Forced Marriage and Modern Slavery

modern slavery

Image Copyright Monash University

This 11 minute video on modern slavery features the work of Associate Professor Heli Askola, Feminist Legal Studies Group member, on forced marriage in Australia. In the video, Monash academics from a range of disciplines argue that slavery is not just a feature of history but part of contemporary Australian society.

Dr Askola argues that forced marriage, where young women are coerced into marriage is a form of family violence. She notes in the video that because of a barriers to reporting, we have little knowledge of the extent of forced marriage in Australia. She argues, “Legal solutions can only work as part of an overall strategy based on changing behaviour and addressing the structural barriers involved in forced marriage, human trafficking and other forms of modern slavery.”

Dr Askola has also made a written case for the establishment of a modern slavery Act in Australia.  She notes that ‘Modern Slavery Act can be part of that effort, but it must be a part of a broader strategy that recognises states must give effect to all their international commitments relating to the various forms of ‘modern slavery’.’

 

 

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New Monash Law Unit: International Human Rights and Women

If you are Melbourne-based (or can travel to Melbourne) and interested in learning more about human rights and women, we have an exciting new unit being run in October 2018 by Feminist Legal Studies Group member Dr Tania Penovic which can be taken as a professional development unit (with no assessment but for legal CPD points) or with assessment as part of a Monash Law Masters. You can read more about the unit here.

womens march canada

‘Women’s March 2018 Vancouver, Canada’ by Sally T Buck, Creative Commons

International Human Rights and Women

Securing the protection and promotion of the human rights of women remains a challenge in the 21st century. Notwithstanding the significant advances in international human rights norms relating to women, systemic discrimination and inequality are part of everyday life for many women in the world. Many human rights abuses relate solely to, or impact more significantly on, women, such as, violence, human trafficking, and female genital mutilation.

This unit examines the international human rights obligations and standards pertaining to women, including relevant international treaties, customary international law and the domestic means of implementing international norms. It covers the theoretical debates about securing the human rights of women, including debates about discrimination, equality and the publicprivate divide and examines the impact and challenges of cultural practices on the realisation of women’s human rights.

Dual Delivery Mode

This is a dual delivery mode where industry registrants and Monash students share their classroom experience. Industry registrants can choose to complete this unit in one of two ways:

  • Professional Development Only ($2,936)Registrants complete the unit for professional development purposes, but are not required to enrol as students or complete assessment for credit.
  • For Academic Credit ( $3,838)Registrants can enrol as a student and complete the full unit with assessment and gain credit toward a Monash Law Masters

Teaching period:

23 October 2018 9.00am – 4.30pm

24 October 2018 9.00am – 4.30pm

30 October 2018 9.00am – 4.30pm

31 October 2018 9.00am – 4.30pm

Learn from the experts

Dr Tania Penovic is a Senior Lecturer in the Faculty of Law and a Deputy Director of the Castan Centre for Human Rights Law and a member of the Feminist Legal Studies Group.

She teaches civil procedure, torts and a number of areas of international and domestic human rights law, including women’s rights and refugee law. She has published widely on human rights, including the rights of asylum seekers, access to civil justice and women’s and children’s rights.

Tania has been involved in a number of enquiries into federal and Victorian law reform and in professional human rights training programs for judges and Australian and international government officials.

 

 

We can do better than this: Improving our family law system for women and their children who have experienced family violence

luneblu

Photo: Lune Bleue by Luc Borell, Creative Commons

Introduction

I wanted to share a submission I made recently to the Australian Law Reform Commission’s Review of the Family Law System. This is a major and wide-ranging inquiry into the state of Australia’s family law system, more than 40 years since Australia’s no-fault, specialist family court and social service system was first created.

I chose to focus my submission upon provision of supportive, safe family law processes for women and their children who have experienced family violence. I have focused on family violence because I believe it is the area in most urgent need of reform. Family violence in the family law system is an issue in which I have recently conducted academic work (as a consultant to the Victorian Royal Commission into Family Violence in 2015, writing on the intersection of family violence and family law). This submission also draws upon a submission I wrote for the Castan Centre for Human Rights Law for the Parliamentary inquiry into a better family law system to support and protect those affected by family violence, Standing Committee on Social Policy and Legal Affairs, House of Representatives (2017).

I am an Associate Professor of law at Monash University, working across the areas of family law, family violence, non-adversarial justice, dispute resolution, gender, child protection and constitutional law. I have particular expertise in use of informal processes such as mediation, Family Dispute Resolution and Family Group Conferencing in family law, family violence and child protection contexts. I am currently Deputy Director of the Australian Centre for Justice Innovation at Monash and, with Associate Professor Janice Richardson, co-convener of the Monash’s Feminist Legal Studies Group. I am a former director of FMC Mediation and Counselling Victoria, a service provider under the Family Relationship Services Program in Victoria. I’m the co-author of Non-Adversarial Justice (2nd ed, 2014), Bargaining in the Shadow of the Law? The Case of Family Mediation (2011) and the author of many academic articles. I edit the ADR Research Network blog and tweet regularly under the handle @BeckyBatagol. In 2015, I worked as a research consultant to the Royal Commission into Family Violence. I have also consulted to the Victorian Law Reform Commission on child protection processes.

Summary of Recommendations

The question numbers next to each recommendation relates to the questions contained in the Australian Law Reform Commission, Review of the Family Law System: Issues Paper (March 2018).

This submission recommends

  1. That the Commonwealth government do all that is necessary to support State and Territory magistrates and children’s court judges to exercise family law powers in cases on family violence. Measures recommended include
  2. Compensation for state and territory governments for state courts hearing federal cases (Question 32)
  3. Requirements for service providers under the Family Relationships Services Programme to establish durable links with courts and service providers in the state family violence system to create clear referral pathways for families experiencing family violence who have their family law matters heard within the state courts (Question 31).
  4. That the Commonwealth Parliament urgently amend section 46(1) Family Law Act 1975 to increase the $20,000 limit on property disputes able to be heard by State and Territory magistrates’ courts. The jurisdictional limit for hearing family law property disputes should mirror the upper limit on civil dispute able to be heard by State and Territory magistrates’ courts (Question 17).
  5. That the Commonwealth government, through the Council of Australian Government’s Council of Attorneys-General, urgently lead the development of a nationally consistent family violence risk assessment tool which should be used by State, Territory and federal courts, lawyers, government and non-government service providers (Question 31).
  6. That
    1. Service providers under the federal Family Relationships Services Programme including services such as family relationship centres, family dispute resolution (FDR), family counselling, children’s contact services, parenting Orders Programme, the Post Separation Cooperative Parenting Programme and the Supporting Children After Separation Programs, be able to access the national order reference systems in cases of family violence as necessary (Question 33);
    2. The national order reference system should include criminal law, child protection, family violence and family law orders and judgments from all State, Territory and federal courts (Question 33).
  7. That
    1. All family consultants should undergo high-quality family violence training;
    2. All family consultants must use a high-quality family violence risk assessment tool such as the Victorian Common Risk Assessment Framework (CRAF);
    3. A non-court complaints process should be introduced for the review of the conduct of family consultants (Question 41).
  8. That the Commonwealth Parliament urgently amend the Family Law Act 1975 to ensure that perpetrators of family violence do not personally cross-examine victims of family violence in family law proceedings (Question 25).
  9. That the federal Attorney-General provide adequate legal aid funds to allow for the legal representation of victims and perpetrators of family violence for the purpose of cross-examination of victims in family law cases (Question 25).

