National Response - Standing Council on Law and Justice

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					National response to recommendations from the ALRC/NSWLRC Report into
family violence that jointly affect the Commonwealth, States and Territories.
In 2008 the National Council to Reduce Violence against Women and their Children (the Council) was
formed. The Council was given the task of developing an evidence based plan to reduce the
incidence and impacts of violence experienced by women and their children. The Australian
Government responded to the Council’s report ‘Time for Action: The National Council’s Plan to
Reduce Violence against Women and their Children’ in April 2009 by requesting the Australian Law
Reform Commission examine the integration of the domestic violence, child protection and family
law regimes and the impacts of any inconsistent applications or interpretations of laws in cases of
sexual assault occurring in a family violence context.

In response to the reference, the Australian and New South Wales Law Reform Commissions report
‘Family Violence - a National Legal Response’ (the Report) was released on 11 November 2010. The
Report is an extensive examination of the intersection of the domestic violence, child protection and
family law systems.

In addition to announcing immediate items for action, including the reference to the Law Reform
Commissions, the Australian Government also announced that the Time for Action report would be
referred to the Council of Australian Governments (COAG) as many of the recommendations
required an extensive level of cooperation between all Australian jurisdictions.

Tackling violence against women and their children is a priority for all Australian Governments.
As a result of the Time for Action report the Australian, State and Territory governments worked
closely together, through COAG, to develop the National Plan to Reduce Violence against Women
and their Children 2010-2022 (the National Plan)1. The National Plan represents a coordinated
national effort to reduce such violence in both the short and long term. The aims of the
National Plan include the prevention of violence, the creation of respectful relationships, ensuring
that services meet the needs of women and children experiencing family violence and ensuring that
the Australian legal system responds in an effective and cohesive way to family violence.

As part of the first three year action plan under the National Plan, the Australian, State and Territory
Governments agreed to consider the recommendations of the Report in depth in order to identify
appropriate measures which will ensure that the domestic violence, child protection, and family law
systems respond cohesively to protect victims of family violence.

The Commonwealth, State and Territory Attorneys-General welcome this comprehensive report into
family violence and acknowledge the dedicated work of the Law Reform Commissions in conducting
this inquiry. Jurisdictions recognise the devastating impacts of violence in families and are
committed to improving the way justice systems work to tackle the issue. The Report provides a
sound basis for consideration of a wide range of practical measures which can improve justice
responses to family violence. These measures call for responses to be undertaken both in a
1A copy of the National Plan to Reduce Violence against Women and their Children can be found at
http://www.fahcsia.gov.au/our-responsibilities/women/publications-articles/reducing-violence/national-plan-
to-reduce-violence-against-women-and-their-children/national-plan-to-reduce-violence-against-women-and-
their-children.


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nationally coordinated way and through individual government initiatives designed to improve the
way the justice system responds to this significant and pressing issue. This national response, by the
Standing Council on Law and Justice, addresses those recommendations which jointly affect the
Commonwealth, States and Territories. It also acknowledges the work that has been done in this
area since this Report was commissioned in 2009.

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.

This national response brings together the Standing Council on Law and Justice Response to the
24 recommendations which jointly affect all jurisdictions, are appropriate to be responded to
collaboratively and are not being dealt with through the NJCEO project. We have grouped our
responses in themes (where suitable) for the purpose of responding appropriately to the Report. The
themes are:

       Education and training, including the development of a National Family Violence Bench Book

       Common principles for developing responses to family violence

       Inconsistencies between family violence orders and orders of the family courts

       Data collection

The first theme relates to education and training in family violence for relevant workers in the legal
sector to improve the legal system response to family violence. Pages 4-10 of the response cover
twelve recommendations (8.2, 12.5, 12.8, 13.1, 14.3, 16.8, 16.9, 31.1, 31.2, 31.3, 31.4 and 31.5) that
have been grouped into this theme.

On page 11 of the response, the Commonwealth, State and Territory Attorneys-General have
responded to recommendation 29.1, a recommendation that suggests jurisdictions develop common
principles with stakeholders as a first step to developing any integrated responses to family violence.

Pages 11-14 of the response cover those three recommendations (16.3, 16.5 and 17.5) that relate to
inconsistencies between family violence orders and orders of the family courts.

The final theme of data collection contains the response to the remaining eight recommendations
(8.1, 26.1, 30.15, 30.16, 29.4, 30.18, 30.19 and 14.4) on pages 15-18.



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Education and training, including the development of a National Family Violence Bench Book

Recommendations 8.2, 12.5, 12.8, 13.1, 14.3, 16.8, 16.9, 31.1, 31.2, 31.3, 31.4 and 31.5

The Commonwealth, State and Territory Attorneys-General agree in principle to recommendations
suggesting improved training and education for all professionals who encounter family violence in
the legal sector. It is agreed that this would assist in improving legal system responses to family
violence.

Education and training for professionals working within the family violence sphere is a key theme of
many recommendations contained in the Report. The Commonwealth, State and Territory
Attorneys-General agree that education and training is an important component in ensuring
appropriate legal system responses to family violence. Appropriate education and training ensures
the best outcomes for persons who experience family violence and come into contact with
professionals working within this sphere. Since the release of the Report there have been a number
of initiatives to improve the training available to professionals working in the field of family violence.

For instance, the Australian Government launched the AVERT - Addressing Violence: Education,
Resources, Training; Family Law System Collaborative Responses to Family Violence training package
in March 2011. This multidisciplinary training package was developed by Relationships Australia
South Australia, in collaboration with the Commonwealth Attorney-General’s Department, and is
intended for use by professionals, at all levels, within the family law system.

In November 2011, the Victorian Director of Public Prosecutions (DPP) launched the Director’s Policy
for Family Violence (the Policy). This Policy provides instructions for the Victorian Office of Public
Prosecution’s (OPP) solicitors and counsel on best practice for preparing and prosecuting family
violence matters on behalf of the DPP. To coincide with the release of the Policy, OPP solicitors and
prosecutors have undertaken training to help them to better understand the unique dynamics
involved in family violence matters.

