DEALING WITH DOMESTIC VIOLENCE There are some positives in the way the law protects victims of domestic violence: ADVOs are: Quick Inexpensive (cheap) Accessible Supported by the full weight of the criminal law system And most ADVOs are not breached. EVALUATE the effectiveness of the law in protecting victims of domestic violence DEALING WITH DOMESTIC VIOLENCE

DEALING WITH DOMESTIC VIOLENCE But… At the time that the 2006 changes were introduced, there were already concerns about the amount of protection of women and children victims of domestic violence. But recently the law has undergone a number of reviews… EVALUATE the effectiveness of the law in protecting victims of domestic violence DEALING WITH DOMESTIC VIOLENCE

DEALING WITH DOMESTIC VIOLENCE There were four major evaluations of the effectiveness of the law in protecting victims of domestic violence after the 2006 Reforms. EVALUATE the effectiveness of the law in protecting victims of domestic violence DEALING WITH DOMESTIC VIOLENCE

DEALING WITH DOMESTIC VIOLENCE EVALUATE the effectiveness of the law in protecting victims of domestic violence Something must be wrong! DEALING WITH DOMESTIC VIOLENCE

DEALING WITH DOMESTIC VIOLENCE Family Violence: A National Legal Response, ALRC Report 114 (2010) (AKA: ALRC Report 114) Evaluation of the 2006 Family Law Reforms, Australian Institute of Family Studies (2009) (AKA: the AIFS Study) Family Courts Violence Review: A report by Professor Richard Chisholm (2009) (AKA: the Chisholm Report) Improving Responses to Family Violence in the Family Law System, Family Law Council (2009) (AKA: the Family Law Council Report) EVALUATE the effectiveness of the law in protecting victims of domestic violence DEALING WITH DOMESTIC VIOLENCE

DEALING WITH DOMESTIC VIOLENCE The AIFS Study: The findings of the study clearly indicated that the family law system had some way to go in developing an effective response to family violence. One of the central challenges facing the family law system is domestic violence. Over half of the separated parents in the study reported experiencing emotional or physical violence. Possibly due to fear of being labelled an “unfriendly parent”, only half of the mothers who reported being concerned about the safety of their children actually tried to limit their child/ren’s contact with the other parent. EVALUATE the effectiveness of the law in protecting victims of domestic violence DEALING WITH DOMESTIC VIOLENCE

DEALING WITH DOMESTIC VIOLENCE The AIFS Study: Remember the two priorities of the 2006 changes? The “meaningful involvement” principle The child’s right to maintain a meaningful relationship with both parents 2. The “protection from harm” principle The need to protect the child from harm 86% of lawyers in the family law system felt that the system was taking care of the first principle (i.e. protecting the rights of fathers), but only 55% of lawyers in the family law system felt that the current system was doing an “adequate” job in enforcing the 2nd principle (protecting children from harm). EVALUATE the effectiveness of the law in protecting victims of domestic violence DEALING WITH DOMESTIC VIOLENCE

DEALING WITH DOMESTIC VIOLENCE The AIFS Study: MAIN PROBLEMS with the 2006 changes: The “false allegation” provision: If a victim of domestic violence raised that violence in court and could not PROVE it, the judge could make a ‘costs order’ against that person (she would have to pay for her ex-husband’s legal fees) s. 117AB 2. The “friendly parent” provision: Both parents were obligated to facilitate the child’s relationship with the other parent (meaning they were unable to warn the child about possible abuse or try to keep the child away from the abusive parent against the parental order or they could end up having less time with the child) s. 60CC(3)(c) EVALUATE the effectiveness of the law in protecting victims of domestic violence DEALING WITH DOMESTIC VIOLENCE

DEALING WITH DOMESTIC VIOLENCE The AIFS Study: CONCLUSION: Family violence is a complex phenomenon. There was a need for strategies based on case-by-case assessments rather than a “one-size-fits-all” approach. EVALUATE the effectiveness of the law in protecting victims of domestic violence DEALING WITH DOMESTIC VIOLENCE

