•Family/Domestic violence encompasses all forms of violence between intimate partners, either they are married or not married, in de facto relationships, boyfriends, girlfriends gay or straight; violence between other members of a family, household or community – The Domestic and Family Violence Act was amended in 2007 to include all matters that relate to Domestic Violence Orders – This amendment means that adults are required by law to report domestic and family violence to police if they think someone has or is likely to suffer serious physical harm from domestic violence. – This law was introduced because safety and protection are important, (sections 124 and 125 of the Act makes reporting a serious physical harm to everyone’s business; and it aims to ensure that people who commit domestic/family violence are held accountable for their actions and their decision to use any sort of violence).
•Family/Domestic violence- physical abuse, sexual assaults, threats, intimidation, emotional abuse, social isolation, property damage, financial deprivation, spiritual abuse, child abuse and neglect. •There have been many methods that have been used to prevent/stop family/domestic violence. These methods include: reports; radio ads/radio; transcripts; flyers and posters. •According to the ALRC report 114 – (family violence – A National Legal Response), it defines domestic/family violence as: -It is linked to criminal offences.
-It captures non-physical violence.
-It turns on the impact on the victim or the intent of the person committing family/domestic violence . -It captures abuse experience by certain groups in the community – such as those from a culturally and linguistically diverse background, the aged, people with a disability and people in a same-sex relationship. •The NSW family violence legislation does not define family violence. Instead it defines family violence as ‘domestic violence offence’ by referring specifically to 55 ‘personal violence’ offences in the Crimes Act 1900 (NSW), where people in defined domestic relationships against other people commit these offences. These offences include: murder; manslaughter; wounding or causing grievous bodily harm with intent; assault; sexual assault; kidnapping; child abduction and destroying or damaging their property.
•The NSW family violence legislation also provides that stalking, intimidation with intent to cause fear of physical or mental harm and attempts to commit any specified offence can amount to ‘domestic violence’. •Children are exposed to domestic violence by witnessing violence and abuse; intervening to protect their mother; being present in a household filled with violence and terrorising behaviours as well as being directly abused themselves. -According to the Women’s Safety Australia (1996) survey found that: ➢38.3% of women experiencing violence from a current partner said that children had witnessed the violence. ➢45.8% of women who experienced violence by a previous partner said that children in their care had witnessed the violence. -The police data collected from the Victorian Family Violence Database suggested that the rate of children’s exposure to domestic violence is higher than what they had expected.
Research indicates that children/young people have a higher level of awareness of the violence than their mothers report. -In the ‘Young Australians and Domestic Violence’ (2001), it is said that they found up to one-quarter of young people (aged 12-20 years old) in Australia, that have witnessed an incident of physical domestic violence against their mother or stepmother. It is also said that they also witnessed male to female parental violence ranged from 14% for those living with both their biological parents to 41% for those living with their mother and her partner.
Conditions that give rise to family/domestic violence law reform •To protect the safety of those experiencing family violence – In July 2010, the Australian Law Reform Commission (ALRC) was asked to report on the issue of the treatment of family/domestic violence in Commonwealth laws, including child support and family assistance law, immigration law, employment law, social security law, superannuation law and privacy provisions in relation to those experiencing family/domestic violence. •The Family Law Act interacted with the Commonwealth laws touching on family/domestic violence which led to problems, such as inconsistent or incompatible protective orders; any duplication of effort by federal, state and territory courts; or any gaps or inadequacies in the cooperation between those courts and state and territory agencies. •Intimate partner violence was poorly recognised at the time that the Family Law Act was proclaimed in Australia; there was also little formal recognition of the nature and extent of child abuse; even the more obvious signs of physical abuse. Effectiveness of Family/Domestic Violence Law Reform, regarding just outcomes
•The 2010 inquiry into family/domestic violence by the Australian Law Reform Commission and New South Wales Law Reform Commission identified issues beyond its scope relating to the impact of Commonwealth laws on those experiencing family/domestic violence. In addition, the 2009 report of the National Council to Reduce Violence against women and their Children, acknowledges the importance of examining Commonwealth laws that have an impact upon the safety of women and children. •In undertaking the terms of reference for family/domestic violence and commonwealth laws for improving legal frameworks, the ALRC should consider legislative arrangements across the Commonwealth that impact on those experiencing family/domestic violence and sexual assault and whether those arrangements impose barriers to effectively support those adversely affected by these types of violence’s. •The protection of women and children has predominantly been dealt with under state and territory family/domestic violence laws and child protection laws.