Queensland is undertaking a range of professional development and training activities for judicial
officers, court staff and legal professionals to support implementation of the Domestic and Family
Violence Protection Act 2012 (Qld).

In NSW, Legal Aid NSW has implemented a Domestic and Family Violence Policy which provides a
framework and guiding principles for the provision of legal aid services between 2011 and 2013. The
Policy builds on the 2009-11 Legal Aid NSW domestic and family violence strategy and its aim is to
improve services to people in domestic and family violence situations. The implementation of the
Policy includes community legal education, guidelines and protocols and staff training and
education.

The Commonwealth, State and Territory Attorneys-General acknowledge that there already exists a
wide range of training and education opportunities about family violence to professionals working in
the sector and agree that an audit of the available training, as proposed in Recommendation 31.5, is
an appropriate action to ensure that existing resources are best used and that best practice
principles are promoted. Jurisdictions will work together, through the Standing Council on Law and
Justice (SCLJ), on a national audit of family violence training to identify best practice. The audit will


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inform any future development of family violence training for professionals working in the justice
system who deal with family violence issues.

Recommendation 8–2 Police, prosecutors, lawyers and judicial officers should be given training
about potential federal offences committed in a family violence context, including when such
offences should be prosecuted or used as a basis for obtaining a family violence protection order.
This training should be incorporated into any existing or proposed training about family violence
that is conducted by, among others: state and federal police, legal professional bodies, directors of
public prosecution (state and Commonwealth), and judicial education bodies.

The Commonwealth, State and Territory Attorneys-General agree in principle with this
recommendation.

Education and training of police, prosecutors, lawyers and judicial officers on all aspects of family
violence, including the federal offences, (for example using a carriage service to menace, harass or
cause offence or to make a threat) is an important and potent tool for improving responses to family
violence.

If the broader audit of family violence education and training (discussed in recommendation 31.5)
identifies a potential gap in awareness of federal offences and how they can be prosecuted or used
to obtain a family violence protection order, jurisdictions agree that training on federal offences
committed in a family violence context should be incorporated into existing training or any new
training that is proposed as a result of the outcome of any proposed audit.

Recommendation 12–5 The national family violence bench book—the subject of Rec 13–1 and Rec
31–2—should contain a section on the sentencing of offenders for breach of protection orders. This
section should provide guidance to judicial officers on how to treat the consent of a victim to
contact with a respondent that is prohibited by a protection order. In particular, this section should
address the following issues:

(a) that it is the responsibility of the respondent to a protection order to obey its conditions;

(b) the dynamics of power and control in family violence relationships and how such dynamics
might vitiate a victim’s initiation of, or consent to, contact prohibited by a protection order;

(c) that the weight the court is to give to the fact that a victim initiated or agreed to contact
prohibited by a protection order, will depend on the circumstances of each case; and

(d) while a victim of family violence may have genuinely consented to contact with the respondent
to a protection order, a victim can never be taken to have consented to any violence committed in
breach of a protection order.

The Commonwealth, State and Territory Attorneys-General note this recommendation. Please see
response to recommendation 31.2

Recommendation 12–8 The national family violence bench book (see Recs 13–1 and 31–2) should
contain a section guiding courts on how to sentence offenders for breach of protection orders,
addressing, for example:


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(a) the purposes of sentencing an offender for breach of a protection order;

(b) the potential impact of particular sentencing options, especially fines, on a victim of family
violence;

(c) sentencing factors relating to the victim, including the impact of the offence on the victim;

(d) sentencing factors relating to the offender, including the timing of the breach;

(e) factors relevant to determining the severity of sentencing range and the appropriateness of
particular sanctions for different levels of severity of breach;

(f) that breaches not involving physical violence can have a significant impact on a victim and
should not necessarily be treated as less serious than breaches involving physical violence; and

(g) the benefits of sentencing options that aim to change the behaviour of those who commit
violence.

The Commonwealth, State and Territory Attorneys-General note this recommendation. Please see
response to recommendation 31.2

Recommendation 13–1 The national family violence bench book (see Rec 31–2) should include a
section that:

(a) provides guidance about the potential relevance of family-violence related evidence to criminal
offences and defences—for example, evidence of a pre-existing relationship between the parties,
including evidence of previous violence; and

(b) addresses sentencing in family violence matters.

The Commonwealth, State and Territory Attorneys-General note this recommendation. Please see
response to recommendation 31.2

Recommendation 14–3 The national family violence bench book (see Rec 31–2) should include a
section that provides guidance on the operation of defences to homicide where a victim of family
violence kills the person who was violent towards him or her.

The Commonwealth, State and Territory Attorneys-General note this recommendation. Please see
response to recommendation 31.2

Recommendation 16–8 Australian courts and judicial education bodies should provide education
and training, and prepare material in bench books, to assist judicial officers in state and territory
courts better to understand and exercise their jurisdiction under the Family Law Act 1975
(Commonwealth). This material should include guidance on resolving inconsistencies between
orders under the Family Law Act and protection orders to ensure the safety of victims of family
violence.

The Commonwealth, State and Territory Attorneys-General note this recommendation. Please see
response to recommendation 31.2



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Recommendation 16–9 Australian, state and territory governments should collaborate to provide
training to practitioners involved in protection order proceedings on state and territory courts’
jurisdiction under the Family Law Act 1975 (Commonwealth).

The Commonwealth, State and Territory Attorneys-General note this recommendation. Please see
response to recommendation 31.5

Recommendation 31–1 The Australian, state and territory governments and educational,
professional and service delivery bodies should ensure regular and consistent education and
training for participants in the family law, family violence and child protection systems, in relation
to the nature and dynamics of family violence, including its impact on victims, in particular those
from high risk and vulnerable groups.

The Commonwealth, State and Territory Attorneys-General note this recommendation. Please see
response to recommendation 31.5

Recommendation 31–2 The Australian, state and territory governments should collaborate with
relevant stakeholders to develop and maintain a national bench book on family violence, including
sexual assault, having regard to the Commissions’ recommendations in this Report in relation to
the content that should be included in such a book.

