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

Transcription

1 A Submission to the Senate Legal and Constitutional Affairs Committee Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 Prepared by BoysTown Authorised By: Ms Tracy Adams Chief Executive Officer BoysTown 9 May 2011 Submission to the Inquiry: Family Law Legislation Amendment (Family Violence & Other Measures) Bill

2 Overview BoysTown supports the objectives and intent of the Family Violence and Other Measures Bill In this submission we highlight six subsections of the Bill which we believe are critical to the operations of services that seek to support women and children impacted by domestic and family violence. Four recommendations are made which we believe will either enhance the individual subsections of the Bill or will improve the judicial system relating to family and domestic violence in Australia. Recommendation 1: That Subsection 4 (1) be redrafted to recognise the diversity of family structures that exist amongst CaLD and Indigenous communities. Recommendation 2: That the full range of abusive behaviours constituting domestic and family violence be included in the criminal code of all States and Territories. Recommendation 3: That all Family Courts of Australia be adequately resourced in order to ensure the timely resolution of allegations of family violence or abuse. Recommendation 4: That an education and training strategy be implemented to facilitate the implementation of this new national legislation. Submission to the Inquiry: Family Law Legislation Amendment (Family Violence & Other Measures) Bill

3 Introduction About BoysTown BoysTown is a national organisation and registered charity which specialises in helping disadvantaged children, young people and their families who are at risk of social exclusion. Established in 1961, BoysTown's mission is to enable young people, especially those who are marginalised and without voice, to improve their quality of life. BoysTown believes that all young people in Australia should be able to lead hope-filled lives, and have the capacity to participate fully in the society in which they live. BoysTown is located in regions identified as amongst the most disadvantaged in Australia, including Logan City, Ipswich, Goodna and Inala in Queensland, Blacktown and Campbelltown in New South Wales, Elizabeth and Port Pirie in South Australia and the East Kimberley s in Western Australia. BoysTown provides a range of services to young people and families seeking oneoff and/or more intensive counselling and support including: Kids Helpline, Australia s only national 24/7 telephone and on-line counselling and support service for five to 25 year olds with special capacity for young people with mental health issues; Accommodation responses to homeless families and women and children seeking refuge from Domestic/Family Violence; Parenting Programs offering case work and child development programs for young mothers and their children; Parentline, a telephone counselling service for parents and carers in Queensland and the Northern Territory; Paid employment and training support to approximately 500 young people each year in supported enterprises as they transition to the mainstream workforce; Training and employment programs that support approximately 6,000 young people each year, allowing them to re-engage with education and/or employment, and Responses to the needs of the peoples of the remote Indigenous communities of the Tjurabalan in Western Australia. BoysTown is able to support young clients and their families through our mix of prevention, intervention and crisis services that can be tailored to best suit individual circumstances. BoysTown s Family Homelessness and Domestic Violence Refuge Service BoysTown is a provider of crisis accommodation and counselling services for women and children who have experienced domestic/family violence as well as for families experiencing homelessness. The refuge service for women and children who have experienced family or domestic violence was established by BoysTown in early 2004 in response to inadequate support available to women and children in the community. Emergency accommodation for women and their children is enhanced by an individualised program that provides professional, Submission to the Inquiry: Family Law Legislation Amendment (Family Violence & Other Measures) Bill

4 evidence based responses within a therapeutic case management framework involving formal and informal counselling and advocacy. General transport is also provided to program participants. BoysTown is the sole funder of the program. Annual operation costs are about $890,000. Furthermore, BoysTown committed over $1 million to build the infrastructure to establish the program. In an average year BoysTown s Family/Domestic Violence Refuge Service provides support to 45 women and 109 children. (Please see the attached Domestic Violence Service Evaluation). In relation to the Homeless Families Program BoysTown provides crisis and short term accommodation for approximately 90 families annually. Each family receives individualised case management to facilitate their re-entry into independent accommodation in the community. Submission to the Inquiry: Family Law Legislation Amendment (Family Violence & Other Measures) Bill

