Domestic and family violence and the legal system
Australian domestic and family violence laws
Continuing with the crisis intervention services, this chapter discusses
the legal frameworks that the Commonwealth and states and territories have to handle
cases of domestic violence, issues raised with the committee and suggestions to
improve outcomes for victims. In Australia, responsibility for the legal
frameworks for addressing domestic and family violence is shared by the
Commonwealth and the states and territories. The Commonwealth has some
provision for handling cases of domestic and family violence under the Family
Law Act 1975 (Family Law Act). However, state and territory laws and court
systems handle the vast majority of domestic and family violence cases.
The Commonwealth legal framework
The Family Law Act covers some aspects of domestic violence, especially
in its provisions for injunctions to protect partners or children who are
suffering or at risk of suffering domestic violence.
Injunctions are orders made by a court that require a party to refrain
from performing certain actions. These can be made in the interests of
protecting a partner or children, to restrict occupancy of a family home, or to
restrain a party from entering a place of work or education.
Most injunctions relating to the protection of a partner or child
suffering or at risk of suffering domestic and family violence are made through
relevant state legislation, as Family Law injunction processes are costly,
complex and difficult to enforce. Moreover, other advantages of injunctions
issued under state and territory law have been noted, including:
protection orders can protect a wider range of family
members-such as siblings, extended family and other members of a household;
a wider range of people can initiate proceedings for a protection
order, including the police;
state and territory family violence Acts specify a wide range of
conditions or prohibitions that can be included in a protection order; and
police are more familiar with procedures under state and
territory family violence legislation.
The legal framework of the states and territories
All Australian states and territories have laws in place that empower
courts to make orders to protect the victims of domestic and family violence,
or those at risk of suffering domestic and family violence.
Terminology varies between jurisdictions, so this report will use domestic
violence orders (DVOs).
It should be noted that protection orders in general are civil, not
It is also worth noting every Australian jurisdiction has some provision to
recognise and enforce New Zealand DVOs once registered in the local justice
system by the victim.
Issues raised with the committee
Issues raised with the committee will be discussed in turn:
existing work in this area;
funding cuts to legal aid reducing access for victims of domestic
barriers to accessing legal aid;
the lack of consistent training and evaluation for legal personnel
working in the Family Court system;
the need for harmonisation of DVOs across jurisdictions; and
the tension between Family Court processes and cases heard in
state and territory courts.
Existing work in this area
The committee is aware of many reviews already conducted in this area.
In particular the committee acknowledges the comprehensive work undertaken by
the Australian Law Reform Commission (ALRC) and the NSW Law Reform Commission
(NSWLRC) examining the Australian legal response to family violence.
The First Action Plan under the National Plan includes a commitment to
consider the 186 recommendations of the ALRC/NSWLRC report
but there is no reference to this work in the Second Action Plan. Submissions
urged that the recommendations be implemented.
The progress report to COAG 2010-2012 notes:
The Commonwealth Government is currently considering the
recommendations in the ALRC and New South Wales Law Reform Commission Report No
114, Family Violence—A National Legal Response, which was released on 11
The Report made 186 recommendations, which call for:
- a more seamless and integrated legal framework for people engaged in it;
ensuring that victims have better access to legal and other responses to
fair and just legal responses to family violence; and
effective interventions and support in circumstances of family violence.
The recommendations can be split into two types: those that
affect each jurisdiction individually and those that jointly affect the
Commonwealth, states and territories.
At the Standing Committee of Attorneys-General meeting on 22
July 2011, Ministers agreed to develop a national response to the Report for
the recommendations that jointly affect the Commonwealth and states and
territories. A working group has been formed under the Standing Council on Law
and Justice to develop a national response
At the Standing Council on Law and Justice meeting in October
2012, Ministers agreed that further work should be done on a national response,
with the item to return to Standing Council's first meeting in 2013 with
proposed outcomes for addressing the recommendations made by the ALRC and the
New South Wales Law Reform Commission.