DEALING WITH DOMESTIC VIOLENCE Family Courts Violence Review: A report by Professor Richard Chisholm (2009) (AKA: the Chisholm Report) By former Family Court judge Richard Chisholm. He was interviewed on The Law Report, ABC Radio National, 2010 about the problems he found with the system in responding to family violence. EVALUATE the effectiveness of the law in protecting victims of domestic violence DEALING WITH DOMESTIC VIOLENCE

DEALING WITH DOMESTIC VIOLENCE Family Courts Violence Review: A report by Professor Richard Chisholm (2009) (AKA: the Chisholm Report) His conclusions: The changes to the FLA were probably needed to emphasise the fact that both parents are responsible for their children, BUT the way the Act was drafted/written “went too far in the other direction”. There was some language in the Act that has led people to think that parents have some sort of right to equal time (when really it was just a possibility) There are some parts of the law that discouraged people from reporting violence e.g. the “false allegation” provision e.g. the “friendly-parent” provision So there are quite a lot of reasons why a parent might agree to arrangements that are actually unsafe for children EVALUATE the effectiveness of the law in protecting victims of domestic violence DEALING WITH DOMESTIC VIOLENCE

DEALING WITH DOMESTIC VIOLENCE By the way… The “false allegations” provision was put into the laws to make Father’s Rights lobby groups happy, rather than being an idea based on research. The research has found no good evidence that men OR women are likely to make false allegations of violence as a “tactic” in family cases. Despite this, there is still a community perception that such a tactic is used frequently by women (despite the research community debunking this idea). EVALUATE the effectiveness of the law in protecting victims of domestic violence DEALING WITH DOMESTIC VIOLENCE

DEALING WITH DOMESTIC VIOLENCE Family Violence: A National Legal Response, ALRC Report 114 (2010) (AKA: ALRC Report 114) EVALUATE the effectiveness of the law in protecting victims of domestic violence This extensive report made 187 Recommendations for reform. MAIN PROBLEM: Fragmentation Due to the division of powers, neither the States nor the Commonwealth government have exclusive power over family law. DEALING WITH DOMESTIC VIOLENCE

DEALING WITH DOMESTIC VIOLENCE Family Violence: A National Legal Response, ALRC Report 114 (2010) (AKA: ALRC Report 114) This extensive report made 187 Recommendations for reform. KEY ISSUE: Fragmentation Due to the division of powers, neither the States nor the Commonwealth government have exclusive power over family law. Even worse, the boundaries between the different parts are not always clear, especially when it comes to violence involving children. Another research report from the University of Sydney called ‘No Way to Live’ (2010) found that there was a ‘yawning chasm’ (huge gap) between the State-based agencies and the Family Court. e.g. If a woman went to DOCS because she was concerned for the safety of her children, she would just be told to “sort it out in the Family Court”. Then, when she got there, she would be told not to bring it up because she had no evidence! EVALUATE the effectiveness of the law in protecting victims of domestic violence DEALING WITH DOMESTIC VIOLENCE

SO WHAT WAS DONE ABOUT THESE PROBLEMS? DEALING WITH DOMESTIC VIOLENCE EVALUATE the effectiveness of the law in protecting victims of domestic violence SO WHAT WAS DONE ABOUT THESE PROBLEMS? DEALING WITH DOMESTIC VIOLENCE

DEALING WITH DOMESTIC VIOLENCE The Family Law Legislation (Family Violence and other measures) Act 2011 (AKA: The Family Violence Act) This law: Made the “protection from harm” principle more important that the child having a meaningful relationship with both parents Widened the definition of ‘abuse’ Added being EXPOSED to domestic violence as being violence (e.g. seeing or hearing their mum being abused) Repealed (removed) the “friendly parent” provision Repealed (removed) the “false allegation” provision Basically, we’ve kept shared parental responsibility, but brought balance back to the system so that protecting children is once again at the centre of all decision-making. Net Widens on Family Violence, SMH (2012) EVALUATE the effectiveness of the law in protecting victims of domestic violence DEALING WITH DOMESTIC VIOLENCE