5 Response to the Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 BoysTown generally supports the provisions of The Family Law Legislation Amendment (Family Violence and Other Measures) Bill It is our view that this Bill if enacted will align Family Law Court proceedings more closely with the objective of ensuring the best interests of the child. Specific comments are made in relation to the following sections of the Bill in view of their importance to service providers. Subsection 4 (1): definition of abuse ***** abuse, in relation to a child, means: (a) an assault, including a sexual assault, of the child; or (b) a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or (c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or (d) serious neglect of the child. BoysTown s Position: BoysTown supports the expanded definition outlined in the Bill and in particular the inclusion of new provisions outlined in (c) and (d). BoysTown s services work from the perspective that family and domestic violence covers a broad range of controlling and usually insidious behaviours, commonly of a physical, sexual, and/or psychological nature, which typically involve fear, harm, intimidation and emotional deprivation. BoysTown is of the view that the new definition of abuse will adequately capture this range of behaviour inflicted on women and children. BoysTown also supports the inclusion of serious neglect in the Bill. This is a critical step in acknowledging that the negative impacts of neglectful behaviour on children can be comparable to the impacts of other forms of abuse (e.g. physical, sexual, etc.) (Mersky & Reynolds, 2007). ***** Submission to the Inquiry: Family Law Legislation Amendment (Family Violence & Other Measures) Bill

6 Subsection 4 (1): Definition of member of the family Existing provision: member of the family, in relation to a person, has, for the purposes of the definition of step-parent, paragraphs 60CC(3)(j) and (k) and section 60CF, the meaning given by subsection (1AB) of this section. This will be repealed and substituted with: member of the family: see subsection (1AB) of this section. Note: The definition in subsection (1AB) applies for the purposes of the provisions specified in that subsection (1AB) [Where a person is a member of the family] For the purposes of: (a) The definitions of family violence and step-parent in subsection (1), and of subsection (1AD); and (b) paragraphs 60CC(3)(j) and (k); and (c) section 60CF, 60CH and 60CI; a person (the first person) is a member of the family of another person (the second person) if: (d) the first person is or has been married to, or in a de facto relationship with, the second person; or (e) the first person is or has been a relative of the second person (as defined in subsection (1AC)); or (f) an order under this Act described in subparagraph (i) or (ii) is or was (at any time) in force: (i) a parenting order (other than a child maintenance order) that relates to a child who is either the first person or the second person and that is in favour of the other of those persons; (ii) an order providing for the first person or the second person to have custody or guardianship of, or a right of access to, the other of those persons; or (g) an order under a law of a State or Territory described in subparagraph (i) or (ii) is or was (at any time) in force: (i) an order determining that the first person or the second person is or was to live with the other of those persons, or is or was to have custody or guardianship of the other of those persons; (ii) an order providing for contact between the first person and the second person, or for the first person or the second person to have a right of access to the other of those persons; or (h) the first person ordinarily or regularly resides or resided with the second person, or with another member of the family of the second person; or (i) the first person is or has been a member of the family of a child of the second person. Submission to the Inquiry: Family Law Legislation Amendment (Family Violence & Other Measures) Bill

7 BoysTown s Position: It is our view that this definition does not capture the full diversity of family relationships within which domestic and family violence can occur. In particular the broad definitions of family which occurs within Indigenous and CaLD communities does not appear to be given due recognition in this subsection. Consequently it is our recommendation that the following provisions be included within the definition of family member: A person who is, or has been, a relative of the respondent (includes parents, grandparents, children, grandchildren, siblings, uncles, cousins and, for an Aboriginal or Torres Strait Islander person, a person who under Aboriginal or Torres Strait Islander tradition or contemporary social practice is the relevant person s relative); Any other person whom the respondent regards or has regarded as being like a family member; These provisions are currently contained within the Victorian Family Violence Protection Act 2008, and the Queensland Domestic and Family Violence Protection Act 1989 that under went review in Recommendation 1: That Subsection 4 (1) be redrafted to recognise the diversity of family structures that exist amongst CaLD and Indigenous communities. ***** Submission to the Inquiry: Family Law Legislation Amendment (Family Violence & Other Measures) Bill

