9 November 2010
Fractured families, fragmented responsibilities: Responding to family violence in a federal system
Abstract, slides and audio of presentation
Edited transcript
The following audio presentation is brought to you by the Australian Institute of Family Studies as part of our monthly seminar series in which we showcase national and international research related to the family.
The seminars are designed to promote a forum for discussion and debate. They are open to the public and free of charge.
Seminar facilitated & speaker introduced by Rae Kaspiew.
Professor Rosalind Croucher:
It's wonderful to be at the institute and I am delighted to be invited to come and talk to you a little bit about the work that the Australian Law Reform Commission has been doing. But before I begin my presentation I would like to acknowledge the traditional owners of this land, the Wurundjeri people of the Kulin nation and pay my respects to elders past and present and also to acknowledge any indigenous people in the room. The inquiry that we've just completed is being released, the report has been given to the attorneys, it was a joint project between New South Wales and the Australian law reform commission and it's being launched on Thursday this week.
Sorry, I better put my own slide up. It's been launched on Thursday this week by both the attorneys, which is a real tribute to the work of both commissions and also it signals how importantly both the state of New South Wales Attorney General and the Australian Government Attorney General consider the responsibility for responding to the problems of family violence. But it's not just the New South Wales Attorney who has such a commitment because the fact that the state attorney got involved was really as a reflection of the standing committee of attorneys general who supported the project.
Out of those discussion John Hatzistergos, the New South Wales Attorney said, look, we'll get our commission involved as well. So it has the imperator of the standing committee of attorneys general as well.
The trigger for our work was this, the time for action reports that I think would be very familiar to many of you. It was a major work undertaken by a rather lengthily named council - The National Council to Reduce Violence Against Women and Their Children. The council delivered their report Time for Action in March 2009. One of the strategies that was adopted or identified in that report was that the ALRC should have the reference. But that was, I think, the standout piece of information in that report, was the extent of the problem of family violence. In order to calculate or get a sense of what the size of that problem was the council commission KPMG to do an update on some statistical information that had been calculated several years before that and do a forward projection to 2022 of the public cost of family violence.
The figure that is on the slide of 15.6 billion is pretty frightening and that's not a private cost, it is all of the consequential costs in public health, housing and a myriad of other services that are needed to respond.
So in this particular presentation this morning I am going to focus on one thing in particular. That is the context that sits behind a project of the kind that we had to embark upon. I will show you the terms of reference. This is the terms or the way the terms were cast for the ALRC and the New South Wales Commission got terms in the same form. We had two terms of reference. One looking at the interaction in practice of family violence laws, child protection laws, criminal laws and the family law act. A vast range of laws plus a second term of reference specifically on sexual assault and the impact on victims of inconsistent interpretation or application of laws.
Now sitting behind those terms of reference is a major law reform challenge and I thought that given the report doesn't come out until Thursday I can't make this presentation about what's in the report because that's embargoed. I an, in questions, discuss some of the issues that we had to grappled with that propelled our thinking and our proposals. But in this presentation I thought I would step one step back from that and look at the context in which a law reform project of this kind had to take place. The context, of course, is the challenge of the constitution and the way that the power in relation to families and family law is divided between the state and federal parliament.
As part of that as well I thought I would also touch on the challenge for law reform bodies and how you do a joint project of a kind that we did with a state body and a federal body. So it's a bit about the constitution and a bit about the challenge of working with another commission so these were our partners.
I was delighted when the New South Wales Commission appointed a new commissioner. The previous commissioner was a delightful man as well, Michael Tilbury. But when Michael Tilbury stepped down as commissioner the New South Wales Commission had the opportunity to appoint another commissioner and they appointed Profession Hilary Astor, now a Emeritus Professor or Professor Emerita as she corrected me as the technical term from the University of Sydney. She has resigned from Sydney University to take up the position of Commissioner and, as I've known Hillary for many years in our academic lives together at Sydney University some time ago, but I have great respect for Hillary and she was a wonderful partner to lead up as a commissioner at the New South Wales Commissioner when we had to embark upon this project.
