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Inquiry into the Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011

Legal Legal
Friday 14 December, 2012

Inquiry into the Family Law Legislation Amendment (Family Violence and Other
Measures) Bill 2011

Australian Human Rights Commission
Submission to the Senate Legal and Constitutional Affairs Legislation
Committee

29 July 2011


Table of Contents


1 Introduction

  1. The Australian Human Rights Commission (Commission) makes this submission to
    the Senate Legal and Constitutional Affairs Legislation Committee in its Inquiry
    into the Family Law Legislation Amendment (Family Violence and Other
    Measures) Bill 2011
    (the Bill).
  2. The rights of women and children to live their lives in safety and with
    dignity, free from fear of violence or abuse are well recognised in
    international law.[1] Despite this,
    many Australian women and children continue to experience violence, particularly
    domestic or family violence, as an everyday reality.
  3. A 2006 study has shown that of those women who were physically assaulted, 46
    % were assaulted by a current and/or previous partner and of all women with
    children who had experienced current partner violence, 59 % reported that the
    violence has been witnessed by
    children.[2] Another study shows that
    there is a high percentage (55 %) of co-occurrence between children’s
    exposure to domestic violence and children being subjected to domestic
    violence.[3]
  4. Vulnerable women and children, in particular, those with disability,
    Aboriginal and Torres Strait Islander people, those from culturally and
    linguistically diverse backgrounds, or from the gay, lesbian, bisexual,
    transgender and intersex communities and older people, experience higher levels
    of violence and abuse. It is not surprising, therefore, that physical violence
    is an issue in over two thirds of cases bought before the Family
    Court.[4]
  5. The Commission commends the actions that the Australian Government is taking
    to combat family violence and child abuse, including the National Framework for
    Protecting Australia’s Children 2009-2020, the National Plan to Reduce
    Violence against Women and their Children 2010-2022 and the development of a
    national scheme for recognition of domestic violence orders across Australian
    jurisdictions. These initiatives evidence the ongoing commitment of the
    Australian government to this area.
  6. This submission outlines the Commission’s support for those amendments
    to the Family Law Act 1975 (Cth) (Act) that will align its provisions
    with international human rights standards.

2 Summary

  1. The Commission supports the amendments to the Act, in particular
    the:

    1. broadening
      of the definitions of ‘family violence’ and ‘child
      abuse’
    2. prioritisation of the safety of the child in ensuring the best interests of
      the child
    3. introduction of mandatory notification and intervention provisions
    4. giving effect to the Convention on the Rights of the Child (CRC)
      under the Act.
  2. The Commission notes that additional amendments, as set out below, could be
    introduced to further strengthen the Act.

3 Recommendations

  1. The Australian Human Rights Commission
    recommends:

Recommendation 1: That item 13 of the Bill be
amended by inserting a second note after new s 60B(4) that reads ‘the Act
be interpreted consistently with Australia’s obligations under the
Convention on the Elimination of all forms of Discrimination against Women and
the Convention on the Rights of Persons with Disabilities, wherever
relevant’.

Recommendation 2: That the Bill explain the nature, features and dynamics,
including the gendered nature, of family violence as a note to the definition of
‘family violence’ in section 4 of the Act.

4 Amendments
supported by the Commission

4.1 Definition of
family violence and child abuse

  1. The Commission welcomes item 8 of the Bill, which, if passed, will broaden
    the definition of ‘family violence’. The Commission also supports
    the inclusion of a non-exhaustive list of examples of behaviour that may
    constitute family violence.
  2. The Commission notes that the Explanatory Memorandum to the Bill states that
    the ‘definition is intended to cover a wide range of behaviour including
    assault, sexual assault or other sexually abusive behaviour, stalking, emotional
    and psychological abuse, and economic
    abuse’.[5]
  3. In General Recommendation 19, the CEDAW Committee has described family
    violence as ‘one of the most insidious forms of violence against women...
    Within family relationships, women of all ages are subjected to violence of all
    kinds, including ... mental and other forms of violence’. The CEDAW
    Committee further considers that:

    Lack of economic independence
    forces many women to stay in violent relationships. The abrogation of
    their family responsibilities by men can be a form of violence, and
    coercion.[6]