The Commonwealth, State and Territory Attorneys-General agree in principle with this
recommendation.

The Australasian Institute of Judicial Administration is a leading provider of national resources for
judicial education and has produced a number of publications on topics such as gender and cultural
awareness and similar bench book resources such as the Bench Book for Children Giving Evidence in
Australian Courts and the Solution-Focused Judging Bench Book.

A national bench book on family violence could incorporate the social dynamics of family violence
and sexual assault and would be a useful tool for harmonising judicial approaches and attitudes to
the treatment of these issues in legal systems across Australia. The bench book could incorporate a
national statement of principle about family violence and include guidance in the utilisation of
relevant Family Law Act 1975 (Commonwealth) provisions.

The Judicial College of Victoria has developed bench books on family violence that are
jurisdiction-specific. States and Territories agree that they will conduct their own analysis on the
viability of developing or updating a jurisdiction-specific bench book to complement the proposed
national resource.

Jurisdictions agree that the Commonwealth Attorney-General’s Department, on behalf of SCLJ, will
write to the Australasian Institute of Judicial Administration, to determine whether this is something
that the Institute would be interested in pursuing.

Recommendation 31–3 Australian tertiary institutions offering legal qualifications should review
their curriculums to ensure that legal issues concerning family violence are appropriately
addressed.

The Commonwealth, State and Territory Attorneys-General note this recommendation.

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The Commonwealth Attorney-General undertakes to write to the Committee of Australian Law
Deans, the Law Council of Australia and the Law Admissions Consultative Committee in support of
these recommendations. State and Territory Attorneys-General undertake to write to their
respective legal admissions authority. However, jurisdictions note that the content of curriculum
and availability of professional development training is a matter for the relevant bodies.

Recommendation 31–4 Australian legal professional bodies should review continuing professional
development requirements to ensure that legal issues concerning family violence are appropriately
addressed.

The Commonwealth, State and Territory Attorneys-General note this recommendation.

Relevant government agencies advise these bodies of any updates to legislation and policy as they
arise. Jurisdictions note the response to recommendation 31.3 above and will incorporate this
suggestion in the letters referred to above. For example, the amendments made to the Family Law
Act 1975 by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011
were all notified to legal professional bodies as part of the broad education campaign undertaken by
the Australian Government on the introduction of the new family violence provisions.

In Victoria, the Continuing Professional Development (CPD) program run by the Law Institute of
Victoria aims to schedule four family violence related training sessions per year. Each session is run
through a different practice group to ensure greatest exposure of the issues to members. The CPD
programs run by the College of Law and Leo Cussen Centre for Law also include a number of family
law sessions each year which include an exploration of family violence.

Similarly, in Queensland, seminars and programs are run regularly as part of the Queensland CPD
program introduced in 2005 on family law, domestic violence and child support and parenting
matters. The Queensland Law Society has also established a Specialist Accreditation program that
offers accreditation in 10 areas of specialty, including criminal law and family law. To apply for
accreditation in family law, practitioners must have been engaged in full time legal work for at least
five years following the date of their admission to practice; and demonstrate substantial
involvement (at least 25%) in this area of practice. The assessment criteria against which applicants
may be assessed include demonstrated knowledge of issues relating to family violence, including
powers under the Domestic and Family Violence Protection Act 1989 (Qld) (and from 17 September
2012, the Domestic and Family Violence Protection Act 2012 (Qld)), and skills in dealing with clients
where domestic violence is involved.

The ACT Law Society and the ACT Bar Association run seminars, workshops and mandatory CPD
programs for its members, which incorporate family violence related components. The Australian
National University Legal Workshop includes courses for its students which explore aspects of family
violence.

Legal practitioners within NSW are required to complete 10 units of mandatory continuing legal
education (MCLE) each year. Courses offered by the Law Society of NSW generally include the area
of family law. The Society also runs specialist accreditation courses in family law.




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Recommendation 31–5 The Australian, state and territory governments should collaborate in
conducting a national audit of family violence training conducted by government and non-
government agencies in order to:

(a) ensure that existing resources are best used;

(b) evaluate whether training meets best practice principles; and

(c) promote the development of best practice in training.

The Commonwealth, State and Territory Attorneys-General agree with this recommendation.

The Commonwealth, State and Territory Attorneys-General acknowledge the wide range of training
and education about family violence available to professionals working in the sector. Jurisdictions
will work together on a national audit of family violence training which will assist with the
identification of best practices in family violence training and education that currently exist within
the Australian justice sector. Specifically, the Commonwealth Attorney-General’s Department, in
consultation with the SCLJ working group, will develop a questionnaire about the types of family
violence training provided across the family violence sectors. The SCLJ working group will participate
in the completion of the audit and will work together to report on the result of the audit to SCLJ
Ministers. It is proposed that the audit will inform any future development of family violence
training for professionals working in the justice system who deal with family violence issues.




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Common Principles

Recommendation 29.1

Recommendation 29–1 The Australian, state and territory governments, in establishing or further
developing integrated responses to family violence, should ensure that any such response is based
on common principles and objectives, developed in consultation with relevant stakeholders.

The Commonwealth, State and Territory Attorneys-General agree with this recommendation and
acknowledge that the development of common principles, developed in consultation with relevant
stakeholders, should be the starting point for establishing or further developing integrated
responses to family violence.

The Australian, State and Territory Governments have shown leadership in this regard through the
development of the National Plan to Reduce Violence against Women and their Children which
identifies common principles and objectives. All governments have agreed to six national outcomes
which provide the strategic framework for the National Plan and ensure that all jurisdictions are
working towards identified, coordinated and established outcomes. The National Plan will be
implemented through four three year action plans, each with their own implementation plan, that
will ensure that all governments are working together to implement the wide ranging strategies
contained in the National Plan. In addition, each State and Territory will develop their own
implementation plans which complement the National Implementation Plan and will help engage
communities in tackling the issue of family violence. The National Plan requires integrated
governance arrangements that cut across traditional government boundaries and engage the
community-based and private sectors.

