Concurrent inquiries and actions

1.17 The ALRC and NSWLRC (the Commissions) are not alone in looking at the problem of family violence and seeking appropriate policy responses. Several other inquiries, state and federal, are being conducted at the same time as this Inquiry. A number have also been conducted before. The concurrent and previous work is referred to throughout this Report. In particular, the ALRC has been directed not to duplicate:

a) the other actions being progressed as part of the Immediate Government Actions announced by the Prime Minister on receiving the National Council’s report in April 2009;

b) the evaluation of the Family Law Amendment (Shared Parental Responsibility) Act 2006 reforms being undertaken by the Australian Institute of Family Studies; and

c) the work being undertaken through SCAG on the harmonisation of uniform evidence laws, in particular the development of model sexual assault communications immunity provisions and vulnerable witness protections.

1.18 In addition to these specific areas of concurrent work, there are two further contributions of significance to this Inquiry. First, the 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 (Chisholm Review).^[31] The review was completed at the end of November 2009, and released on 28 January 2010.^[32] Secondly, the Family Law Council provided an advice to the Attorney-General on the impact of family violence on children and on parenting, which was also released at the same time as the Chisholm Review.^[33] As both these initiatives were commissioned by the Attorney-General, and essentially at the same time as the Terms of Reference for this Inquiry, the Commissions have included them in the ambit of the work not to be duplicated in this Report.

1.19 Each of these is summarised, in turn, below. Their relationship to particular aspects under consideration in this Inquiry is considered at relevant points throughout this Report.

Immediate Government Actions

1.20 In response to Time for Action the Australian Government announced a package of immediate actions,^[34] including investments in a new national domestic violence and sexual assault telephone and online crisis service; in primary prevention activities towards building respectful relationships; and to support research on perpetrator treatment.

1.21 The Government also committed to working with the states and territories through SCAG to: establish a national scheme for the registration of domestic and family violence orders; improve the uptake of relevant coronial recommendations; and identify the most effective methods to investigate and prosecute sexual assault cases.

1.22 Further immediate actions included the development of a multi-disciplinary training package for lawyers, judicial officers, counsellors and other professionals working in the family law system, to improve consistency in the handling of family violence cases, and the establishment of the Violence Against Women Advisory Group to advise on the National Plan to Reduce Violence against Women.

1.23 The list of actions also included asking the ALRC to work with state and territory law reform commissions to examine the inter-relationship of federal and state and territory laws that relate to the safety of women and their children. In the list of ‘priority actions’ the Australian Government agreed to:

Make a reference to the Australian Law Reform Commission to examine the integration of domestic violence, child protection and federal family law.^[35]

Australian Institute of Family Studies evaluation

1.24 In 2006, the Australian Institute of Family Studies (AIFS) was commissioned by the Attorney-General’s Department and the Department of Families, Housing, Community Services and Indigenous Affairs to undertake an evaluation of the changes introduced by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) and the accompanying increased funding for new and expanded family relationships services. The amendments introduced significant procedural and substantive changes to the legal framework for resolving parenting disputes following parental separation—including a presumption in favour of equal parental responsibility; an increased focus on protecting children from harm resulting from abuse, neglect and exposure to family violence; and a more child-focused process for those disputes that do proceed to court.^[36]

1.25 The purpose of the evaluation was to assess the extent to which the reform package has been effective in achieving its policy aims.^[37] The report, Evaluation of the 2006 Family Law Reforms, was released at the same time as the Chisholm Review, on 28 January 2010.^[38] It involved the collection of data from 28,000 people involved in the family law system—including parents, grandparents, family relationship services staff and clients, lawyers, court professionals and judicial officers—and the analysis of administrative data and court files.

1.26 Of particular relevance in the context of this Inquiry are the findings in relation to family violence and safety concerns:

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. One in four mothers and around one in six fathers said that the other parent had hurt them physically prior to separation and, among those who report such experiences, most indicated their children had seen or heard some of the abuse or violence. When family court files … were examined, over half of the files contained an allegation of family violence on the written file.

Around one in five parents reported that they held safety concerns associated with ongoing contact with their child’s other parent and over 90% of these parents had been either physically hurt or emotionally abused by the other parent.^[39]

1.27 Notwithstanding the high incidence of family violence identified, the evaluation also found that:

a majority of separated mothers (62%) and fathers (64%) had friendly and cooperative relationships with each other about 15 months after separation. About a fifth had a distant relationship and a little under a fifth had a highly conflicted or fearful relationship.^[40]

1.28 Even when there was violence, therefore, a large number of parents separating after July 2006 were able to reach agreement about their parenting arrangements themselves, although as one in five were conflicted or fearful, the quality of some of those agreements may be called into question.