 

Family Violence in the Australian Family Law System

Family violence, including intimate partner violence, is a common problem with serious health, social and economic consequences for women, their families and communities.[1] Family violence is not merely an isolated phenomenon – in 2012, an estimated 17 per cent of Australian women had experienced violence committed by their partner against them.[2] The incidence of family violence is certainly higher within the family law system with a major Australian Institute of Family Studies (AIFS) evaluation finding that two thirds of separated mothers and half of separated fathers reported family violence by their partner.[3] In that study, 72% of mothers and 63% of fathers reported that their children had witnessed the violence. Because of known difficulties reporting and sustaining allegations of family violence in court, the incidence of allegations of family violence made before the family courts are lower, with allegations of family violence and/or child abuse present in around 50% of Family Court of Australia cases, 70% of Federal Circuit Court cases and 65% of Family Court of Western Australia cases since 2006.[4]

The Productivity Commission has noted that obtaining access to justice in the family law system is most difficult for complex cases involving family violence.[5] The constitutionally entrenched fragmentation of the Australian legal system for families is a key source of difficulty in family law disputes which involve allegations of family violence. Such disputes can’t usually be neatly divided into public and private aspects.[6] Parties who have experienced family violence must use multiple federal and state systems to obtain legal orders necessary for safety and dispute resolution (including the state family violence, criminal and child protection systems and the federal family law system).[7] The Productivity Commission noted in 2014 that

The interaction and overlap between jurisdictions can result in multiple proceedings and inconsistent orders, which can cause unsafe and traumatic situations for parents and children. The current court structure means that parties often will have to institute or be engaged in proceedings in various legal forums in order to have all of their issues determined.[8]

Parties in cases where there are allegations of family violence are more likely to use courts and legal services for family law matters.[9] Separated parents who have experienced family violence may be more likely to choose to attend Family Dispute Resolution (FDR) services (including Family Relationship Centres) than other less formal services. The AIFS Evaluation of the 2012 Family Violence Reforms found that the use of FDR was “strongly associated” with the experience of family violence, and that parents, especially mothers, who also reported experiencing the conditions of fear, coercion and control as a result, were more likely to be using FDR services as their main pathway to sort out parenting arrangements.[10] Significantly higher proportions of mothers (71% using FDR) than fathers (48% using FDR) reported having experienced fear, coercion and control before/during separation.[11]

The AIFS Evaluation of the 2012 Family Violence Reforms found that parents who reported safety concerns did not necessarily feel that their concerns were managed effectively during FDR.[12] Similarly, in Carson, Fehlberg and Millward’s 3-year longitudinal study of separated parents, the parents who were most likely to be dissatisfied with the process and outcomes of FDR as well as with the quality of the services they had received, were those parents who reported an uncooperative, controlling and/or violent partner/ex-partner, a hostile post-separation relationship or an absence of the ability to negotiate and compromise.[13]

 

Supporting Access to Justice for Families with Complex Disputes

This issue relates to question 32 in the Commission’s Issues Paper on changes to reduce the need for families to engage with more than one court to address safety concerns and question 31, regarding an integrated services approach to assist families with complex needs.

The fragmentation of jurisdiction over family life in the Australian federation is most acute in cases of family violence which involve relationship breakdown. Over the years, a range of solutions have been proposed to overcome the constitutional limitations in a federal system including;

  • State referral of powers to the federal family courts (eg over children whose parents are not married or property of unmarried partners)
  • Establishing a single family law court (‘unified family court’) to deal with all matters relating to family law and violence
  • Joint appointment of judges by the federal and state parliaments
  • Expanding the jurisdiction of the federal family courts so that they have the power to make child protection orders and more effective family violence orders
  • Giving state and federal courts corresponding jurisdictions so that they can decide cases under both systems.[14]

My view is that solutions which support the flexible application of both Commonwealth and State/Territory jurisdiction in a single court (whether federal or state) should be encouraged. The diverse and complex nature of family matters means that family members should be encouraged to resolve the breadth of their matters in whichever forum they arrive at, whether that be the two federal family courts (Family Court of Australia and the Federal Circuit Court), a State/ Territory Magistrates’ Court or a Children’s Court. Such an approach means improving the powers and capacity of the federal family courts to deal with matters under State/Territory law and of State/Territory judges in lower courts to deal with federal family law disputes.

Increasing the Powers of Federal Judges through Accrued Jurisdiction (Question 32)

There is potential for the Family Court of Australia and the Federal Circuit Court themselves to increase the powers of the judges in those courts to exercise powers under state law though the doctrine of accrued jurisdiction. Accrued Jurisdiction allows a federal court to hear and determine disputes that arise under non-federal law. The Family Court of Australia has narrowly interpreted its own powers to exercise state jurisdiction under this doctrine.[15] With the Honourable Nahum Mushin, I am currently supervising a higher degree by research student, Mr Daniel Matta. Mr Matta’s Monash University SJD thesis, The Intersection of Private Family Law and Non-Federal Claims: An Examination the Family Court of Australia’s Accrued Jurisdiction will be submitted later in 2018. With his permission, I have quoted the abstract of Mr Matta’s thesis below.

This thesis undertakes an examination of accrued jurisdiction as it has been applied in the Family Court of Australia (‘Family Court’). Accrued Jurisdiction allows, in appropriate cases, a federal court to hear and determine disputes that arise under non-federal law, for example, state law or the common law. The Family Court is often although not always, required to consider matters that impact its decisions which are not specifically addressed in the Family Law Act 1975 (Cth) (‘FLA’). Through an examination of the history, interpretation and application of accrued jurisdiction, this thesis will explore how the Family Court, as a specialist court, has grappled with cases that go beyond the traditional limits of family law disputes governed by the FLA.

The cases considered in this thesis illustrate that the Family Court has taken a narrow approach to interpreting the jurisprudence surrounding its accrued jurisdiction in a majority of cases. An example where this arises is the intersection of private, or federal, family law which is governed by the FLA and public family law such as child protection and welfare that is legislated by the various states and territories.

A further, although more limited, area of fragmentation in public and private family law arises within the parens patriae jurisdiction. The parens patriae jurisdiction provides state Supreme Courts with very broad powers to make orders for the welfare of children. This thesis will further examine this far-reaching, yet rarely exercised, jurisdiction including its historical roots and how it can be applied by the Family Court to make orders for the care and protection of children.

This thesis argues, based upon the jurisprudence of the High Court, that accrued jurisdiction, in its application by the Family Court is no different to that of the Federal Court. This thesis further argues that where accrued jurisdiction properly arises in a matter, there is no discretion to exercise it. This thesis concludes that, in appropriate cases, the Family Court must apply its accrued jurisdiction to hear an entire matter with both federal and non-federal claims.

The potential application of the findings in this thesis are far reaching and may apply to any proceeding arising out of Part VII and Part VIII of the FLA including claims for damages, negligence, surrogacy and child protection or welfare orders.[16]

I believe that the implication of Mr Matta’s work is that there is potential for both federal family courts in areas such as child protection to determine the entirety of a matter under both federal and state law. The power to do so rests solely in the hands of the judges of Family Court of Australia and the Federal Circuit Court, and in those judges being bolder in how they interpret their own powers. Using accrued jurisdiction to deal with the whole of a dispute under state and federal law would be more congruent with existing High Court authority[17] and with the approach of the other Chapter III court, the Federal Court of Australia. In my view based upon the work of Mr Matta, it would be not only possible but desirable for judges of the federal family courts to use the doctrine of accrued jurisdiction to determine the entirety of matters before them, under both federal and state law. Such an approach would reduce the need for family law litigants to also attend state courts for connected disputes.