The Commonwealth, State and Territory Attorneys-General agree that each integrated response to
family violence at all levels of government and in the community should be established with the
identification of common objectives and principles. These objectives and principles should properly
be developed in close consultation with relevant stakeholders to ensure that the principles are
relevant to the particular project and the specific environment in which the project will operate.




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Inconsistencies between family violence orders and orders of the family courts

Recommendations 16.3, 16.5 and 17.5

Jurisdictions note that many of the recommendations contained in Chapters 16 and 17 of the Report
are intended to resolve inconsistencies between family violence orders and orders of the family
courts. The Commonwealth, State and Territory Attorneys-General are of the view that one of the
primary methods of resolving such inconsistencies is improving the way that information comes
before each court system. Each court system has been designed to meet particular needs of persons
affected by family violence, with the state and territory courts having the means to provide the most
immediate protection of victims and family courts having a number of important tools, such as
Independent Children’s Lawyers and the Magellan program, to make parenting orders in the best
interests of children where family violence is an issue. The Commonwealth, State and Territory
Attorneys-General are investigating a number of ways to improve collaboration and communication
between different court systems, including the work that is being done between the child protection
and family law system through the NJCEOs, to ensure that the right information is put before each
court system at the right time.

The state and territory courts have the ability to vary, revive or suspend parenting orders when
making family violence orders. State and territory courts also have jurisdiction to make parenting
orders under the Family Law Act, where the parties consent to those orders. Jurisdictions note that
many Family Law Act matters that involve family violence are not amenable to the exercise of state
and territory jurisdictions in this regard because the parties are in conflict and do not consent to
Family Law Act orders being made or that more information and negotiation is required to arrive at
appropriate and consensual Family Law Act orders. Matters involving family violence are complex;
ensuring that parenting orders are made in the best interests of children in these matters often
requires the dedication of various resources and specialist services. The family court system has the
ability to gather information about the child’s best interests from a variety of sources, including
through a family consultant’s report, and/or an independent children’s lawyer. The greater amount
of resources and time required to ensure that parenting orders are made in a child’s best interests
do not fit well with a state and territory based family violence system that is designed to ensure
immediate and efficient protection to victims of family violence.

Recommendation 16–3 The Family Law Act 1975 (Commonwealth) should be amended to allow
state and territory courts, when making or varying a protection order, to make a parenting order
until further order.

The Commonwealth, State and Territory Attorneys-General note this recommendation.

The purpose of Division 11 of Part VII of the Family Law Act is intended to resolve inconsistencies
between family violence orders issued by a State or Territory court and injunctions and parenting
orders issued by federal family courts. The Division is not intended to substitute the jurisdiction of
one court for the other. If a state or territory court is making a family violence order and is asked to
make a parenting order, this is contrary to the purpose of the provision as there can be no
inconsistency to be resolved if an order has not been made by a family court. As originally inserted
into the Family Law Act, these provisions gave state and territory courts the power to make
parenting orders in connection with family violence proceedings, however the power was

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subsequently removed on the advice of the Family Law Council and the Kearney McKenzie Report.2
Governments note that state and territory courts of summary jurisdiction retain power under the
Family Law Act to make orders relating to children as provided for in Part VII of the Family Law Act
only where the parties consent to the orders being sought.

Where families cannot agree on the arrangements for children following a family breakdown, family
courts are the most appropriate forum for making parenting orders that are in the best interests of
children. Family Courts have developed an extensive professional support system including case
management systems, family consultants and independent children’s lawyers to further promote
the best interests of children in family law proceedings. Amending this provision of the
Family Law Act to allow state and territory courts to make a parenting order in the context of family
violence proceedings could create inappropriate avenues for parties to use family violence
proceedings to obtain parenting orders from courts that have not been established specifically to
determine suitable parenting arrangements that are in the best interests of a child in the context of
a family dispute.

The considerations of a court exercising jurisdiction in family violence proceedings are appropriately
focussed on the protection of a victim, or potential victim, of family violence. The considerations of
a court exercising family law jurisdiction to make parenting orders are appropriately focussed on the
best interests of the child. The best interests of a child will include the balancing of a number of
considerations, including the need to protect the child from family violence. If parenting orders are
to be made in the context of family violence proceedings the scope of necessary considerations will
expand significantly. Family violence orders are often made in circumstances that are designed to
provide expeditious protection to victims of family violence and are often made by consent without
admissions by the person against whom the order is made. The efficient, streamlined and
uncontested nature of family violence proceedings may be at risk where the issues to be determined
by the court are expanded to include the making of parenting orders.

The proposal to allow state and territory courts to make parenting orders when making or varying a
protection order would require significant additional resources to be dedicated to the training of
judicial officers who do not ordinarily work in the highly specialised field of family law.

The Commonwealth, State and Territory Attorneys-General are of the view that the family courts are
the most appropriate venue for persons seeking orders in relation to parenting.

Recommendation 16–5 Section 68T of the Family Law Act 1975 (Commonwealth) should be
amended to provide that, where a state or territory court, in proceedings to make an interim
protection order under state or territory family violence legislation, revives, varies or suspends a
parenting order under s 68R, or makes a parenting order in the circumstances set out in Rec 16–3,
that parenting order has effect until:

(a) the date specified in the order;

(b) the interim protection order expires; or
2Kearney McKenzie & Associates Pty Ltd Review of Division 11: Review of the operation of Division 11 of the
Family Law Reform Act to resolve inconsistencies between State family violence orders and contact orders
made under family law (February 1998); Family Law Council Review of Division 11 – Family Violence (2004).


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(c) further order of the court.

The Commonwealth, State and Territory Attorneys-General note this recommendation.