  4. The Commission therefore supports broadening the definition of family
    violence from conduct that causes someone to reasonably fear or be apprehensive
    about their personal wellbeing or safety to ‘behavior that coerces,
    controls or causes a family member to be fearful’.
  5. The Commission submits that a broad definition of family violence is
    consistent with the CEDAW Committee’s view of family
    violence.[7] The Commission further
    notes that the proposed definition is broadly consistent with the Australian Law
    Reform Commission’s Report: Family Violence - A National Legal
    Response
    (2010)[8] (ALRC Report)
    Recommendation 5-1.
  6. The Commission also supports item 1 of the Bill which, if passed, will
    broaden the definition of ‘child abuse’ to include psychological
    harm caused by a child being exposed to family
    violence.[9]

4.2 Determining the
best interests of the child

(a) Prioritising the
safety of the child
  1. Item 17 of the Bill inserts a new subsection 60CC(2A) which requires the
    court to prioritise the safety of the child when determining what is in a
    child’s best interests in parenting matters.
  2. Section 60CC of the Act assists the court to determine
    what is in the child’s best interests in particular cases by specifying a
    number of primary and additional considerations.
  3. The Commission supports the court prioritising the safety of the child when
    determining what is in the best interests of the child in parenting matters. The
    Commission further submits that the safety and protection of the child should be
    a primary consideration in all family law
    matters.[10]
(b) Removing
the ‘friendly parent provision’
  1. The Commission supports item 18 of the Bill which, if passed, will repeal
    paragraph 60CC(3)(c) of the Act.
  2. Paragraph 60CC(3)(c) of the Act currently requires the court, when
    determining what are the best interests of the child, to consider ‘the
    willingness and ability of each of the child's parents to facilitate, and
    encourage, a close and continuing relationship between the child and the other
    parent’.
  3. As currently worded, paragraph 60CC(3)(c) of the Act may act as a deterrent
    to parties disclosing concerns of family violence and child abuse for fear of
    being found to be ‘unwilling or unable to facilitate or encourage a close
    and continuing relationship between the child and the other parent’.
  4. Item 18 of the Bill, if passed, will replace this paragraph with a new
    paragraph 60CC(3)(c) and (ca) which will require the court to instead consider
    the extent to which each of the child’s parents has participated in major
    long-term decision making, spent time with the child, communicated with the
    child or fulfilled maintenance obligations.
(c) Repealing the
‘false allegation provision’
  1. The Commission supports item 43 of the Bill. If passed, item 43 of the Bill
    will repeal s 117AB of the Act (the ‘false allegation provision’).
  2. The ‘false allegation provision’ requires courts to make a
    mandatory costs order against parties who have knowingly made false allegations
    or statements.
  3. The Commission acknowledges the challenge courts face when assessing claims
    of family violence. However, the Commission also acknowledges the difficulty
    claimants have in substantiating genuine claims of family
    violence.[11]
  4. As the ALRC noted in its report:

It may be difficult to prove
specific incidents in the course of ongoing violence to the requisite standard
because:

  • victims may be unable to recall the dates or times of particular
    incidents;
  • victims may not have reported incidents at the time, which may be due to
    reasons including: fear; unawareness of the criminal nature of the violent
    behaviour; a desire to protect the person committing the violence from criminal
    sanctions; unawareness or inaccessibility of services; or lack of confidence in
    the legal response;
  • victims may have explained away their injuries to third parties, for the
    above reasons;
  • evidence of the victim’s disclosures to third parties, such as friends
    or counsellors, may be inadmissible as hearsay evidence;
  • corroborating evidence may be of limited probative value—for example,
    the evidence of neighbours who heard incidents through a wall, or that of young
    children present in the home; and
  • there may be no evidence of injuries or harm suffered at the time a
    complaint is made, particularly where non-physical abuse is
    alleged.[12]
  1. While s 117AB of the Act aims to only penalise false allegations or
    statements ‘knowingly’ made, the Commission believes that the fear
    of a costs order can operate, in practice, as a disincentive to parties coming
    forward with legitimate claims of violence against themselves or their children.
  2. The Bill does not purport to repeal s 117(2) of the Act, which provides the
    court with the discretion to make orders as to costs and security for costs,
    ‘where the court is of opinion that there are circumstances that justify
    it in doing so’.
  3. This discretion is capable of being exercised in cases where a party has
    knowingly made a false allegation or statement and in the Commission’s
    view, is a more proportionate way to deal with this legitimate concern.

