Australian Law Reform Commission and NSW Law Reform Commission Family Violence Inquiry
|Question or proposal||Comment or reference to discussion in summary of consultation paper|
| Proposal 5–4 State and territory family violence legislation which empowers police to issue protection orders should provide that: |
(a) police are only able to impose protection orders to intervene in emergency or crisis situations in circumstances where it is not reasonably practicable or possible for the matter to be dealt with at that time by a court; and
(b) police-issued protection orders are to act as an application to the court for a protection order as well as a summons for the person against whom it is issued to appear before the court within a short specified time period. In particular, s 14(6) of the Family Violence Act 2004 (Tas)—which allows police-issued protection orders to last for 12 months—should be repealed.
|This proposal may impact on RRR areas, in particular remote areas where there is a ‘fly in, fly out’ court service.|
|Question 5–8 Should all state and territory governments ensure that there are Indigenous-specific support services in courts to enable Indigenous people to apply for protection orders without police involvement?|| Page 44 of summary of consultation paper |
“The role of police and DPPs in applying to the court for protection orders
In NSW, Queensland, and Western Australia, family violence legislation places express obligations on police to investigate family violence. NSW and Western Australia have the strongest legislative directions in relation to pro-protection policing. In contrast, for example, in the ACT, police are not obliged to investigate on the basis of reasonable suspicion or to apply for protection orders. ACT police are empowered to apply for emergency orders, and are required in certain circumstances to make a written record of reasons for not applying for emergency orders.
The Commissions are interested in hearing stakeholder views on whether family violence legislation should impose express duties on police to investigate family violence matters and whether, in certain circumstances—for example, where a person’s life or safety is at serious risk—police should be required to apply for protection orders.
The Commissions tend to the view that, at the least, an approach similar to that taken in the Model Domestic Violence Laws should be adopted—that is, police should be required to investigate family violence where they have reason to believe or suspect family violence has been, is being or is likely to be committed. The Commissions endorse the approach advocated in the Model Domestic Violence Laws, adopted by a small number of jurisdictions, that following an investigation police should be required, in those cases where they did not take action, to record the reasons why.
The Commissions also endorse the views expressed by the VLRC that it is essential that victims can apply for protection orders without involving the police, and that there should be increased Indigenous-specific support services in courts to enable Indigenous people to apply for protection orders without police involvement. The Commissions are particularly interested in hearing the views of Indigenous stakeholders in each state and territory on this issue.”
| Question 5–10 Do any issues arise in relation to the availability, scope and exercise in practice of police powers in connection with family violence to: |
(a) enter premises;
(b) search for and seize firearms or other articles; and
(c) arrest and detain persons?
Proposal 5–6 State and territory legislation which confers on police powers to detain persons who have used family violence should empower police to remove such persons from the scene of the family violence or direct them to leave the scene and remain at another specified place for the purpose of the police arranging for a protection order.
Question 5–11 Should state and territory legislation which confers on police power to detain persons who have used family violence empower police to detain such persons for a reasonably short period for the purpose of making arrangements to secure the safety of victims and affected children to the extent that it does not already do so?
| Pages 47 – 48 of summary of consultation paper |
“Police Powers of arrest and detention
The Commissions are interested in hearing stakeholder views about whether issues arise in practice concerning the availability, scope and exercise of police powers of entry, search, seizure, arrest and detention in family violence cases, and whether any such issues require legislative redress.
The Commissions note the concerns expressed about the practical implications of the provisions in NSW family violence legislation empowering police in certain circumstances to direct a person who has used violence to remain at the scene of an incident, particularly where the incident occurs in a remote area.10 There may be serious implications for a victim’s safety and wellbeing, particularly in an emotionally charged atmosphere in the aftermath of violence. A victim should be able to remain in the home while the police, if necessary, can remove the person who has used violence from the scene, or direct that person to leave the scene and remain in another designated place for the purpose of the police applying for, issuing or serving a protection order. The Commissions are interested in hearing from stakeholders in other jurisdictions where police do not have such removal powers as to whether this causes any problems in practice.