These laws have varied across the jurisdictions, with the possible result of women and children being subject to different levels of protection depending upon where they lived. There is a possibility of having a problem with recognising and enforcing apprehended violence orders across the state and territory borders. •The ALRC considered how the law should enable women and children to report family and domestic violence, participate in legal processes and access appropriate remedies; as well as facilitate the rehabilitation of perpetrators and the prevention f family violence in the first place. •The ALRC and the NSW Law Reform Commission presented a extensive summary report on recommendations that are focused on improving safety through: -A common interpretative framework: establishing a shared understanding of what constitutes family/domestic violence across relevant legislative schemes. -Corresponding jurisdictions: expanding the jurisdictions of courts dealing with family/domestic violence to maximise the chance that families will be able to get all the legal protections they need from any court they approach.
-Specialist family violence practice: fostering expertise within magistrates’ courts with staff that understand the dynamics of family violence and the complex array of legislation that applies. -Improving police and prosecutorial practice: to produce safe, fair and just outcomes for victims. -Integrated responses: ensuring that the many services needed by those who suffer family/domestic violence, work together, building a better and shared understanding of violence and a national system of registration of family/domestic violence orders. -Alternative dispute resolution: developing ADR responses, but with careful and appropriate protections for those who are the victims of violence. -Training and information: underpinning legal changes by better understandings of family/domestic violence across the whole system, including a national family violence bench book and a national register of relevant orders.
•The Family Law Legislation Amendment Act 2011 (Cth) has introduced two amendments to the Family Law Act responding to the Family Violence Report, especially, recommendations 6-4 and 17-1. -Recommendation 6-4 sets out a new and significantly broader definition of ‘family violence’ for the Family Law Act. The amending Act has introduced a revised definition of ‘family violence’ substantially consistent with the recommended definition. -Recommendation 17-1 stated that s 60CC (3) (k) of the Family Law Act should be amended. This section previously provided that courts must, in determining parenting matters must consider relevant final or contested family violence orders. The ALRC recommends that the Family Law Act should instead require consideration of evidence provided, and findings made in relevant to family violence order proceedings. -The amending Act has amended s 60CC (3) (k) in line with this recommendation providing that courts must consider ‘relevant inferences that may be drawn’ from family violence orders which are not limited to final or contested orders. -These changes to the Family Law Act came into effect on 7 June 2012.
•The ALRC makes a range of recommendations focused on: increasing awareness of family violence and its impact as a possible work health and safety issue; the incorporation of systems and policies into normal business practice to develop the capacity of employers and employees to effectively manage family violence as an OHS risk; and data collection mechanisms to establish an evidence base upon which to plan future policy directions in this area. •In Family Violence – A National Legal Response, ‘seamlessness’ was identifies as a foundational policy principle driving the recommendations for reform. -Seamlessness: to ensure that the legal framework is as seamless as possible from the point of view of those who engage with it.
-In the context of this inquiry; seamlessness remains an important theme, particularly in relation to matters such as the consistency of definitions across the various Commonwealth laws under review. Consistency then informs training and awareness in service delivery areas; and facilitates better coordination of responses to family violence, through appropriate information sharing and the improvement of pathways between agencies. •In Family Violence – A National Legal Response, fairness was a key framing principle. -Fairness: to ensure that legal responses to family violence are fair and just, holding those who use family violence accountable for their actions and providing protection to victims. -In this inquiry, fairness can be expressed in a number of distinct aims, to ensure that: ➢Concerns about safety are properly heard, understood and responded to. ➢There is procedural certainty.
