Role of law and the legal profession in combatting family violence

Transcription

1 Role of law and the legal profession in combatting family violence Speech given by Mr Duncan McConnel, President, Law Council of Australia at the AMA National Conference in Sydney 31 May 2015 GPO Box 1989, Canberra ACT 2601, DX 5719 Canberra 19 Torrens St Braddon ACT 2612 Telephone Facsimile Law Council of Australia Limited ABN

2 1. Thank you Dr Stephen Parnis and the previous speaker Mr Bruce Armstrong. 2. Before I begin, may I first acknowledge the traditional owners of the land on which we meet, and pay my respects to their Elders, past and present. Background on family violence 3. The stark reality of family violence is best reflected by the disturbing statistic that on average, one woman is killed by her partner every week in Australia It is fitting that we discuss efforts to address family violence here in Queensland, given that only a few months ago, a landmark Queensland report was handed down by a committee chaired by the former Governor-General Dame Quentin Bryce. That committee found that there were over 180 incidents of family violence reported to Queensland Police every day. The annual cost of family violence to the Queensland economy was estimated to be as much as $3.2 billion The appointment of family violence campaigner Rosie Batty as the 2015 Australian of the Year has cast new attention on the endemic problem of family violence in Australia. 6. Apart from the Queensland enquiry, a Royal Commission into family violence has just commenced in Victoria, chaired by Victorian Supreme Court of Appeal Judge, the Hon. Marcia Neave AO. 1 ANROWS, Key Statistics on Family Violence, May Not Now, Not Ever: Putting an End to Domestic and Family Violence in Queensland, (2015) AMA Conference speech family violence Page 2

3 7. The Federal Government and all state governments have also recently announced the creation of a new national family violence advisory panel, chaired by the former Victoria Police Commissioner Ken Lay, and includes panel member Rosie Batty. What is family violence? 8. It can include physical, sexual, financial, emotional or psychological abuse. Examples of emotional or psychological abuse include various forms of controlling or coercive behaviours such as verbal threats, isolating victims from their family and friends, and intimidation. 9. The term domestic violence is most commonly used to describe violence perpetrated by an intimate partner, while the term family violence is used more broadly to describe violence by any family member against another. 10. Victims of family violence come from all genders, sexualities, ages, socio-economic backgrounds and cultures. However, it is clear that women are overwhelmingly more likely to be victims of family violence than men. The Australian National Research Organisation for Women s Safety estimates that about 1 in 6 women have experienced physical or sexual violence from a current or former partner, compared to 1 in 17 men Although family violence occurs throughout the Australian community, some people are more vulnerable than others particularly Indigenous women, who are 35 times more likely to be 3 ANROWS, Key Statistics on Family Violence, May AMA Conference speech family violence Page 3

4 hospitalised for family violence assaults than non-indigenous women Family violence is not just a law and order problem. In 2013, the World Health Organisation characterised family violence as a global public health problem of epidemic proportions, requiring urgent action. 5 It is a health problem in a multitude of ways. I. Relationship with alcohol and drug use 13. According to Phillips and Vandenbroek 6 : Analysis of the Australian component of the International Violence against Women Survey found that one of the strongest risk factors for intimate partner physical violence was behavioural, with involvement of alcohol and drug use often leading to higher levels of aggression by perpetrators. The research noted that abusive males with alcohol or drug problems inflict violence against their partners more frequently, are more apt to inflict serious injuries, are more likely to be sexually assaultive and are more likely to be violent outside the home than abusers without a history of substance abuse. Easy access to alcohol is also a significant risk factor for domestic and family violence, particularly in Indigenous communities. A longitudinal analysis of alcohol outlet density found a relationship between alcohol availability and domestic violence. Packaged liquor outlets that sell alcohol for off-premise consumption were particularly strongly associated with domestic violence. In the 2012 Personal Safety Survey, an estimated 53 per cent of women who had been physically assaulted by a male (in the past twenty years) reported that alcohol or drugs had been involved in their most recent 4 Family violence among Aboriginal and Torres Strait Islander peoples, AIHW (2006) Hospitalisations 5 Global and regional estimates of violence against women: prevalence and health effects of intimate partner violence and non-partner sexual violence, Executive Summary, (2013) 6 Domestic, family and sexual violence in Australia:an Overview of the Issues, Parliamentary Library Research Paper b Janet Phillips and Penny Vandenbroek, 14 October AMA Conference speech family violence Page 4