So the challenge for us - the interaction and practice. I described the various laws that we had to look at in the term of reference. But when you think about it it's quite a staggering little list. So, for instance, family violence laws - if you take into account every state and territory that's eight. Eight sets of family violence legislation, family violence legislation was introduced in most states and territories from about the 1980s and it was propelled largely by feminist lobbying that identified a deficit in the law in terms of protective mechanisms particularly for women.
The family violence laws were the framework within which things like protection orders, which have a variety of acronyms all over the country. I think in Victoria they are known as DVOs and in New South Wales as AVOs. They've got different names, we just called them collectively protection orders. So you've got eight sets of laws looking at family violence. In the child protection domain, yet again, it's the state and territory domain so you've got eight of them as well. Criminal laws - we had nine of those. State and territory criminal law plus, of course, the area in which the federal law operates and thing like internet abuse texting and that sort of thing.
That brings in federal law because of the telecommunications [unclear] in the constitution. In all of that, of course, there is one other big federal piece of legislation, the Family Law Act. But if you add all of those up you've got at least 26 sets of legislation. Now our brief was quite different from the kind of work that's been done elsewhere. So where our brief was about family violence, of course, it generated some expectations. Fantastic, the ALRC is looking at family violence but when you look at exactly what our terms of reference are, you can see that it's actually quite a different lens. It's not family violence at large, it's family violence as it manifests itself in this interactive space.
It was looking at different things from those that have been traversed in all the excellent work that was being done at the same time. As were in the institute, the [ACE] evaluation of the 2006 chaired parenting reforms came out at the beginning of last year - in January it was released. In addition to that work, Richard Chisholm was commissioned to do some work on family violence in the family law act. So you've got at least two studies that were happening simultaneously on the family act. The family law council as well did an advice to the Attorney General that was also released in January last year.
So three pieces of excellent research and reform focused work on the family law act. But our space was a different space. We were looking at the interactions, how the Family Law Act interacts with the family violence laws, how child protection interacts with family law, how criminal law interacts with family violence. We were going all over the spaces in the system that hadn't been considered before. It was a very hard brief because there isn't a lot literature in relation to the interactive space. There is some and some excellent work. But to a large extent we were undertaking pioneering work.
But you can imagine that one of the issues that we had to manage was expectations because we weren't looking at family violence at large. We were looking at family violence in the constrained context of terms of reference. But also within the competency and jurisdiction of law reform commissions. Of course, family violence isn't, if you think about it, about a narrow brief like that. It was a narrow bright but you can see by that description we were roaming very widely. The canvas was a very wide one with very intricate and fine detail in it.
But of course family violence itself is much bigger than that as a social issue because the visible bit is where family violence emerges in the legal system in one way or another. Below that surface, as the Family Law Council said, is the other part of the iceberg. In that space you see a whole range of other issues, alcoholism, drug addiction, mental illness, all of which are very large issues in the context of developing responses to family violence. So for us, and I guess this is what leads me into flag what it is I wanted to talk about in this presentation, is to focus on one of the critical issues underpinning the analysis of the problems and the development of reform recommendations in relation to family violence within the terms of reference.
As I suggested a moment ago, it's the problems of a constructional division of jurisdiction between the commonwealth and the states and territories. In this presentation I am going to draw upon aspects of the inquiry, and also as I mentioned the challenges of join law reform projects. So the problem of fragmentation - in some of the excellent work from the institute itself and Ray and Darrell are here so I pay you both credit for the excellent contributions you've made in these fields. The problem of fragmentation is one that has emerged particularly in relation to dealing with family violence and child abuse.