4.3 Mandatory
notification and intervention

  1. The Commission welcomes changes to the Act that oblige:

    1. advisers (legal practitioners, family counsellors, family dispute resolution
      practitioners and family consultants) working with parents on parenting
      arrangements to focus on the best interests of the child and encourage parents
      to do so also (Item 22 of the Bill)
    2. parties to inform the court of care arrangements under child welfare laws in
      line with ALRC Report Rec 22-1 (Item 21 of the Bill)
    3. courts to actively inquire of each party into the existence of family
      violence in child-related proceedings (Item 38 of the Bill).

4.4 Convention on the
Rights of the Child

  1. The Commission welcomes Item 13 of the Bill which inserts an additional
    object into the objects clause of Part VII of the Act regarding Children.
  2. The proposed additional object will read ‘(A)n additional object of
    this Part is to give effect to the Convention on the rights of the Child done at
    New York on 20 November 1989’.
  3. Under Australian law, where legislation gives effect to an international
    convention or treaty, in the interests of certainty and uniformity, it will be
    recognised that those provisions should be interpreted using the interpretative
    principles which are applied to the Convention or
    treaty.[13]
  4. The proposed amendment therefore clarifies that a court should consider the
    CRC when interpreting Part VII of the Act.
  5. The CRC protects the full range of human rights of the child, including
    protection rights,[14] participation
    rights[15] and survival and
    development rights.[16] While,
    courts are familiar with interpreting the Act with reference to the best
    interests of the child principle, the Commission is of the view that these
    additional rights will further assist courts to interpret other provisions of
    the Act.

5 Commission’s
recommendations for further mendments

5.1 Reference to
CEDAW and the CRPD

  1. The Commission submits that the safety of the child is inextricably linked
    to the safety and protection of the primary care-giver of the child.
  2. Women are generally the primary care-givers of children. At the same time
    women are far more likely to be victims of domestic and family violence. A 2006
    study shows that of all those assaults in the preceding 12 months, 31 per cent
    of women were physically assaulted by a current and/or previous partner compared
    to only 4.4 per cent of men.[17]
  3. Violence against women seriously impacts on the capacity and ability of a
    woman to care for a child, contrary to the best interests of the child.
  4. Further, gender-based violence is a form of discrimination prohibited under
    CEDAW:[18]

    Article 1 -
    defines ‘discrimination against women’ as any distinction, exclusion
    or restriction made on the basis of sex which has the effect or purpose of
    impairing or nullifying the recognition, enjoyment or exercise by women, of
    human rights and fundamental freedoms

    Article 2 - requires State Parties to take steps to pursue by all appropriate
    means and without delay a policy of eliminating discrimination against women.

    General Recommendation 19 - the CEDAW Committee specifically recognises that
    family violence impairs the ability of women to participate in family life on a
    basis of equality and recommends that States Parties ensure that laws against
    family violence and abuse give adequate protection to all
    women.[19]

  5. Accordingly, the Commission recommends that a note be inserted into the
    objects clause to also give effect under the Act to CEDAW such that any
    interpretation of the Act is consistent with Australia’s obligations under
    CEDAW.
  6. The Commission also notes that special protection is sometimes required to
    ensure children with disabilities enjoy their human rights and fundamental
    freedoms on an equal basis with other children. Further, parents with
    disabilities should be supported to ensure their children also enjoy their human
    rights and fundamental freedoms on an equal basis with other children. This is
    recognised by the Convention on the Rights of Persons with Disabilities
    (CRPD).[20] The CRPD particularly
    recognises:

