SUBM.0921.001.0001 CHAPTER 5 FAMILY VIOLENCE 5.1 Introduction 129 5.2 Recent developments 131 5.3 What is family violence? 133 5.4 Scope, extent and the significance of context 138 5.5 A spectrum of severity: Recent Australian evidence and implications for practice 144 5.6 Children and family violence 151 5.7 Family Law Act approaches 154 5.7.1 The 2012 family violence amendments 156 5.8 Civil protection orders 160 5.8.1 Practical and conceptual tensions 164 5.8.1.1 Agency dilemma 165 5.8.1.2 Mutualisation as an example of unintended consequences 166 5.8.1.3 Civil protection orders and the criminal law 167 5.8.2 The Victorian system 169 5.9 Conclusion 174 5.1 INTRODUCTION The purpose of this chapter is to provide the background for understanding the relevance of family violence to family law, including an overview of the empirical evidence in relation to its nature, scope and extent. The chapter also includes an introduction to the way family violence is dealt with in the Family Law Act 1975 (Cth) (FLA) following legislative amendment in 2012, and an overview of the purpose and form of the other relevant state- and territory-based legal frameworks. Underpinning this chapter, and its location early in the book, is the fact that an understanding of the issues raised by violence and abuse is critical to any discussion of law and policy relating to families. In the past three decades, empirical research has begun to establish the scope and nature of the different kinds of abuse that occur in many families. More recently, these issues have become prominent on the policy agendas of governments 129 05_FEH_AFL2_74333_TXT_FL.indd 129 25/08/14 9:49 PM SUBM.0921.001.0002 130 AUSTRALIAN FAMILY LAW: THE CONTEMPORARY CONTEXT at both state and federal levels.1 Family violence has also become a central focus in the development of policy and program responses in family law, following three reports that were released in 2010 which highlighted the extent to which family violence and safety concerns for children and adults are relevant among separated parents2 and the need to strengthen systemic responses to these issues.3 People affected by family violence and/or child abuse are the core client base of the formal parts of the federal family law system: family dispute resolution services, lawyers and courts.4 Family violence and child abuse, which frequently occur together, are dealt with by multiple and intersecting—and at times conflicting—legal frameworks.5 Potentially, a woman who experiences family violence will find that up to five legal frameworks are relevant to her situation. State and territory law (in various statutes and through common law principles) may come into play to address immediate safety (civil protection orders); prosecution of the perpetrator; compensation through victim of crime schemes aimed at providing access to financial recompense via a state fund;6 compensation or damages from the perpetrator through private civil actions (uncommon in practice); and child protection legislation if she has a child who is directly or indirectly exposed, to the extent that state and territory child protection departments may have cause to intervene. Federal law, principally the FLA, will be relevant when it comes to sorting out post-separation parenting and financial arrangements. In addition, interaction with a range of other federal laws and agencies—including Centrelink and the Department of Human Services—Child Support (DHS-CS)—may occur, with the family violence being relevant in a range of ways to the services she accesses. For example, when applying for benefits (Family Tax Benefit) through Department of Human Services—Centrelink, the family violence may be a factor that will relieve her of the obligation to seek child support from the perpetrator (11.3.3.1). 1 Commonwealth Government, Department of Families, Housing, Community Services and Indigenous Affairs and Council of Australian Governments, National Plan to Reduce Violence against Women and Their Children, Including the First Three-Year Action Plan, Council of Australian Governments, Canberra, 2011 (National Plan). Attempts to develop a national response have a long history. For an example of the formulation of a national legal template for domestic violence laws, see Domestic Violence Legislation Working Group (Australia), Model Domestic Violence Laws Report, April 1999. See also Australian Government, Attorney-General’s Department, The Family Law Violence Strategy, February 2006; Rob Hulls and Victorian Government, Department of Justice, New Directions for the Victorian Justice System 2004–2014 Attorney-General’s Justice Statement, Department of Justice, Melbourne, 2004. 