The Commissions are also interested in stakeholder views about whether there is some merit in the approach of those jurisdictions that empower police to detain persons who have used violence to detain such persons for a reasonably short period for the purpose of making arrangements to secure the safety of victims and affected children once the purpose of detention associated with obtaining a protection order has been fulfilled. In such cases, however, the period of detention must be as short as reasonably practicable to allow the objective of safeguarding victim safety to be fulfilled.”
|Question 9–8 In practice, what issues arise from the interaction between relocation orders and protection orders or allegations of family violence? If so, what legal or practical reforms could be introduced to address these issues? For example, should there be a presumption that, in some or all cases where a family court determines there has been family violence, it is likely to be in the best interests of a child to be able to relocate to a safe distance from the person who has used violence? If so, to which type of case should such a presumption apply?|| Pages 110 – 111 of summary of consultation paper |
The Family Law Act does not expressly address relocation issues—that is, the problems which arise when one parent seeks to move a long way away from the other parent, for example, because of concerns about their own safety or the safety of their children. Relocation disputes are determined in accordance with the general parenting order principles set out in pt VII of the Act. Stakeholders have raised significant concerns with the Commissions that, in practice, relocation orders are being refused where a parent and his or her children are at risk of exposure to family violence.
In 2006, the Family Law Council recommended to the Attorney-General that additional provisions should be inserted into the Family Law Act to deal specifically with relocation. The recommended provisions included that a court should consider what parenting arrangements could be made if a party were to relocate to ensure that the child maintains a meaningful relationship with both parents, to the extent consistent with the need to protect the child from physical or psychological harm.
Refusing to make relocation orders in situations involving family violence has serious repercussions for the safety of victims and their children. Victims in rural or remote areas of Australia may not be able to be (or feel to be) safe from violence and yet remain in close enough proximity to the person who has used violence to keep child contact arrangements unchanged. For victims who have been distanced geographically from their extended family or primary support network, regaining this support could be crucial to moving forward in their lives.
The Commissions are interested in stakeholder views as to whether any additional legal or practical reforms are needed to address issues related to the practical interaction of protection order proceedings and relocation disputes. For example, should there be any presumption in legislation or policy—for example, the Best Practice Principles for Use in Parenting Disputes when Family Violence or Abuse is Alleged issued by the Family Court8—that, in cases where a family court determines there has been family violence, it is likely to be in the best interests of a child to be able to relocate to a safe distance from the person who has used violence? A broader question is whether the Family Law Act should be amended to include provisions dealing with family violence in relocation matters over and above the provisions of the Act that apply to family violence in parenting proceedings generally.
Any additional recognition of family violence in the context of relocation disputes will need to be flexible enough to accommodate the varying severity and nature of the violence in a particular case. The Commissions seek stakeholder views on whether any legal or practical reforms in the context of relocation disputes should apply in all or only some cases of family violence. If reform is warranted in some cases of family violence, then a question arises as to how this should be determined.
| Proposal 10–1 Judicial officers, when making a protection order under state or territory family violence legislation by consent without admissions, should ensure that: |
(a) the notation on protection orders and court files specifically states that the order is made by consent ‘without admission as to criminal liability of the allegations in the application for the protection order’;
(b) the applicant has an opportunity to oppose an order being made by consent without admissions;
(c) the order gives attention to the safety of victims, and, if appropriate, requires that a written safety plan accompanies the order; and
(d) the parties are aware of the practical consequences of consenting to a protection order without admission of liability.
|This proposal may be relevant to RRR areas in that it raises issues about access to services including services that will develop a safety plan with the person experiencing family violence. The availability of such services in RRR areas should be considered in the context of this proposal.|
| Question 14–1 Can children’s courts be given more powers to ensure orders are made in the best interests of children that deal with parental contact issues? If so, what powers should the children’s courts have, and what resources would be required? |
Question 14–2 Should the Family Law Act 1975 (Cth) be amended to extend the jurisdiction which state and territory courts already have under pt VII to make orders for a parent to spend time with a child?