Supporting State and Territory Magistrates to Determine Family Law Disputes (Question 32)

The Australian and NSW Law Reform Commissions concluded in 2010 that the best option for dealing with jurisdictional fragmentation was to work within existing constitutional limits without creating new courts.[18] The approach of the Victorian Royal Commission into Family Violence was to work within constitutional limits by encouraging and supporting local judges in the Victorian Magistrates’ and Children’s Courts to exercise latent family law powers so that family violence, child protection and family law matters could be dealt with by a single judge.[19] The Royal Commission argued that the exercise of family law powers by Magistrates would enable families who have experienced family violence to resolve their legal issues in the state system more safely without having to navigate multiple court systems.[20] Five specialist family violence courts are currently being created in Victoria which will exercise wide family law and family violence powers. Children’s Courts will also be able to exercise family law powers when making child protection decisions.

State and Territory Magistrates have limited powers under the Family Law Act 1975 to make orders in relation to family law parenting and property disputes. Currently, these powers are rarely used. Local level magistrates are often reluctant to exercise their powers under the Family Law Act for a range of reasons, including the complexity of family law parenting provisions following the 2006 reforms, a lack of time in busy local courts, a lack of competency in family law amongst the local magistracy and Family Law Act provisions which make state orders ineffectual.[21]

There is much the Commonwealth needs to do to enable State and Territories to fully use the potential for local magistrates and children’s courts to exercise comprehensive jurisdiction in cases of family violence. I believe that enhancing the ability of State and Territory judges to make family law orders will better support and make safe the many families who have experienced both family violence and relationships breakdown. It will improve access to justice for those who have experienced family violence.

One issue faced by and State and Territory governments who wish to consolidate family law and family violence or child protection jurisdiction within their own courts is that they are effectively taking on case load from the federal family courts without compensation. With busy lists and tight funding for family violence and child protection matters, the additional cost requirements imposed by increased family law load on the local courts will be prohibitive for many jurisdictions. Given that increased exercise of family law powers by the State and Territory courts is expected to reduce the caseload burden on the federal family courts, some form of payment by the Commonwealth is appropriate. The Royal Commission into Family Violence suggested that the Victorian government should negotiate with the Commonwealth to explore how the Commonwealth could compensate that State for hearing federal family law cases.[22]

1 a.      I recommend that the Commonwealth government do all that is necessary to support State and Territory magistrates and children’s court judges to exercise family law powers in cases on family violence. Measures recommended include compensation for State and Territory governments for State courts hearing federal cases (Question 32).

Federal-State Support Service Connections (Question 31)

Most family dispute are resolve outside the courts. Federal-state connections must extend to the support service level so that the jurisdictional cracks in the Australian constitutional framework can be papered over by seamless and integrated service delivery. This relates to question 31 in the Australian Law Reform Commission, Review of the Family Law System: Issues Paper (March 2018) relating to integrated services approaches.

As State and Territory magistrates in jurisdictions such as Victoria increasingly exercise federal family law powers, existing family law support services provided under the Family Relationships Services Programme administered by the federal Department of Social Services must be accessible for litigants with family law matters heard in the state system. Services under the Family Relationships Services Programme include family relationship centres, family dispute resolution (FDR), family counselling, children’s contact services, parenting Orders Programme, the Post Separation Cooperative Parenting Programme and the Supporting Children After Separation Programme. These federally-funded services are currently oriented to the federal family court system and durable links have not generally been established between local service providers under the Family Relationships Services Programme and local courts who exercise family law powers.

For families experiencing both relationship breakdown and family violence, the lack of clear referral pathways between FDR providers and state courts means raises the danger that litigants will get lost between systems and will not be able to navigate the gaps between the federal jurisdictions. Consequently, there is an imperative on programs under the Family Relationships Services Programme to establish links with both state courts which exercise federal family law powers and family violence services for victims and perpetrators which operate under the state family violence systems.

1 b.     I recommend that the Commonwealth government do all that is necessary to support state and territory magistrates and children’s court judges to exercise family law powers in cases on family violence. Measures recommended include requirements for service providers under the Family Relationships Services Programme to establish durable links with courts and service providers in the state family violence system to create clear referral pathways for families experiencing family violence who have their family law matters heard within the state courts (Question 31).

Property Orders in State and Territory Magistrates’ Courts (Question 17)

This recommendation relates to question 17 of the Australian Law Reform Commission in the Review of the Family Law System: Issues Paper (March 2018), changes to the provision of the Family Law Act on property division. In this section I focus on the ability of families who have experienced family violence to obtain an order relating to property division for low-value disputes from State and Territory Magistrates’ Courts during their family violence intervention order proceedings. This is way to help provide legal remedies for people who have been subjected to family violence and to help them recover financially.

The Royal Commission into Family Violence noted the importance of obtaining a fair property split in assisting victims of family violence to regain stability following separation, yet victims of family violence are often put at disadvantage is family law property settlements.[23] Women’s Legal Service Victoria’s Small Claims, Large Battles 2018 report noted that in cases of family violence, “Economic abuse left the women with limited financial resources to take action to seek a property settlement, while power imbalances and ongoing violence or intimidation made them fearful of seeking their share of property through the family law system.”[24]

Obtaining legal advice and resolution of family law property disputes at a cost that is affordable and proportionate to the value of assets in dispute is a problem, particularly for low value (including net debt) property disputes.[25] Research by the Productivity Commission has shown that parties with asset pools under $40,000 (low asset pool range) and between $40,000 and $139,000 (low-medium range) were less likely to use lawyers to help them to resolve their family law financial dispute than those with more assets, because of the high cost of legal representation.[26] Parties in the low and low to medium asset pool range are much less likely to use Family Dispute Resolution or court services to resolve their dispute than those with more assets.[27] This means it is much less likely that an agreement will be made to divide property and raises questions about the appropriateness of agreements or outcomes arrived at in these cases.[28]

To help victims of family violence more easily obtain resolution of their family law financial disputes, the Royal Commission into Family Violence recommended that Victorian Magistrates’ Courts use their existing powers under the Family Law Act to resolve family law property disputes in that court, at the same time as family violence intervention orders and parenting orders are made.

Section 46(1) Family Law Act 1975 limits State and Territory magistrates’ courts to determining contested family law property disputes where the total value of property is under $20,000. This amount has been increased only once, from $1,000 to $20,000 in 1988.[29]

Royal Commission into Family Violence and the Family Law Council recommended that the Commonwealth Parliament increase the jurisdictional limit on state and territory magistrates’ level courts hearing family law property disputes.[30]

The proposed amendment to section 46(1) Family Law Act 1975 contained in item 10 of the Exposure Draft of the Family Law Amendment (Family Violence and Other Measures) Bill 2017 is acceptable, providing that the amount set in the regulations mirrors the upper financial jurisdictional limit on civil disputes able to be heard by State and Territory magistrates’ courts. The Bill, however, remains to be introduced into Parliament, despite clear imperatives for a range of provisions in the Bill.

  1. I recommend that the Commonwealth Parliament urgently amend section 46(1) Family Law Act 1975 to increase the $20,000 limit on property disputes able to be heard by State and Territory magistrates’ courts. The jurisdictional limit for hearing family law property disputes should mirror the upper limit on civil dispute able to be heard by State and Territory magistrates’ courts.[31]

 

Nationally Consistent Risk Assessment Tool (Question 31)

The issue of the development of a risk assessment tool is central to the safety of family law processes in cases of family violence. It could relate to a number of questions but probably best relates to question 31 of the Australian Law Reform Commission, Review of the Family Law System: Issues Paper (March 2018) on integrated services approaches for families with complex needs. A nationally consistent risk assessment tool and process would enable the family law system to more quickly and effectively ensure the safety of people who are or may be affected by family violence, including by facilitating the early identification of and response to family violence.

