Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1694500897331.pdf (Australia)
Joint Select Committee on Australia’s Family Law System PO Box 6100 Parliament House Canberra ACT 2600 By email: familylaw.sen@aph.gov.au Re: Questions on Notice Dear Chair Australia’s National Research Organisation for Women’s Safety (ANROWS) would like to thank the Joint Select Committee on Australia’s Family Law System for the opportunity to respond to these questions on notice from the Friday 13 March 2020 Sydney hearing of the inquiry into Australia’s family law system.
ANROWS is an independent, not-for-profit organisation established as an initiative under Australia’s National Plan to Reduce Violence against Women and their Children 2010-2022.

ANROWS is jointly funded by the Commonwealth and all state and territory governments of Australia.

ANROWS was set up with the purpose of establishing a national level approach to systematically address violence against women and their children.
Our mission is to deliver relevant and translatable research evidence which drives policy and practice leading to a reduction in the incidence and impacts of violence against women and their children.

Every aspect of our work is motivated by the right of women and their children to live free from violence and in safe communities.

We recognise, respect and respond to diversity among women and their children, and we are committed to reconciliation with Aboriginal and Torres Strait Islander Australians.
This answers below applies relevant ANROWS research evidence to the questions set out by Senator Waters.

We would be very pleased to assist the Joint Select Committee further, as required.
Yours sincerely Dr Heather Nancarrow Chief Executive Officer Australia’s National Research Organisation for Women’s Safety Limited PO Box Q389, Queen Victoria Building, NSW, 1230 ABN 67 162 349 171 Phone +61 2 8374 4000 anrows.org.au 30 April 2020 Questions on Notice QUESTION 1: In your experience, how well do police, legal practitioners, judicial officers, family reporters and other social services understand coercive control?

Is more training required?


The concept of coercive control has been employed in domestic and family violence legal and social service practice for more than 30 years, although the term “power and control” has been, and often still is, used instead of “coercive control” (see Nancarrow, 2019, chapter 3).

Its subtle but harmful character can be difficult to convey.
It is also difficult to distinguish coercive control from arguments and partly explains why legal intervention generally occurs when there is evidence of physical violence.

More training is required to ensure that new recruits have the required expertise to respond appropriately, as well as ensuring emerging evidence about identifying and responding to coercive control is applied at all levels in relevant organisations.
However, ANROWS research highlights that coercive control is uniquely tailored to the victim/survivor, and employs tactics that are developed by the aggressor over time through trial and error (Tarrant, Tolmie & Giudice, 2019).

While training legal actors about coercive control is certainly important, courts need clear processes to render visible the ways that the victim’s/survivor’s ability to exercise autonomy and agency are constrained.
In recent ANROWS research, Transforming Legal Understandings of Intimate Partner Violence (2019), Stella Tarrant, Julia Tolmie and George Giudice highlight the impact applying social entrapment theory can make in understanding victim/survivor behaviour.

Social entrapment theory provides a multi-dimensional framework for analysing the facts of any particular case involving domestic and family violence (DFV).
The framework draws upon the significant body of literature on the particular manner in which entrapment is experienced by, and compounded for, women facing multiple forms of disadvantage.
Social entrapment theory is a process by which a court can render visible the aggressor’s pattern of abusive behaviour to understand how it constrains the primary victim’s resistance and ability to escape the abuse, while simultaneously considering the wider operations of power in play in her life (Tolmie, Smith, Short, Wilson & Sach, 2018).
This will involve determining the coercive and controlling behaviours employed by the aggressor and how they specifically limited the victim’s ability to be self-determining.

The framework also assists courts to consider how informal networks and agencies responded to any of the victim’s help-seeking behaviour.
Finally it assists courts to look at how structural inequities (poverty, historical trauma, colonisation, disability, racism, sexuality and gender, geographic isolation) exacerbate both of the previous dimensions (Tolmie et al., 2018).

This is consistent with the approach used in Victoria (Crimes Act 1958 (Vic) ss.

322J & 322K).
322J & 322K).