The purpose of section 68T of the Family Law Act is to ensure that where a state or territory court
makes an interim family violence order or an interim variation of a family violence order that
parenting orders, arrangements or injunctions made under the Family Law Act can also be varied,
revived or suspended to ensure consistency with the interim family violence order. Subsection 68T
of the Family Law Act provides that the order by the state or territory court that varies, revives or
suspends the parenting order, arrangement or injunction is not appealable. Section 68T currently
specifies that the variation currently ceases to have effect at the earlier of the time the interim order
stops being in force and the end of the period of 21 days starting when the interim order was made.

This provision was reviewed in 2004 by the Family Law Council and jurisdictions are of the view that
an appropriate balance has been achieved between the need to provide immediate protection to a
victim of family violence and ensuring that due process is also adhered to. Due process requires a
person to take swift action to apply to amend the parenting orders, arrangements or injunctions in
the family courts, which are the most appropriate place to ensure that the parenting orders are in
the best interests of children.

Recommendation 17–5 The Family Law Act 1975 (Commonwealth) should be amended to provide
that, in proceedings to make or vary a protection order under state or territory family violence
legislation, a state or territory court may revive, vary, discharge or suspend a Family Law Act
injunction for personal protection of a party to a marriage.

The Commonwealth, State and Territory Attorneys-General agree with this recommendation.

Section 68R of the Family Law Act gives state and territory courts the power to revive, vary,
discharge or suspend a Family Law Act injunction only in relation to the extent that the injunction
expressly or impliedly requires or authorises a person to spend time with a child.

There is no provision for a state or territory court to vary, discharge or suspend a Family Law Act
injunction where children are not involved. Any inconsistency between a later issued state and
territory order and a Family Law Act injunction will render the state and territory protection order
invalid to the extent of the inconsistency. This means that a person who has a Family Law Act
injunction would need to return to the family courts for a new order instead of being able to access
the more efficient state and territory process.

State and territory courts are the most appropriate place to seek protection orders. State and
territory courts, and relevant state and territory authorities, have established legislative frameworks
to make orders for protection and state and territory police forces are able to bring criminal charges
against respondents for breaching family violence orders. The Commonwealth Attorney-General, in
consultation with State and Territory Attorneys-General, agree that a provision that allows the state
and territory family violence orders to override a family law injunction for personal protection of a
party to a marriage to the extent of any inconsistency will enable persons who have an injunction in
the family court to access the more efficient state and territory process.




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Data Collection

Recommendations 8.1, 26.1, 30.15, 30.16, 29.4, 30.18, 30.19 and 14.4

Recommendation 8–1 The Australian Institute of Criminology (AIC) or another suitable federal
agency should gather and report data about federal offences committed in a family violence
context. This should include data about:

(a) which of these federal offences are prosecuted and the result;

(b) who conducts the prosecution;

(c) whether the offences are prosecuted jointly with state or territory crimes committed in a family
violence context; and

(d) when the offences form the basis of a protection order.

This information should be regularly given to the AIC or relevant agency by either the courts or
Commonwealth, state and territory prosecutors—including police and directors of public
prosecution.

The Commonwealth, State and Territory Attorneys-General note this recommendation.

As part of the National Plan to Reduce Violence against Women and their Children, the Australian,
State and Territory governments have committed to the development of a national data collection
and reporting framework to improve the evidence base for work in the areas of domestic violence
and sexual assault. This is a long term project with the aim of having an operational national data
collection and reporting framework by 2022. As the project progresses jurisdictions will begin to
consider the specifics of what data will be collected, collection mechanisms and its storage. This
recommendation will be considered by all jurisdictions in the context of future work on the national
data collection and reporting framework.

Recommendation 26–1 The Australian Centre for the Study of Sexual Assault, the Australian
Institute of Criminology and similar state and territory agencies should prioritise the collection of
comprehensive data in relation to sexual assault perpetrated in a family violence context. In
particular on:

(a) attrition rates, including reasons for attrition and the attrition point;

(b) case outcomes; and

(c) trends in relation to particular groups including Aboriginal and Torres Strait Islander peoples.

The Commonwealth, State and Territory Attorneys-General note this recommendation.

While the capacity to collect and report this type of data lies with the states and territories, it will be
considered in the development of the National Plan to Reduce Violence against Women and their
Children’s national data collection and reporting framework. During the development of the
framework, research questions and priorities will be considered. The project aims to improve



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existing data, the sharing of data and the creation of new data collections as necessary to meet
priority needs.

Recommendation 30–15 The Australian, state and territory governments should ensure that, in
developing any database to allow the sharing of information between agencies and organisations
in the family violence or child protection systems, appropriate privacy safeguards are put in place.

The Commonwealth, State and Territory Attorneys-General agree in principle with this
recommendation.

If a database to allow the sharing of information between agencies and organisations in the family
violence or child protection systems is developed, an important consideration will be to ensure that
appropriate privacy safeguards that adhere to relevant privacy legislation are put in place to protect
personal information.

Recommendation 30–16 Federal family courts, state and territory magistrates courts, police, and
relevant government agencies should develop protocols for the exchange of information in
relation to family violence matters. Parties to such protocols should receive regular training to
ensure that the arrangements are effectively implemented.

The Commonwealth, State and Territory Attorneys-General agree in principle with this
recommendation.

Jurisdictions are currently working through the NJCEOs’ forum, on a collaboration project to improve
the interface between the child protection and family law systems. As part of this work the
Commonwealth Attorney-General’s Department has commissioned work on a pro forma
Memorandum of Understanding / Protocol to provide guidance to stakeholders in the two systems
in their development of agreements for information sharing. This work may potentially inform the
future development of protocols for the exchange of information between the family law and
criminal justice systems.

Recommendation 29–4 The Australian, state and territory governments should prioritise the
provision of, and access to, legal services for victims of family violence, including enhanced support
for victims in high risk and vulnerable groups.

The Commonwealth, State and Territory Attorneys-General agree in principle with this
recommendation.