Question 14–3 When should state and territory children’s courts have power to determine contact between one parent and another in matters that are before the court in child protection proceedings?
Question 14–4 What features of the Family Court of Western Australia should be replicated in other jurisdictions?
Question 14–5 Is there any role for a referral of legislative power to the Commonwealth in relation to child protection matters? If so, what should such a referral cover?
Australian Institute of Criminology and similar state and territory agencies should prioritise the collection of comprehensive data on attrition rates and outcomes in sexual assault cases, including in relation to sexual assault perpetrated in a family violence context.
| Pages 167 of summary of the consultation paper |
Jurisdictional The Commissions’ preliminary view is that, wherever possible, matters involving children should be dealt with in one court—or as seamlessly as the legal and support frameworks can achieve in any given case. This was also the outcome recommended by the Family Law Council in 2002 as part of its ‘one court principle’—that is, that state and territory courts should have a broad power to make residence and contact orders under the Family Law Act in child protection proceedings so that one court can deal with all substantive matters and ensure the child’s best interests and welfare are addressed.
The Commissions are interested in whether there is value in providing local and magistrates courts with expanded jurisdiction under the Family Law Act. A practical limitation on the capacity of magistrates courts to hear Family Law Act matters is that they do not have the associated counselling services or family dispute resolution processes of the Family Court and there are limited Family Court counselling services in rural areas. The Commissions note however, that magistrates courts regularly make interim children’s orders under the Family Law Act, particularly in regional areas.
Ideally, one court should be responsible for exercising jurisdiction in relation to those matters where a substantial or permanent shift of parental responsibility for a child is first raised as an issue for resolution. The first point of engagement should facilitate the resolution of relevant issues as far as possible, or assist in the smooth transition to other parts of the legal or services framework more suited to achieve such outcomes.
The power of children’s courts to make contact orders in proceedings before them appears to complement their care and protection jurisdiction. Such a power is necessary if governments are to adopt the Family Law Council’s ‘one court principle’.
| Question 17–1 Have specialist police squads for sex crimes increased the policing and apprehension of sexual assault offenders, including in a family violence context? |
Question 17–2 To what extent is the work of specialist police hampered by lack of training and resources? In what ways can improvements be made?
Question 17–3 Are specialised police and integrated agency responses effective in reducing the attrition of sexual assault cases during the police investigation phase? If not, what further measures should be taken?
Question 17–4 What impact are specialised police units having on improving collection of admissible evidence and support for victims of sexual assault in a family violence context?
| Pages 192 – 193 of summary of consultation paper |
“Police and integrated agency responses
Specialised police units also have roles in integrating police responses with those of other government agencies involved in child protection. For example, Victoria Police has a Sexual Offences and Child Abuse (SOCA) Coordination Office which collaborates with government and non-government agencies in relation to coordinated approaches to family violence, sexual assault and child abuse. In January 2007, Sexual Offences and Child Abuse Investigation Teams (SOCITs) and Multidisciplinary Centres (MDCs) were established to improve government and police responses to sexual assault.
The SOCITs are staffed by specialist police investigators and specialist sexual assault counsellors. The SOCIT is a victim-centred service delivery and investigative model, which aims to enhance the chances of prosecution and victim satisfaction with the handling of cases. It was developed by Victoria Police in response to the VLRC’s 2004 report on sexual offences.
The Commissions have heard that specialised police responses to sexual assault are important for complainants. However, not all sexual assault offences are dealt with by specialist police or units and considerable barriers may exist for complainants of sexual assault, particularly in rural, remote and Indigenous communities, including problems with access to police and forensic examination facilities.”
| Proposal 19–2 State and territory governments should, to the extent feasible, make victim support workers and lawyers available at family violence-related court proceedings, and ensure access to victim support workers at the time the police are called out to family violence incidents. |
Proposal 19–3 The Australian Government should ensure that court support services for victims of family violence are available nationally in federal family courts.
|This proposal may be relevant in so far as service providers may want to comment about the importance / feasibility of providing the proposed services in RRR areas.|
| Proposal 20–1 Each state and territory police force should ensure that: |
(a) victims have access to a primary contact person within the police, who specialises and is trained in family violence issues;
(b) a police officer is designated as a primary point of contact for government and non-government agencies involved in responding to family violence;
(c) specially trained police have responsibility for supervising, monitoring or assuring the quality of police responses to family violence incidents, and providing advice and guidance to operational police and police prosecutors in this regard; and
(d) there is a central forum or unit responsible for policy and strategy concerning family violence within the police.
