Domestic and Family Violence and The Legal System
Domestic and Family Violence and The Legal System
Domestic and Family Violence and The Legal System
1 Renata Alexander, Domestic Violence in Australia: The Legal Response (2002), p. 55.
3 ALRC, Family Violence and Commonwealth Laws – Improving Legal Frameworks, ALRC
Report 117 (2011), p. 800.
4 Australian Government Solicitor, Domestic Violence Laws in Australia June 2009, p. 13.
5 Following Australian Government Solicitor, Domestic Violence Laws in Australia June 2009,
p. 10. Note the following terms are used in different jurisdictions: New South Wales –
Apprehended Violence Orders; Victoria – Intervention Orders; Queensland - Protection Orders;
Western Australia – Violence Restraining Orders; South Australia – Intervention Orders;
Tasmania – Family Violence Orders; ACT – Protection Orders; Northern Territory – Domestic
Violence Orders.
6 Australian Government Solicitor, Domestic Violence Laws in Australia June 2009, p. 25.
7 Renata Alexander, Domestic Violence in Australia: The Legal Response (2002), p. 97.
113
12 National Plan to Reduce Violence Against Women and their Children 2010-2022: Progress
Report to the Council of Australian Governments 2010-2022 at
www.dss.gov.au/sites/default/files/documents/05_2013/final_edited_report_edit.pdf (accessed
20 April 2015), p. 117.
13 See SCLJ Communique 4 April 2013 at
www.lccsc.gov.au/agdbasev7wr/sclj/documents/pdf/sclj%20communique%20april%202013%2
0final.pdf (accessed 8 May 2015).
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protection systems and will be responded to by jurisdictions through that
project. 14
9.13 The ACT Domestic Violence Prevention Council pointed out:
However, to date the 'national response' has only addressed 33 of the
Commissions' recommendations. These were identified by the SCLJ as
affecting jurisdictions jointly, with nine of those recommendations relating
to collaboration between the family law and child protection systems
referred to the National Justice Chief Executive Officers' project.
Widespread consultation and extensive resources were engaged to develop
the…recommendations for law reform across Australian jurisdictions. The
DVPC believes more could be done to progress the Commissions[']
recommendations. An opportunity now exists to bring to fruition a number
of important reforms that have been recommended by the Commissions. 15
9.14 The ACT Government submission notes that the ACT is currently considering
the recommendations of the Australian and NSW Law Reform Commissions report. 16
Funding cuts to legal aid
9.15 Discussed in the committee's interim report, most funding for legal aid centres
is provided by the states and territories. However, the committee heard evidence about
some aspects of legal aid the Commonwealth does fund, and how budget cuts to this
funding would affect victims of domestic and family violence.
9.16 In particular, stakeholders commented on the 2013-14 Mid-Year Economic
and Financial Outlook (MYEFO) measure 'Legal Policy Reform and Advocacy
Funding — redirection', which cut $43.1 million over the forward estimates to four
legal assistance programs, including funding streams for community legal centres.17
Stakeholders also criticised the withdrawal of $15.0 million to the sector in the 2014-
15 Commonwealth Budget. 18
9.17 Dr Chris Atmore, Senior Policy Adviser, Federation of Community Legal
Centres (FCLC), told the committee that Commonwealth budget cuts to funding for
community legal centres' (CLC) advocacy work would actually impact on the
assistance they could give to victims of domestic violence.
I just want to say a little bit [about] the impact of the recent federal funding
cuts on family violence services and the changes to Commonwealth funding
14 'National response to recommendations from the ALRC Report into family violence that jointly
affect the Commonwealth, States and Territories' at
www.lccsc.gov.au/sclj/archive/former_sclj/standing_council_publications/2013_publications.ht
ml (accessed 8 April 2015).
15 Submission 100, p. 15. See also Federation of Community Legal Centres (Vic), Submission
115, p. 12; Redfern Legal Centre, Submission 129, pp 8-9, p. 13.
16 ACT Government, Submission 121, p. 40.
17 Mid-Year Economic and Financial Outlook 2013-14 (December 2013), p. 119.
18 See the Budget measure 'Legal Aid — withdrawal of additional funding' in the Commonwealth
Budget 2014-15, Budget Paper 2: Expense Measures, p. 60.