2 Rae Kaspiew, Matthew Gray, Ruth Weston, Lawrie Moloney, Kelly Hand, Lixia Qu and the Family Law Evaluation Team, Evaluation of the 2006 Family Law Reforms, Australian Institute of Family Studies, Melbourne, 2009, <www .aifs.gov.au/institute/pubs/fle/evaluationreport.pdf>. 3 Richard Chisholm, Family Courts Violence Review, Attorney-General’s Department, Canberra, 2009; 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, Attorney-General’s Department, Canberra, 2009. 4 See, e.g., John De Maio, Rae Kaspiew, Diana Smart, Jessie Dunstan and Sharnee Moore, Survey of Recently Separated Parents: A Study of Parents Who Separated Prior to the Implementation of the Family Law Amendment (Family Violence and Other Measures) Act 2011, Australian Institute of Family Studies, Melbourne, 2014, <www .ag.gov.au/FamiliesAndMarriage/Families/FamilyLawSystem/Documents/SRSP_Report.pdf>; Lixia Qu and Ruth Weston, Parenting Dynamics after Separation: A Follow-Up Study of Parents Who Separated After the 2006 Family Law Reforms, Australian Institute of Family Studies, Melbourne, 2010. 5 Australian Law Reform Commission and NSW Law Reform Commission, Family Violence: A National Legal Response, Final Report, Australian Law Reform Commission and NSW Law Reform Commission, Sydney, 2010. 6 For an overview of these schemes see Isobelle Barrett Meyering, Victim Compensation and Domestic Violence: A National Overview, Stakeholder Paper 8, Australian Domestic and Family Violence Clearinghouse, 2010, <www .adfvc.unsw.edu.au/PDF%20files/Stakeholder%20Paper_8.pdf>, 28 April 2014. 05_FEH_AFL2_74333_TXT_FL.indd 130 25/08/14 9:49 PM SUBM.0921.001.0003 CHAPTER 5: FamiLY VIOLENCE 131 Because of the Constitutional issues discussed in Chapter 2, power to legislate in relation to family violence does not fall purely within the purview of either the federal or state parliaments. As a result, the adoption of differing approaches among different governments at state, territory and federal levels, legislative policy in areas relevant to family violence and child abuse has developed in an uneven and piecemeal way. Since 2007, there has been significant work done through federally initiated and state- and territory-supported processes to bring policy approaches to both family violence and child abuse closer into national alignment, culminating with the Council of Australian Governments endorsing the National Plan to Reduce Violence against Women and Their Children (National Plan) in February 2011.7 From 2010, the need to improve responses to parents and children affected by violence has become a priority in the federal family law sphere, through legislative amendments (the Family Law Amendment (Family Violence and Other Matters) Act 2011 (Cth): 5.7.1) intended to place increased emphasis on identifying and responding to concerns about family violence and child safety8 and program developments (for example, coordinated family dispute resolution9) aimed at providing services developed specifically for the needs of this client group. Attention has also been directed towards ensuring that more effective processes for screening for family violence are applied across the family law system, through the development of a family violence professional development package (AVERT)10 and a screening risk and risk assessment tool intended to be applied by professionals across the family law system.11 Our discussion suggests, however, that despite positive change there is still much work to be done in improving awareness of and responses to family violence. 5.2 RECENT DEVELOPMENTS Recent attempts to measure the cost of family violence are a reflection of greater concern at the level of government policy and growing awareness of the effects that violence and abuse in families have on the community at large. In 2002–03, Access Economics estimated the costs of family violence in Australia in that financial year to be $8.1 billion.12 Projections based on the Access Economics methodology produced by KPMG in 2009 estimated that, unless the incidence of family violence is reduced, costs to the Australian economy in 7 The report that led to the endorsement of the National Plan was: 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, Department of Families, Housing, Community Services and Indigenous Affairs, Canberra, 2009. 8 Commonwealth Parliament, House of Representatives, Explanatory Memorandum, Family Law legislation Amendment (Family Violence and other Measures) Act 2011, Commonwealth Parliament, Canberra, 2011. 9 See, e.g., Rae Kaspiew John De Maio, Julie Deblaquiere and Briony Horsfall, Evaluation of a Pilot of Legally