As the family law council commented in the advice to the Attorney General in December 2009, which was released publicly in January this year, gosh, we are still in 2010, my how time flies when you are having fun. The reality for a separating family experiencing contentious issues in respect of parenting capacity is this - there is no single judicial forum that can provide them with a comprehensive response to address their disputes. Particular when there are underlying issues of family violence and or child abuse. The council, in making those comments, was referring to the fact that those seeking protection usually have to go to move than one place.
Through the eyes of the participants in the system that responds to family violence, it's a very complicated maze. In response, there is a danger that people, families, may fall into the cracks between the systems. More than one court may be involved in a particular family break down. You remember that Venn diagram I showed a moment ago with all of the different circles of laws. For participants in relation to raising family violence issues, they may have to encounter every one of those separate circles in that diagram. The impact on children may be especially severe.
I will give you an observation of a nine-year-old child speaking about the uncertainty of ongoing family court proceedings. The child said, I felt worried that mum was going to go 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. That sense captured, I think quite well in the child's words of being tossed between systems, was described by one of our contributors in the family violence inquiring as feeling like a ball on a pool table. So what such observations reflect from the eyes of the participants is that there is something systemic in the problems.
But there is also a practice issue. The legal system has been described as some as operating in [silo] where, for instance, you have on one side the family court and on the other you have the magistrate's courts - a practise issue of different operation, different focus. The differences have also been described by academic writers as also not just systemic practice but also cultural. There is some excellent work by a UK academic Professors Marianne Hester she describes the differences between the systems as different planets where you have a family violence focus, that's in the state courts, family violence focusing on the safety of victims.
But then on the family law context the issue is are you a friendly parent. Then when you go to the child protection the child protection focus is on protecting the child - is the mother, generally speaking doing everything she can to protect the child. Has the mother taken out protection orders with respect to herself and the child? Then bounced into the family law system, the focus of the lens is different, is the mother being a protection, friendly parent. Oh, she's taken out these protection orders against the other parent - is that friendly?
Some of those dynamics of different planets reflect culture, they reflect practice but they also reflect something systemic. What is it in the law that leads to those differences in practice and culture? What can law do? What changes in law can start to address some of that sense of being bounced like a ball on a pool table or that nine-year-old child sense of it was all horrible and frightening.
Now we get to, sorry, this is one that I had forgot I had put in here. I better put the next bit in, you will recognise that one.
[Laughter]
Mind the gap, was a wonderful title of an article that Darrell and Ray did in relation to one of the particular elements. I described just a moment ago the difference in culture but one of the systemic gaps is this and that is and a question about concerns about child abuse may arise. Child protection concern is raised in the family court. But the family court has no investigate arm so all it can do is refer the matter back to a state or territory child protection agency. Alert the child protection agency but the court has concerns but the child protection agency, in its difference [silo] perhaps with its different culture but also with a different focus looks at, does the child have a protective parent?
Oh, yes, the mother is being protection, she has taken out a protection order, she is being protective, therefore, from the child protection agency's point of view there is nothing further to examine. So you have the problem that there is an issue that has been raised about child abuse but the state agency who has the investigatory capacity doesn't really have the, feels that the mattered is considered from their point of view so closes it off. So you have a real concern that issues of child abuse may not be investigated as fully as they might.
That was the gap that Darrell and Ray drew attention to in the system. If I have misrepresented you, you will have a time in question time to stand up and correct me.
But it is, as you will look now, that the great divide, constitutional law, the great divide. The problem here is a fairly simple one. The federal sphere and, in our context, through the organ of the family court of Australia has jurisdiction under the constitution in matters of marriage, divorce, matrimonial causes and parental rights. Interestingly, the feds didn't get into the field until the 1960s. The fact that it was built into the constitution has a little, it is one of those interesting, quirky, footnotes of history. When the constitutional conventions were deciding, debating about what should be the division of power between the federal parliament, the commonwealth parliament and the states or left to the states.