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agreements meaning that systemic advocacy is ruled out for those centres
who receive Commonwealth funding. The funding cuts are, to put it slightly
bluntly, a partial rescinding of the previous federal Attorney-General's grant
to CLCs. Effectively CLCs lost about half of what they had originally been
promised, so the last two years of funding—which goes to, I think, 2018—
is no longer there. Fourteen community legal centres in Victoria have been
substantively affected by those cuts. For seven of those [Community Legal
Centres] CLCs, the cuts apply directly to front-line family violence
services, and those cuts amount to the order of roughly $1 million. It is
extremely unfortunate timing that those cuts have happened when they
have. 19
9.18 Ms Oberin, Chairperson, Australian Women Against Violence Alliance,
suggested advocacy was an essential part of a healthy legal system, and so community
legal centres should have their funding maintained for this work:
I think advocacy is critical to a healthy society and if we do not have NGOs
or civil society being able to advocate on behalf of civil society there is a
real risk of where governments may go with something. I think it is just the
principle of how important it is. There has to be independence for NGOs
and the not-for-profit sector to be able to do this. I think that [defunding the
advocacy work of] community legal services, for example, are a very
retrogressive step. They need to be advocating for their clients' issues and
structural issues that they see—the systemic issues—walking through their
doors and amongst each other. Rather than what is going on at individual
levels they can pick up the systemic things and advise government.
Advocacy is advice. I think it is wrong to think about it as some sort of
negative lobbying. It is actual expert advice from the ground. 20
9.19 Some witnesses drew the committee's attention to cuts to Aboriginal and
Torres Strait Islander legal services. Of the $43.1 million in cuts announced in the
2013-14 MYEFO, $13.41 million has been taken away from the Indigenous Legal Aid
and Policy Reform Program from 2013-14 to 2016-17. 21 The need for and value of
specific legal services for Aboriginal and Torres Strait Islander people was reinforced
in evidence to the committee. 22
28 The Attorney-General, Senator the Hon George Brandis QC, and the Minister Assisting the
Prime Minister for Women, Senator the Hon Michaelia Cash, 'Legal aid funding assured to
support the most vulnerable in our community', Media Release, 26 March 2015.
29 Committee Hansard, 12 September 2014. 13.
30 Committee Hansard, 15 October 2014, p. 43.
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Many of the women eligible to access legal services might not be aware of,
or fully understand, their rights, and fail to seek legal advice and support.
Lack of effective use of interpreters and limited cultural competency of
service provider staff also affect women's ability to confidently access
services on the basis of the latter believing they will not be properly
understood. Moreover, lack of understanding of the legal system in
Australia combined with language barriers can be very intimidating for
victims from immigrant or refugee backgrounds, as they might fail to
understand how the legal proceedings taken against their husbands will
impact them and their families. 31
9.30 Some submitters also highlighted that women with a disability often face
barriers to reporting domestic and family violence and receiving appropriate legal
assistance. Mr John Chesterman, Policy and Education, Office of the Public Advocate,
told the committee:
Women with disabilities experience many barriers to safety, including
social isolation, difficulties reporting violence to police and lack of support
through the court process. A lifetime combination of the experience of
violence may mean that women do not identify what is happening as
violence or that they're fearful of seeking help. 32
9.31 Ms Keran Howe, Executive Director, Woman with Disabilities Victoria,
highlighted how targeted programs could assist women with disabilities to get
appropriate legal help:
We have identified examples of specialist work, such as a referral program
from the Independent Third Person, where we do need additional resources.
Making Rights Reality is another program in Victoria where there is a
specialised sexual assault response to women with cognitive disabilities or
women with communication difficulties. They have had more tailored case
management from both legal advisers and counsellor advocates in the
sexual assault services, and this has been found to be more effective in
getting women to the court at all, let alone having successful prosecutions. 33
Training in family violence evaluation for legal personnel in the Family Law system
9.32 Ms Rosie Batty indicated to the committee that the shortcomings of the family
law system can be another form of systemic abuse for victims of domestic and family
violence and their children. She indicated there is a need for workers in the legal
system to receive more training in recognising and dealing with family violence and
how to consider what is in the best interests of the child. 34
9.33 Other witnesses also told the committee that there is a need to improve
training in and resources about family violence for magistrates presiding over cases in
31 Submission 54, p. 12. Other submissions also discussed the importance of interpreters,
including the Thai Information and Welfare Association, Submission 52¸ p. 3.
32 Committee Hansard, 5 November 2014, p. 30.
33 Committee Hansard, 5 November 2014, p. 35.
34 Proof Committee Hansard, 11 June 2015, pp 3, 6.
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the Family Courts. Others highlighted the need for family report writers to be given
training in family violence and, moreover, be subject to a more rigorous evaluation
process.