On 4 April 2013, the former Standing Council on Law and Justice (SCLJ) met
Ministers endorsed a national response [prepared by the
Attorney-General] to the Australian and NSW Law Reform Commissions' report
Family Violence – A National Legal Response. Ministers agreed to send the
Attorney-General's response to the Australian and New South Wales Law Reform
Commissions and to make the Attorney-General's response available in the SCLJ
The national response notes how each recommendation will be responded
Of the 186 recommendations contained in the Report, there are
97 recommendations which affect only the States and Territories and will
be considered by each of them individually. There are 22 recommendations which
affect only the Australian Government, and a separate Australian Government
response is being developed in relation to each of those items. In addition,
there are 34 recommendations which will be addressed by the Australian
Government in their response and also considered by States and Territories
individually, as the recommendations note action for each jurisdiction but do
not require a collaborative effort. There are 33 recommendations that have
been identified by the Standing Council on Law and Justice as affecting
jurisdictions jointly and are therefore considered in this national response. Of
those 33 recommendations, 9 are being dealt with in a National Justice Chief
Executive Officers' (NJCEO) project which is looking at collaboration between
the family law and child protection systems and will be responded to by jurisdictions
through that project.
The ACT Domestic Violence Prevention Council pointed out:
However, to date the 'national response' has only addressed
33 of the Commissions' recommendations. These were identified by the SCLJ as
affecting jurisdictions jointly, with nine of those recommendations relating to
collaboration between the family law and child protection systems referred to
the National Justice Chief Executive Officers' project. Widespread consultation
and extensive resources were engaged to develop the...recommendations for law
reform across Australian jurisdictions. The DVPC believes more could be done to
progress the Commissions['] recommendations. An opportunity now exists to bring
to fruition a number of important reforms that have been recommended by the
The ACT Government submission notes that the ACT is currently
considering the recommendations of the Australian and NSW Law Reform
Funding cuts to legal aid
Discussed in the committee's interim report, most funding for legal aid
centres is provided by the states and territories. However, the committee heard
evidence about some aspects of legal aid the Commonwealth does fund, and how
budget cuts to this funding would affect victims of domestic and family violence.
In particular, stakeholders commented on the 2013-14 Mid-Year Economic
and Financial Outlook (MYEFO) measure 'Legal Policy Reform and Advocacy Funding
— redirection', which cut $43.1 million over the forward estimates to four
legal assistance programs, including funding streams for community legal
Stakeholders also criticised the withdrawal of $15.0 million to the sector in
the 2014-15 Commonwealth Budget.
Dr Chris Atmore, Senior Policy Adviser, Federation of Community Legal
Centres (FCLC), told the committee that Commonwealth budget cuts to funding for
community legal centres' (CLC) advocacy work would actually impact on the
assistance they could give to victims of domestic violence.
I just want to say a little bit [about] the impact of the
recent federal funding cuts on family violence services and the changes to
Commonwealth funding agreements meaning that systemic advocacy is ruled out for
those centres who receive Commonwealth funding. The funding cuts are, to put it
slightly bluntly, a partial rescinding of the previous federal
Attorney-General's grant to CLCs. Effectively CLCs lost about half of what they
had originally been promised, so the last two years of funding—which goes to, I
think, 2018—is no longer there. Fourteen community legal centres in Victoria
have been substantively affected by those cuts. For seven of those [Community
Legal Centres] CLCs, the cuts apply directly to front-line family violence
services, and those cuts amount to the order of roughly $1 million. It is extremely
unfortunate timing that those cuts have happened when they have.
Ms Oberin, Chairperson, Australian Women Against Violence Alliance, suggested
advocacy was an essential part of a healthy legal system, and so community
legal centres should have their funding maintained for this work:
I think advocacy is critical to a healthy society and if we
do not have NGOs or civil society being able to advocate on behalf of civil
society there is a real risk of where governments may go with something. I
think it is just the principle of how important it is. There has to be
independence for NGOs and the not-for-profit sector to be able to do this. I
think that [defunding the advocacy work of] community legal services, for
example, are a very retrogressive step. They need to be advocating for their
clients' issues and structural issues that they see—the systemic issues—walking
through their doors and amongst each other. Rather than what is going on at
individual levels they can pick up the systemic things and advise government.