Transforming Legal Understandings of Intimate Partner Violence (2019) has been used as the basis for amendments to the Evidence Act 1906 (WA) in the Family Violence Legislation Reform Bill 2019 anrows.org.au 1 (WA).

These proposed amendments concern the admissibility of evidence about family and domestic violence and the introduction of jury directions about family violence.
The aims of the amendments are to help rectify misunderstandings about intimate partner violence (IPV) by all decision makers in the criminal justice system in the context where a primary victim of IPV raises self-defence (and possibly duress).
While the Family Court context is different, ANROWS thought the Committee might like to consider how this proposed amendment is structured with a view to providing a social entrapment framework for allowing domestic violence context evidence to be better assessed: Section [C] Evidence of family violence (1) Evidence of family violence includes evidence of: (a) violence by the deceased/complainant against the accused; (b) the availability of effective safety options to stop violence by the deceased/complainant against the accused; (c) ways in which violence by the deceased/complainant against the accused (in paragraph [C] (1)(a)) or the lack of availability of effective safety options (in paragraph [C] (1)(b)) were exacerbated by structural inequities experienced by the accused, including inequities associated with (as the case may be) race, gender, poverty, disability or age.
(2) Evidence of family violence includes expert evidence [specialised knowledge] of: (a) (b) the nature and patterns of violence enacted by family members; the availability of effective safety options to stop violence by family members; (c) ways in which violence by family members (in paragraph [C] (2)(a)) or the lack of availability of effective safety options (in paragraph [C] (2) (b)) may be exacerbated by structural inequities experienced by a person the subject of family violence, including inequities associated with (as the case may be) race, gender, poverty, disability or age.
Section [D] Family violence “Family violence” means violence enacted by a family member against a person.
Section [E] Violence (1) In this [Part] “violence” means harmful behaviour or a course of harmful behaviour which includes: a) behaviour directed at the accused that is physically violent, including sexually violent, threatening or intimidating; b) behaviour directed at the accused, at a child of the accused, at another person or at property that either – i. has as its purpose (or among its purposes) one or more of the relevant effects set out in subsection (2); or ii.
would be considered by a reasonable person to be likely to have one or more anrows.org.au 2 (2) The relevant effects are of – of the relevant effects set out in subsection (2).
a) making (or keeping) the accused dependant on, or subordinate to, the b) c) d) e) f) deceased/complainant; isolating the accused from friends, relatives or other sources of support; controlling, regulating or monitoring the accused’s day-to-day activities; depriving the accused of, or restricting the accused’s, freedom of action; restricting the accused’s ability to resist violence; frightening, humiliating, degrading or punishing the accused, including punishing the accused for resisting violence.
QUESTION 2: Do you support calls for the introduction of a criminal offence for “coercive control”?

As explained in relation to Question 1, it is ANROWS’s view that coercive control is better addressed by applying a social entrapment framework in a more structured way in the current legal system, rather than by creating a separate criminal offence.
Civil domestic violence laws were introduced in Australia to address the limitations of the criminal law system in addressing the particular nature of coercive controlling abuse (social entrapment) in relationships (see Nancarrow, 2019, chapter 3).
Specifically: • the difficulty in proving facts to the standard of proof required in criminal law (beyond reasonable doubt), due to absence of witnesses and, in the case of non-physical coercive control, absence of visible injury; the need for an immediate legal intervention (within hours, compared to months or years from a criminal law outcome); the need to focus on the prevention of future violence by imposing practical constraints on • • the behaviour and movement of the respondent; • many women do not want to engage the criminal law to address their partners’ abuse—they just want the violence to stop.
Further, there are substantial concerns that a criminal offence of coercive control will increase the opportunity for systems abuse by perpetrators who claim that they are the victims of psychological abuse.
Training on coercive control and strategies to address systems abuse may be useful, but we have seen increased criminalising of women who use violence in resistance to violence perpetrated against them, despite training and policy and procedures aimed at addressing this injustice (Douglas and Fitzgerald, 2018; Nancarrow, 2019; Nancarrow et al., forthcoming).
Therefore, it is reasonable to be concerned that an offence of coercive control would increase the opportunity for systems abuse and misidentification of women who resist coercive control as the perpetrators.

