The recommendations in the Report reflect, on the one hand, 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. The Australian Government has identified a clear goal ‘to reduce all violence in our communities’, recognising that ‘whatever the form violence takes, it has serious and often devastating consequences for victims, their extended families and the community’, and ‘comes at an enormous economic cost’.[1] The Terms of Reference to the Commissions form one plank in the response.

Inquiry in context

This Inquiry into family violence by the Australian Law Reform Commission (ALRC) and the New South Wales Law Reform Commission (the Commissions) is one of a number of concurrent inquiries on the subject—reflecting intense and ongoing concern in relation to victims of such violence and the public cost over time.

First, the Australian Government 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 review was completed at the end of November 2009, and released on 28 January 2010.[2] Secondly, the Family Law Council provided advice to the Attorney-General on the impact of family violence on children and on parenting, which was released at the same time as the Chisholm’s review.[3] Thirdly, the Australian Institute of Family Studies released its evaluation of the 2006 family law reforms, which provided empirical data about the impact of the 2006 changes to the Family Law Act 1975 (Cth).[4] This Inquiry therefore takes place in the context of very active contemporary scrutiny of the legal system and its engagement with families and family violence.

The brief

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—set out at the front of this Summary Report; and by the role and function of the Commissions—set out in their constituting Acts. The Commissions were asked to consider:

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 Commissions were asked to consider ‘what, if any, improvements could be made to relevant legal frameworks to protect the safety of women and their children’. The range of legal frameworks the focus of this Inquiry was also not ‘at large’, but limited, in the first Term of Reference, to specified areas of interaction; and, in the second Term of Reference, to the impact of inconsistent interpretation and application of law in relation to sexual assault. Nevertheless, the range of laws to be considered was broad—embracing at least 26 legislative regimes. The canvas, therefore, was a very large one—given the number of laws under consideration; and the issues were very complex—given the focus on interaction and inconsistencies.

Each area of law reflects its own distinct purposes, anchored in its own history, considered in Chapter 4 of the Report. The concurrent inquiries, noted above, were focused on the Family Law Act. When the other legislative regimes are brought into consideration—as they were in this Inquiry—the challenge for the Commissions increased exponentially. There is a further clustering of regimes in which the State is the principal actor—namely, criminal and child protection laws; and those in which the laws essentially concern litigation between parties—namely, family law and family violence law; and the further hybrid nature of family violence laws, where the police may play a key role in a protective regime under the civil law.

The limits of law

A theme articulated during the Inquiry and also in relation to the more general issue of responding to family violence, is the limits of law, both in terms of services but also in terms of its application. The Commissions also recognise that the Inquiry concerns only a narrow slice of the vast range of issues raised by 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 Attorney-General of Australia in January 2009, is equally apt 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]

Gendered nature of terms of reference

The Terms of Reference are clearly gendered—in their focus on women and children; and they have a particular lens—family violence. The National Council to Reduce Violence Against Women and their Children 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’.[6] 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’.[7]

However, as noted in Chapter 1, the suite of recommendations presented in the Report are directed towards reforming legal frameworks with the aim of improving the safety of all victims of family violence—the effect will be to the benefit of all victims, whether male or female.

Fragmentation of laws and practice

As noted in Chapter 2 of the Report, a key element of the challenge of this Inquiry is that, in the area of family law, neither the Commonwealth nor the states and territories have exclusive legislative competence. The result is an especially fragmented system with respect to children. Moreover the boundaries between the various parts of the system are not always clear and jurisdictional intersections and overlaps are ‘an inevitable, but unintended, consequence’.[8]

For example, family violence involving children may arise as a dispute between parents and the state in a children’s court—where care and protection proceedings are initiated with respect to a child or children—or as a dispute between parents in a court with jurisdiction under the Family Law Act. There is also a danger that issues concerning violence may fall into the cracks between the systems. The consequence of 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.[9]

The fragmentation of the system has also led to a fragmentation of practice. A number of stakeholders in this Inquiry commented that the different parts of the legal framework dealing with issues of family violence operated in ‘silos’ and that this was the key problem in the system. Although the laws utilised within each ‘silo’ might be perceived to operate effectively, or to require minor refinement and change, the problems faced by victims of violence required engagement with several different parts of the system. Consequently, as discussed particularly in Chapter 2 and Part E, these people could be referred from court to court, and agency to agency, with the risk that they may fall into the gaps in the system and not obtain the legal solutions—and the protection—that they require.

[1] Australian Government, The National Plan to Reduce Violence against Women: Immediate Government Actions (2009), 2.

[2] R Chisholm, Family Courts Violence Review (2009).

[3] Family Law Council, Improving Responses to Family Violence in the Family Law System: An Advice on the Intersection of Family Violence and Family Law Issues (2009).

[4] Australian Institute of Family Studies, Evaluation of the 2006 Family Law Reforms (2009).

[5] Family Law Council, Improving Responses to Family Violence in the Family Law System: An Advice on the Intersection of Family Violence and Family Law Issues (2009), 7.

[6] National Council to Reduce Violence against Women and their Children, Background Paper to Time for Action: The National Council’s Plan to Reduce Violence against Women and their Children, 2009–2021 (2009), 25.

[7] Ibid, 26.

[8] Family Law Council, The Best Interests of the Child? The Interaction of Public and Private Law in Australia—Discussion Paper (2000), [2.3].

[9] L Moloney and others, Allegations of Family Violence and Child Abuse in Family Law Children’s Proceedings: A Pre-reform Exploratory Study (2007), prepared for the Australian Institute of Family Studies, [7.3.2].