Advocacy is advice. I think it is wrong to think about it as some sort of
negative lobbying. It is actual expert advice from the ground.
Some witnesses drew the committee's attention to cuts to Aboriginal and
Torres Strait Islander legal services. Of the $43.1 million in cuts announced
in the 2013-14 MYEFO, $13.41 million has been taken away from the Indigenous
Legal Aid and Policy Reform Program from 2013-14 to 2016-17.
The need for and value of specific legal services for Aboriginal and Torres
Strait Islander people was reinforced in evidence to the committee.
Dr Atmore, FCLC, outlined how these cuts would affect Aboriginal and
Torres Strait Islander Australians:
I would also draw attention to the fact that one of our
member centres, Aboriginal Family Violence Prevention and Legal Service, is
currently struggling with the impact of cuts to the funding of those services
and also because its funding future is currently uncertain. Given the high
levels of violence that Aboriginal women and children, in particular, are
subject to, and the extremely high death rates from family violence, quite
frankly we are appalled. I just do not know how to put it more clearly than
Ms Amanda Alford, Deputy Director, Policy and Advocacy, National Association
of Community Legal Centres (NACLC), also highlighted that cuts to legal aid
would impact negatively on Aboriginal and Torres Strait Islander victims of
Ms Rhonda Payget, Principal Solicitor and Co-Convenor, Women's Legal
Services Australia, noted that cuts to legal aid funding were leading to
increased numbers of women self-representing in domestic and family violence cases
taken to the Family Court. Ms Payget commented:
The issues that we are working with at the moment are the
protection for vulnerable witnesses in the family law system. As you may know
with many of the funding cuts in Legal Aid and in community legal centres there
are many more women who are self-representing in the Family Court, so they are
placed in the dreadful position of being cross-examined by their former partner
who is the perpetrator of violence and at this point there is no systemic
protection for those witnesses.
This means victims are often forced to confront the alleged perpetrator
of domestic and family violence directly, which can be a traumatic experience
that leads to poor outcomes.
Ms Payget noted that, whereas some court systems provide victims with a lawyer
in domestic and family violence cases to cross-examine alleged perpetrators,
the Family Court had no such provision, where it is most needed.
Restoration of funding cuts
In its interim report the committee noted its concern that funding cuts
to legal services would affect already disadvantaged groups as well as
affecting the ability of community legal centres to adequately plan, allocate
resources and retain staff.
The committee notes the announcement by the Attorney-General on 26 March
2015 that funding cuts due to take effect on 1 July 2015 will not proceed. The
announcement restored $25.5 million over two years to 30 June 2017 for
Legal Aid Commissions, Community Legal Centres and Indigenous legal service
providers. It restored funding of $11.5 million for Indigenous legal assistance
for two years.
Barriers to accessing the legal
Some submitters noted there were barriers to accessing legal aid,
including financial, regional, and linguistic or cultural barriers.
It was noted that many victims who are unable to afford independent
legal counsel are prevented from accessing legal services because they have
modest assets, such as owning their own house or car. Ms Rosie Batty told the
committee how financially and emotionally draining self-representation was for
most victims, and how many asset-rich but cash-poor people were being denied legal
Let us also consider the reality that true legal
representation is out of reach for a lot of us. In my case I am asset rich and
cash flow poor, so I do not qualify for legal aid representation. I felt forced
to navigate the process on my own. As a single parent I had the opportunity to
take out a caveat—with legal aid you take out something against your home that
helps with the funding. But if I did that I would never be able to afford to go
back into the housing market. So you are kind of assessing your future. I felt
that I am an intelligent, articulate person—I should be able to navigate my way
through. But it puts a huge, huge strain on you. The amount of money that it
takes to go through the family law process to get advice—again, it is not
always from lawyers that understand family violence, but they are
professionals. If you are very poor you get legal aid representation and then
there are the very rich and those in between.