There was concern given the experience in the United States but if divorce was left as a state matter it would be as chaotic as it was and probably still is in the United States. Therefore, as a matter of federal competence the uniformity with respect to marriage, the status of marriage should be a federal issue. If you are dealing with the status of marriage you need to deal with the issue of divorce because that is about capacity to remarry. So it was felt as a federal matter, the commonwealth parliament should have competence in relation to marriage and divorce.
Garfield Barwick came up with another thought that he expressed in the 1960s in an article. He said it was actually a bit to do with Queen Victoria because apparently Queen Victoria wasn't very interested in the subject of divorces at all and so colonies that were stretching their wings a little bit and suggesting that they might have competence in relation to making laws with respect to divorce was not something that she found particularly amusing.
Hence, for there to be appropriate jurisdictional competence in relation to divorce it needed to be built into the commonwealth's sphere because the creation of the commonwealth, the approval of the Queen of England was no longer in the constitutional mix. Whether that is true or not I don't know but it's one of those lovely little anecdotes of history that I find quite intriguing. Anyway as a consequence of all of this finally the feds did go into the field in 1961 with the marriage act and then of course the modern law of family law in 1975 be founded on the premise of no fault or at least one didn't have to prove fault.
It was based on the irretrievable break down of marriage demonstrated by the fact of separation. But that left to the states the residual competence in areas outside of marriage, which were, and I have used the Supreme Court of Victoria there, in relation to de facto couples and ex-nuptial children or illegitimate children. But that created a bifurcated system in relation to families and families who were breaking down. So there were a couple of solutions that had to be considered.
One was cross vesting, which was a brilliant idea but is was totally flawed. Why they didn't work this out at the beginning I don't know. Maybe they were carried away in the brilliance or it was very well sold. In 1987 uniform legislation was introduced across Australia and the idea was very simple. As ingenious as it was simple described Young and Monahan two writers in the family law area. The idea was because it was really inconvenient if you were in a state court, a bit like the ball on a pool table. That was happening between the state and federal courts.
So if you were in a state court the idea was, terrific, you are in court, the state judges can use all of the federal law that they want and voices versa. Oh, you're in a federal court, like the family law court so you can deal with all of the stuff that a state court can do. One example I thought of was in the area of inheritance where I do have a residual academic interest was that when you are divorcing one of the things you might want to sure-up at the same time is that your ex-spouse doesn't have a claim on your estate. Tie it all off, once and for all, nice, neat and simple, cut the ties.
Of course, the cross vesting legislation made that possible until some bright spark a number of years later said, hello, there is something wrong here. In fact, in 1999 in a high court decision in Re Wakim the high court held that it was completely unconstitutional in one direction, there voila, that one. While under the constitution it is permissible for the federal parliament to confer power on state courts to exercise some of the powers under federal law. You couldn't do it the other way. The states could not give competence under their legislation to federal courts to exercise. So it mucked up the cross vesting scheme.
They had to do some tidy-up rescue package legislation, which they did. But you can't have a simple solution like that. So where are you left? The other solution is by referral of power and that works this way - the states decide, the federal parliament, commonwealth parliament should have competence to make laws in this field that is normally covered by the states.
That's what happened in relation to this bit. There were separate referrals of power by most of the states to the federal parliament to make laws with respect to de facto couples and ex-nuptial children so that when the federal parliament then enacted legislation it gave to the family court an ability to deal with a lot of the issues of dissolving relationships. So parenting in relation to children, property disputes, the resolution of property disputes both for married and de facto couples and that was achieved through a referral of power.
But of particular relevance in the context of family violence, thought, of course is that the states still have all of the authority with respect to criminal law and all of the authority with respect to child protection law. So there are still separate spheres in my Venn diagram sitting out there that operate independently.
But now another little twist in the scene is this - when the Family Law Act was introduced in 1975, which really made a federal system for dealing with marriage and divorce and parental rights there was an opportunity for states to opt out of a federal arrangement and go their own way and this is what happened. Western Australia decided to have their own. They have a state based federally funded family law court. It's not a federal court, it is a state court and because it is a state court it also has competence, it doesn't need cross vesting, which would have failed anyway. It has the competence by virtue of the fact it is a state court.
