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Report to NLAF Domestic Violence Working Group: NLAF Family Violence Forum

1. Introduction and overview

The NLAF Family Violence Forum took place on Monday 10 May 2010. The Forum was hosted by the Law Society of NSW. The Forum was a joint initiative of the NLAF Domestic Violence Working Group, the Australian Law Reform Commission and the NSW Law Reform Commission.

There were a total of approximately 60 people who participated in the forum from a range of services working with people who experience family violence as well as staff from the Law Reform Commissions. They included representatives from:

  • Aboriginal Legal Service
  • Women’s Health Centres
  • Community Services NSW
  • Domestic Violence Clearing House
  • Women’s Refuges and Women’s Refuge Movement
  • Federal Attorney General’s Department
  • Education Centre Against Violence
  • Law Society of NSW (Family Law Committee)
  • Legal Aid NSW
  • LIAC
  • NSW Department of Premier and Cabinet, Violence Prevention Unit
  • NSW Police
  • Safe Relationships Project (Inner City Legal Centre)
  • Community Legal Centres NSW
  • Women’s Domestic Violence Court Advocacy Schemes and WDVCAP
  • Wirringa Baiya
  • Women’s Legal Services NSW

The consultation was facilitated by the staff and Commissioners of the Australian Law Reform Commission (ALRC) and NSW Law Reform Commission (NSWLRC).

2. Structure of the Forum

The Forum began with a Welcome to Country from Aunty Millie Ingram, of Wyanga Aboriginal Aged Care Service in Redfern.

Alan Kirkland, Chair of NLAF opened the Forum. He spoke about opportunities for interagency collaboration and cooperation between legal services providers and the role of NLAF in facilitating those opportunities.

Rosalind Croucher, President of ALRC then addressed the Forum. She discussed the terms of reference; the challenges the Inquiry faces because of the breadth of those terms; and issues relating to working with legislation across nine different jurisdictions. She also highlighted some of the issues concerning the integration of Federal family law and state criminal and child protection systems.

Participants then had the choice of joining one of four smaller group discussions about four key areas which included:

  1. Integrated responses and specialist courts:
  2. Intersection of family law and child protection systems;
  3. Interaction in law and practice between protection orders and parenting orders; and
  4. Sexual assault

The small group discussion session was facilitated by Professor Hilary Astor, Commissioner of the NSWLRC.

Participants were engaged in discussions and keen to express views about problems and potential solutions to those problems. The time allocated to small group discussions was extended to accommodate the high level of engagement of participants.

Following the small group discussions, there was an opportunity for each group to report back to the main forum about the key issues discussed by the group.

A summary of the issues raised during the small group discussions and report back session is attached.

The Forum concluded with an ‘open mike’ session of 30 minutes where participants were given the opportunity to raise any other issues of concern or to elaborate further on identified issues.

Summary of small group discussions

Set out below is a summary of the issues discussed at during the small groups and the report back session:

1. Integrated responses and specialist courts

  • There is an overlap between domestic violence, family law and child protection issues. The following ideas address the issue of providing an integrated response to legal needs of people experiencing domestic violence:
    • ‘One door’ policy – the client should have all their legal needs met by knocking on ‘one door’ i.e. accessing one service. For example, people seeking Apprehended Violence Orders (either through private or police initiated applications) should also be able to access legal advice about associated issues relating to family law and child protection.
    • Free legal representation and advice should be available to all parties involved in disputes (as opposed to just one party) as this will increase the chances of a resolution of the issues in dispute.
    • Training should be provided to magistrates and judges about dynamics of domestic violence as well as cross cultural training.
    • Protocols, procedures and policies need to be established to facilitate the flow of information between agencies about common clients. This flow of information needs to be balanced with the protection of a client’s privacy through privacy laws.
  • There is a perception that magistrates are reluctant to deal with family law matters despite their power to do so under section 68R of the Family Law Act. It was suggested that magistrates receive specialist training about how to deal with family law issues.
  • It was acknowledged that:
    • in NSW, there were a range of models for provision of legal services to people experiencing domestic violence. These included WDVCAS, DVICM and Staying Home Leaving Violence services;
    • despite this wide range in models of service, the programs are often situated in metropolitan Sydney and often there are no services available in some RRR areas.
  • The ideas suggested in the briefing paper were positively received.
  • There was some support for the idea of specialist domestic violence courts.