The Third Action Plan under the National Plan to Reduce Violence against Women and their Children 2010-2022 commits the Commonwealth to developing and implementing National Risk Assessment and Safety Management Principles for victims and perpetrators of violence, based on evidence, including the risks that are present for children and other family members who experience or are exposed to violence.[32] At present ANROWS, Australian’s national family violence research organisation, is developing national risk assessment principles and the project is expected to be delivered shortly. The principles are meant to be conceptual in nature rather than a specific tool to be used directly by professionals for risk assessment. ANROWS states:

The National Risk Assessment Principles that ANROWS are developing are expected to: be relevant to, and appropriate for, front line workers/first responders assisting victims of family and domestic violence (FDV) who operate at different levels in multiple sectors and from multiple disciplines; reflect best-practice and be informed by the latest national and international practitioner and academic research; complement and build on the work undertaken in other jurisdictions and/or by ANROWS; and be developed in consultation with key stakeholders.[33]

However, principles are not the same as a risk assessment tool. A key way of ensuring safety in family violence cases is a validated, comprehensive and consistent risk assessment tool to accurately identify the existence of family violence and determine the appropriate response. Such a tool could be immediately used by professionals from all disciplines to accurately and consistently identify the presence of family violence in any case. In 2017, the House of Representatives Standing Committee on Social Policy and Legal Affairs recommended that “a nationally consistent, multi-method, multi-informant, culturally sensitive risk assessment tool” to be used “across sectors, between jurisdictions and among all professionals working within the family law system.”[34] The Committee emphasised the important of a national risk assessment tool rather than just national principles on managing family violence risk.

At present there are multiple risk assessment tools used across the various state and federal legal and social service systems. This creates the dangerous potential for family violence cases to go unidentified or for a lack of responsiveness to family violence in some systems, creating safety risks for victims and their families. The Coroner in the Luke Batty Inquest in Victoria noted the problem of risk assessment tools for family violence that were not validated, that were uncoordinated, not uniform in approach and which were not routinely shared between service providers and agencies.[35] The evidence in that case was that no single agency in the state family violence or federal family law system held or assessed all of the information for the purposes of conducting risk assessments and managing the risk posed by Greg Anderson, who ultimately killed his son.[36]

Risk assessment practices used across the family law system are inconsistent and require improvement.[37] The ANROWS developed risk assessment principles will go some way towards coordination of a new approach but it is not the same as a specific risk assessment tool. There is no consistently used family violence risk assessment tool used across the federal family law system. The Detection of Overall Risk Screen (DOORS) was developed for the federal family law system but is not used by all family law professionals, especially family lawyers.[38] The DOORS tool is very different to that used in state family violence systems such as the Common Risk Assessment Framework (CRAF) used in Victoria.

The Royal Commission into Family Violence noted that the problem of inconsistent risk assessment tools at federal and State/ Territory level should be addressed by the Commonwealth.[39] The Royal Commission recommended that the Victorian government, through the Council of Australian Government’s Law, Crime and Community Safety Committee, pursue the development of a national family violence risk assessment framework with consistent use of this tool by State, Territory and federal courts, lawyers, government and non-government service providers.[40] Since the disbanding of the Law, Crime and Community Safety Committee in 2017, responsibility for a nationally consistent risk assessment process should rest with the Council of Attorneys-General (CAG). CAG assists the Council of Australian Governments by developing a national and Trans-Tasman focus on maintaining and promoting best practice in law reform. To date, the Communiques of CAG do not indicate any attention to this matter.[41]

The development of a nationally consistent family violence risk assessment tool is a matter for urgent priority. This national reform should be led by the Commonwealth government through the Council of Australian Government’s Council of Attorneys-General. Such a tool should be based upon the ANROWS developed national risk assessment principles.[42] As the Luke Batty case shows, poor risk assessment practices can mean that crucial information received by one agency is not shared, which can have devastating consequences for the safety of women and children affected by violence. The development of a revised CRAF tool in Victoria, which is currently underway has the potential to provide a best-practice model for a validated risk assessment tool which could be used nationally.[43] Importantly, the tool should be used in all social support service services that work with families, not just federal and state courts.

  1. I recommend that the Commonwealth government, through the Council of Australian Government’s Council of Attorneys-General, urgently lead the development of a nationally consistent family violence risk assessment tool which should be used by State, Territory and federal courts, lawyers, government and non-government service providers (Question 31).

 

Information Sharing between State/Territory and Federal service providers (Question 33)

This matter relates to question 33 of the Australian Law Reform Commission, Review of the Family Law System: Issues Paper (March 2018) on how collaboration and information sharing between the federal family law and state child protection and family violence systems can be improved.

Information sharing is necessary for adequate risk assessment in family violence cases. Access to orders made by other courts is not routinely provided to all State/Territory and federal courts or other service providers. Information sharing is crucial to allowing state and federal courts and service providers to accurately identify and safely manage risks for victims of family violence and their children.[44] Lack of information sharing is often a cause for delay in both state/territory courts and federal family violence courts as courts stand down matters to determine what orders have been made by other courts.

The Royal Commission into Family Violence recommended that the Victorian government, through the Council of Australian Government’s Law, Crime and Community Safety Committee, pursue the creation of a national database for family violence, child protection and family law orders, judgments, transcripts, and other court documents that is accessible to each of the relevant State, Territory and federal courts and other agencies as necessary.[45] The Royal Commission noted that information exchange should extend beyond provision of court orders and should be accessible to state child protection authorities and police forces.[46]

The Council of Australian Government’s Law, Crime and Community Safety Committee (now Council of Attorneys-General) agreed in 2016 to work towards a national starting date for the national domestic violence order scheme.[47] The Committee had earlier stated that an objective of the National Domestic Violence Order Information Sharing System is to prototype the technical solution to improve the lack of national coordination and information sharing of domestic violence orders and related court orders across systems and between jurisdictions.[48] In November 2017 the National Domestic Violence Order Scheme was launched which will mean that family violence intervention orders issued in any Australian State or Territory will be automatically recognised and enforceable nationwide.[49] This scheme is supported by the Interim Order Reference Solution which is a secure web portal which allows local courts across Australia to access intervention order information held in the National Police Reference System, run by the Australian Criminal Intelligence Commission.[50] It is intended that this system will be in place “until a dedicated and comprehensive national information sharing system, the National Order Reference System (NORS) is delivered at the end of 2019.”[51] It is commendable that an information sharing system is being implemented. The need for this scheme is urgent.

Access to Information by federal family support service providers

Access to intervention order information held by agencies and courts will be necessary to ensure the safety of victims of family violence and their families, not just for the courts, but for other service providers who work in and around the justice system. Family law service providers who will need access to intervention order information include service providers under the federal Family Relationships Services Programme including services such as family relationship centres, family dispute resolution (FDR), family counselling, children’s contact services, parenting Orders Programme, the Post Separation Cooperative Parenting Programme and the Supporting Children After Separation Program. The need for safety in family support service provision in the federal family law system trumps the potential privacy needs of perpetrators of family violence. The Royal Commission noted that information exchange should extend beyond provision of court orders and should be accessible to state child protection authorities and police forces also.

