Navigating the maze – the ALRC’s/NSWLRC’s

Family Violence Inquiry

Professor Rosalind F CroucherPresident

Deanne Bridgland’s story

3

The trigger

4

2012-2022• 750,000 women will experience

and report family violence

• Cost = $15.6 billion

Extent of the problem

Maze ITerms of Reference

The Hon R McClelland MPAttorney-General

I refer to the Australian Law Reform Commission for inquiry and report pursuant to subsection 20(1) of the Australian law Reform Commission Act 1996 the issues of ....

Reducing Violence against Women and their Children

Terms of reference

The Hon R McClelland MPAttorney-General

1) Interaction in practice of family violence/child protection/ criminal/Family laws 2) Impact on victims of inconsistent interpretation or application of laws in cases of sexual assault

Terms of reference

Reducing Violence against Women and their Children

Alcoholism Drug addiction

Mental illness 8

Visibility

9

‘the biggest risk factor for becoming a victim of sexual assault and/or domestic and family violence is being a woman’

Gendered focus

Family Law Act

Family violence

laws

Child protection

Criminal laws

TOR 1: Interaction in Practice

Family Law Act

Family violence

laws

Child protection

Criminal laws

Interaction in Practice

9 sets of laws

8 sets of laws

8 sets of laws

1 federal law

26 legislative regimes!!!

TOR 2: Impact of inconsistent interpretation

Sexual assault

Family violence context

Rules of evidenc

e

Intersection of the TOR

Family Law Act

Family violence

laws

Child protection

Criminal laws

Child sexual abuse

Maze IIEncountering the system

15

The federal system

Fear violence

AVO – state court

Family court - friendly parent

Meaningful involvemen

t – both parents

Encountering the system

Multiple players

• Medical practitioners/hospitals• Schools• Police• Child protection agencies• Family counsellors• Family dispute resolution practitioners• Lawyers• Judicial officers

Higgins and Kaspiew, ‘Mind the Gap’ (2008)

None

Maze IIIOther inquiries

AIFS evaluation

Family Law Amendment (Shared

Parental Responsibility) Act

2006

AIFS evaluation

FINDINGS

• Over 50% of the files contained an allegation of family violence

• One in four mothers and around one in six fathers said that the other parent had hurt them physically prior to separation • 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

AIFS evaluation

FINDINGS

• most indicated their children had seen or heard some of the abuse or violence

AIFS evaluation

FINDINGS

• 62% of mothers and 64% of fathers had friendly and cooperative relationships with each other about 15 months after separation

• about 20% had a distant relationship and a little under a fifth had a highly conflicted or fearful relationship

Law reform issues

• definitions of violence• dealing with allegations in making decisions about parenting

Chisholm review

Family violence – federal family

courts

legis

lati

on

pra

ctic

es

pro

cedure

s

Improvements

Chisholm review

‘Family violence must be disclosed, understood, and acted upon’

FINDINGS

Chisholm review• better risk identification – screening/Forms • equal responsibility ≠ equal time• all considerations relevant to identifying violence (don’t distinguish primary/secondary)

FINDINGS

Family Law Council RECOMMENDATIONS

• widen definition of ‘family violence’ to include a range of threatening behaviour• establish a common knowledge base to assist in understanding the patterns and effects of family violence• communication between courts• referral of powers?

Law reform issues

• legal frameworks need to express proper understanding of family violence

• judicial officers and others need to understand family violence

• interaction between family courts and state and territory courts

• ensuring concerns about violence are known at key points in processes

• ensuring systems are not at odds

Maze IVCompeting discourses

Recurring themes

• criminal versus civil• public versus private law• public versus private realms

Family violenc

e

Family law

Child protectio

n

Different discourses

Fear violence

AVO – state court

Family court -

unfriendly parent?

Meaningful involvemen

t – both parents

Competing discourses

Competing discourses

• ‘interpersonal conflict’ misunderstanding

• ‘protective parent’ dilemma• ‘the mother is to blame’

phenomenon• the ‘leave’ ultimatum• the ‘tightrope’ women walk

Competing discourses

PLUS• Indigenous peoples –

intergenerational removal of children

• cultural intersections – expectations of parents; parents’ expectations of children

ICCPR – ‘The family is the natural

and fundamental group unit of society and is entitled to protection by society and the State’

International responsibilities

ICCPR – ‘a right to a ‘fair and

public hearing’

International responsibilities

CEDAW – 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’’

International responsibilities

CROC –

‘The best interests of the child shall be a primary consideration’

International responsibilities

CROC – A child shall not• be separated from his or

her parents against their will

• except – abuse or neglect

International responsibilities

CROC – A child has the right to maintain personal relations and direct contact with both parents on a regular basis

International responsibilities

Abduction convention – • to secure the prompt return of

children wrongfully removed • except where 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

International responsibilities

Rights in tension

• Person using family violence fair hearing

• Family = fundamental unit protection

• Child entitled to protection best interests of the child

• Child entitled to contact with parents except abuse or neglect

• Abducted child prompt return

Out of the mazeThe law reform process

The inquiry process

Family Violence

Consultation document + Summary

Forums/roundtables

Family Violence

Report

Consultations

Advisory consultation meetings

Consultations

Presentations

e-newsletters

Sub

mis

sion

s

e-newsletters e-newsletters

Consultations

• Women’s legal services• Indigenous women’s legal services• Judicial officers• Specialist courts• Academics and research organisations• Police• Roundtables

Consultation paper

Now it’s your turn

YOUR COMMISSION NEEDS

Now it’s your turn

• Written submissions• Email submissions• Discussion board

YOUR COMMISSION NEEDS

Now it’s your turn

4 June 2010YOUR COMMISSION NEEDS

Collective challenge

Desired outcome

For information about ALRC work, copies of speeches and presentations

ALRC website – all papers available online (free):

www.alrc.gov.au Email: info@alrc.gov.au

GPO Box 3708, Sydney 2001

NSWLRC website – www.lawlink.nsw.gov.au/lrc