ball on a pool table’.[2] It is further compounded by gaps in law and gaps in practice. The laws often operate in what has been described as ‘silos’, with people potentially being bounced around and falling between the gaps between these various laws.[3] One women’s legal centre attributed the dropping away of complaints of family violence to such gaps:

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.[4]

3.5 From the perspective of those dealing with family violence, such experiences may have a significant detrimental impact on safety. The object of this Inquiry is, therefore, to determine ‘what, if any, improvements could be made to relevant legal frameworks to protect the safety of women and children’.

3.6 This Report contains 187 recommendations for reform. The recommendations reflect, on the one hand, the Government’s objectives with respect to the reduction of violence, particularly in relation to women and children, and, on the other hand, a framework of key principles for the Inquiry.

3.7 This chapter provides an outline of the key principles embodied in the recommendations for reform, followed by a summary of the overall framework of the recommendations in the light of the problems and challenges of the fragmentation of jurisdiction described in Chapter 2.

[1] A Hay, ‘Child Protection and the Family Court of Western Australia: The Experiences of Children and Protective Parents’ (Paper presented at Child Sexual Abuse: Justice Response or Alternative Resolution Conference, Adelaide, 1-2 May 2003), 10.

[2] Confidential, Submission FV 49, 5 May 2010.

[3] Or on a ‘roundabout’ as described in the AIFS evaluation: Australian Institute of Family Studies, Evaluation of the 2006 Family Law Reforms: Summary Report (2009), [4], 21. This separation of practice or ‘silos’ was reflected, for example, in one submission to this Inquiry, where different committees of the one Law Society came to strongly divergent conclusions with respect to a number of matters raised in the Consultation Paper: Law Society of New South Wales, Submission FV 205, 30 June 2010.

[4] Hunter Women’s Centre, Submission FV 79, 1 June 2010.