CoseNZa, Isabella --- "The war at home: Re-assessing the rules of engagement and our legal armoury" [2009] ALRCRefJl 44; (2009) 94 Australian Law Reform Commission Reform Journal 55

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Reform Issue 94 Summer 2009

This article appears on pages 55–58 of the original journal.

The war at home

Re-assessing the rules of engagement and our legal armoury

By Isabella Cosenza*

While homes should be safe havens and family life critical to our well-being, the alarming reality is that a significant number of individuals are facing or fleeing a war at home.

Family violence encompasses varying degrees of severity—at the worst culminating in death. Violence can be physical, sexual, emotional, psychological, social, economic, or spiritual. Whatever form it takes, a central and predominant feature is that violence involves the perpetrator exercising control and power over the victim. Violence can be directed towards partners, children, elders, siblings, other relatives, persons within Indigenous kinship groups, and those being cared for—although not all of these groups are recognised uniformly across state and territory family violence legislation.

Family violence is being committed across different terrains—from regional and rural areas to remote Indigenous communities—and it involves perpetrators and victims across socio-economic, generational, cultural and religious divides. The casualties of family violence are predominantly women. The Australian Bureau of Statistics has estimated that nearly one in three Australian women experience physical violence and almost one in five women experience sexual violence over their lifetime.^[1] There are, however, a large number of silent victims—those who are unknown, who may be too ashamed or frightened to report family violence. Addressing the under-reporting of family violence remains a challenge.

As with any war, the costs and consequences of family violence to the individual and to the wider community are significant. Of immense concern is the finding that family violence is the leading contributor to death, disability and illness in women of reproductive age in Victoria.^[2] In 2009, the economic cost of violence against women and children in Australia has been estimated at $13.6 billion.^[3] Studies have documented the adverse emotional and psychological impact on children experiencing or being exposed to family violence.

The causes of family violence are multifaceted, complex and intertwined. Achieving a ceasefire will require more than a single solution. Social, cultural, attitudinal, economic, political, and legal factors all come into play. Prevention and protection strategies will invariably need to address the enormously difficult problems of homelessness, poverty, mental illness, access to justice by marginalised communities, drug and alcohol abuse—to name just a few. Indeed family violence has been the subject of numerous reports and inquiries over the decades. The National Council to Reduce Violence against Women and their Children, in its report Time for Action, focuses on strategies and actions for prevention, early intervention, improved service delivery and justice.

ALRC’s Terms of Reference

Within the context of this wider social fabric—and alongside a number of key concurrent inquiries relevant to this area—the ALRC has been asked to consider the interaction in practice of family violence laws and child protection laws with the Family Law Act 1975 (Cth) and the criminal law. The ALRC has also been asked to consider the impact on victims of inconsistent interpretations or applications of sexual assault laws within the context of family violence.^[4]

In each case, the ALRC has been asked to consider whether improvements could be made to the relevant legal frameworks. The ALRC’s Terms of Reference are therefore limited to considering improvements to the law—although undeniably laws cannot be considered in isolation from the social and cultural frameworks and the processes within which they operate.

The relevant interactions that the ALRC is to consider cross: geographical jurisdictions; federal and state jurisdictions created by the division of legislative powers; criminal and civil jurisdictions; and public and private law. The potential battlefields are, therefore, numerous and splintered. For example, a woman may simultaneously be involved in: civil proceedings to obtain a family violence restraining order; a criminal prosecution for the act of violence committed against her; family proceedings to determine parenting orders; and child welfare proceedings in respect of children considered at risk because of their having experienced or been exposed to family violence. Each set of proceedings has its own rules of engagement. Legal representation across the cases may be fragmented or non-existent. The delivery of legal services may be dependent on federal and state or territory cooperation. For example, the federal machinery of the Family Court does not have an investigative arm to examine allegations of child abuse and is reliant on state and territory child welfare authorities in this regard—which from many accounts are battle-weary and severely under-resourced.

The danger of multi-jurisdictional involvement is that victims of violence—particularly children—may be left in no man’s land or worse, thrust unwittingly into the line of battle. This can result, as outlined below, because of the fact that courts across jurisdictions may be preoccupied with making orders that are consistent with each other—rather than focusing on the issue of whether individuals are at risk of violence.