9.34 Dr Chris Atmore, FCLC, suggested to the committee that there were serious
gaps in some magistrates' knowledge about the intersection of the Family Court and
state and territory courts:
Even a lot of magistrates are still confused about their power to suspend
family law orders, for example—let alone lawyers and clients. You have a
family law system that is not thinking 'risk assessment'. 35
9.35 Dr Atmore highlighted the recommendation made by the ALRC in their 2011
review of domestic and family violence laws, namely that the Commonwealth and
jurisdictions should work together on 'the creation of a National Family Violence
Bench book which provides guidance to judicial officers on family violence and
sexual offences'. 36 Dr Atmore suggested this would be useful, citing Victorian
experience:
We have a family violence bench book in Victoria now and it is a fabulous
resource. It is available for anybody to have a look at. It is particularly used
by our more excellent magistrates in family violence—everyone
acknowledges that there is variability. It is used all the time. It has
checklists of things they should think about when making decisions.
Importantly, that checklist includes thinking about risk factors—what sort
of order they should go through them. 37
Training and evaluation of report writers
9.36 Some witnesses told the committee there is a particular need for consistency
in the training and evaluation of writers of family reports. Domestic and family
violence cases heard in the Family Court include the production of 'Family Reports',
which provide an independent assessment of the issues of the case, particularly the
effects upon children. The Family Law Courts describe these reports as follows:
A Family Report is a document written by a family consultant appointed by
the Court. It provides an independent assessment of the issues in the case
and can help the judge hearing the case to make decisions about
arrangements for the child/ren. It may also help the parties reach an
agreement.
In preparing the report, the family consultant considers the family's
circumstances, explores issues relevant to the case and recommends
arrangements that will best meet the child/ren's future care, welfare and
48 Renata Alexander, Domestic Violence in Australia: The Legal Response (2002), p. 87.
49 Australian Government Solicitor, Domestic Violence Laws in Australia June 2009, p. 13.
50 Australian Government Solicitor, Domestic Violence Laws in Australia June 2009, pp 29-30.
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• the obligations put on police officers to investigate suspected domestic
violence; and
• varying approaches to the counselling and rehabilitation of perpetrators. 51
9.51 Regarding maximum penalties, there is substantial variation across states and
territories in the fines and imprisonment terms for violations. Beyond noting this
variation, the AGS stated that 'it is not possible to make any straightforward
comparison between these divergent systems' as lowest maximum fines for first
offences can vary between $2,400 and $50,000 and minimum sentences range across
jurisdictions from 1 year to 5 years. 52
9.52 The Commonwealth has committed to making DVOs consistent across
jurisdictions as recommended by the findings of the 2010 ALRC and NSWLRC
report. In early 2015 the government announced plans to make this issue a priority for
COAG in 2015 to ensure the harmonisation of DVOs across all jurisdictions was
expedited. 53
9.53 Commonwealth, state and territory governments are working together through
the Law Crime and Community Safety Council to develop a legal framework to
enable the automatic recognition and enforcement of domestic and family violence
orders across jurisdictions. 54
9.54 Once enacted, this legislation will remove the requirement for victims of
domestic and family violence to register DVOs to make them apply in jurisdictions
where they were not originally issued.
9.55 To complement this process CrimTrac have been funded to develop a
prototype system to share information about active DVOs. From 2014 to 2017,
CrimTrac has been given the responsibility:
…to design, develop and test a prototype information sharing system for
domestic violence orders at the national level to be called the National
Domestic Violence Order Information Sharing System (NDVOISS).
The NDVOISS aims to address the lack of national coordination and
information sharing across systems, law enforcement agencies, justice
stakeholders (such as courts, justice and corrections agencies) and between
jurisdictions in Australia. 55
51 Australian Government Solicitor, Domestic Violence Laws in Australia June 2009, p. 14. For a
full list of protection order provisions in every state and territory can be found in Renata
Alexander, Domestic Violence in Australia: The Legal Response (2002), pp 91-184.
52 Australian Government Solicitor, Domestic Violence Laws in Australia June 2009, pp 14, 28.
53 The Hon Tony Abbott MP, Prime Minster of Australia, 'COAG agenda to address ending
violence against women', Media Release, 28 January 2015.
54 Law, Crime and Community Safety Council, Communique 3 October 2014 at
www.lccsc.gov.au/agdbasev7wr/sclj/lccsc%203%20october%202014%20communique.pdf
(accessed 17 January 2014).
55 Crim Trac,'News, 15 September 2014' at www.crimtrac.gov.au/about_this_site/News.html
(accessed 17 January 2014).
