854 UNSW Law Journal Volume 33(3) FRACTURED FAMILIES, FRAGMENTED RESPONSIBILITIES – RESPONDING TO FAMILY VIOLENCE IN A FEDERAL SYSTEM HILARY ASTOR∗ AND ROSALIND CROUCHER∗∗ I INTRODUCTION Family law has transformed over the past 200 years from an essentially private space to a public one. Once it was the province of the ecclesiastical jurisdiction with respect to relations between husbands and wives, and the province of the common law and equity for questions of title and legitimacy of children with respect to real estate. Professor Stephen Parker remarked that: The idea that we should distinguish between public and private spheres of life has been a central one in liberal political philosophy since the seventeenth century, although the roots of the idea can be traced back to Aristotle. In classical liberalism, the notion of a private sphere was a crucial part of the belief in limited government. There were certain parts of civil society in which the state had no business. And at the epicentre of the private sphere was the family; more specifically, the patriarchal family.1 The idea that the family is a ‘private’ space has been a continuing theme in law – and especially family law.2 One of the effects of the family as a private space outside the province of law was to conceal violence, to create resistance to taking violence into account in legislation.3 ∗ Commissioner, New South Wales Law Reform Commission; Emeritus Professor, University of Sydney. ∗∗ President, Australian Law Reform Commission; Professor of Law, Macquarie University (on leave for the duration of the appointment at the ALRC). The first part of the title was suggested by George Zdenkowski, special adviser to the ALRC for the inquiry. 1 Stephen Parker, ‘Rights and Utility in Anglo-Australian Family Law’ (1992) 55 Modern Law Review 311, 325–326. 2 See, eg, Tom Altobelli, Family Law in Australia: Principles and Practice (LexisNexis Butterworths, 2003) 50; Margaret Thornton, ‘The Cartography of Public and Private’ in Margaret Thornton (ed) Public and Private: Feminist Legal Debates (Oxford University Press, 1995) 2; Regina Graycar and Jenny Morgan, The Hidden Gender of Law (Federation Press, 2nd ed, 2002) ch 2 and references cited throughout. 3 Elizabeth M Schneider, ‘The Violence of Privacy’ in M A Fineman and R Mykitiuk, The Public Nature of Private Violence: The Discovery of Domestic Abuse (Routledge, 1994) 36. 2010 Forum: Fractured Families, Fragmented Responsibilities 855 Contemporary discussion about the family reflects both the importance of the family as a ‘fundamental unit’ in society,4 but also the increasing recognition of the public impact of, and responsibility for, family violence. Moreover, international conventions play an increasing role in terms of the characterisation of matters as ‘public’ or ‘private’, particularly in the area of violence against women. A great deal of effort has been applied to ensure that governments accept responsibility for preventing and dealing with violence as a serious infringement of women’s rights, and to move the issue of violence from the area of private action to that of public responsibility.5 As violence has been brought increasingly into the public arena, the dimensions of the problem have become apparent. Recent attention to violence in the Australian context has highlighted the extent of the problem. In March 2009, the National Council to Reduce Violence against Women and their Children (‘the National Council’) released the report, Time for Action,6 which focused on the problem of violence against women in the Australian community – and its extent. It reported the estimate that ‘[a]bout one in three Australian women experience physical violence and almost one in five women experience sexual violence over their lifetime’;7 and that while violence ‘knows no geographical, socio-economic, age, ability, cultural or religious boundaries’,8 the experience of violence is not evenly spread. It has an impact on some groups, such as Indigenous women, more than on others.9 The cost of violence is very significant indeed, and makes incontrovertible the argument that violence is a public issue. In January 2009, KPMG prepared a forward projection of costs to 2021–22 and concluded that an estimated 750 000 Australian women ‘will experience and report violence in 2021–22, costing the Australian economy an estimated $15.6 billion’.10 The National Council recommended that the Australian Law Reform Commission (‘ALRC’) should undertake an inquiry into the laws addressing family violence in Australia.11 In April 2009 the Standing Committee of Attorneys-General agreed that the law reform commissions should work together to consider these issues. The terms of reference for the Family Violence Inquiry (‘Inquiry’) emerged from Time for Action. They were: 4 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into 23 March 1976) art 23. 5 Elizabeth Evatt, ‘Eliminating Discrimination Against Women: The Impact of the UN Convention’ (1991) 18 Melbourne University Law Review 435, 437. 6 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) (‘Time for Action’). 7 Ibid 9. 8 Time for Action, above n 6, 16. 9 Ibid 17. 10 Ibid 43; KPMG, The Cost of Violence against Women and their Children (2009), prepared for the National Council. 11 Time for Action, above n 6, 120. 856 UNSW Law Journal Volume 33(3) 1) the interaction in practice of State and Territory family/domestic violence and child protection laws with the Family Law Act and relevant Commonwealth, State and Territory criminal laws; and 2) the impact of inconsistent interpretation or application of laws in cases of sexual assault occurring in a family/domestic violence context, including rules of evidence, on victims of such violence. In relation to both these issues the Commissions were asked to consider, ‘what, if any, improvements could be made to relevant legal frameworks to protect the safety of women and their children’.12 The Inquiry has focused in large measure on the interaction of laws within Australia. This article discusses one of the critical issues underpinning the analysis of problems and the development of reform recommendations in relation to family violence within the terms of reference – namely the problems of the constitutional division of jurisdiction between the Commonwealth and the states and territories – and draws upon aspects of the discussion in the ALRC and New South Wales Law Reform Commission (‘NSWLRC’) Consultation Paper. II FRAGMENTED RESPONSIBILITIES – THE EFFECT ON FAMILIES The Family Law Council advised the Australian Government Attorney- General in December 2009 that: The reality for a separating family experiencing contentious issues in respect of parenting capacity is that there is no single judicial forum that can provide them with a comprehensive response to address their disputes, particularly where there are underlying issues of family violence and/or child abuse.13 The Council was referring to the fact that those who are seeking legal protections and orders in relation to family violence may need to use magistrates courts – and in some cases criminal courts at higher levels; children’s courts; and family courts to deal with the violence. Those who work in this fragmented system have become used to it and have accepted the divisions it creates. In consultations for this Inquiry it became apparent to the Commissions that the various parts of what might be called ‘the family violence system’ contain people who are dedicated to making their part of the system work as well as it possibly can. When users of the system reach the boundaries of each jurisdiction they are referred to a different court, or a different service agency which, in its turn, strives to provide the best possible service it can. The divisions between the different parts of the system are accepted or are seen as immutable by most of 12 The Terms of Reference for this Inquiry are set out at the front of the Consultation Paper: ALRC and NSWLRC, Family Violence: Improving Legal Frameworks, ALRC Consultation Paper No 1, NSWLRC Consultation Paper No 9 (2010) <http://www.alrc.gov.au/inquiries/family-violence/terms-reference>. 13 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) [7.2]. 2010 Forum: Fractured Families, Fragmented Responsibilities 857 those who work within them. One academic in the United Kingdom (‘UK’) has gone so far as to describe these differences as different ‘planets’.14 A Falling between the Cracks in the System Despite the apparent acceptance of the family law system by practitioners, the experience of those who seek legal protection and orders in situations of violence is of a system that is complex and confusing and which may be too hard to navigate. An example will provide some context for the discussion. Let us imagine the all too common situation of 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. A child protection agency may have become involved with the family, perhaps alerted by calls from family members, neighbours or the police. Concerned about the impact of the violence on the children, the agency may decide to investigate and to pursue care proceedings in relation to those children in the relevant 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 (at least) four different types of proceedings.