The necessity for family support services in the federal family law system under the Family Relationships Services Programme to access the national intervention order scheme is immediate and strong. The AIFS Evaluation of the 2012 Family Violence Reforms found that the use of FDR was “strongly associated” with the experience of family violence, and that parents, especially mothers, who also reported experiencing the conditions of fear, coercion and control as a result, were more likely to be using FDR services as their main pathway to sort out parenting arrangements.[52] Significantly higher proportions of mothers (71% using FDR) than fathers (48% using FDR) reported having experienced fear, coercion and control before/during separation.[53] Without access to the Interim Order Reference Solution, or after 2019, the National Order Reference System, Family Relationships Services will need to depend on on unreliable self-reporting of the presence of intervention and other orders by parties, which creates a safety risk for participants.

Information on a broad range of court orders

It will also be necessary for the full range of family violence, family law and child protection orders issued by state magistrates courts, children’s courts the two federal family courts to be stored in the National Order Reference System from 2019. The Australian Criminal Intelligence Commission has stated that, “The new system is being designed so it can be used as a base platform for sharing information about other types of orders, including bail, parole and warrants.”[54] It is desirable that a broad range of orders and judgments from the many state and federal courts whose jurisdiction touches upon family violence should be included in the National Order Reference System, including intervention orders, criminal law matters, child protection and family law orders to ensure that all courts and service providers have up-to-date and accurate information on the outcomes of legal proceedings. In the family law system, this will better ensure the safety of victims of family violence who are also separating and who must use family law processes.

  1. I recommend that
  2. Service providers under the federal Family Relationships Services Programme including services such as family relationship centres, family dispute resolution (FDR), family counselling, children’s contact services, parenting Orders Programme, the Post Separation Cooperative Parenting Programme and the Supporting Children After Separation Programs, be able to access the national order reference systems in cases of family violence as necessary (Question 33);
  3. The national order reference system should include criminal law, child protection, family violence and family law orders and judgments from all State, Territory and federal courts (Question 33).

Family Consultants (Question 41)

This section responds to question 41 on core competencies of professionals in the family law system. It focuses especially on the practices of family consultants (either private report writers or employed by the Family Court of Australia and the Federal Circuit Court).

Family Consultants are psychologists and/or social workers who specialise in child and family issues after separation and divorce. Family consultants may be ‘in-house‘, employed by the courts, or private practitioners engaged by the family courts pursuant to Regulation 7 of the Family Law Regulations 1984. Under the Family Law Act 1975, family consultants have numerous roles in child-related proceedings, including the provision of advice to the family courts on ‘such matters relevant to the proceedings as the court thinks desirable.’[55] Family consultants interview children and their parents/carers and provide reports to the court on what orders will be in the best interests of the children. Information provided to the consultant is not privileged and can be reported to the courts.[56] The family courts use the evidence given by family consultants on a wide range of matters to assist with determining what orders should be made.[57]

The preparation of family reports is governed by the 2015 Australian Standards of Practice for Family Assessment and Reporting. These provide minimum standards and best practice guidelines for family assessments in family law matters that are applicable to both court-based family consultants and family report writers engaged under Regulation 7.[58] At present, family consultants are not required to undergo family violence training.[59]

Poor identification, understanding and responsiveness to family violence by family consultants raises the real potential for the commission of further family violence during the report-writing process or following inappropriate parenting orders made in reliance upon the family report. Multiple submissions made to the Victorian Royal Commission into Family Violence alleged that family consultants did not understand the nature and dynamics of family violence and minimised the violence in their case.[60] The Royal Commission heard stories of both parents being asked to attend for an assessment by family consultants at the same time (despite the existence of a family violence intervention order preventing such contact) and victims of family violence being viewed suspiciously by family consultants for raising allegations of family violence.[61]

The only way to challenge the evidence of a family consultant is to cross-examine the consultant when they are called as a witness to the case.[62] This action is beyond the financial and legal capability of many victims of family violence who may feel that the consultant did not adequately take into account the nature and existence of violence in their case.

  1. I recommend that
  2. All family consultants should undergo regular, mandatory, high-quality family violence training
  3. All family consultants must use a high-quality family violence risk assessment tool such as the Victorian Common Risk Assessment Framework (CRAF)
  4. A non-court complaints process should be introduced for the review of the conduct of family consultants (Question 41)

 

Cross-Examination of Victims of Family Violence by Perpetrators (Question 25)

This matter relates to question 25 on how to avoid misuse of family law processes as a form of abuse.

At present, unrepresented perpetrators of family violence are still able to cross-examine their victim of family violence in federal family law proceedings. Direct cross-examinations of victims can be used by perpetrators to further commit family violence and most certainly result in significant trauma for victims.[63] The family courts have acknowledged that a lack of legal aid funding means that such cross examinations do occur.[64]

The Productivity Commission recommended in 2014 that the Family Law Act should be amended to include provisions restricting personal cross-examination by those alleged to have used violence along the lines of provisions that exist in State and Territory family violence legislation.[65] Draft legislation has been prepared which would protect vulnerable witnesses from direct cross examination by perpetrators of violence against them.[66]  However the Bill has not yet been introduced into Parliament, despite recommendation in 2017 from the Standing Committee on Social Policy and Legal Affairs, House of Representatives that this be done urgently.

Personal cross-examination of victims of family violence by perpetrators is totally unacceptable. The occurrence of such an event is tantamount to the courts and the family law system collaborating in further acts of family violence against the victim.

In Victoria’s family violence system, there are provisions which regulate the cross-examination of protected witnesses in state courts.[67] Essentially, these provisions mean that where a respondent is self-represented, the court must order legal aid representation for the purpose of cross-examination. These provisions provide a good model of practice for how the federal family law system could operate.

I recommend that

  1. The Commonwealth Parliament urgently amend the Family Law Act 1975 to ensure that perpetrators of family violence do not personally cross-examine victims of family violence in family law proceedings (Question 25);
  2. That the federal Attorney-General provide adequate legal aid funds to allow for the legal representation of victims and perpetrators of family violence for the purpose of cross-examination of victims in family law cases (Question 25).

 

[1] VicHealth, The health costs of violence: Measuring the burden of disease caused by intimate partner violence: A summary of findings (2004, Melbourne) 10.

[2] Australian Bureau of Statistics, 2012, Personal Safety, Australia 2012,  Cat no 4906.0, Canberra.

[3] Kaspiew, R, Gray, M, Weston, R, Moloney, L, Hand, K and Qu, L, 2009, Evaluation of the 2006 Family Law Reforms, Australian Institute of Family Studies, Melbourne, 26.

[4] Kaspiew, R, Gray, M, Weston, R, Moloney, L, Hand, K and Qu, L, 2009, Evaluation of the 2006 Family Law Reforms, Australian Institute of Family Studies, Melbourne, 314.

[5] Productivity Commission, Access to Justice Arrangements Inquiry Report (Commonwealth of Australia, No 72, 2014) Volume 2, 855.

[6] Royal Commission into Family Violence, Report and Recommendations (State of Victoria, 2016) Volume IV, 190.

[7] Productivity Commission, Access to Justice Arrangements Inquiry Report (Commonwealth of Australia, No 72, 2014) Volume 2, 865.

[8] Productivity Commission, Access to Justice Arrangements Inquiry Report (Commonwealth of Australia, No 72, 2014) Volume 2, 866.

[9] Rae Kaspiew, et al, Evaluation of the 2012 Family Violence Amendments: Synthesis Report (2015, Australian Institute of Family Studies, Commonwealth of Australia) 24.