1.29 The study also reported a ‘cultural shift’ from a primary reliance on legal services to one where ‘a greater proportion of post-separation disputes over children are being seen and responded to primarily in relationship terms’.^[41] However, ensuring that families are able to reach appropriate services in a timely way was also crucial to the success of this shift:

Pathways through the system need to be more defined and more widely understood. There is still evidence that some families with family violence and/or child abuse issues are on a roundabout between relationship services, lawyers, courts and state-based child protection and family violence systems. While complex issues may take longer to resolve, resolutions that are delayed by unclear pathways or lack of adequate coordination between services, lawyers and courts have adverse implications for the wellbeing of children and other family members.^[42]

1.30 Screening properly to identify family violence and child abuse was another significant theme. The evaluation provided ‘clear evidence’ that the family law system had improved in relation to the identification of concerns about family violence and child abuse, although there were still significant problems:

Relevant issues include a lack of understanding of family violence and child abuse in various parts of the system, and perceptions of there being pressure to reach agreements notwithstanding the presence of such concerns. Problems also stem from the intersection of the state and federal systems, and with lawyers (and family relationship sector professionals) finding child protection systems difficult to engage with when there are concerns about risks to children. These issues pre-date the reforms and are longstanding. Further, some professionals believed that some new aspects of the legislative framework have discouraged concerns about family violence and child abuse from being raised. These include an obligation of courts to make costs orders against a party found to have ‘knowingly made a false allegation or statement in proceedings’ [Family Law Act s 117AB] and the requirement for courts to consider the extent to which one parent has facilitated the child having a relationship with the other parent (s 60CC(3)(c)).

While there was widespread concern that family violence and child abuse and neglect are being inadequately responded to, some legal professionals and fathers also claimed that allegations about family violence and child abuse were being used to impede fathers’ claims for a shared parenting role after separation.^[43]

1.31 While ‘systematic attempts to screen such families in the family relationship service sector and in some parts of the legal sector’ have improved the identification of such issues, the expectation that most families will attempt family dispute resolution (FDR) has meant that ‘FDR is occurring in some cases where there are very significant concerns about violence and safety’.^[44]

[There is a] need for professionals across the system to have greater levels of access to finely tuned assessment and screening mechanisms applied by highly trained and experienced professionals. Protocols for working constructively and effectively with state-based systems and services (such as child protection systems) also need further work. At the same time, the progress that continues to be made on improved screening practices will go only part of the way to assisting victims of violence and abuse.^[45]

1.32 Another area of concern identified in the evaluation was the misunderstanding that shared parental responsibility allows for ‘equal’ shared care time:

This confusion has resulted in disillusionment among some fathers who find that the law does not provide for 50–50 ‘custody’. This sometimes can make it challenging to achieve child-focused arrangements in cases in which an equal or shared care-time arrangement is not practical or not appropriate. Legal sector professionals in particular indicated that in their view the legislative changes had promoted a focus on parents’ rights rather than children’s needs, obscuring to some extent the primacy of the best interests principle (s 60CA). Further, they indicated that, in their view, the legislative framework did not adequately facilitate making arrangements that were developmentally appropriate for children.^[46]

1.33 The overall conclusion of the evaluation was that the 2006 reforms to the family law system have had ‘a positive impact in some areas and have a less positive impact in others’. More parents are sorting out their parenting arrangements without an automatic recourse to the court, notwithstanding a high incidence of family violence and child abuse. However, whether FDR is appropriate in such cases and, if so, when, is a matter requiring further consideration:

This is an area where collaboration between relationship service professionals, family law system professionals and courts needs to be facilitated so that shared understandings about what types of matters are not suitable for FDR can be developed and so that other options can be better facilitated.^[47]

Standing Committee of Attorneys-General

1.34 SCAG, through the National Working Group on Evidence, has recently considered harmonisation of sexual assault counselling communications privileges and immunities. At the conclusion of this work, SCAG Ministers agreed on principles to be applied as the minimum standard in Australia.^[48]

1.35 The National Working Group on Evidence is currently considering harmonisation of provisions protecting vulnerable witnesses giving evidence in court proceedings. Vulnerable witnesses in this context may include children, people with disabilities, and traumatised people—such as victims of sexual assault.

The Chisholm Review

1.36 Professor Chisholm was required to ‘assess the appropriateness of the legislation, practices and procedures’ that apply in cases where family violence is an issue and to recommend improvements. In acknowledging the challenges for the family law system of such cases—involving ‘more than half the parenting cases that come to the courts’—Chisholm reiterated in his opening remarks that ‘[v]iolence is bad for everyone, and particularly dangerous for children, whether or not it is specifically directed at them’:

These cases present the courts with truly daunting tasks: to provide a setting in which the parties feel safe and confident that they will be treated with respect; to deal with the cases with necessary efficiency but most importantly with justice and fairness; and to ensure as far as possible that arrangements made for children, whether as a result of the parties’ consent or by the court’s adjudication, are suitable for their needs, which will include being safe and having both parents contribute to their developmental needs.^[49]

1.37 Chisholm identified a theme that recurred throughout his review: ‘that family violence must be disclosed, understood, and acted upon’.^[50] In terms of the family law system, this means that each component of it ‘needs to encourage and facilitate the disclosure of family violence, ensure that it is understood, and act effectively upon that understanding’.^[51]