➢Issues of family violence or safety concerns do not give rise to inappropriate advantages or disadvantages. ➢Safety concerns are not exacerbated by the applicable system requirements. ➢ Procedural fairness is accorded where issues of allegations of family violence by someone relevant, as distinct from an individual’s expression of fears for safety. •In Family Violence – A National Legal Response, accessibility was identified as one of the framing principles for reform: ‘to facilitate access to legal and other responses to family violence’. -An aim of accessibility that complements the other principles is the avoidance of victims having to retell the circumstances of the violence, thereby ‘re-traumatising’ victims of family violence.
•The principles of ‘effectiveness’: to facilitate effective interventions and support in circumstances of family violence. -With respect to improving legal frameworks to protect safety, a key issue is to ensure that concerns about safety are properly heard, understood and responded to an aspect of fairness. A particular challenge in the context of family violence is the issue of disclosure of safety concerns, as the ability to provide effective responses may depend on if, how and when such disclosures are made. A continuing theme is that many people do not wish to disclose concerns about safety in context of family violence. •The theme of privacy is relevant to the linking of service responses, which is also an aspect of accessibility. The information obtained and how it is used is relevant to concerns about allegations of violence – an aspect of fairness. Agencies of reform and Mechanisms of reform
•The group of participants that were involved in the improving legal frameworks on family/domestic violence includes: -ALRC (Australian Law Reform Commission)
-Catherine Davis, Women’s Committee, Australian Council of Trade Unions and Women’s Officer, Australian Education Union -Davis Gregory, Director Workplace Policy, Australian Chamber of Commerce and Industry -Therese MacDermott, Senior Lecturer, Macquarie Law School
-Ludo McFerran, Project Officer, Australian Domestic and Family Violence Clearinghouse -Sarah McKinnon, Principal Government Lawyer, Bargaining and Coverage Branch, Workplace Relations Legal Group, Department of Education, Employment and Workplace Relations -Belinda Tkalcevic, Industrial Officer, Australian Council of Trade Unions -Professor Mary Crock, Sydney Law School, University of Sydney -Robert Day, Director, Family Section, Family and Health Policy Branch, Department of Immigration and Citizenship -Chris Yuen, Principal Solicitor, Immigration Advice and Rights Centre Incorporation -Cameron Brown, Director, Cross Payment Management, Income Support Programs Branch, Department of Education, Employment and Workplace Relations -Professor Terry Carney, Sydney Law School, University of Sydney -Jennifer Cooke, First Assistant Secretary, Program Management, Child Support Agency -Paul Cramer, Section Manager, Communities NSW/ACT, Department of Families, Housing, Community Services and Indigenous Affairs -Alison Frame, First Assistant Secretary, Social Policy Delivery and Planning, Department of Human Services -Lee Hansen, Principal Solicitor, welfare Rights Centre NSW -Justine Jones, Director, Social Support Team, Office of the Commonwealth Ombudsman
-Tom Garcia, Policy and Regulatory Manager, Australia Institute of Superannuation Trustees -David Graus, General Manager, Policy and Industry Practice, Association of Superannuation Funds of Australia -Tony Keir, Senior Policy Adviser, Association of Superannuation Funds of Australia -Michelle Levy, Law Council of Australia Superannuation Committee -Emily Webster, Welfare Rights Lawyer, Central Australian Aboriginal Legal Aid Service •The terms of reference to this inquiry (Improving Legal Frameworks….) direct the ALRC to work closely with relevant Australia Government Departments to ensure the solutions identified are practically achievable and consistent with other reforms and initiatives.
•Relevance in this inquiry were the following Australian Government departments: the Attorney-General’s Department’ the Department of Immigration and Citizenship; the Department of Employment, Education and Workplace Relations’ the Department of Families, Housing, Community Services and Indigenous Affairs; and the Department of Human Services. Within the latter department, the ALRC has consulted Centrelink, the Child Support Agency, the Family Assistance Office and Commonwealth Rehabilitation Service Australia. Other relevant Commonwealth bodies include: the Office of the Australian Information Commissioner; the Australian Taxation Office, the Australian Prudential Regulation Authority, the Australian Securities and Investments Commission, the Treasury, Safe Work Australia, Fir Work Australia, the Superannuation Tribunal and the Fair Work Ombudsman.