[10] Rae Kaspiew, et al, Evaluation of the 2012 Family Violence Amendments: Synthesis Report (2015, Australian Institute of Family Studies, Commonwealth of Australia) xi.

[11] Rae Kaspiew, et al, Evaluation of the 2012 Family Violence Amendments: Synthesis Report (2015, Australian Institute of Family Studies, Commonwealth of Australia) 24.

[12] Rae Kaspiew, et al, Evaluation of the 2012 Family Violence Amendments: Synthesis Report (2015, Australian Institute of Family Studies, Commonwealth of Australia) 240-45.

[13] Carson, Rachel, Fehlberg, Belinda and Millward, Christine (2013), ‘Parents’ experiences of Family Dispute Resolution and family law services in Australia following shared parenting reform: recent qualitative findings’ 25 Child and Family Law Quarterly 406, 420.

[14] Royal Commission into Family Violence, Report and Recommendations (State of Victoria, 2016) Volume IV, 190.

[15] Ray v Males [2009] FamCA; Secretary for Department of Health and Human Services & Ray and Ors (2010) FLC 93-457.

[16] Daniel Matta, The Intersection of Private Family Law and Non-Federal Claims: An Examination the Family Court of Australia’s Accrued Jurisdiction, SJD Thesis, Monash University (to be submitted 2018) abstract.

[17] Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; Fencott v Muller (1983) 152 CLR 570; Stack v Coast Securities (No.9) Pty Ltd (1983) 154 CLR 261.

[18] Sarah Peel and Rosalind Croucher, ‘Mind(ing) the Gap: Reform Recommendations Responding to Child Protection in a Federal System’ (2011) 89 Family Matters 21, 28.

[19] Royal Commission into Family Violence, Report and Recommendations (State of Victoria, 2016) Volume IV, 211.

[20] Royal Commission into Family Violence, Report and Recommendations (State of Victoria, 2016) Volume IV, 211.

[21] Royal Commission into Family Violence, Report and Recommendations (State of Victoria, 2016) Volume IV, 191.

[22] Royal Commission into Family Violence, Report and Recommendations (State of Victoria, 2016) Volume IV, 211.

[23] Royal Commission into Family Violence, Report and Recommendations (State of Victoria, 2016) Volume IV, 211.

[24] Women’s Legal Service Victoria, Small Claims, Large Battles: Achieving economic equality in the family law system (March 2018) 6.

[25] Productivity Commission, Access to Justice Arrangements Inquiry Report (Commonwealth of Australia, No 72, 2014) Volume 2, 870.

[26] Productivity Commission, Access to Justice Arrangements Inquiry Report (Commonwealth of Australia, No 72, 2014) Volume 2, 871-2.

[27] Productivity Commission, Access to Justice Arrangements Inquiry Report (Commonwealth of Australia, No 72, 2014) Volume 2, 872.

[28] Productivity Commission, Access to Justice Arrangements Inquiry Report (Commonwealth of Australia, No 72, 2014) Volume 2, 872.

[29] Royal Commission into Family Violence, Report and Recommendations (State of Victoria, 2016) Volume IV, 212.

[30] Family Law Council, Final Report on Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems (2016) 146 (recommendation 15-2); Royal Commission into Family Violence, Report and Recommendations (State of Victoria, 2016) Volume IV, 212, 217 (recommendation 131).

[31] Currently $100,000 in the State of Victoria: Magistrates Court Act 1989 s 3(1).

[32] Commonwealth of Australia, Third Action Plan, National Plan to Reduce Violence against Women and their Children 2010-2022 (2016) 18 (National Priority Area 3, Action Item 3.1).

[33] ANROWS, National Risk Assessment Principles for Family and Domestic Violence, Project Information Sheet (2017) https://d2c0ikyv46o3b1.cloudfront.net/anrows.org.au/NRAP%20Project%20Fact%20Sheet%20FINAL.pdf.

[34] Parliament of the Commonwealth of Australia, House of Representatives Standing Committee on Social Policy and Legal Affairs, A better family law system to support and protect those affected by family violence Recommendations for an accessible, equitable and responsive family law system which better prioritises safety of those affected by family violence (December 2017) 150.

[35] Coroner’s Court of Victoria, Inquest into the Death of Luke Batty, 28 September 2015, 4.

[36] Coroner’s Court of Victoria, Inquest into the Death of Luke Batty, 28 September 2015, 82.

[37] Rae Kaspiew, et al, Evaluation of the 2012 Family Violence Amendments: Synthesis Report (2015, Australian Institute of Family Studies, Commonwealth of Australia) 45.

[38] Royal Commission into Family Violence, Report and Recommendations (State of Victoria, 2016) Volume IV, 209.

[39] Royal Commission into Family Violence, Report and Recommendations (State of Victoria, 2016) Volume IV, 216.

[40] Royal Commission into Family Violence, Report and Recommendations (State of Victoria, 2016) Volume IV, 218 (recommendation 134).

[41]https://www.ag.gov.au/About/CommitteesandCouncils/Council-of-Attorneys-General/Pages/default.aspx.

[42] ANROWS, National Risk Assessment Principles for Family and Domestic Violence, Project Information Sheet (2017) https://d2c0ikyv46o3b1.cloudfront.net/anrows.org.au/NRAP%20Project%20Fact%20Sheet%20FINAL.pdf.

[43] http://www.dhs.vic.gov.au/__data/assets/pdf_file/0004/974551/Review-of-the-Family-Violence-Risk-Assessment-and-Risk-Management-Framework-CRAF-Final-Report.pdf

[44] Royal Commission into Family Violence, Report and Recommendations (State of Victoria, 2016) Volume IV, 215.

[45] Royal Commission into Family Violence, Report and Recommendations (State of Victoria, 2016) Volume IV, 218 (recommendation 134).

[46] Royal Commission into Family Violence, Report and Recommendations (State of Victoria, 2016) Volume IV, 215.

[47] Council of Australian Government’s Law, Crime and Community Safety Committee, Communique, October 2016: https://www.ag.gov.au/About/CommitteesandCouncils/Law-Crime-and-Community-Safety-Council/Pages/default.aspx.

[48] Council of Australian Government’s Law, Crime and Community Safety Committee, Communique, May 2015: https://www.ag.gov.au/About/CommitteesandCouncils/Law-Crime-and-Community-safety-Council/Pages/default.aspx.

[49] Senator the Hon Michaelia Cash – Minister for Women & The Hon Michael Keenan MP – Minister for Justice, ‘National enforcement of Domestic Violence Orders to better protect victims’ (Pres Release, 25 November 2017).

[50] https://www.acic.gov.au/our-services/domestic-violence

[51] Senator the Hon Michaelia Cash – Minister for Women & The Hon Michael Keenan MP – Minister for Justice, ‘National enforcement of Domestic Violence Orders to better protect victims’ (Pres Release, 25 November 2017).

[52] Rae Kaspiew, et al, Evaluation of the 2012 Family Violence Amendments: Synthesis Report (2015, Australian Institute of Family Studies, Commonwealth of Australia)

[53] Rae Kaspiew, et al, Evaluation of the 2012 Family Violence Amendments: Synthesis Report (2015, Australian Institute of Family Studies, Commonwealth of Australia) 24.

[54] https://www.acic.gov.au/our-services/domestic-violence.

[55] Family Law Act 1975 (Cth) s 62G(2).

[56] Family Law Act 1975 (Cth) s 62G.

