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National law reform: Family violence victims seeking clear path to help

Every Issue

Cite as: December 2010 84(12) LIJ, p.75

The many complex issues surrounding family violence can leave families trying to navigate the justice system feeling like they're trapped.

The final report from a major family violence inquiry has been finalised and submitted to federal Attorney-General Robert McClelland.

The report, Family Violence—A National Legal Response [see http://bit.ly/cIeHrW], by the Australian Law Reform Commission (ALRC) and New South Wales Law Reform Commission (NSWLRC), was submitted on 10 October 2010.

The terms of reference for their inquiry arose out of the March 2009 release of Time for Action.1 This report by the National Council to Reduce Violence against Women and their Children (the national council) focused on the problem of violence against women in the Australian community.

One of the critical issues underpinning the analysis of problems and the development of reform recommendations in relation to family violence is the constitutional division of jurisdiction in family law between the Commonwealth and the states and territories. Neither the Commonwealth nor the states and territories has exclusive legislative competence and this creates significant practical and legal problems.

Imagine a woman and her children who have left a relationship involving severe, ongoing, controlling violence. An application is likely to be made to a magistrates’ court for protection orders. In the same court, a criminal prosecution for the violence may also be brought. The relevant child protection agency may have become involved with the family and may decide to investigate and to pursue care proceedings in the children’s court. Contemporaneously, the father may make an application in a federal family court for parenting orders. Thus, this one family may be involved in legal proceedings in three courts in relation to four different types of proceedings.

It is apparent from this simple example that the system is complex and is likely to be hard to navigate for many families. The system has been referred to as “a maze” in which families can get lost.2

The sense of being bounced between parts of the system was described by one contributor to the family violence inquiry as feeling “like a ball on a pool table”.3 Family violence laws have been described as operating in “silos”, which do not effectively communicate with each other or collaborate. Consequently people can fall through the gaps.

The “gap” between federal and state courts arises because the federal Parliament has jurisdiction over marriage, divorce, parenting and family property on separation, and the states have jurisdiction over adoption and child welfare, and (of particular relevance to family violence) over criminal law.

Numerous solutions have been attempted to deal with the practical problems of this jurisdictional divide. One of the most creative was the cross-vesting scheme, but it did not withstand constitutional challenge – at least in the direction of the attempt to vest state jurisdiction in federal courts.4 The mechanism of referral of powers from the states to the Commonwealth has been used successfully to give federal family courts jurisdiction in relation to property and children of de facto relationships.

Nevertheless, problems remain. Families may still be involved in proceedings in more than one jurisdiction. The possibility of inconsistent orders is a real one, as is the risk of exacerbating an already stressful situation for families who may find repeated court appearances intolerable and who may drop out of the system without the protections they need.

The Family Law Council (FLC) observed that: “The jurisdictional divide has also perpetuated a culture of separation between states and territories as administrators of public aspects of family law and the federal family courts as adjudicators of [private] disputes. There is inadequate communication, coordination or information sharing between courts and authorities despite significant overlap”.5

The FLC has expressed particular concerns about abuse of children, where federal family courts and state children’s courts may find themselves dealing with the same children and the same issues of abuse at the same time, noting: “There is no greater problem in family law today than the problems of adequately addressing child protection concerns in proceedings under the Family Law Act. Council’s research and consultations on this issue indicate that the problems in the present system are very serious indeed. Reform is urgently needed, and will require a commitment from state and federal governments to deal with the systemic problems which arise, in no small measure, from the allocation of responsibility between state and territory authorities and the federal government under the constitutional arrangements existing in Australia”.6

To meet such problems requires willingness to change, as well as cooperation, trust, respect, patience and commitment. In the family violence inquiry, the ALRC and NSWLRC undertook consultations nationwide and received over 240 submissions from a wide range of stakeholders.

The expectations of our work, although bounded by the terms of reference, are considerable, yet can be expressed succinctly in this simple plea:

Dear Government people,

We women, we mothers, we look at you for the solutions and answers.7



HILARY ASTOR is the full-time commissioner with the New South Wales Law Reform Commission and emeritus professor at the University of Sydney. ROSALIND CROUCHER is ALRC president and Professor of Law at Macquarie University (on leave for the duration of her appointment at the ALRC). For more information on the ALRC see www.alrc.gov.au or ph (02) 8238 6333.

1. National Council to Reduce Violence against Women and their Children, Time for Action: The National Council’s plan for Australia to reduce violence against women and their children, 2009–2021 (2009).

2. Thea Brown and Renata Alexander, Child Abuse and Family Law: Understanding the issues facing human service and legal professionals (2007), p138.

3. Confidential, Submission FV 49, 5 May 2010.

4. Re Wakim; Ex parte McNally (1999) 198 CLR 511.

5. Family Law Council, Improving Responses to Family Violence in the Family Law System: An advice on the intersection of family violence and family law issues (2009), p61, [7.7].

6. Family Law Council, Family Law and Child Protection Final Report, Commonwealth of Australia, September 2002, p15.

7. Justice for Children, Submission FV 177, 25 June 2010.

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