8 Subsection 4 AB: Definition of family violence (1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person s family (the family member), or causes the family member to be fearful. (2) Examples of behaviour that may constitute family violence include (but are not limited to): (a) an assault; or (b) a sexual assault or other sexually abusive behaviour; or (c) stalking; or (d) repeated derogatory taunts; or (e) intentionally damaging or destroying property; or (f) intentionally causing death or injury to an animal; or (g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or (h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or (i) preventing the family member from making or keeping connections with his or her family, friends or culture; or (j) unlawfully depriving the family member, or any member of the family member s family, of his or her liberty. BoysTown s Position: BoysTown supports the new and detailed definition of family violence within the Bill. The new definition is a stronger definition as it recognises the central dynamic of domestic and family violence being the exercise of power and control by perpetrators and is more inclusive of the range of behaviours exhibited in these situations. We further advocate for the criminalisation of family violence across all States and Territories. This is the current practice in Tasmania through the Family Violence Act 2004, an Act which provides for an integrated criminal justice response to family violence and promotes the safety of people affected by family violence. An evaluation in 2008 revealed that although it was still in the early stages of formal implementation, the Tasmanian Act was on its way to achieving its objectives as evidenced by the decrease in number of substantiated family violence cases, improved Police responses and change in the offending behaviour of those responsible for violence (Review of the Family Violence Act 2004 [TAS], 2008). Submission to the Inquiry: Family Law Legislation Amendment (Family Violence & Other Measures) Bill

9 Our position is also built upon the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power which defines victims of crime as: Persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States, including those laws proscribing criminal abuse of power. A person, under the Declaration, regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between the perpetrator and the victim, as the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimisation. The provisions contained in the Declaration shall be applicable to all, without distinction of any kind, such as race, colour, sex, age, language, religion, nationality, political or other opinion, cultural beliefs or practices, property, birth or family status, ethnic or social origin, and disability (Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985). In accordance with the above principles it is clear that the aggrieved and their children are victims of crime in situations of family and domestic violence. Recommendation 2: That the full range of abusive behaviours constituting domestic and family violence be included in the criminal code of all States and Territories. ***** Submission to the Inquiry: Family Law Legislation Amendment (Family Violence & Other Measures) Bill

10 Subsection 4AB: Definition of exposed in relation to family violence (3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence. (4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child: (a) overhearing threats of death or personal injury by a member of the child s family towards another member of the child s family; or (b) seeing or hearing an assault of a member of the child s family by another member of the child s family; or (c) comforting or providing assistance to a member of the child s family who has been assaulted by another member of the child s family; or (d) cleaning up a site after a member of the child s family has intentionally damaged property of another member of the child s family; or (e) being present when police or ambulance officers attend an incident involving the assault of a member of the child s family by another member of the child s family. BoysTown s Position: What it means for a child to be exposed to family violence BoysTown supports the new definition of children being exposed to family violence as set out in the Bill. While all forms of abuse are serious, children exposed to domestic and family violence can suffer emotional and psychological harms which are hard to heal and deal with, as the impacts can be unrelenting and anxiety-provoking (Women s Health Resource Center, n.d.). Recent physiological studies have also shown that the effects of family violence on children are more than just behavioural. Being exposed to family violence can produce measurable changes in neurological function. Glaser has reported that: The neurobiological findings go some considerable way towards explaining the emotional, psychological, and behavioural difficulties which are observed in abused and neglected children (Glaser, 2000). ***** Submission to the Inquiry: Family Law Legislation Amendment (Family Violence & Other Measures) Bill

11 Subsection 60 CC (2): Determining the best interests of the child Determining child s best interests (1) Subject to subsection (5), in determining what is in the child s best interests, the court must consider the matters set out in subsections (2) and (3). Primary considerations (2) The primary considerations are: (a) the benefit to the child of having a meaningful relationship with both of the child s parents; and (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B (1)(a) and (b). (2A) If there is any inconsistency in applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b). BoysTown s Position: BoysTown supports the primary considerations outlined in this subsection and above all the principle that the safety of the child has precedence over shared parenting considerations. This will address concerns of practitioners that have been supported by the recent evaluation of the Family Law Act which suggests that practices to maintain the child s relationship with the non-custodial parent has placed children at risk (Kaspiew et al, 2009). Conversely, provisional arrangements that limit contact for safety reasons may have negative impacts on the parent child relationship particularly if the allegations prove to be unfounded later on (Kaspiew et al, 2009). The preceding situations reflect the importance of providing adequate funding for all Courts and agencies dealing with family violence matters. Family Courts across Australia must be adequately resourced to carry out proper risk assessments and to ensure timely determination/resolution of allegations of family violence or abuse. Recommendation 3: That all Family Courts of Australia be adequately resourced in order to ensure the timely resolution of allegations of family violence or abuse. ***** Submission to the Inquiry: Family Law Legislation Amendment (Family Violence & Other Measures) Bill