[57] Liam Meagher, ‘Assessing The Role of Family Consultants When Providing Evidence in Parenting Disputes’ (2012) 10 Macquarie Law Journal 59, 60.

[58] Family Law Council, Final Report on Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems (2016) 31.

[59] Family Law Council, Final Report on Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems (2016) 31.

[60] Royal Commission into Family Violence, Report and Recommendations (State of Victoria, 2016) Volume IV, 199.

[61] Royal Commission into Family Violence, Report and Recommendations (State of Victoria, 2016) Volume IV, 199.

[62] http://www.federalcircuitcourt.gov.au/wps/wcm/connect/b5ee989f-3134-44e0-afa6-dc846e8c4f2a/FS_Seeing+a+family+consultant+FAQ_FCC_0714V1a.docx?MOD=AJPERES&CONVERT_TO=url&CACHEID=ROOTWORKSPACE-b5ee989f-3134-44e0-afa6-dc846e8c4f2a-lx1trx4.

[63] Royal Commission into Family Violence, Report and Recommendations (State of Victoria, 2016) Volume IV, 197.

[64] Royal Commission into Family Violence, Report and Recommendations (State of Victoria, 2016) Volume IV, 197.

[65] Productivity Commission, Access to Justice Arrangements Inquiry Report (Commonwealth of Australia, No 72, 2014) Volume 2, 865.

[66] Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2017 (Cth).

[67] Family Violence Protection Act 2008 (Vic) s 70-71.

Katie Brennan’s savvy legal move backs AFL into a corner

By Associate Professor Kate Seear

This article was originally published in The Guardian on 23 March 2018

The dramatic build up to this weekend’s AFLW grand final escalated further on the eve of the game with Western Bulldogs captain Katie Brennan announcing she will lodge a formal sex discrimination complaint against the AFL with the Australian Human Rights Commission. It’s a savvy legal move that will compel the AFL to completely rethink its approach to sanctioning women

Brennan’s two-game ban raised immediate allegations of sex-based discrimination. The reason was simple: were Brennan were a man, she would have been asked to pay a fine, instead of being suspended. The sole reason women do not get the option of paying a fine is wage disparity (the average wage for a men’s AFL player is $371,000, whereas AFLW rookies receive just $10,500). Rather than opting to have the women pay smaller fines on a pro rata basis, the AFL went with a different system that results in them being sanctioned more severely.

There has been an explosion of public interest in the case this week. There have also been many misconceptions about the relationship between elite sporting competitions and the law. Although sporting competitions are entitled to develop their own rules, those rules must comply with overarching legal obligations. In Australia this includes the Federal Sex Discrimination Act, which prevents discrimination against people on the basis of their sex, except in very specific circumstances.

Brennan twice appealed the suspension. Surprisingly, her legal team didn’t pursue this line of argument at the first hearing. At the second hearing, she did, represented by a team of lawyers including Jack Rush QC and Bulldogs president, Peter Gordon. The AFL argued that Brennan’s legal team should have raised those arguments the first time around, were barred from raising entirely new arguments the second time around, and were simply trying to have a second bite at the cherry. Disappointingly, the appeals board deliberated for just 15 minutes, gave no reasons for its decision, and dismissed the appeal. The failure to provide an explanation for its decision raised even more legal questions, including the possibility that this was itself a denial of a fundamental legal principle – that of procedural fairness.

All eyes were on the Bulldogs’ next move. Gordon is a renowned litigator who rarely shies away from a fight and as social media exploded with speculation, a #FreeKatieBrennan movement was launched, including a petition. There was growing recognition that Brennan was a victim of circumstance, and an imperfect system which yielded a result only made possible because there are different – and more severe – rules for women.

On Friday morning, the Dogs announced that they would not seek an injunction in the supreme or federal court. But then came the kicker. In an unexpected move, the club announced that Brennan is lodging a complaint with the Australian Human Rights Commission, alleging that the suspension was unlawful on human rights grounds.

The Commission will not deal with the case before the grand final this weekend. Brennan will not play. But the lodging of a human rights complaint is a strategic masterstroke that forces the AFL into an impossible position. Here’s why: the Commission is an independent third party, whose job is to investigate human rights complaints and to help parties resolve their disputes. The Commission will ask the AFL to consider the specifics of Brennan’s complaint, before overseeing a conciliation. There, Brennan will sit down with the AFL to air her concerns and the Commission will try to help them both come to a resolution.

Brennan will almost certainly demand three things from the AFL: that they admit the tribunal system unfairly discriminates against women; that they overhaul the system so that the rules are fair and no other woman will be put in Brennan’s position again; and finally, that her suspension be wiped from the historic record, as a matter of principle.

If the AFL does not accede, Brennan can go to the federal court and seek a hearing. The AFL will be taking a huge risk if it allows things to go that far. It cannot afford a formal court hearing where such arguments are thrashed out by teams of lawyers, with QCs getting paid hourly rates comparable to an entire season’s wage for many of the women.

It would be a public relations disaster for the AFL, and generate significant bad blood with players and fans, including the new audience it has found through the AFLW. Most of all, the AFL cannot afford to risk the chance of a formal federal court finding that its fledgling AFLW competition – a pillar of its putative commitment to gender equality and equal opportunity for women – is inherently discriminatory. It would be a disastrous result for CEO Gil McLachlan, and one that he will be desperate to avoid.

For this reason, it’s almost certain that the AFL will capitulate at the first hurdle, and accede to some – and perhaps all – of Brennan’s demands at conciliation. The AFL will be asked to admit that its system – while well-intentioned – wasn’t perfect and produced a perverse result that has left Brennan on the wrong side of history. Her move is a hugely significant one, not just for current AFLW footballers, but for future generations of girls and women who will play the game. A star on the field, Brennan has now laid down a huge challenge to the code off it. The ball is now in the AFL’s court.

When it comes to redress for child sexual abuse, all victims should be equal

This piece was originally published in The Conversation on 1 November 2017.  An associated blog post regarding the evidence the authors presented to the Victorian Law Reform Commission can be found here.

dogs of fear

The redress scheme cannot be a truly ‘just response’ if it says some kinds of victims simply don’t count.  Photo Source: Torbak Hopper (Creative Commons)

 

Kate Seear, Monash University and Suzanne Fraser, Curtin University

The federal government last week announced details for its long-awaited redress scheme for victims of institutional child sex abuse. The proposed scheme is a response to recommendations from the ongoing Royal Commission into Institutional Responses to Child Sexual Abuse.

Controversially, the government proposes to exclude from redress anyone convicted of sex offences, and those sentenced to prison terms of five years or more for crimes such as serious drug, homicide or fraud offences.

This proposal is profoundly flawed and a step backward. It is made at a time when institutions should be atoning for past wrongs without arbitrary exceptions.

Crimes compensation schemes across Australia

All Australian states and territories have victims of crime compensation schemes. They provide victims of certain crimes with modest compensation to cover their expenses, or payments to recognise wrongs perpetrated against them.

Although state and territory schemes are typically funded by the state, the Commonwealth scheme anticipates that “responsible entities” – such as churches – will pay.

All schemes include criteria detailing who is eligible for support and who is not. People who “collude” with the perpetrator to rort the scheme are excluded. Victoria’s scheme contains an additional, broad provision requiring its tribunal to consider whether victims’ “character, behaviour or attitude”, past or present, should exclude them. The idea of excluding certain kinds of victims from support is is thus not unique.

However, all exclusion criteria warrant scrutiny, as they raise questions about victimhood, the selective recognition of harm, and social and community responsibility.