DEALING WITH DOMESTIC VIOLENCE But there are still so many issues… 1. Weak criminal laws (+ lack of political will) It’s been argued that the current system (especially the lack of a separate domestic violence crime) is ineffective because it downplays the trauma suffered when someone so close to you commits violent acts against you (as opposed to a stranger) and the continued fear that the person knows so much about where you might be (e.g. where you work, where all your family members live, etc). The head of the ALRC said we should probably start by improving police training using the existing legal options instead of making a new law. Call for specific domestic violence crime, ABC News (2014) Again, though, I’d like to see politicians get as angry about domestic violence as they did about bikie gangs or one-punch attacks on strangers. EVALUATE the effectiveness of the law in protecting victims of domestic violence DEALING WITH DOMESTIC VIOLENCE

DEALING WITH DOMESTIC VIOLENCE But there are still so many issues… 2. Limits to what the Family Court can do The Family Court gets criticised by groups like ‘Domestic Violence NSW’ for making orders for children to have contact with violent parents. This was more the case between 2006-2012 (before the Family Violence Act) but it does still happen. The court defends this because a risk assessment is done and the law still has the “meaningful relationship” section as the second most important thing to consider. In the worst cases, where are child dies (e.g. Luke Batty), the court gets the most criticism, but you have to remember that in that situation (and others), THERE WAS NO FAMILY COURT CASE (the parents came to an agreement with each other). The court can only protect children in cases where there is actually a case. Family Court chief justice defends efforts to stop domestic violence, ABC AM Program (2014) EVALUATE the effectiveness of the law in protecting victims of domestic violence DEALING WITH DOMESTIC VIOLENCE

DEALING WITH DOMESTIC VIOLENCE But there are still so many issues… 3. You can’t always control human behaviour Diana Bryant (Chief Justice of the Family Court) has stated exactly what the problem is with using laws to control humans: Ultimately we can't predict all human behaviour. That's for certain. And I think we see that with AVOs and criminal proceedings. You can have as many as you like, but people still sometimes kill their spouses, and sometimes attack them. Call for specific domestic violence crime, ABC News (2014) EVALUATE the effectiveness of the law in protecting victims of domestic violence DEALING WITH DOMESTIC VIOLENCE

DEALING WITH DOMESTIC VIOLENCE But there are still so many issues… 4. Government funding cuts a. Legal Aid Because of a lack of funding, Legal Aid has had to bring in extra rules about who they’ll represent in the Family Court. e.g. If you’re a woman who has been a victim of domestic violence and you need Legal Aid, they won’t represent you if your ex-husband doesn’t have a lawyer. So, if you know you’re stuck without a lawyer and your violent ex-partner is going to be cross-examining (aka verbally attacking) you in court, you’re probably going to avoid court and just settle with him to make sure you don’t have to go through it (and you’ll settle for a worse outcome than the judge would have given you). Family Court Chief Justice laments system failures, ABC News (2014) EVALUATE the effectiveness of the law in protecting victims of domestic violence DEALING WITH DOMESTIC VIOLENCE

DEALING WITH DOMESTIC VIOLENCE But there are still so many issues… 4. Government funding cuts b. Community Legal Centres The Abbott government announced cuts to community legal centre funding in the 2014-15 Budget knowing that this would almost certainly lead to female victims of domestic violence not being able to access community legal centre services. In an interview on ABC Radio’s AM program, it was argued that cuts to the funding of 60 community legal centres would negatively impact the availability of services to victims of domestic violence. EVALUATE the effectiveness of the law in protecting victims of domestic violence DEALING WITH DOMESTIC VIOLENCE

DEALING WITH DOMESTIC VIOLENCE But there are still so many issues… 5. The increasing domestic violence rate If the ultimate test to see if our policies are working is whether the crime rate has gone down, we’re failing. Domestic violence was one of only two crimes in 2014 where the crime rate actually increased (and it wasn’t just because more people reported it, the statistics included incidents leading to hospital admissions, which are reported by the hospital staff). Assault rate rises in NSW homes, SMH (2014) EVALUATE the effectiveness of the law in protecting victims of domestic violence DEALING WITH DOMESTIC VIOLENCE

2015 Past HSC question Use these notes to map out a response to this question: Assess the effectiveness of legal and non-legal responses in dealing with domestic violence.