Resolving inconsistent orders—masking the potential for violence

Concurrent or consecutive proceedings may arise in the local or magistrates court, the Children’s Court or Youth Court, and the Family Court or Federal Magistrates Court. This raises the potential for conflicting orders. A person may simultaneously be subject to a restraining order, bail conditions and Family Court contact orders.

For example, there may be direct conflict between a family violence restraining order made in the local court which prohibits a father from approaching the family home, and a contact order under the Family Law Act which provides for the father to collect children for contact from the family home. Section 68Q of the Family Law Act provides that in cases of such inconsistency, the contact order prevails and the family violence restraining order is invalid to the extent of the inconsistency. This may expose victims to further violence. Previous reports have recommended that when the Family Court makes a contact order it should satisfy itself that the order will not expose women and children to an unacceptable risk of violence, irrespective of whether the proposed contact order and an existing family violence order are inconsistent.^[5]

The Family Court may make orders inconsistent with a family violence order—even when it is aware of the order—because the mere existence of the order does not amount to evidence of violence. This is especially the case with respect to many family violence restraining orders that are obtained by consent without admissions by the person against whom the order is made.

State and territory courts exercising family law jurisdiction have the power to modify or revoke a contact order under the Family Law Act to give effect to a family violence restraining order. Such power, however, is rarely used. This is partly because magistrates may be unaware of the existence of the contact order or may be reluctant to vary orders made by a superior court.^[6] As a matter of practice, many magistrates avoid potential inconsistency by making family violence restraining orders subject to any contact permitted by an order made under the Family Law Act. This standardised approach to family violence restraining orders increases the potential for the risk of violence to be masked. This problem is exacerbated by the practical reality that proceedings for family violence restraining orders in some jurisdictions have been found to be very brief, rarely receiving particularised attention from magistrates. Rosemary Hunter’s study concluded that the median hearing time for all proceedings for family violence restraining orders in magistrates’ courts in Victoria was three minutes.^[7]

Triggering intervention

A key issue is that the rules of engagement for triggering legal intervention in cases of family violence vary among the states and territories. Whether protective family violence restraining orders under family violence legislation can be deployed to protect victims from future acts of violence will depend on: the parameters of the varying definitions of ‘family violence’ across the state and territory jurisdictions; whether the victim is in a defined relationship with the alleged perpetrator, and varying legal tests for the activation of the order. For example:

• Some jurisdictions do not expressly include sexual assault as a type of family violence.

• Only four jurisdictions expressly include kidnapping or deprivation of liberty as a form of family violence.

• All jurisdictions except Tasmania specify damage to property as constituting a form of family violence.

• Victoria is the only jurisdiction where causing a child to witness or otherwise be exposed to the effects of family violence itself constitutes family violence—although some other jurisdictions expressly allow for the making of orders to protect children from such exposure.

While the family violence legislation of some jurisdictions—such as Tasmania and South Australia—provide protection to a relatively narrowly defined group of people, other jurisdictions adopt a broader approach. For example, the Queensland legislation recognises that Indigenous persons may have an extended concept of family, and it includes in the definition of ‘relative’ any person whom the relevant person reasonably regards as a relative. It also extends protection to informal care relationships.

Understanding precisely what constitutes family violence in each jurisdiction is a fundamental prerequisite to considering whether and how, in any particular matter, family violence laws interact with the Family Law Act—which has its own definition of family violence.^[8] Family violence is especially relevant in the context of relationship breakdowns. Significantly, the Family Violence Strategy of the Family Court of Australia acknowledges that the definition of ‘family violence’ in the Family Law Act is too narrow to meet the objectives of the Strategy.

The Family Law Act contains a number of provisions guiding the Court’s discretion. These include that the Family Court and any court exercising jurisdiction under the Act must have regard to the need to ensure safety from family violence.^[9] Insofar as the Family Court has to decide what is in a child’s best interests it has to consider as a primary consideration the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.^[10]The Court must also consider as an additional consideration any other fact or circumstance that the Court thinks is relevant.^[11]

An issue which the ALRC will explore is whether, in practice, the differences in the definitions of ‘family violence’ across family violence legislation and them Family Law Act are causing gaps in protection or preventing relevant evidence or information about family violence from being put before the Family Court. In particular, the ALRC will inquire whether the combined effect of the Family Court’s broad discretion and the guiding principles in the Family Law Act operate at a practical level to surmount definitional constraints.