The Commonwealth proposal is especially in need of scrutiny, because of its historic significance and symbolic role, and also because it involves more specific criteria for excluding victims than other schemes.

The problem with saying only some victims are worthy of sympathy

We have studied how the Victorian law is interpreted and applied. The Victorian provision differs from the proposed Commonwealth one, but what we found offers clues about the significance of the Commonwealth exclusions.

Victoria’s “character” test allows highly partial moral and political judgements about who may be deemed “worthy” of public sympathy and support. For example, people with a history of illicit drug use or addiction can be excluded on the basis that they have a criminal history.

On occasion, victims with a drug-using history do receive compensation, but this can depend on whether tribunal members interpret the crime they have experienced as an explanation or “excuse” for their drug use or addiction. Here, being a victim of child sexual abuse or family violence is considered relevant.

While an experience of crime might lead to drug use for some, this is not the case for others. The nature of addiction is heavily contested, as is the relationship between drug use and past suffering or trauma.

So, there are practical and ethical problems associated with making decisions in legal contexts about why someone might have begun consuming illicit drugs or developed drug problems, and whether that should exclude them from compensation.

Notably, these evaluations can disproportionately affect women, since women are more often victims of family violence, sexual assault and sexual abuse. Such scrutiny may also retraumatise victims and compound, rather than alleviate, their suffering.

As it happens, the Victorian Law Reform Commission is currently undertaking a review of the Victorian Victims of Crime Assistance Act. We recently told the commission that the existing approach is flawed.

Although it might be politically popular – and less expensive – to separate applicants into the categories of “deserving” and “undeserving” victims, it is morally wrong to do so.

We acknowledge that some taxpayers may not tolerate money being given to people with criminal records. Why, they might ask, compensate criminals for wrongs done to them, when they themselves don’t respect the law?

At least part of the answer is that as a society we must acknowledge the seriousness of the impact on individuals of the kinds of crimes sometimes before the Victorian tribunal. The same holds for the royal commission.

In introducing the bill to parliament, Social Services Minister Christian Porter described it as a “just response”:

Children placed in the trust of our society’s institutions were some of the most vulnerable members in our community and the fact that must be confronted is that many children were sexually abused by the very people charged with their care and protection. No child should ever experience what we now know occurred. That is why it is time for all institutions and all governments to take responsibility for what has happened.

This statement acknowledges that children experienced serious harms in contexts facilitated and overseen by the nation. It insists that the community must accept and respond constructively to this knowledge. Taking a careful and informed approach to the meaning of criminal acts such as illicit drug consumption is part of this obligation.

Importantly, those excluded by the Commonwealth scheme will have been convicted and punished in the past. Should someone who suffered harms as a child forfeit the right to have those wrongs acknowledged? Would this amount to punishing them again?

Justice should apply to everyone

We would argue that a person’s right to justice, to the extent that this might be available through compensatory schemes, should not be tied to past activities.

As justice theorist Sara Ahmed argues we must:

… challenge the view that justice is about […] being the right kind of subject. Justice is not about ‘good character’. Not only does this model work to conceal the power relations at stake in defining what is good-in-itself, but it also works to individuate, personalise and privatise the social relation of (in)justice.

As the royal commission has exposed beyond question, institutional responses to child sexual abuse have often been profoundly irresponsible, and potentially criminal in themselves.

The ConversationThe redress scheme must send the strongest possible message to those responsible. It cannot be a truly “just response” if it says some kinds of victims simply don’t count.

Kate Seear, Academic Director of Springvale Monash Legal Service & Senior Lecturer in Law, Monash University and Suzanne Fraser, Professor, National Drug Research Institute, Curtin University

This article was originally published on The Conversation. Read the original article.

 

First act of the family law review should be using research we already have

File 20171002 12163 ickjgv

We already have a great deal of high-quality information about what works, and what doesn’t, in our family law system. shutterstock

This article appeared in The Conversation on 4 October 2016. Information about the first holistic  review of the family law system since it was created in 1974 can be found on the Australian Law Reform Commission website.

Renata Alexander, Monash University

On September 27, Attorney-General George Brandis commissioned the Australian Law Reform Commission (ALRC) to undertake what he described as “the first comprehensive review of the family law system” since the commencement of the Family Law Act in January 1976.

The terms of reference are extremely wide-ranging. Producing a report by March 31, 2019, seems overly ambitious.

There has been universal support for such a review from key players in family law, as well as those more on the periphery such as politicians espousing party-dictated views or representing individual (usually aggrieved) constituents.

As much as such a review will serve a valuable purpose, it is important to remember that our family law system has not remained static for the last four decades. There have been numerous significant reforms not only to the statute itself, but to the operation of courts determining family law cases, and allied areas such as family dispute resolution and counselling.

The Family Law Act initially introduced several revolutionary changes. For example, it established the Family Court of Australia; introduced “no-fault” divorce; and totally revamped laws about determining children’s cases and property settlement.

It also set up a new system of alternative dispute resolution and established the Australian Institute of Family Studies (AIFS) as a dedicated research body, along with the Family Law Council (FLC) as a representative body to monitor and advise the federal government on operational and policy matters.

Since then, various aspects of our family law system have been examined and changed.


Further reading: No simple solution when families meet the law


Family law legislation has undergone significant expansion and reform. It now covers divorce, nullity, parental responsibilities and obligations in respect of all children, and children’s rights.

It covers de facto relationships (marriage is dealt with specifically by the Marriage Act), spousal maintenance, division of property binding financial agreements, and family violence. There are now two federal family law courts, but they are overburdened and have long waiting lists.

Researchers too have not been idle. For example, the 1980s and 1990s saw a plethora of reports by the ALRC about domestic violence (1986), matrimonial property (1987), contempt (1987), multiculturalism and family law (1991), justice for women (1994), and complex child contact cases (1995).

More recently, the ALRC has produced two substantial reports on family violence.

In addition, the AIFS, the FLC and the family law courts have each produced numerous reports on a wide range of areas including child protection, parenting arrangements post-separation, and family violence.

The Family Law Act established the Family Court of Australia. Shutterstock

There have also been important bipartisan state and federal parliamentary inquiries, most notably the federal inquiry into child custody arrangements in the event of family separation. This in turn produced “Every picture tells a story” in 2003 and the parliamentary inquiry into how family law can better support and protect those affected by family violence in 2017.

All these resources reflect a rich but largely unconnected tapestry of information about our family law system, which the ALRC can use to assess how best to reform the system.

Yes, the ALRC review of the Australian family law system is most welcome. However, it need not waste precious time or resources to remind us, as Leo Tolstoy wrote in Anna Karenina, that “all happy families resemble one another, each unhappy family is unhappy in its own way”.

Notwithstanding the wide terms of reference, some other areas merit attention. These include the use of “good” evidence-based social science in determining the best interests of children and crafting parenting orders.

Another area is access to justice. The high cost of legal representation and cuts to legal aid mean large numbers of self-represented litigants. Also there is the question of mandatory education for judges and legal professionals in areas such as family violence and child abuse, which comprise over half of the courts’ work loads.

We know that families are complex entities when intact. And it is equally complex and complicated catering to the needs of adults and children once those family structures break down.

New Podcast: The Scarlet Letter speaks to Dr Kate Seear

In this episode of the Scarlet Letter we talk to Dr Kate Seear about the origins of her feminism. We also learn about her work on addiction and the law, as well as her well-known football podcast, the Outer Sanctum.

kate seear

Dr Kate Seear

Interviewers: Dr Azadeh Dastyari and Tamara Wilkinson.