Ms Payget, Women's Legal Services Australia, also noted that the
threshold for accessing legal aid was set too low:
Last week I had three women
who were all representing themselves in Family Court. In one case Legal Aid had
assisted to a point and then declined and the others were, for example, a woman
had a car worth $30,000 which meant she was refused Legal Aid because of the
value of her car, but she had four kids who she had to take around in that car,
so she was representing herself against a husband who was represented and there
were various serious issues about abuse of the children in that matter.
The Federation of Ethnic Communities' Councils of Australia, stressed
the particular need for specialist translators in legal and court processes to
assist culturally and linguistically diverse (CALD) women:
Many of the women eligible to access legal services might not
be aware of, or fully understand, their rights, and fail to seek legal advice
and support. Lack of effective use of interpreters and limited cultural
competency of service provider staff also affect women's ability to confidently
access services on the basis of the latter believing they will not be properly
understood. Moreover, lack of understanding of the legal system in Australia
combined with language barriers can be very intimidating for victims from
immigrant or refugee backgrounds, as they might fail to understand how the
legal proceedings taken against their husbands will impact them and their
Some submitters also highlighted that women with a disability often face
barriers to reporting domestic and family violence and receiving appropriate
legal assistance. Mr John Chesterman, Policy and Education, Office of the
Public Advocate, told the committee:
Women with disabilities experience many barriers to safety,
including social isolation, difficulties reporting violence to police and lack
of support through the court process. A lifetime combination of the experience
of violence may mean that women do not identify what is happening as violence
or that they're fearful of seeking help.
Ms Keran Howe, Executive Director, Woman with Disabilities Victoria,
highlighted how targeted programs could assist women with disabilities to get
appropriate legal help:
We have identified examples of specialist work, such as a
referral program from the Independent Third Person, where we do need additional
resources. Making Rights Reality is another program in Victoria where there is
a specialised sexual assault response to women with cognitive disabilities or
women with communication difficulties. They have had more tailored case
management from both legal advisers and counsellor advocates in the sexual
assault services, and this has been found to be more effective in getting women
to the court at all, let alone having successful prosecutions.
Training in family violence evaluation
for legal personnel in the Family Law system
Ms Rosie Batty indicated to the committee that the shortcomings of the
family law system can be another form of systemic abuse for victims of domestic
and family violence and their children. She indicated there is a need for workers
in the legal system to receive more training in recognising and dealing with family
violence and how to consider what is in the best interests of the child.
Other witnesses also told the committee that there is a need to improve
training in and resources about family violence for magistrates presiding over
cases in the Family Courts. Others highlighted the need for family report
writers to be given training in family violence and, moreover, be subject to a
more rigorous evaluation process.
Dr Chris Atmore, FCLC, suggested to the committee that there were serious
gaps in some magistrates' knowledge about the intersection of the Family Court
and state and territory courts:
Even a lot of magistrates are still confused about their
power to suspend family law orders, for example—let alone lawyers and clients.
You have a family law system that is not thinking 'risk assessment'.
Dr Atmore highlighted the recommendation made by the ALRC in their 2011
review of domestic and family violence laws, namely that the Commonwealth and
jurisdictions should work together on 'the creation of a National Family
Violence Bench book which provides guidance to judicial officers on family
violence and sexual offences'.
Dr Atmore suggested this would be useful, citing Victorian experience:
We have a family violence bench book in Victoria now and it
is a fabulous resource. It is available for anybody to have a look at. It is
particularly used by our more excellent magistrates in family violence—everyone
acknowledges that there is variability. It is used all the time. It has
checklists of things they should think about when making decisions.
Importantly, that checklist includes thinking about risk factors—what sort of
order they should go through them.