5 incident. In the 2005 survey, 49 per cent of women who experienced assault by a male in the preceding 12 months stated that alcohol or drugs had contributed to the most recent incident. II. Effects on physical and mental health 14. The same Report found: Domestic violence has severe and persistent effects on physical and mental health. Using burden of disease methodology, VicHealth determined that domestic violence was the leading risk factor contributing to death, disability and illness in Victorian women aged 15 to 44 years. Physical injury is common as a result of domestic violence. Two in every five women in the IVAWS who experienced intimate partner violence reported that they were injured in the most recent incident of violence.[149] The most common types of injuries were bruises and swelling, cuts, scratches and burns. However, 10 per cent suffered broken bones or noses, 6 per cent sustained head or brain injuries and 6 per cent internal injuries. Some 29 per cent of those who sustained injuries were injured badly enough to require medical attention and 30 per cent of women felt that their life was in danger in the most recent incident. This was more likely for incidents involving previous partners (35 per cent) than for current partners (15 per cent). The health consequences of domestic violence can endure long after the violence ceases.[151] The Australian Longitudinal Study on Women s Health found that women who have experienced domestic violence rate their health as poorer and use health services more frequently than other women, even after they are no longer exposed to the violence. 7 III. Effects on children 15. The Report found: Children and adolescents living with domestic and family violence are at increased risk of experiencing emotional, physical and sexual abuse...children witnessing, or being exposed to domestic violence has been increasingly recognised as a form of child abuse, both in Australia and internationally.[158] 7 Domestic, family and sexual violence in Australia:an Overview of the Issues, Parliamentary Library Research Paper b Janet Phillips and Penny Vandenbroek, 14 October AMA Conference speech family violence Page 5

6 Forcing a child to live with sustained violence against a primary caregiver constitutes both emotional and psychological abuse Impacts of such abuse include: mood problems including depression increased aggression antisocial behaviour lower social competence low self-esteem impaired cognitive functioning, and increased likelihood of substance abuse. Researchers note that such social, behavioural, cognitive and emotional effects may also have a lasting impact on education and employment outcomes. 9 IV. Homelessness 17. According to a Canadian Medical Association Journal article from 2007: homeless rates are now believed to approximate one per cent of most urban populations the face of homelessness has changed from single adult male alcoholics to adolescents, single mothers, underemployed people, elderly people and recent immigrants Almost any life crisis can precipitate homelessness and shamefully, a large proportion of homeless people are children. Raising children in a shelter or on the streets predicts lifelong problems and places these children at high risk for homelessness as adults. In addition, young adolescents who find themselves on the street quickly become part of the street culture of violence, sexual exploitation and addiction Homelessness represents: a disproportionate use of judicial resources, social and health care resources. At the same time, they do not materially benefit from this investment 8 Domestic, family and sexual violence in Australia:an Overview of the Issues, Parliamentary Library Research Paper b Janet Phillips and Penny Vandenbroek, 14 October As above. 10 Turnbull, J, Muckle, W and Masters, C, Homelessness and health, Canadian Medical Association Journal, 23 October 2007 AMA Conference speech family violence Page 6

7 as they, for example, have similar health indices as those living in underdeveloped countries. Their age-adjusted mortality is 2- to 8-fold greater than the housed population. Those living on the streets suffer from the same spectrum, of medical illness as the housed population, yet the frequency of illness is substantially higher among homeless people. 11 Description of the legal system responses and challenges 19. There is a complex legal system in place for dealing with family violence, with federal family law intersecting with criminal, civil and child protection laws in each state jurisdiction. 20. At a federal level, family violence matters can be dealt with through the family courts where there are children involved. 21. In determining the care arrangements for children after their parents have separated, the Family Law Act provides that courts must regard the best interests of the children as the paramount consideration. In deciding what is in a child s best interests, recent changes to the law mean that greater weight must be given to protecting children from family violence than any other consideration The Family Court has taken a practical leading role in developing strategies for addressing family violence allegations, most notably through the publication of the Family Violence Best Practice Principles, which provides a comprehensive guide for decision makers in the court context. 11 Turnbull, J, Muckle, W and Masters, C, Homelessness and health, Canadian Medical Association Journal, 23 October S60CC AMA Conference speech family violence Page 7