Finally, there are numerous criminal laws that do not work effectively to address needs of women subjected to violence and abuse.

Investment in improving the effective application of existing laws anrows.org.au 3 (e.g.
rape and sexual assault) is needed, and the introduction of more criminal law is likely to add to rather than resolve that issue.

QUESTION 3: You recommend “reducing opportunity for DFV systems abuse” by better integration and interaction between the family law system, state and territory child protection systems, and family and domestic violence jurisdictions.

Can you expand on that proposal?


ANROWS research, Domestic and family violence and parenting: Mixed method insights into impact and support needs, led by Dr Rae Kaspiew, included a qualitative component based upon in-depth interviews with 50 women across Australia, each with personal experience of DFV.
They examined the effects DFV had on their mothering, their relationships with their children, and the interactions they had with government and community services, including domestic violence, child protection and family law services.
The women’s experiences in the family law system suggested “a lack of family violence expertise, together with disjointed service delivery and an emphasis on shared parenting after separation” (Kaspiew et al., 2017, p. 6) that emphasised ongoing relationships with fathers at the expense of protect both the women and their children from harm.
A significant number of the women identified circumstances where perpetrators were able to use various services and agencies, including child protection and family law, to perpetrate both systems and financial abuse.
The abuses these perpetrators employed included one or more of the following: “exploiting the intersections between family law, child protection, and criminal legal systems to their advantage; raising counter-allegations and unjustifiable applications in family law or personal protection orders; manipulative engagement with family law services; non-compliance with court orders; exhausting women’s legal and financial resources; and using civil law processes to cross-examine women when fathers acted as self- represented litigants” (Kaspiew et al., 2017, p. 6).
Two pieces of ANROWS research, The PATRICIA Project (Humphreys & Healey, 2017) and Invisible Practices (Healey et al., 2018) that stemmed from it, highlight the importance that interagency collaborative practice and case reading approaches to understanding the evidence from the perspective of supporting the non-offending parent, can make.
The research focused upon the collaborative relationship between specialist community-based domestic and family violence support services for women and their children, and statutory child protection organisations.
The PATRICIA project has influenced practice in four states (NSW, QLD, SA and VIC) through the detailed examination of statutory child protection cases using the Safe and Together tools (Safe and Together is a child protection approach originating in the US which supports improved family functioning focused on the safety and wellbeing of the child).
In comparison to standard child protection reflective practice, which can be experienced as seeking to attribute blame, these activities enabled supported reflection on systems by workers that led to them improving their practice, especially in holding perpetrators to account.
anrows.org.au 4 The Departments for Child Protection in South Australia and Queensland, have applied the learnings and the case reading tool in their work over the course of the action research project, embedding them into practice, departmental policy and strategy development.

Departmental training based on the research outcomes has provided tools to inform report writing and court administration in the statutory protective sector on the impact of domestic and family violence.
Front line child protection workers have been trained in this reflective practice to assist awareness and provide tools to reframe traditional assumptions where women have been subjected to domestic and family violence, design better interventions and responses and inform report writing.

Training has provided a quality control mechanism for report writing and filing.
Case reading teams are now aware of what to look for and analyse reports from a thematic perspective, including gender issues which in turn flag areas for policy and strategy reform.

The team has an enhanced awareness and greater ability to identify areas requiring systemic change, including teams with discrete report writing responsibilities, the broader office and the department.
In Queensland, The PATRICIA Project has been transformational in influencing the way Child Safety in Queensland have developed the Walking With Dads program, and the concepts and findings that emerged from the project have started to transform child protection practice across the State.

At a Federal level, The Family Court of Australia have commenced a $13.5 million trial of a DFV screening tool across three locations.
The Family Court of Australia is also currently engaged in a rules harmonisation project, which will ensure that, for the first time, there will be a common set of rules, forms and case management in the Family Court of Australia and the Federal Circuit Court of Australia.