So within Western Australia a unified system, in fact, exists. There are perhaps [silo] issues of practice and culture but from a systemic point of view that problem of the constitutional divide is not present. But of course, I suppose this is reflecting ahead in terms of, well, in law reforming, how could you achieve that unity? You couldn't exactly, it's not exactly a winning proposition to say abolish the family law court and go back to state competence in relation to all of these matters. That's not exactly practical. We can admire the systemic uniformly in Western Australia but it's hardly a practical solution to suggest winding the clock back pre 1975.
Alright, so how do we create a cohesive system? What are the kinds of problems that, how can you work through that great divide? Well some of the ways are well rehearsed already. One is through the Magellan and thank you, Darrell, for giving me that diagram. The Magellan program is by agreement where by the family court, the state child protection agencies work together, there is an agreement by all of the relevant actors in dealing with serious child abuse and through that program you break down the [silo] factor, you break down the cultural factor and you also meet the systemic problem head on by virtue of an agreement.
It's been working very well and it is designed specifically as a case management system to deal with that gap that we discussed before. Of course, there are some other ways that work well - integration of services where you get support services and legal services working in common. Communication is one of the most effective ways of breaking through those [silos] and dealing with some of the cultural differences. Specialist courts are also another way of consolidating experience and expertise and by specialist court one doesn't have to envisage setting up a new court building.
It's more an approach, a concept of consolidating expertise through specialist divisions as for example in the family violence division in the Magistrate's Court of Victoria and also by specialist lists - it's consolidating expertise. So even for instance, if you are in the bush on circuit that all of the family violence matters are dealt with on the same day, that all of the relevant support staff, legal aid and all of the complex number of participants in responding to family violence, that they are all there on that day. It's an integration, a specialisation of approach that builds on the established expertise.
Of course, some of these things are also underpinned by agreements, MOUs, protocols, practice notes where the particular legal players are advised through practice notes about what's appropriate and what isn't, that the courts have agreements about exchange of information, communicating issues of suspected abuse through the system in the legitimate channels currently existing within privacy law. It's using the strategies that are in place to meet systemic problems, cultural problems and the practice problem of the [silos].
So just a bit of an observation of the challenges of joint law reform projects, which is another issue because you've got, if there are the issue of [silos] in relation to the practice, what happens when you throw two law reform bodies together in having to devise some solutions. Well, in any joint working project whether it's joining research teams or anything else there are always challenges. For us it was interesting - it just captured what I think were the four main ones of challenges of working together. These challenges can be replicated at large in terms of the bigger project, which is the whole family violence inquiry.
You'd think technology wouldn't be an issue but it was really bizarre, we had problems of the systems. I couldn't send emails to Hillary Astor with any dot points in it because they came out as blanks at her end. If we sent files through because our version of Word was different version it all looked like a scramble at the New South Wales Commission end. One way of doing it was through remote portal access and so we had computers like the one I've got on the slide dotted all around the ALRC, which had these notes on it - do not turn off computer, in use by New South Wales and it usually had the particular people.
So we had, for instance our part time commissioner Anne Goldsbrough of the Magistrate's Court of Victoria, we had one computer that was hers and we had one that was Hillary's and one that was all of the other people at New South Wales LRC. But that is only a limited solution. What worked best was actually when the ghosts became real and we had people from the New South Wales commission actually working from the offices of the ALRC. We used things like our footnote referencing system, Endnote, which is a marvellous thing. Not very intuitive but an excellent for joint writing projects. But technology was an issue for us.
Reaching stakeholders - national project. We have, as the ALRC, have a national responsibility, we couldn't just sit in Sydney and do everything from there. Even with significant budget cuts we recognise the commitment to national consultation and particularly in this inquiry where the impact of family violence in indigenous communities is one that is written about at large. We had to go and speak face to face with legal service providers and support agencies dealing with indigenous communities. So we divided our stakeholder consultations up.