Understanding the definitions of family violence in each jurisdiction is also critical to assessing whether and how those laws interact with the criminal law in any particular matter. For example, where family violence is defined by reference to specific criminal offences—as it is in the family violence legislation of New South Wales^[12]—there is clear potential for overlap between civil and criminal redress. The same conduct can form the basis for a protection order as well as a prosecution for a criminal offence, although the latter will require a discharge of the criminal burden of proof—beyond reasonable doubt. In all jurisdictions breach of a protection order is a criminal offence. In other cases, definitions of family violence will include examples of conduct—such as emotional abuse—which do not attract the protection of the criminal law, although they form the basis for the obtaining of a civil family violence restraining order. The Victorian legislation, for example, explicitly provides that ‘to remove doubt it is declared that behaviour may constitute family violence even if the behaviour would not constitute a criminal offence’.^[13]

Whether a victim will have the armoury of the criminal law for particular forms of abuse may also be jurisdiction-dependent. For example, while some jurisdictions recognise economic abuse as a form of family violence, only the Tasmanian legislation makes economic abuse a criminal offence.^[14]

The way forward?

What strategies and legal machinery are needed to combat family violence? The flow of accurate and timely information is critical to survival in war—and this is no less applicable to the war at home. Courts should be aware of pre-existing orders affecting the parties before them, especially when those orders may impact on safety. The ALRC will be exploring measures to ensure that the flow of information between courts, and between courts and relevant state departments and agencies is optimal.

Should there be single rules of engagement in the form of model family violence laws across the jurisdictions—as was proposed by a Domestic Violence Legislation Working Group in 1999? Should family violence matters be heard in specialist family violence courts—as is the case in some jurisdictions—and, if so, what model should be adopted? Is there a place for therapeutic jurisprudence? How can the legal armoury be strengthened or tailor-made to assist particular groups of vulnerable victims of violence—such as Indigenous women, the mentally ill, and women from linguistically and culturally diverse backgrounds?

When people take marriage vows ‘for better or worse’ and ‘til death do us part’—they do not bargain for the worst outcome of death or severe injury at the hands of their spouse—or that their children will be targets of violence from their spouse. The law can only go so far to address family violence but it is important that it goes as far as it possibly can.

Timetable for the Inquiry

The Australian Law Reform Commission (ALRC) and the New South Wales Law Reform Commission are working on a joint consultation paper, which will outline the scope of the Family Violence Inquiry and seek community feedback on relevant issues.

It is anticipated that the consultation paper will be released in March 2010. The commissions will embark on an intensive round of consultations, before submitting a final report to the Attorneys-General of Australia and New South Wales at the end of July 2010.

The report will be publicly available once it is tabled in the Australian and NSW parliaments.

Register an interest

The ALRC website allows people who are interested in the progress of the Family Violence Inquiry to register an interest to receive email updates and copies of the consultation paper, once it is released.

www.alrc.gov.au

* Isabella Cosenza is a Senior Legal Officer at the Australian Law Reform Commission (ALRC). She is currently assigned to the joint ALRC/New South Wales Law Reform Commission Inquiry on Family Violence.

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[1] Australian Bureau of Statistics, Personal Safety Survey, ABS Cat No 4906.0, 2005, cited in Background Paper to Time for Action: The National Council’s Plan for Australia to Reduce Violence against Women and their Children, 16.

[2] Victoria Health, The Health Costs of Violence: Measuring the Burden of Disease Caused by Intimate Partner Violence: A Summary of Findings, 10.

[3] The National Council to Reduce Violence Against Women and their Children, The Cost of Violence Against Women and their Children, (March 2009), 34.

[4] The NSW Law Reform Commission has received identical Terms of Reference and will be working jointly with the ALRC on this Inquiry.

[5] Kearney McKenzie & Associates, Review of Division 11 (1998) 26. This approach was supported by the Family Law Council.

[6] Ibid, 18–19.

[7] R Hunter, Domestic Violence Law Reform and Women’s Experience in Court, 81.

[8] The workability of any proposal to have a national registration of family violence orders may be compromised by multiple definitions of family violence, especially where those definitions are in conflict on particular aspects.

[9] Family Law Act 1975 (Cth) s 43(1)(ca).

[10] Ibid s 60CC(2)(b).

[11] Ibid s 60CC(3)(m).

[12] Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss 4, 11.

[13] Family Violence Protection Act 2008 (Vic) s 5(3).

[14] Family Violence Act 2004 (Tas) s 8.