The National Partnership Agreement on Legal Assistance Services utilises a new funding model for
the provision of Commonwealth funding to the States and Territories for legal assistance services.
The new model allows for the use of Commonwealth funds by legal aid commissions in
child protection and domestic violence matters where there are other connected family law matters.
The National Partnership Agreement also identifies a number of priorities for the provision of legal
assistance services using Commonwealth funds. The priorities for funding of family law matters
include providing assistance to people who have experienced, are experiencing or are at risk of
experiencing, family violence.




                                                                                                    14
Attachment A shows the commitment of the Australian, State and Territory Governments to the
funding of legal aid and other enhanced support services for victims of family violence.

Recommendation 30–18 A national register should be established. At a minimum, information on
the register should:

(a) include interim, final and police-issued protection orders made under state and territory family
violence legislation; child protection orders made under state and territory child protection
legislation; and related orders and injunctions made under the Family Law Act 1975
(Commonwealth); and

(b) be available to federal, state and territory police, federal family courts, state and territory
courts that hear matters related to family violence and child protection, and child protection
agencies.

The Commonwealth, State and Territory Attorneys-Generals note this recommendation and note
that a separate Standing Council on Law and Justice working group is considering aspects of this
recommendation.

Jurisdictions are working on the development of the national domestic and family violence order
(DVO) mutual recognition scheme agreed to by the Standing Committee of Attorneys General in
March 2011.


Recommendation 30–19 The national register recommended in Rec 30–18 should be underpinned
by a comprehensive privacy framework and a privacy impact assessment should be prepared as
part of developing the register.

The Commonwealth, State and Territory Attorneys-General agree in principle with this
recommendation.

Please see response to recommendation 30.18

Recommendation 14–4 The Model Criminal Law Officers’ Committee of the Standing Committee of
Attorneys-General—or another appropriate national body—should investigate strategies to
improve the consistency of approaches to recognising the dynamics of family violence in homicide
defences in state and territory criminal laws.

The Commonwealth, State and Territory Attorneys-General agree in principle with this
recommendation.

The Commonwealth, State and Territory Attorneys-General are of the view that the proposed
national bench book is a suitable strategy that could be used to improve the consistency of
approaches to recognising the dynamics of family violence in homicide defences.




                                                                                                      15
                                                                                                                  ATTACHMENT A (current at 1 July 2012)

Jurisdiction

Commonwealth
               Under the Family Violence Prevention Legal Services Program, the Australian Government funds 14 Family Violence Prevention Legal
               Services to provide assistance to Indigenous adults and children who are victims or survivors of family violence, including sexual assault,
               or who are at immediate risk of such violence. Services include legal assistance, advice, referral, counselling and court support. In the
               2011-12 financial year, the Family Violence Prevention Legal Services Program appropriation was $19.8m.

               Under the Community Legal Services Program, the Australian Government also funds 16 Community Legal Centres to provide and
               enhance assistance in relation to family violence matters, including victims’ compensation matters. In the 2011-12 financial year, funding
               of $986,490 was provided for these activities.

ACT            The ACT Government funds the Women’s Legal Centre - a community legal centre for women in Canberra and the surrounding area. The
               Centre is run by women and aims to improve women’s access to justice. The Centre advises on a wide range of legal issues, including
               Domestic violence

               The ACT Government funds the Family Violence Intervention Program (FVIP). The FVIP is a coordinated response to family violence in the
               ACT. Specialist family violence positions are funded within the AFP and the DPP to investigate and prosecute family violence offences.
               ACT Corrective Services is also funded to deliver a family violence intervention program.

               The ACT Government also funds a range of other service providers including Victim Support ACT, the Domestic Violence Project
               Coordinator, the Domestic Violence Crisis Service, the Canberra Rape Crisis Centre and a number of refuges for women and children
               fleeing domestic violence.
New South      Legal Aid NSW provides legal advice across a range of areas and has implemented a Domestic and Family Violence Policy which provides a
Wales          framework and guiding principles for the provision of Legal Aid NSW services between 2011 and 2013. The aim of the Policy is to
               improve services to people in domestic and family violence situations building on the 2009-11 Legal Aid NSW domestic and family
               violence strategy.

               LawAccess NSW is a free government telephone service which provides legal information, advice, referrals and fact sheets to assist
               victims of domestic violence. The Domestic Violence Line provides telephone counselling, information and referrals for people who are


                                                                                                                                                         16
             experiencing domestic violence.

             The Women’s Domestic Violence Court Advocacy Service (WDVCAS) provides court advocacy, referrals and information for women and
             children involved in Apprehended Domestic Violence Order (ADVO) matters and some Apprehended Personal Violence Order (APVO)
             matters. If a woman is making a private application for an ADVO, the service can also arrange someone to represent her in Court.
             WDVCASs operate at most Local Courts and usually provide a safe room for their clients to wait in when they are at court. Female
             defendants can also use the safe room, generally when they themselves are also a victim of violence.

             The Domestic Violence Practitioner Scheme (DVPS) solicitors are funded by legal Aid NSW and work with the WDVCASs. They provide
             advice and representation to women in ADVO matters. They can also provide advice and representation to female defendants where
             appropriate, including in cross-applications.

             The Domestic Violence Legal Service (DVLS) is a specialised legal service for women experiencing domestic violence, providing casework,
             legal advice and advocacy.

             The Wirringa Baiya Aboriginal Women’s Legal Centre is a community legal centre for Aboriginal women, children and youth living in New
             South Wales. Wirringa Baiya focuses on issues relating to violence against Aboriginal women, children and youth.

Northern     The NT Government has funded specialist domestic violence legal services in Darwin (operated by the Northern Territory Legal Aid
Territory    Commission) and in Alice Springs (operated by the Central Australian Women’s Legal Service).

              The Departments of Justice and Children and Families have, since early 2012, commenced a three year project named ’Towards a more
              integrated response to Family Violence in Alice Springs’. This is part of a larger project (Alice Springs Transformation plan) jointly funded
              by the NT and Commonwealth Government that seeks to improve outcomes for indigenous residents of Alice Springs and their visitors.
Queensland   In 2011-12, the Queensland Department of Communities, Child Safety and Disability Services allocated more than $22M to non-
             government organisations to deliver domestic and family violence prevention, early intervention and support services with the aim of
             providing timely and quality risk assessment, information, support and counselling to people affected by domestic and family violence.