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9.56 At a public hearing in October 2014, the Attorney-General's Department
assured the committee that work was well underway on these initiatives. 56 Moreover,
the April 2015 COAG meeting agreed that by the end of 2015:
a national domestic violence order (DVO) scheme will be agreed, where
DVOs will be automatically recognised and enforceable in any state or
territory of Australia;
progress will be reported on a national information system that will enable
courts and police in different states and territories to share information on
active DVOs – New South Wales, Queensland and Tasmania will trial the
system;
COAG will consider national standards to ensure perpetrators of violence
against women are held to account at the same standard across Australia,
for implementation in 2016; and
COAG will consider strategies to tackle the increased use of technology to
facilitate abuse against women, and to ensure women have adequate legal
protections against this form of abuse. 57
9.57 In June 2015, the Attorney-General's Department informed the committee that
the work to put in place a national domestic violence order scheme remains on track:
The intention at the moment is to report to COAG through the ministerial
council by the end of this year—whenever the last COAG meeting for this
year is. Large parts of that work have been done already in terms of
working up the model laws. We have the first couple of iterations of draft
legislation being developed. The New South Wales Parliamentary Counsel's
Office is providing that service for the LCCSC [Law, Crime and
Community Safety Council] working group that is doing this work. That is
led by Tasmania and chaired by the secretary of the Department of Justice
in Tasmania. I would anticipate that it would get finalised well before the
end of the financial calendar year, but it may take a bit of time to get that
process through ministerial council and through to COAG, but we are well
and truly on track. 58
9.58 Mr Michael Pahlow, Assistant Secretary, AusCheck Branch, Attorney-
General's Department outlined the legal and operational issues to be resolved:
There are a lot of issues that we have resolved already, or we have figured
out how to get around those issues. Each jurisdiction's regime around
Committee view
9.61 The committee understands that the multiple legal frameworks dealing with
domestic and family violence are complex and, moreover, that domestic and family
violence cases are mostly handled by state and territory legal systems.
9.62 However, there are some responsibilities that the Commonwealth does have
including funding some aspects of legal aid, oversight of the Family Law Act and the
Family Court system and leading work to coordinate legal systems across
jurisdictions.
Coordination
9.63 Given comprehensive reviews undertaken in this area the committee was
concerned by the apparent lack of progress reported by stakeholders.
9.64 The National Plan includes a commitment to consider the recommendations in
the 2010 report by the ALRC and NSWLRC. 63 The status of this response is not
currently clear, and reporting frameworks for this process have also not been made
public. The committee believes that using the Evaluation Plan for the National Plan
(Justice responses are effective) would be the most effective way of providing a
coordinated response.
Recommendation 16
9.65 The committee recommends that the Evaluation Plan for the National
Plan include a coordinated status report on the consideration of the
recommendations in the 2010 report by the Australian and NSW Law Reform
Commissions.
Training
9.66 The committee heard how the training and resources on domestic and family
violence that are available to legal professionals in the Family Court system could be
improved.
9.67 Better knowledge across the Family Court system about the nature and extent
of domestic and family violence would be a positive step towards helping victims get
the assistance they need.
9.68 The committee understands the ALRC report recommended the development
of a bench book by the Commonwealth and jurisdictions for use in the Family Court
system. The committee notes that on 9 June 2015, the government announced that
work has commenced on a National Family Violence Bench Book, which will be
available in June 2017. 64
65 Recommendation 22-5 of the ALRC and NSWLRC, Family Violence – a National Legal
Response, ALRC Report 114/ NSWLRC Report 128 (2010).
66 'National response to recommendations from the ALRC Report into family violence that jointly
affect the Commonwealth, States and Territories', pp 3-4.
67 See answers to questions on notice from 11 June 2015 hearing received from the Attorney-
General's Department on 2 July 2015.
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23 July 2015, COAG agreed to 'consider the Model Law Framework for Domestic
Violence Orders and National Perpetrator Standards which are important next steps in
addressing violence against women and their children'. 68
Recommendation 19
9.75 The committee recommends that every effort is made by the
Commonwealth Government to ensure that the critical work being undertaken
by the COAG ministerial council to:
• agree a national domestic and family violence order scheme;
• report progress on a national information system to enable police and
courts to share information on active DVOs;
• consider national standards to ensure perpetrators of violence against
women are held to account at the same standard across Australia, for
implementation in 2016; and
• consider strategies to tackle the increased use of technology to facilitate
abuse against women and to ensure women have adequate legal
protections
is completed in accordance with the timetable agreed by COAG in April 2015.