Submission to the Australian Government Attorney-General’s Department on the Family Violence Bill

Public Consultation: Family Violence Bill

Family Law Branch
Attorney-General’s Department
3–5 National Circuit
BARTON ACT 2600

1.1 The Australian Law Reform Commission (ALRC) welcomes the opportunity to make this submission to the Australian Government Attorney-General’s Department on the Exposure Draft Family Law Amendment (Family Violence) Bill 2010 (the Exposure Draft legislation) and congratulates the Government for its commitment to improving legal responses for victims of family violence.

1.2 In making this submission, the ALRC draws heavily on its experience and findings in conducting, in conjunction with the New South Wales Law Reform Commission, its major inquiry into the interactions in practice between family violence laws and child protection laws with the Family Law Act 1975 (Cth) and relevant Commonwealth, state and territory criminal law (the Family Violence Inquiry). That Inquiry culminated in the production of Family Violence—A National Legal Response (ALRC Report 114 and NSWLRC Report 128—hereinafter referred to as ALRC Report 114), which contains 187 recommendations for reform.

1.3 In the Family Violence Inquiry, the Commissions’ Terms of Reference required consideration of the Family Law Act only insofar as its provisions interacted in practice with family violence laws and child protection laws. Therefore, the ALRC provides its comments on the proposed amendments to the Family Law Act principally through the lens of practical interaction with these state and territory legislative schemes. The ALRC refers the Family Law Branch of the Attorney-General’s Department to the recommendations made in the Family Violence Inquiry insofar as they deal with reforming the Family Law Act. The relevant recommendations are referred to in the body of this submission. For your convenience, we enclose two copies of ALRC Report 114.

1.4 A copy of Family Violence—A National Legal Response was tabled out of sitting on 11 November 2010 and a hard copy was also given to the Attorney-General of Australia at the launch of the Report in Sydney on 11 November 2010. An electronic version of the Report, the preceding Consultation Paper and associated materials including the Summary Report and media releases are freely available on the ALRC’s website at www.alrc.gov.au.

1.5 For your convenience, the ALRC largely adopts the headings used in the Consultation Paper to the Exposure Draft legislation, and we note areas where we support the proposed legislative changes as well as where our recommendations differ from those proposed. In addition, although the Commissions used the terms ‘child protection’ and ‘child protection agencies’ in ALRC Report 114, for the purposes of this submission the ALRC uses the terms ‘child welfare’ and ‘child welfare authorities’—given that is the language used in the Exposure Draft legislation.

1.6 In summary, the ALRC:

1. supports the aspiration of giving effect to the Convention on the Rights of the Child (CROC);
2. supports the removal of the semi-objective test of reasonableness from the definition of family violence in the Family Law Act but makes a number of recommendations to improve the proposed definition;
3. supports the inclusion of a provision in the Family Law Act explaining the nature, dynamics and features of family violence;
4. notes the impact of the proposed expansion of the definition of ‘abuse’ in relation to a child on the admissibility provisions in ss 10E and 10J of the Family Law Act;
5. supports initiatives to improve the evidence about violence and abuse in federal family courts, although has concerns about imposing a general legal obligation on parties to inform courts of these matters.
6. recommends mechanisms other than those proposed in the Exposure Draft legislation to ensure that federal family courts are furnished with evidence about violence and abuse;
7. supports an amendment to s 60CC(3)(k) as this provision is problematic in directing courts to consider only some types of protection orders; however, recommends an alternative amendment to this section;
8. supports the repeal of the ‘friendly parent’ provision in s 60CC(3)(c) and of the mandatory costs order provision in s 117AB; and
9. supports an amendment to s 117 to introduce cost immunity for child welfare authorities.

Prioritising the safety of children

Convention on the Rights of the Child

1.7 While the Commissions did not make a specific recommendation in ALRC Report 114 for the Family Law Act to include a new object in Part VII of the Act confirming that the Act is to give effect to the Convention on the Rights of the Child (CROC), the ALRC strongly supports this aspiration of the Exposure Draft legislation, contained in Item 13. The Commissions considered the application of CROC in the course of ALRC Report 114^[1]—as well as other international conventions. In doing so, the ALRC was fulfilling our particular mandate under the Australian Law Reform Commission Act 1996 (Cth) s 24 to have regard to all of Australia’s international obligations that are relevant to a matter.

1.8 As a minor matter of style, the ALRC suggests that Item 13 (4) of the Exposure Draft legislation be amended so that the current reference to CROC being ‘done’ in New York on 20 November 1989 is replaced with a reference to it being ‘opened for signature’ or words to similar effect.

Prioritising safety in the two primary considerations

1.9 In relation to Item 17 of the Exposure Draft legislation, the Commissions in ALRC Report 114 did not make recommendations concerning the primary considerations in determining the best interests of the child in s 60CC(2) of the Family Law Act. This issue was outside the Terms of Reference for the Inquiry.

1.10 However, we note that submissions to the Inquiry strongly criticised the effect of amendments introduced by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) on victims of family violence, including the primary considerations identified in s 60CC(2). In particular, stakeholders expressed concern that the child’s interest in having contact with both parents has come to outweigh the protection of victims of family violence.^[2]

1.11 As this issue was not given full consideration in ALRC Report 114, the ALRC has no further comment on Item 17.