12 Subsection 60D: Adviser s obligations in relation to best interests of the child (1) If an adviser gives advice or assistance to a person about matters concerning a child and this Part, the adviser must: (a) inform the person that the person should regard the best interests of the child as the paramount consideration; and (b) encourage the person to act on the basis that the child s best interests are best met: (i) by the child having a meaningful relationship with both of the child s parents; and (ii) by the child being protected from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and (iii) if there is any inconsistency in applying the considerations set out in subparagraphs (i) and (ii) by giving greater weight to the consideration set out in subparagraph (ii). (2) In this section: advisor means a person who is: (a) a legal practitioner; or (b) a family counsellor; or (c) a family dispute resolution practitioner; or (d) a family consultant. BoysTown s Position: Consistent with previous comments BoysTown supports these provisions. However, there is a clear need for an education and training strategy to accompany the introduction of the new Act. In Queensland, when the Domestic and Family Violence Protection Act of 1989 was implemented, there was a lack of training and knowledge amongst Court officials, the Police and support workers. This resulted in an inconsistent implementation of the provisions of the new legislation which negatively impacted on the rights and safety of aggrieved parties and their children. This current reform of Family Law legislation will only be effective if judicial officers and other stakeholders are familiar with the dynamics of family violence and skilled at using this knowledge to inform their practice. Recommendation 4: That an education and training strategy be implemented to facilitate the implementation of this new national legislation. ***** Submission to the Inquiry: Family Law Legislation Amendment (Family Violence & Other Measures) Bill

13 References Appel, A.E., & Holde, G. W. (1998). The co-occurrence of spouse and physical child abuse: A review and appraisal. Journal of Family Psychology, 12 (4), ; Edleson, J. L. (1999). The overlap between child maltreatment and women battering. Violence Against Women, 5(2), Carlson, B.E. (2000) Children exposed to intimate partner violence: Research findings and implications for interventions. Trauma, Violence and Abuse, 1 (4), DePanfilis, Diane. (2006). Child Neglect: A guide for Prevention, Assessment and Intervention. Children's Bureau, Office on Child Abuse and Neglect. Field, R., Carpenter, B., and Currie, S. (2003) Issues in making of Ouster Orders under the Domestic and Family Violence Protection Act Glaser, D. (2000) Child Abuse and Neglect and the Brain A Review, Journal of Child Psychology and Psychiatry, vol. 41, No. I, at 110. Kaspiew, R., Gray, M., Weston, R., Moloney, L., Hand, K. and Qu, L., Evaluation of the 2006 family law reforms (Australian Institute of Family Studies: December 2009). Mersky, J. & Reynolds, A. (2007). Child maltreatment and violent delinquency: Disentangling main effects and subgroup effects. Child Maltreatment, 12 no doi: / Schetzer, L., Mullins, J. & Buonamano, R. (2003). Access to justice and legal needs: a project to identify legal needs, pathways and barriers for disadvantaged people in NSW. Background paper, Law and Justice Foundation Sydney, NSW. Women s Health Resource Center. Dartmouth-Hitchcock Medical Center. Taken from: on 9 December Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. (1985). United Nations Office of the High Commissioner for Human Rights. Retrieved from: on 12 April Domestic and Family Violence Protection Act (2009). Reprinted, Family Violence Protection Act 2008 (Vic) ss 8(1), 9, 10, Meaning of family member. Review of the Family Violence Act 2004 [TAS], (2008). Retrieved from: on 26 April Te Rito: New Zealand Family Violence Prevention Strategy, February 2002, p.8. Submission to the Inquiry: Family Law Legislation Amendment (Family Violence & Other Measures) Bill

14 Attachment Submission to the Inquiry: Family Law Legislation Amendment (Family Violence & Other Measures) Bill

15 Submission to the Inquiry: Family Law Legislation Amendment (Family Violence & Other Measures) Bill

16 Submission to the Inquiry: Family Law Legislation Amendment (Family Violence & Other Measures) Bill

17 Submission to the Inquiry: Family Law Legislation Amendment (Family Violence & Other Measures) Bill

18 Submission to the Inquiry: Family Law Legislation Amendment (Family Violence & Other Measures) Bill