8 23. On a state level, each state has its own legislative regime to protect victims from domestic violence, including the ability of state courts to make emergency orders where required. Restraining orders were developed in the 1980s-1990s as a response to shortcomings in traditional law enforcement, which included: difficulty in securing convictions often because of fear of testifying by abuse victims; and no protection against future violence. 24. The orders typically require a perpetrator to stay away from the victim and sometimes require the perpetrator to leave the family home. A breach of such an order is a criminal offence. These orders are known by different names in each state, but a recent announcement by the federal and state governments means that in the near future, these types of orders made in one state will be able to be registered and enforced in other states. 25. State laws also govern child protection, which is fundamentally about ensuring the safety of children, and in certain circumstances, will contain criminal offences for the abuse or neglect of children. 26. General state criminal laws are also relevant in some family violence situations, including offences such as rape, assault and stalking. 27. The legal regime is complex, can often overlap, and requires consideration of a vast array of issues in any one given case. A key problem is the division of responsibilities between Commonwealth and state or territory agencies. AMA Conference speech family violence Page 8

9 28. The courts, and lawyers working in private practice, legal aid and community legal centres, are struggling to cope with the large number of cases in an increasingly under-resourced area of the law. The intersection of medical practice and the legal system in family violence cases 29. Research estimates that 1 in 5 women make their first disclosure of family violence to a general practitioner, and the medical profession has a key role to play in early prevention and detection of family violence As medical practitioners are sometimes the first point of contact for people experiencing family violence, you can be an essential source of referral for victims to legal assistance support services. 31. Building on earlier work done by NSW AMA and the Women s Legal Service of NSW, the Law Council is very pleased to have worked with the AMA on the development of a Toolkit for GPs, which aims to assist GP s to effectively assist patients who disclose family violence. 32. On more formal level, mandatory reporting laws in each State and Territory may mean that doctors must report suspicion of family violence to state authorities. Doctors and health professionals need to know what their obligations are in the state or territory they work 13 When she talks to you about violence: a toolkit for GPs in NSW, (2013) AMA Conference speech family violence Page 9

10 in, and need to know that if they move interstate, those obligations may change. 33. Doctors may also be asked to provide medical reports to corroborate allegations of family violence, and sometimes the medical practice s notes will be the subject of subpoena to Courts. The evidence of doctors in relation to their patients whether their patient is the victim of family violence or the perpetrator of family violence may be relevant in a range of different types of legal proceedings including criminal matters, family law matters, child protection matters, and also in negligence proceedings where a person has died or suffered serious injury from family violence. 34. The Senate Standing Committee on Finance and Public Administration has recently issued an interim report on domestic violence in Australia highlighting the role of peak advocacy bodies in working with governments to strengthen programs in family violence prevention, early intervention and crisis support It identified two main stages where more work was required: I. Early intervention 36. Early intervention includes educational programs, training for professionals working in the sector and administering domestic screening as part of health services Interim Report: Domestic Violence in Australia, (March 2015), Senate Standing Committee on Finance and Public Administration recommendation 3 15 Interim Report: Domestic Violence in Australia, (March 2015), Senate Standing Committee on Finance and Public Administration Initial findings AMA Conference speech family violence Page 10