Training and evaluation of report
Some witnesses told the committee there is a particular need for
consistency in the training and evaluation of writers of family reports. Domestic
and family violence cases heard in the Family Court include the production of
'Family Reports', which provide an independent assessment of the issues of the
case, particularly the effects upon children. The Family Law Courts describe
these reports as follows:
A Family Report is a document written by a family consultant
appointed by the Court. It provides an independent assessment of the issues in
the case and can help the judge hearing the case to make decisions about
arrangements for the child/ren. It may also help the parties reach an
In preparing the report, the family consultant considers the
family's circumstances, explores issues relevant to the case and recommends
arrangements that will best meet the child/ren's future care, welfare and
developmental needs. The best interests of the child/ren are the main focus of
These reports are written by family consultants engaged and employed by
the Family Court, who are 'psychologists and/or social workers who specialise
in child and family issues after separation and divorce'.
Some witnesses told the committee that family reports often glossed over
or missed incidents of domestic violence. As a result, sometimes women who had
experienced domestic and family violence were unable to access Legal Aid. Ms Rhonda
Payget, Women's Legal Services Australia, outlined how this could happen:
Legal Aid do both a means and a merits test, so a woman may
qualify on means but as part of the merits test the Legal Aid will look at the
available evidence and try to make an assessment as to whether it is worthwhile
spending public funding on going ahead to a hearing. One of the pieces of
information that they are permitted to look at is that family report. If you
have a family report writer who has not properly taken violence into account
and make certain recommendations then Legal Aid almost can act as the judge and
say, 'You won't be successful in your application, for example, to limit
contact based on your own experience of violence', and then the Legal Aid will
make a funding decision based on a report. That is a practical reality.
This was supported by Ms Angela Lynch, Community Legal Education Lawyer,
Women's Legal Service Inc:
A fairly typical example is that women going through violence
do present in a particular way. They can look very disorganised; they can look
very unsettled; they may not be looking like the best parent when they are
talking to the family report writer....So [family reports] can miss the domestic
violence. To give you an example of what we are talking about, we have had
women in siege situations where they are in the house with him. He has a
weapon. There are children in that house. Police have been called to that
incident at the time of separation. Ultimately, the family report writer can
say, 'That wasn't domestic violence; that was just separation violence because
it happened at separation.' So the [Legal Aid] funding goes.
Moreover, the committee heard that, once written, family reports were
difficult to challenge for some victims, as contesting their findings often
meant legal aid was withdrawn. As Ms Liz Snell, Law Reform and Policy
Coordinator, Women's Legal Services New South Wales and Women's Legal Services
Australia, told the committee:
We are really concerned...because it is quite easy for people
not to realise the nature and dynamics of domestic and family violence, so a
report may completely miss the issues and make a recommendation, for example,
that the child should spend time with an abusive parent. If the woman wishes to
challenge this, often what happens...if the woman has legal aid and wants to go
against the recommendations made in that family report, is that her legal aid
grant is finished at that point.
Witnesses suggested the training and selection of these family
consultants could be improved, to ensure they were aware of the nature,
complexities and variety of cases of domestic violence. For instance, Ms Payget,
Women's Legal Services Australia, told the committee:
One of the other issues is about accreditation and training
of the family report writers. In the family law system family report writers
review the family and the children. That is one of the main voices for the
children to the court. We certainly observed an uneven level of expertise in
family report writers recognising the impact of violence, both on the mother and on the children. Their critical recommendations
then appear not to have taken into account the impact of violence, whereas in
the social science world outside of the Family Court there is clear and growing
evidence about the impact of violence, either as witnesses or being in a
household of violence, the impact on children and particularly young children.
A more rigorous training program for report writers focused on the
effects of violence was also recommended by Ms Rosslyn Monro, Coordinator,
Women's Legal Service Inc:
There are some good family report writers, but in our
experience, generally, family report writing is not done through a lens of
violence, so the capacity for the court to truly consider the risk through
independent experts is quite limited. We would argue that there does need to be
further training and enhancement of that family-reporting process in order to
make sure that violence is front and centre for people who are providing expert
views to the court.
Problems coming from differing
Definitions and risk frameworks
Ms Libby Eltringham, Community Legal Worker, Domestic Violence Resource
Centre Victoria suggested major problems came from differing definitions across
levels of government and legal systems:
Again I think it is a good example of where the gaps are,
that we do not even use absolutely the same definition in family law and in
family violence legislation across different states.