2. Interaction in law and practice between protection orders and parenting orders

The following observations were made:

  • There are not enough resources allocated to dealing with AVOs in local courts. In light of the number of matters coming before the court, there is little time to properly and thoroughly consider family law issues and collect and produce evidence. Some magistrates have directed the parties (including DVLOs) to negotiate parenting plans at court on the AVO list day (without having received proper family law advice) before issuing an AVO.
  • The issue of magistrates’ reluctance to deal with family law matters despite their power to do so under section 68R of the Family Law Act was raised again. There is a perception that this reluctance is based on lack of experience in family law matters.
  • There is a perception that on some occasions the Family Court fails to recognise the significance of AVO or is not made aware of the existence of an AVO when making its decision about children in the family. It was reported that some lawyers advise clients to revoke AVOs because applying for an AVO is seen as a ‘vindictive’ action in family law disputes.
  • There is a perception that Community Services may support a mother experiencing domestic violence to leave the relationship, but the support does not carry on to family law cases, where leaving the relationship with the child can be viewed negatively.
  • Where there is alleged sexual abuse of young children, but for a range of reasons the alleged perpetrator (usually the father) is not charged or convicted, the actions of the mother in attempting to deal with the allegations of abuse (e.g. cooperating with police investigation or making statements) may lead the family court to view the mother as an ‘unfriendly parent’. This may work against the mother and result in the orders that the alleged perpetrator spend an increased amount of time with the child.

The following solutions were suggested to provide for integration of family law and state domestic violence regulation:

  • Better training for DVLOs about domestic violence.
  • Implement measures to improve standing of the DVLO position in the police force (e.g by increasing salary).
  • Allocate sufficient resources to dealing with AVO matters.
  • Police should take thorough statements from the person in need of protection, when applying for the ADVO and set out a detailed complaint in the ADVO application.
  • Implement an interim solution to deal with the delay in proceedings between AVO matters and Family Law matters.
  • Magistrates should be selected from a broader ‘pool’ of candidates that include family law specialists, particularly in RRR areas.

3. Family Law and child protection

  • There was a discussion about the challenges of ‘disunity’ between federal family law court and state children’s care courts. This means that at times, neither court is aware of what the other court is doing. This can lead to delays in proceedings.
  • It was suggested that there be one unified system to deal with both family law and child protection issues. There should be one system with one set of procedures and protocols for dealing with matters and an open flow of information about parties to proceedings between the two systems. It was acknowledged that politically, this may be difficult to achieve.
  • There was also a discussion about the points of entry into the legal system for various groups in the community. Many Indigenous people and people from CALD backgrounds are reluctant to engage with the family court which is seen as ‘a white man’s court’. As a result they enter into the system (often unwillingly) through the care courts.

4. Sexual assault

  • There was a discussion about the ‘law of unintended consequences’ in cases of sexual assault. For example, the use of pre recorded evidence of the victim may be based on the idea of protecting the victim from exposure to the alleged perpetrator. However, pre recorded evidence may have less of an impact on jurors in sexual assault trials.
  • There was some support for adopting guiding principles in legislation.
  • It was acknowledged that there are support services for victims, but that some victims ‘fall through the cracks’ and do not receive support services. This is especially the case in RRR areas.
  • There was a discussion about balancing competing needs in sexual assault matters – i.e. balancing the need to protect victims with the right of the accused to a fair trial.
  • There was support for the presumption in favour of joint trials. However, it was acknowledged that there is a risk that juries may not use the evidence put before them in the appropriate way or that there could be cross contamination of evidence.
  • There was acknowledgement of the limits of using legislation to deal with sexual assault. The effect of the legislation is limited without changes to attitudes and values relating to sexual assault in the broader community.