    • Article 16(1) - that States Parties should take all appropriate
      legislative and other measures to protect persons with disabilities from all
      forms of exploitation, violence and abuse, including their gender-based
      aspects.
    • Article 23(4) - [i]n no case shall a child be separated from parents on
      the basis of a disability of either the child or one or both of the
      parents.[21]
    • Article 23(2) - appropriate assistance be provided to persons with
      disabilities in performance of their child-rearing responsibilities.
    • Article 23(3) - ‘to prevent concealment, abandonment, neglect and
      segregation of children with disabilities, States Parties shall undertake to
      provide early and comprehensive information, services and support to children
      with disabilities and their families.’
  7. Given the greater risks experienced by women and girls with disability to
    violence and abuse, the Commission recommends that the objects also state that
    the CRPD also be given effect under the Act such that any interpretation of the
    Act is consistent with Australia’s obligations under CRPD.
  8. Recommendation 1: That item 13 of the Bill be amended by inserting a
    second note after new s 60B(4) that reads ‘the Act be interpreted
    consistently with Australia’s obligations under the Convention on the
    Elimination of all forms of Discrimination against Women and the Convention on
    the Rights of Persons with Disabilities, wherever relevant.

5.2 Explain
the nature of family violence

  1. The Commission supports ALRC Report Recommendations 7–2 and 7–3
    which state that the Act should contain ‘a provision that explains the
    nature, features and dynamics of family
    violence’.[22]
  2. Further, consistent with ALRC Report Recommendations 7–2 and
    7–3, the Commission supports this explanation prompting judges to consider
    the particular impact of family violence on persons from minority groups in
    Australia.
  3. The Commission recommends that this statement be worded to the effect that:

    While anyone may be a victim of family violence, or may use family
    violence, it is predominantly committed by men; it can occur in all sectors of
    society; it can involve exploitation of power imbalances; its incidence is
    underreported; and it has a detrimental impact on children. Family violence has
    a particular impact on: Indigenous persons; those from a culturally and
    linguistically diverse background; those from the gay, lesbian, bisexual,
    transgender and intersex communities; older persons; and people with
    disabilities.

  4. This explanation should be included as a note to the definition of
    ‘family violence’ in section 4 of the Act. The note should act as an
    interpretive aid to identifying cases of family violence, supporting a,
    precautionary approach.
  5. Recommendation 2: That the Bill explain the nature, features and
    dynamics, including the gendered nature, of family violence as a note to the
    definition of ‘family violence’ in section 4 of the Act.

5.3 Recommendations
in ALRC Report

  1. Finally, the Commission notes that several of the recommendations set out in
    the ALRC Report remain unaddressed in the Bill. The Commission supports these
    recommendations and submits that the Government should undertake efforts to
    address the outstanding recommendations in the ALRC Report.