11 37. The Report found that early intervention strategies can assist children to recover from traumatic events, and can provide culturally appropriate targeted programs to support Indigenous families build and strengthen relationships, and also ensure programs assist to prevent homelessness and support women to stay at home. 16 II. Crisis support 38. The Committee Report found that a dominant theme during the inquiry was the need for more effective coordination of organisations which deliver crisis response services It found that such an approach can deliver the support a victim needs in a coordinated way rather than leaving it up to the victim to approach each agency individually The Report also found, particularly in reference to Northern Territory, a clear link between alcohol and other drug abuse and family violence. The Committee believed it was important to develop a better understanding of these links and the best treatments for AOD abuse issues in relation to reducing domestic and family violence This call for the involvement of peak bodies presents an opportunity for greater coordination across our respective disciplines in order to ensure a consistent approach to this issue. 16 Senate Standing Committee on Finance and Public Administration, Interim report: Domestic Violence in Australia, 26 June Interim Report: Domestic Violence in Australia, (March 2015), Senate Standing Committee on Finance and Public Administration Initial findings 18 See footnote See footnote 17. AMA Conference speech family violence Page 11

12 42. I am pleased to announce that the Law Council will continue its collaboration with the AMA to develop a guide for doctors on their legal responsibilities in family violence matters, including practical guides for how doctors respond, for instance, to subpoenas served on them. Work of the Law Council 43. The Law Council has been active as a peak advocacy body in this area of public policy for some time, most recently in highlighting to government the severe resource constraints hampering the ability of the family courts to cope with the workload created by increased reporting of family violence. 44. Evidence suggests that women are at high risk of family violence at or around the time of separation. 20 Yet funding cuts to our family courts means that women and children who are the victims of family violence can experience long delays in getting a first hearing in Court, and even longer waiting times for the proceedings to finally conclude. Families can be involved in family law litigation for several years before they finally get a resolution from a Judge. In NSW, the current waiting time for a final hearing in the Family Court is about three years. 45. Women from low socio-economic backgrounds who are the victims of family violence are not guaranteed access to a legal aidfunded lawyer. After a concerted effort from all sectors of the legal profession, planned cuts to legal aid and community legal centres 20 Domestic, family and sexual violence in Australia: an Overview of the Issues, Parliamentary Library Research Paper b Janet Phillips and Penny Vandenbroek, 14 October AMA Conference speech family violence Page 12

13 were reversed earlier this year. Those cuts would have had a catastrophic effect on the ability of Australians, and in particular Indigenous Australians, to access much needed legal assistance for family violence issues. 46. However, the Law Council is concerned that in the recently announced Federal Budget, there is roughly a 30 per cent reduction in legal assistance funding to take effect in the financial year. This is despite the Productivity Commission recommending an immediate $200 million injection of funds into the legal assistance sector. 21 The impact this will have on front line services will be devastating on people who are already in vulnerable situations. 47. Particularly concerning is that the ongoing viability of the 14 Family Violence Legal Prevention Services across Australia remains tenuous. 48. We are calling for an inter-governmental approach, where the Commonwealth and all States and Territory governments take responsibility for meeting the shortfalls in legal aid funding to ensure that a sustainable model is finally achieved. The future 49. The Council of Australian Governments (COAG), at their meeting in April, declared that they will take urgent collective action in 2015 to address high levels of violence against women Productivity Commission, Access to Justice Arrangements Report, 2014, Recommendation COAG Communique page 1 AMA Conference speech family violence Page 13

14 50. As a first step forward, COAG has announced that $30 million will be provided over the next three years for an awareness campaign to reduce violence against women and their children. The Law Council is supportive of this positive step aimed at changing the community s attitudes toward family violence, recognising that public education can create and sustain behavioural shifts. 51. We expect that this year will be one of change in the family violence landscape, and are prepared to offer the assistance of the legal profession to ensure that any legislative changes are reasonable and workable. 52. It presents an opportunity to build on collaboration we have started between the Law Council and the AMA. There is much to be done to coordinate services. The pressure on public resources that is caused by an uncoordinated approach cannot continue. Where solutions are available that may reduce the cost to the health system and the cost to the legal system, we must take up that opportunity as a matter of urgency. Disclaimer: This document remains the property of the Law Council of Australia and should not be reproduced without permission. Please contact the Law Council to arrange a copy of this speech. Karuna Gurung A/g Director of Communications m e. karuna.gurung@lawcouncil.asn.au AMA Conference speech family violence Page 14