Question 20–1 What issues arise in practice concerning the role and operations of police who specialise in family violence matters?
Question 20–2 What are the benefits of specialised family violence prosecutors, and the disadvantages or challenges associated with them, if any? Could the benefits of specialised prosecutors be achieved in other ways, such as by training or guidelines on family violence?
Proposal 20–2 State and territory governments should ensure that specialised family violence courts determine matters relating to protection orders and criminal proceedings related to family violence. State and territory governments should review whether specialised family violence courts should also be responsible for handling related claims:
(a) for civil and statutory compensation; and
(b) in child support and family law matters, to the extent such jurisdiction is conferred in the state or territory.
Proposal 20–3 State and territory governments should establish mechanisms for referral of cases involving family violence to specialised family violence courts. There should be principled criteria for determining which cases could be referred to such courts. For example, these criteria could include:
(a) where there are concurrent family-related claims or actions in relation to the same family issues;
(b) where there have been multiple family-related legal actions in relation to the same family in the past;
(c) where, for exceptional reasons, a judicial officer considers it necessary.
Proposal 20–4 State and territory governments should establish or further develop specialised family violence courts in their jurisdictions, in close consultation with relevant stakeholders. These courts should have, as a minimum:
(a) especially selected judicial officers;
(b) specialised and ongoing training on family violence issues for judicial officers, prosecutors, registrars, and police;
(c) victim support workers;
(d) arrangements for victim safety; and
(e) mechanisms for collaboration with other courts, agencies and non-government organisations.
Proposal 20–5 State and territory governments should review whether, and to what extent, the following features have been adopted in the courts in their jurisdiction dealing with family violence, with a view to adopting them:
(a) identifying, and listing on the same day, protection order matters and criminal proceedings related to family violence, as well as related family law act and child protection matters;
(b) providing victim and defendant support, including legal advice, on family violence list days;
(c) assigning selected and trained judicial officers to work on cases related to family violence;
(d) adopting practice directions for family violence cases;
(e) ensuring that facilities and practices secure victim safety at court; and
(f) establishing a forum for feedback from, and discussion with, other agencies and non-government organisations.
Proposal 20–6 State and territory governments should establish centres providing a range of family violence services for victims, which would have the following functions:
(a) recording victim statements and complaints;
(b) facilitating access to victim support workers for referrals to other services;
(c) filing all claims relating to family violence from victims on behalf of the victim in relevant courts; and
(d) acting as a central point of contact for victims for basic information about pending court proceedings relating to family violence.
Proposal 20–7 The Australian Government should assist state and territory governments in the establishment, development and maintenance of specialist family violence courts by, for example, facilitating the transfer of specialised knowledge and expertise in dealing with family violence and sexual assault across federal and state and territory jurisdictions; and establishing and maintaining national networks of judicial officers and staff specialising in family violence or family law.
Proposal 20–8 The Australian Government should create positions for Family Law Courts liaison officers. These officers should have the following functions:
(a) facilitating information sharing between federal family law courts and state and territory courts;
(b) developing and promoting best practice in relation to information sharing between the federal family law courts and state and territory courts; and
(c) representing the federal family law courts in relevant forums for collaboration with agencies, courts and non-government organisations.
| This proposal may be relevant in so far as service providers may want to comment about the importance / feasibility of providing the proposed services in RRR areas. |
The discussion leading up to the proposals and questions is set out in chapter 20 of the Summary of the consultation paper