             Twenty-seven Court Support services are funded to provide court-based support to people who experience domestic and family violence
             (aggrieved persons) and who have court proceedings before a Magistrates Court in relation to domestic and family violence matters.
             There are eight funded services located in remote communities which provide culturally appropriate support to Aboriginal and Torres

                                                                                                                                                         17
                  Strait Islander people affected by domestic and family violence.

                  A state-wide Helpline service (DVConnect) provides free and confidential telephone information, advice, counselling, support and
                  referral. Assistance is provided to a range of stakeholders including women and children affected by domestic and family violence, men
                  affected by domestic and family violence and government and non-government agencies who work with people affected by domestic
                  and family violence.

                  In addition, more than $18M is allocated to provide crisis accommodation and support to women and children escaping domestic and
                  family violence.

                  Under the funding agreement between the Queensland Government and Legal Aid Queensland, the provision of legal assistance services
                  for domestic and family violence matters is identified as a civil law service priority.

South Australia   The Legal Services Commission (LSC) is a State and Commonwealth Government funded statutory body that provides advice and
                  assistance to victims of family violence as part of its general provision of legal services to the South Australian community. Of its own
                  volition and because family violence impacts upon many of those who are seeking assistance through their services, the LSC has
                  employed a part-time experienced Domestic Violence Worker as a member of an advisory team (who works together with many
                  solicitors who have specialist training in this area).

                  The SA Attorney-General’s Department has provided funding specifically targeting domestic violence as part of the Crime Prevention
                  Grants Program and in the 2011/2012 financial year, projects funded in relation to family violence included:

                       West Coast Youth & Community Support Inc. - $50,000 - for the Family Foundations Program - program to reduce domestic and
                        family related violence

                       Mission Australia - $50,000 - for the U + ME = US program - program to assist young people involved in unsafe relationships to
                        change their attitudes and beliefs regarding violence.

                  In partnership with the Office for Women and the Domestic and Aboriginal Family Violence Service Sector, the Department for
                  Communities and Social Inclusion (DCSI) has undertaken significant reform of the domestic and Aboriginal family violence support and
                  accommodation sector.


                                                                                                                                                              18
The reform process aimed to create a state-wide strategic response to women and their children who are victims of domestic violence,
aimed to complement legislative reforms and provide support to women and their children to remain in their homes whenever it is safe
to do so.

In 2011-12, the Department for Communities and Social Inclusion, Housing SA, Homelessness Strategy allocated over $9m to
non-government organisations to deliver domestic and Aboriginal Family Violence Service responses across the state. With the reform
came significant new investment in Domestic and Aboriginal Family Violence support and accommodation services, including an increase
in funding of $15 million to the sector and an additional 120 stimulus properties.

As a result of the reform process the following has been implemented:

     14 Regional Domestic Violence and Aboriginal Family Violence Services

     nine Regional Domestic Violence Services with core and cluster accommodation

     three Aboriginal-specific services – southern and northern metropolitan Adelaide and Anangu Pitjantjatjara Yankuntjatjara Lands

     specific service responses for Aboriginal and Torres Strait Islander people and people from culturally and linguistically diverse
      communities

     all services have a minimum 20% target for Aboriginal women and a minimum 8% target for women from culturally and
      linguistically diverse backgrounds

     Specialist Gateway for Domestic and Aboriginal Family Violence – 24-hour telephone response linking clients to their regions and
      appropriate service

     Staying Home Staying Safe – Domestic Violence Safety Packages to provide advice and safety products to women who are victims
      of violence to enable them to remain safely in their own homes

     120 new Supportive Housing properties, built through the Nation-building Economic Stimulus Program, linked to support for
      women and their children who are victims of domestic violence



                                                                                                                                          19
An initiative of the Women’s Safety Strategy (WSS), the Family Safety Framework in SA seeks to ensure that services to the families most
at risk of violence are dealt with in a more structured and systematic way, through agencies sharing information about high risk families
and taking responsibility for supporting these families to navigate the services system. The Family Safety Framework includes Family
Safety Meetings (held at the local level focusing on individual high-risk cases) and common risk assessment, to ensure consistency in the
assessment of high risk cases.

Initially trialled in the three locations in 2007, Family Safety Meetings are now being held in 12 regions throughout South Australia on an
ongoing and will now be rolled out to the remaining local police areas across South Australia during 2012 and 2013.Investigation of a
model suitable for implementation on the Anangu Pitjantjatjara Yankunytjatjara(APY) Lands commenced in May 2012 and work also
commenced in August 2012 for the implementation of the Framework in the Coober Pedy region. Critical to the roll out of the
Framework is the provision of administration support from the Victim Support Service (VSS) with the Attorney-General providing
$100,000 funding to VSS each year for four years from the Victims of Crime fund. In addition, South Australia Police (SAPOL) provides
financial support to VSS, with $20,000 from the 2012-13 financial year onwards.

Implementation of the Family Safety Framework has also commenced in Alice Springs, with Family Safety Meetings commencing in July
2012. This is the first time Family Safety Meetings have been established in another jurisdiction. The South Australian Office for Women
provided support and training to the Northern Territory Department of Justice and a range of agencies involved in this work in Alice
Springs and continues to provide support.

This collaborative work with the Northern Territory supports the National Plan to Reduce Violence Against Women and their Children.
The National Plan sets out a key objective of improving cross-jurisdiction mechanisms to protect women and children. In working with
the Northern Territory, SA is fostering partnerships and enabling consistency in service provision across jurisdictions.

In 2008-09 the South Australian State Budget committed $868,000 over four years to the Don’t Cross the Line Community Education
Campaign. The campaign aims to change community attitudes, increase awareness for workers who respond to perpetrators and victims,
encourage a culture of perpetrator accountability and highlight the important work (including legislative reforms) being undertaken by
the South Australian Government.