Dr Chris Atmore, FCLC, suggested to the committee there was too little
communication between the Family Court and state courts and this could
exacerbate cases of domestic and family violence being heard in both systems:
You could have, for example, a highly volatile situation
where a woman has just been in a Family Court with the perpetrator, possibly
having been cross-examined by him, and then she could come back to state court
and all hell could possibly break loose—and nobody would know. There does not
seem to be any way for personnel to inform the state court of the risks. That
is something we think needs to be consistent across the board—that they have
the same understanding and the same approach.
Ms Amanda Alford, NACLC, suggested there was a need for more
coordination across differing systems:
...the Law Reform Commission of New South Wales and [the ALRC] really
looked at the interaction of state and territory as well as Commonwealth
legislative regimes, in the course of the inquiry I think about 27 different
legislative regimes were examined. I think the key message really was that
there is significant fragmentation and lack of coordination across those
systems. It is really a siloed approach to family violence, and there is a need
to address that in a holistic sense. I think some of the recommendations—for
example, the need for a national domestic violence order register—and others
that would bring together and coordinate family violence matters are quite
The need to harmonise DVOs across
There are some common features of DVOs across all jurisdictions. Most
importantly, all states and territories have laws:
...to provide for a court order, obtained on the civil standard
of proof (the balance of probabilities), protecting a victim against further
attacks or harassment. Breach of this type of order is a criminal offence.
Moreover, police may arrest without warrant a person who has contravened a
The relevant laws of all jurisdictions have broadly similar approaches
the types of conduct that may constitute domestic violence, and
the grounds on which protection orders may be made;
the types of orders that may be made in the domestic violence
context and the kinds of prohibitions, restraints and conditions that an order
may impose on the person against whom it is made;
the capacity for temporary orders to be made or obtained quickly
by police in emergency situations, without the need for an appearance before a
the (criminal) effect of contravening a domestic violence
Applications for DVOs are made in one of two ways that are essentially
consistent across all jurisdictions. The first involves the police applying on
the victim's behalf; the second involves the victim applying themselves at
their local court. In some jurisdictions, police are obliged to apply on the
victim's behalf in some circumstances.
Differences between Commonwealth
and state and territory legal frameworks
There are some challenges that come from the differing and sometimes
contested legal spaces between Commonwealth and the states and territories,
until recently, victims were required to register DVOs in other
states and territories for them to be effective beyond the jurisdiction they
were originally issued. This made them a clumsy instrument in many cases where
the victim or perpetrator moved; and
tensions between the Commonwealth's Family Law Act and
state or territory laws, particularly where parenting orders and a DVO are in
force concurrently. These kind of tensions can create a situation where
parental contact is mandated by the Family Law Act, whilst being prohibited by
an active protection order issued by a jurisdiction.
Differences across jurisdictions
According to the report Domestic Violence Laws in Australia June 2009,
prepared by the Australian Government Solicitor (AGS) for the then Department
of families, Housing, Community Services and Indigenous Affairs (FAHCSIA), there
are three major areas of difference in DVOs across jurisdictions:
the maximum penalties for violations;
the obligations put on police officers to investigate suspected
domestic violence; and
varying approaches to the counselling and rehabilitation of
Regarding maximum penalties, there is substantial variation across
states and territories in the fines and imprisonment terms for violations.
Beyond noting this variation, the AGS stated that 'it is not possible to make
any straightforward comparison between these divergent systems' as lowest
maximum fines for first offences can vary between $2,400 and $50,000 and
minimum sentences range across jurisdictions from 1 year to 5 years.
The Commonwealth has committed to making DVOs consistent across
jurisdictions as recommended by the findings of the 2010 ALRC and NSWLRC report. In early 2015 the government announced plans
to make this issue a priority for COAG in 2015 to ensure the harmonisation of
DVOs across all jurisdictions was expedited.