The ALRC had a Perth posse and we went of to Perth for five days, we went to the Northern Territory for about four days and all around the place. But the New South Wales Commission made their focus on regional New South Wales. So we divided our program of consultation. The other thing, of course, that we had to deal with was complimenting other work.
I mentioned at the beginning of this presentation that there was a lot going on, there's been a lot of concern in relation to family violence. As the family law council, it said a number of years ago that reform is urgently needed and will require a commitment from governments both at state and federal level. Some of the research projects that are there including a number for the AIFS evaluation is on the left hand side. Those research projects are triggered by that commitment of state and federal governments. But when you've got a lot of other work and you've got a law reform project going on as well one of the things is not to duplicate because that's a waste of energy.
That takes time to establish well what space will that work and how can our work compliment it. Part of it is determining your own terms of reference. But complimenting other work is a challenge for any research project and particularly for our law reform project. But, of course, with all that other activity, this is an image I quite like, because early in the calendar for this inquiry I was doing a presentation in Brisbane organised by the Australian Institute of Judicial Administration.
Foreseeing all the other activity I just remember the image of my children and children's swimming parties and you have all of these kids in the pool and this great thrashing of legs and lot of activity. Hillary Astor was actually at that conference to and I was talking to her at the end of the day about that image that I kept feeling through the day and she said, Ros, well what we hope at the end of the inquiry is that our work and the work of everybody else who is working in this space will actually resemble this...
[Laughter]
Olympic level synchronised swimming.
But as our project is a project that is institutional law reform bodies, we are government bodies working in the family violence space. I think to meet the problems of family violence takes a lot of commitment of a lot of people. But in the law reform space I think it's required enormous cooperation, trust, respect, patience and commitment. Also a commitment to our stakeholders to let them know about how our work has eventuated. I think if I were going to finish this in one way I would give you one of the very simple pleas that came to the ALRC.
As I said, the expectations of our work, although bounded by the terms of reference are considerable, and I think it is expressed very succinctly in this very simple plea. This is what came out of one of our stakeholders - she said, dear government people, we women, we mothers, we look at you for the solutions and answers. So in the report that we are going to release, the attorneys as I mentioned are going to launch it on Thursday, it's a 1500 page report. Now that is pretty scary because it's very big and it's in two volumes.
But we couldn't do any less than that because to pay respect to all of the people that put in submissions to our inquiry and also to identify all of those vexed issues that lie in those cracks between those 26 legislative systems and more took that much to get through. But so that it's not as scary for our relevant government policy makers and so that they can read it on the flight from Sydney to Canberra I produced that...
[Laughter]
Which is, you can only see the cover nothing more. It's a summary report and in doing that I must say that I took note of what AIFS did in releasing the evaluation of the 2006 reforms with the evidence base but also a slim volume summary report. Because I think you, law reform projects like any other government funded projects, you are speaking to two audiences at least. For me, one audience is the future, it's the enduring nature of law reform and the commitment to make sure that all of our arguments and conclusions are squarely mapped, arguments squarely addressed and recommendations firmly anchored that's the audience of the future.
But policy makers are working in a much, a different time zone, a different horizon. They need to access to the conclusions quickly in a way that they can generate policy change and legislative implementation of our recommendations. But to do that they need both, they need a quick insight into the thinking and the key recommendations and the net effect, which is captured in the summary report. But they also, when it comes to arguing for change, they need that evidence base.
So the 1500 page report and the executive summary as a summary report - oh, I didn't mention the other one. What I equately described as family violence, the movie, it isn't really. It's the CD-ROM but it's in a DVD box so it looks like it's a movie. But the CDs of our report will be available free to anybody that would like one. But to get the hard copy report it's available for purchase except for those who our key stakeholders. I think I can come to an end, yes, voila. Thank you and that gives us an opportunity now to take a few questions.
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