[1]Convention on the
Elimination of All Forms of Discrimination against Women
, opened for
signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981),
Articles 1, 2; Committee on the Status of Women - General
Recommendation No. 19
(11th session, 1992); Convention on the
Rights of the Child
, opened for signature 20 November 1989, 1577 UNTS 3
(entered into force 2 September 1990), Article
19
[2] Australian Bureau of
Statistics 2005, Personal Safety Survey 2005 (Reissue), Catalogue No.
4906.0, pp. 10 and 40 <Available at: http://www.ausstats.abs.gov.au/Ausstats/subscriber.nsf/0/056A404DAA576AE6CA2571D00080E985/$File/49060_2005%20(reissue).pdf>
(Accessed: 20 July 2011)
[3] Goddard and Bedi 2009, Intimate Partner Violence and Child Abuse: A
Child-Centred Perspective
, Child Abuse Review Vol. 19: (2010) pp. 8
<Available at: http://onlinelibrary.wiley.com/doi/10.1002/car.1084/pdf.
(Accessed: 20 July 2011)
[4] Family
Court of Australia, 2003. Part B (Statistical Analysis) and Part C (Full
Court Analysis) of Submission to Standing Committee on Family and Community
Affairs – Inquiry into Joint custody Arrangements in the Event of Family
Separation
pp. 15 <Available at: http://www.aph.gov.au/house/committee/fca/childcustody/subs/sub1550.pdf>
(Viewed: 15 July 2011)
[5] Explanatory Memorandum to the Bill, [16].
[6] Committee on the Elimination
of Discrimination against Women 1992, General Recommendation No. 19 –
Violence against women
, Para. 23 <Available at: http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm>
(Accessed: 22 July 2011)
[7] Committee on the Elimination of Discrimination against Women 1992, General
Recommendation No. 19 – Violence against women
, Para. 23 <Available
at: http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm>
(Accessed: 22 July 2011)
[8] Australian Law Reform Commission 2010, Family Violence — A National
Legal Response
(Final Report) <Available at: http://www.alrc.gov.au/sites/default/files/pdfs/publications/ALRC114_WholeReport.pdf>
(Accessed: 20 July 2011)
[9] Under
article 19 of the CRC, states parties are to take all appropriate legislative,
administrative, social and educational measures to protect the child from all
forms of physical or mental violence, injury or abuse, neglect or negligent
treatment, maltreatment or exploitation, including sexual abuse, while in the
care of parent(s), legal guardians (s) or any other person who has the care of
the child.
[10] This is in line
with CRC, articles 5(b) and 16(1) (d) of CEDAW and articles 7 and 23(2) and (4)
of the CRPD.
[11] Few reports
made to child protection authorities are substantiated following an initial
investigation. Of the 339,454 reports made across Australia in 2008–09,
the AIHW found that 54,621 reports—or about 16%—were substantiated,
which was a small decrease of 1% from the previous year.14 However, the rates of
substantiation vary between the states and territories, and this partly reflects
the different policies and approaches of individual jurisdictions to child
protection matters. ALRC Report, [19.12]. In 2005 only 36% of women who
experienced physical assault by a male perpetrator reported it to the police,
Australian Bureau of Statistics 2005, Personal Safety Survey 2005 (Reissue),
Catalogue No. 4906.0, pp. 8 <Available at: http://www.ausstats.abs.gov.au/Ausstats/subscriber.nsf/0/056A404DAA576AE6CA2571D00080E985/$File/49060_2005%20(reissue).pdf>
(Accessed: 20 July 2011)
[12] The
ALRC Report, [13.7].
[13]Shipping Corp of India Ltd v Gamlen Chemical Co (A’asia) Pty Ltd (1980) 147 CLR 142, 159.
[14] CRC, Articles 4,11, 19-22,
32-41.
[15] CRC, Articles 4,
12-17.
[16] CRC, Articles 4-10,
18, 20, 22-31, 42.
[17] Australian Bureau of Statistics 2005, Personal Safety Survey 2005
(Reissue)
, Catalogue No. 4906.0, pp. 9 <Available at: http://www.ausstats.abs.gov.au/Ausstats/subscriber.nsf/0/056A404DAA576AE6CA2571D00080E985/$File/49060_2005%20(reissue).pdf>
(Accessed: 20 July 2011)
[18]Article 1 of CEDAW defines ‘discrimination against women’ as any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, of human rights and fundamental freedoms. Article 2 requires State Parties to take steps to pursue by all appropriate means and without delay a policy of eliminating discrimination against women. In General Recommendation 19 the CEDAW Committee specifically recognises that family violence impairs the ability of women to participate in family life on a basis of equality and recommends that States Parties ensure that laws against family violence and abuse give adequate protection to all women. Committee on the Elimination of Discrimination against Women 1992, General Recommendation No. 19 <Available at: Committee on the Elimination of Discrimination against Women 1992, General Recommendation No. 19 <Available at: http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm> (Accessed: 26 July 2011)
[19] Committee on the Elimination of Discrimination against Women 1992, General
Recommendation No. 19
<Available at: http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm>
(Accessed: 26 July 2011)
[20] Article 7 (1) Convention on the Rights of Persons with Disabilities.
<Available at http://www.un.org/disabilities/default.asp?id=259>
(Accessed 26 July 2011)
[21] See
for example concerns recently expressed by the Victorian Human Equal Opportunity
and Human Rights Commission that parents with disability are being forced to
relinquish their children due to a lack of support services, page 6. Victorian Equal Opportunity and Human Rights Commission submission to
Protecting Victoria’s Vulnerable Children Inquiry April 2011
<Available at http://www.childprotectioninquiry.vic.gov.au/images/stories/submissions/victorian-equal-opportunity-and-human-rights-commission.pdf> (Accessed 26 July 2011)
[22] The
ALRC Report, p 19.