Commonwealth, state and territory governments are working together
through the Law Crime and Community Safety Council to develop a legal framework
to enable the automatic recognition and enforcement of domestic and family
violence orders across jurisdictions.
Once enacted, this legislation will remove the requirement for victims
of domestic and family violence to register DVOs to make them apply in
jurisdictions where they were not originally issued.
To complement this process CrimTrac have been funded to develop a
prototype system to share information about active DVOs. From 2014 to 2017,
CrimTrac has been given the responsibility:
...to design, develop and test a prototype information sharing
system for domestic violence orders at the national level to be called the
National Domestic Violence Order Information Sharing System (NDVOISS).
The NDVOISS aims to address the lack of national coordination
and information sharing across systems, law enforcement agencies, justice
stakeholders (such as courts, justice and corrections agencies) and between
jurisdictions in Australia.
At a public hearing in October 2014, the Attorney-General's Department
assured the committee that work was well underway on these initiatives.
Moreover, the April 2015 COAG meeting agreed that by the end of 2015:
a national domestic violence order (DVO) scheme will be
agreed, where DVOs will be automatically recognised and enforceable in any
state or territory of Australia;
progress will be reported on a national information system
that will enable courts and police in different states and territories to share
information on active DVOs – New South Wales, Queensland and Tasmania will
trial the system;
COAG will consider national standards to ensure perpetrators
of violence against women are held to account at the same standard across
Australia, for implementation in 2016; and
COAG will consider strategies to tackle the increased use of
technology to facilitate abuse against women, and to ensure women have adequate
legal protections against this form of abuse.
In June 2015, the Attorney-General's Department informed the committee
that the work to put in place a national domestic violence order scheme remains
The intention at the moment is to report to COAG through the
ministerial council by the end of this year—whenever the last COAG meeting for
this year is. Large parts of that work have been done already in terms of
working up the model laws. We have the first couple of iterations of draft
legislation being developed. The New South Wales Parliamentary Counsel's Office
is providing that service for the LCCSC [Law, Crime and Community Safety
Council] working group that is doing this work. That is led by Tasmania and
chaired by the secretary of the Department of Justice in Tasmania. I would
anticipate that it would get finalised well before the end of the financial
calendar year, but it may take a bit of time to get that process through
ministerial council and through to COAG, but we are well and truly on track.
Mr Michael Pahlow, Assistant Secretary, AusCheck Branch,
Attorney-General's Department outlined the legal and operational issues to be
There are a lot of issues that we have resolved already, or
we have figured out how to get around those issues. Each jurisdiction's regime
around domestic violence orders, or intervention orders or whatever term they
use for them, has in some cases fundamental differences and in other cases
minor differences. It might be around exemptions, or what conditions they put
on things, or even how their IT systems internally between courts and law
enforcement interact. There has been a range of more, I will describe them as,
operational issues that have had to be resolved there to make sure that when
any law is changed we do not wind up with another problem.
From a legal perspective, there has been a range of issues
that have had to be resolved in terms of how we interact from a national
system, including definitional language things, some of them around, for
instance, how interim orders will be treated and how that would interact from a
national perspective and how different legal arrangements in one jurisdiction
would translate when you put that into a national context. The framework will,
in effect, ensure that where a victim moves from one jurisdiction to another or
requires their current domestic violence order to be enforced in another
jurisdiction then that will be automatically done and there will not be all
these issues they have at the moment where they have got to register them in a
court in another jurisdiction.
There are three issues left at the moment, mainly around
things like notification, the natural justice aspects—if there are changes made
to a new jurisdiction to an order, how is that notified to the person against
whom the order is taken out? And there are issues there around ensuring both
natural justice and that we do not run the risk of inadvertently putting the
victim at risk by notifying that they have changed locations. There are some
issues around how we can retroactively include all current domestic violence
orders under the new system, because some of those are paper based et cetera.
There are a few of those sorts of issues that are to be resolved yet but well
and truly down the track.
At its July meeting, COAG considered the progress that has been made and
the work that still needs to be done regarding reducing domestic and family
The committee notes that the ACT government recently announced reforms
to its protection order system.