1.38 With respect to the procedures of the family law courts, Chisholm pointed to the importance of expertise in relation to children’s cases and a goal of achieving the same approach in both the Federal Magistrates Court and the Family Court of Australia. In order to ensure disclosure of family violence, Chisholm targeted the document that is used to alert the court to allegations of violence or abuse, and concluded that ‘this system is not working’.^[52] He suggested, instead, moving to a system of risk identification and assessment that applies to all parenting cases.^[53]

1.39 Chisholm identified three particular provisions of the Family Law Act 1975 (Cth) as needing amendment:

In essence, the recommendations are that the ‘friendly parent’ provision [s 60CC(3)(c)] should be amended so it recognises that parents sometimes need to take action to protect children from risk; that the specific and separate costs provision (s 117AB) dealing with knowingly false allegations and statements should be replaced by a simple reference to the giving of knowingly false evidence in the provision that deals with costs (s 177); and that the information that advisers are required to provide should reflect not only the importance of parental involvement but also the importance of safety for children.^[54]

1.40 Key recommendations also focused on the provisions dealing with parental responsibility and the guidelines included in the legislation—primary and additional considerations—for determining what is in the child’s best interests.^[55] As noted by Chisholm, this is ‘a large and controversial topic’.^[56] The package of reforms introduced by the Family Law Amendment (Shared Parental Responsibility) Act, emphasised two main concerns as the primary considerations:

(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.^[57]

1.41 Although these two matters were principal motivating concerns behind the 2006 amendments, Chisholm considered that ‘the “twin pillars” formula is not an ideal guide to children’s best interests’.^[58] Chisholm preferred instead guidelines that did not include ‘the artificial distinction … between “primary” and “additional” considerations’.^[59]

1.42 In addition, a central issue in the lead-up to the 2006 reforms was whether there should be a presumption in favour of ‘equal time’ in relation to parental responsibility.^[60] The formula, that when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have ‘equal shared parental responsibility’,^[61] has created considerable controversy, particularly a confusion between ‘equal responsibility’ and ‘equal time’. Such misunderstandings were also evident in the AIFS evaluation, described above. Chisholm preferred instead a presumption simply of each parent having ‘parental responsibility’.^[62]

1.43 Other recommendations in the Chisholm Review include the provision of additional funding to support the work of contact centres, FDR agencies, legal aid, and family consultants; better education in relation to issues of family violence; and recognition of the importance of experience and knowledge of family violence in making appointments to significant positions in the family law system.^[63]

Family Law Council

1.44 In Improving Responses to Family Violence in the Family Law System: An Advice on the Intersection of Family Violence and Family Law Issues, the Family Law Council makes a number of recommendations about family violence ‘if and when it becomes visible in the Family Law system in Australia’.^[64] The Council recommended a number of strategies to improve the understanding and identification of family violence, including that:

• the definition of ‘family violence’ in the Family Law Act be widened to include a range of threatening behaviour;^[65]

• a common knowledge base be established to assist all those in the family law system to better understand the patterns and effects of family violence;^[66]

• the Best Practice Guidelines for Lawyers Doing Family Law Work be revised to incorporate detailed information on family violence; ^[67] and

• the forms for notifying family law courts about family violence be improved.^[68]

1.45 The Family Law Council was concerned to address ‘certain widespread misunderstandings’ about the Family Law Act through education, in particular:

• Recurrent gossip that notification of family violence may lead to a judicial perception that the notifier is an ‘unfriendly parent’

• Widespread perception that each parent now has a ‘starting right’ to equal time (50/50) with children

• Common belief that a parent will receive both substantial time with a child, and equal shared parental responsibility, (similar to historic ‘guardianship’), despite a history of poor communication and hostility between parents; and despite the long term health and emotional consequences for children as casualties on such parental battlefields.^[69]

1.46 Such misunderstandings were also identified in both the Chisholm Review and the AIFS evaluations, considered above.

1.47 Co-ordination and collaboration between various participants in the system was also seen as being of critical importance, for example:

between the state and territory child protection agencies, and the federal Family Law Act, including: the transportability of state family violence injunctive orders; the establishment of a national register of family violence orders; and the establishment of a network database which records family violence orders, and a residual family court power to require state Child Protection Agencies to become parties to Family Law Court proceedings about children.^[70]

1.48 A specific aspect of concern was also whether FDR practitioners should have responsibility for providing to federal family law courts any information about family violence or other related issues disclosed during an intervention.^[71]

1.49 A recommendation of structural significance is the possibility of a referral of powers to the Commonwealth and a consequent expansion of jurisdiction of the family courts, so that, in determining a parenting application, federal family courts would have concurrent jurisdiction with that of state courts to deal with all matters relating to children including, where relevant, family violence, child protection and parenting orders.^[72] The context for a consideration of referral of powers, and the constitutional division of family law matters between the states and territories and the federal sphere are considered in Chapter 2.