The Campaign focuses on respectful relationships by targeting young people and includes a website (www.dontcrosstheline.com.au) and
media campaign.


                                                                                                                                          20
The Don’t Cross the Line Campaign includes grant funding primarily aimed at organisations which work with groups who are unlikely to
be reached through a mainstream community education campaign such as Aboriginal and Torres Strait Islander young people - young
people living in rural and remote communities, young people from newly emerging communities and young people with a disability.
Three rounds of grants have been offered to date.

Snapshot of grant recipients:

     Legal Services Commission – Expect Respect program to raise awareness among young people about the social and legal
      implications of relationship violence and sexual assault

     Tutti Ensemble - raise awareness about sexual assault, rape and domestic violence in South Australia's communities with
      disabilities using the creative arts to promote messages by young people with a disability, for young people with a disability

     Christies Beach High School – the project provides senior students with disabilities with skills about respectful relationships and
      prepares them for leaving school and a safe independent life

     Women with Disabilities South Australia – to provide training and information sessions targeting young women with a disability
      and women’s domestic and Aboriginal family violence services

     Yarrow Place Rape and Sexual Assault Service – to work with the Australian Hotels Association SA and United Voice to develop
      strategies tailored to the hospitality industry to increase awareness of rape, sexual assault and other forms of violence against
      women

     Coalition for Men Supporting Non-Violence – to coordinate White Ribbon Day Activities in South Australia and to undertake
      prevention activities targeting men (young men in particular).

In 2011, the South Australian Government established the role of Senior Research Officer, Domestic Violence located within the
Coroner’s Court who identifies domestic violence issues and contexts and relevant service systems and investigates the adequacy of
system responses. This advice forms part of the Coronial brief and builds the capacity of the Coronial Inquest to explore and inquire into
system responses to domestic violence. It also recommends improvements with a preventative focus.

The Senior Research Officer conducts research and analysis that aims to identify trends and systemic improvements, which may drive

                                                                                                                                            21
           inter-agency approaches in the prevention of deaths that occur within a family or domestic violence context.

           Outcomes to date include:

                establishment of the National Family Violence Death Review Network linking death review work nationally and to the National Plan
                 including consistent baseline identification and data collection

                advice provided across three Coronial inquests where there was a domestic violence circumstance and context (the domestic
                 violence lens contributed significantly to a Preliminary Coronial Finding recommending the implementation of the Family Safety
                 Framework in Murray Bridge and Berri)

                ongoing investigation and advice on open cases within the Coronial system relating to the scope of the position (matters involving
                 suicide or intentional self-harm, homicide or combination of both where a domestic violence context can be established)

                ongoing development of data collection systems, investigation frameworks and retrospective research projects/priorities.

Tasmania   Under the Safe at Home Program, the Tasmanian Legal Aid Commission has Legal Officers around Tasmania who provide free,
           confidential legal advice and assistance to victims of family violence including assistance in applying for Family Violence Orders and in
           relation to breaches of a Family Violence Order. Other services can include helping a victim to find out what is happening to the
           offender’s criminal charges in the Magistrates Court and general advice for victims of family violence about how to make arrangements
           for children and property.

           Legal Aid also provides appropriate referrals to the Court Support and Liaison Service, the Family Violence Counselling & Support Service
           and Police Victim Safety Response Teams.

Victoria   In the 2011-12 Budget, the Victorian Government provided $9.1million over 4 years to continue the provision of free legal services to
           rural and regional Victorians and victims of family violence through 10 community legal centres (CLCs) across Victoria.

           The funding allows CLCs to continue to provide victims of family violence with representation and assistance when intervention order
           applications are being heard in court allowing matters to proceed more quickly and assisting in the reduction of waiting lists and delays.




                                                                                                                                                       22
            In accordance with the National Partnership Agreement and the 2010 Commonwealth Guidelines Update, Legal Aid WA (LAWA) provides
            legal services as a priority for victims of family violence through:
Western
Australia          Representation in violence restraining order (VRO) hearings, family court parenting order proceedings and child protection
                    proceedings;

                   Appointment of Independent Children’s Lawyers in Family Court proceedings and Child Representatives in child protection
                    proceedings involving allegations of family violence;

                   Representation in Family Dispute Resolution (FDR) in property and children’s issues;

                   Representation and family violence counselling for victims in FDR in the Coordinated Family Dispute Resolution (CFDR) pilot;

                   Court based duty lawyer services providing legal advice, minor assistance, advocacy and legal representation in family law and
                    child protection at the Family Court of WA and Perth Children’s Court;

                   The provision of a holistic service which includes information, referrals to counselling and support services and for legal advice
                    through the Legal Aid WA Information line (Infoline). A three month pilot using more formal screening processes aimed at
                    identifying improvements to referral and co-ordination of services for higher risk clients has just commenced.

                   Legal Advice, advocacy and minor assistance (letters and court documents) in relation to matters that do not meet the guidelines
                    for a grant of aid through the Client Services Intake and Advice services.

            LAWA also has a dedicated specialist in-house Family Violence Unit staffed by lawyers and a family violence counsellor. The lawyers
            provide duty lawyer services, legal advice, minor assistance (including immigration matters) and representation at defended VRO trials.
            The counsellor provides safety planning advice and brief therapy. A lawyer from this Unit also provides services as part of a co-located,
            multi-disciplinary family violence service at the Domestic Violence Advocacy Service (DVAS) in conjunction with the Department for Child
            Protection, the Women’s Health Service and the Multicultural Women’s Advocacy Service.

            Through its Social Inclusion Program, LAWA prioritises the provision of civil law advice and minor assistance to victims of family violence
            in relation to issues including tenancy, debt and consumer credit.


                                                                                                                                                         23
The WA State Government provides funding for three specialist lawyers in community legal centres in the Perth metropolitan area who
provide VRO duty lawyer services, legal advice, minor assistance and court representation in defended hearings. The Government also
funds the Family Violence Service which has victim support workers who assist victims to apply for VRO’s in each of the five Perth
metropolitan Magistrates Courts and some regional areas.




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