These reforms will make it easier for victims to renew an interim DVO,
following recommendations made by a Victims of Crime ACT report that found
victims can be unnecessarily re-victimised when making applications for DVOs.
The committee understands that the multiple legal frameworks dealing
with domestic and family violence are complex and, moreover, that domestic and
family violence cases are mostly handled by state and territory legal systems.
However, there are some responsibilities that the Commonwealth does have
including funding some aspects of legal aid, oversight of the Family Law Act
and the Family Court system and leading work to coordinate legal systems across
Given comprehensive reviews undertaken in this area the committee was
concerned by the apparent lack of progress reported by stakeholders.
The National Plan includes a commitment to consider the recommendations
in the 2010 report by the ALRC and NSWLRC.
The status of this response is not currently clear, and reporting frameworks
for this process have also not been made public. The committee believes that using
the Evaluation Plan for the National Plan (Justice responses are effective) would
be the most effective way of providing a coordinated response.
The committee recommends that the Evaluation Plan for the National Plan
include a coordinated status report on the consideration of the recommendations
in the 2010 report by the Australian and NSW Law Reform Commissions.
The committee heard how the training and resources on domestic and
family violence that are available to legal professionals in the Family Court
system could be improved.
Better knowledge across the Family Court system about the nature and
extent of domestic and family violence would be a positive step towards helping
victims get the assistance they need.
The committee understands the ALRC report recommended the development of
a bench book by the Commonwealth and jurisdictions for use in the Family Court
system. The committee notes that on 9 June 2015, the government announced that
work has commenced on a National Family Violence Bench Book, which will be
available in June 2017.
The committee is also aware that the 2010 ALRC Report recommended the
Attorney-General's Department coordinate the collaborative development and
training relating to domestic and family violence for all professionals who
encounter family violence in the legal sector, including Family Court report
The government agreed to this in principle in its official response to the ALRC
recommendations, highlighting that some training programs were already
9.70 The committee acknowledges information provided by the family law courts
through the Attorney General's Department
regarding the training of report writers. While these efforts are welcome,
evidence received by the committee suggests there is still work to be done with
witnesses highlighting the importance of consistent training and evaluation of
The committee recommends the Commonwealth Government through the
Attorney-General's Department, coordinate the development of consistent training
for and evaluation of family consultants who write family reports for the
Family Court alongside the development of a national family bench book by June
The committee recommends the Commonwealth Government, through the
Attorney-General's Department and COAG, facilitate the training of all judicial
officers who preside over family violence matters, alongside the development of
a national family bench book by June 2017.
The committee heard evidence of how the DVO system should be harmonised
across Australia, so that if a protection order is issued in one jurisdiction,
it should be automatically recognised in all others.
The committee understands that work to harmonise DVOs across
jurisdictions is underway, including work being done by CrimTrac. The committee
notes that in early 2015, the government announced this work would be a
priority for the COAG agenda for 2015. In its interim report the committee
noted that this was re-announcement of this issue and urged the Commonwealth
Government to expedite the work. Given the amount of time since the issue was
first raised and the admission following the 17 April 2015 COAG meeting that is
it likely to take at least another 12 months, the committee urges all
jurisdictions to work through COAG to have this framework in place as soon as
possible. The committee notes that at its meeting on 23 July 2015, COAG
agreed to 'consider the Model Law Framework for Domestic Violence Orders and
National Perpetrator Standards which are important next steps in addressing
violence against women and their children'.
The committee recommends that every effort is made by the Commonwealth
Government to ensure that the critical work being undertaken by the COAG
ministerial council to:
agree a national domestic and family violence order scheme;
report progress on a national information system to enable
police and courts to share information on active DVOs;
consider national standards to ensure perpetrators of violence
against women are held to account at the same standard across Australia, for
implementation in 2016; and
consider strategies to tackle the increased use of technology
to facilitate abuse against women and to ensure women have adequate legal
is completed in
accordance with the timetable agreed by COAG in April 2015.
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