Both of these initiatives have the capacity to reduce the opportunity for systems abuse.
While the first project will assist by identifying DFV earlier, and capacity building courts to respond to DFV better, including through the use of co-located child welfare and police officials, the second will help with sharing information better between the family law system, state and territory child protection systems, and family and domestic violence jurisdictions.
ANROWS also has upcoming research led by Jane Wangmann on self-represented litigants that will shed more light on how this process might be adapted to prevent opportunities for systems abuse (Wangmann, Kaye & Booth, forthcoming).

QUESTION 4: Your submission highlights risks of financial abuse within the family law system.

Can you comment on how best to identify and address situations of financial abuse?
As mentioned in our initial submission, financial abuse could be identified and better addressed using screening, if we were to research, adapt and test a screening tool for use in an Australian setting.

It is a particularly opportune time to investigate appropriate tools for identifying financial abuse, with the COVID-19 health and economic crisis adding extra pressures on household finances.

This rapidly shifting crisis is likely to mean that tactics of financial abuse are also shifting.
Emerging anecdotal reports from the sector include women experiencing violence being pressured to withdraw their anrows.org.au 5 superannuation (rather than the perpetrator’s superannuation), and perpetrators drawing down on mortgages without victim/survivor knowledge.
The effects of this particular fiscal inequity and disadvantage are likely only to be known in the longer term, though we already know from existing ANROWS research that financial abuse that means women miss out on an appropriate share of wealth upon separation, reverberates through women’s lives, and increases hardship long-term (Cortis & Bullen, 2015).
Partnering with industry is another way that financial abuse might be addressed, with major banks, including the Commonwealth Bank already engaged with identifying situations where financial abuse may be occurring and referring them to their community wellbeing team, who are trained to conduct deeper work and recognise situations when financial abuse might be occurring.
Partnerships between the Family Court and the finance industry may reduce the opportunity for hiding of assets and income by perpetrators for the purposes of assessment.

In terms of how this might be addressed specifically in the family law system, in March 2020, the Federal Circuit Court of Australia initiated a limited two-year pilot to help manage family law property disputes in Adelaide, Brisbane, Melbourne and Parramatta.
This pilot only applies if the net property pool is under $500,000, so it doesn’t address victim/survivors who might be rich in shared assets (like their partner’s superannuation or a more valuable family home) but unable to afford legal representation, and ineligible for legal aid (say perhaps by not having a simultaneous parenting matter).
If it successfully reduces systems abuse and results in fairer distribution of assets to women experiencing DFV, the Committee could look at how this trial might be expanded, and how legal aid might be resourced to help women who don’t have simultaneous parenting matters and property disputes.

QUESTION 5: Can you comment on some of the structural issues faced by First Nations, CALD, LGBTIQ families and those with disability in the family law system?
What recommendations do you have to address those issues?

As indicated in our initial submission, each of these groups face different structural issues when accessing justice in the family law system.

As we outlined some of the barriers to justice in this submission, we have only addressed new ANROWS research below: First Nations Major structural issues faced by First Nations Peoples were outlined in our initial submission to this inquiry.
ANROWS research, Innovative models in addressing violence against Indigenous women, contains some innovations in court practices that the researchers found to resonate with Indigenous audiences (Blagg et al., 2018).

These include Elders sitting in courts with judges and magistrates, drawing upon the Koori court model, and the idea that mainstream courts cannot “shame” Aboriginal offenders (Blagg et al., 2018).
This research also suggests full “triage” assessments when Aboriginal people attend court, to shed light on cognitive impairments, mental health, alcohol, homelessness or issues with child care, and ensure the court is fully informed and able to address these additional structural inequities on a case-by-case basis (Blagg et al., 2018).
6 anrows.org.au Along with addressing these structural inequities directly, there may also be merit in judges in the family law system getting a feedback loop about the consequences of decisions.

Presently this only occurs on appeals, which happen on the basis of legal doctrine, not factual matters, like the circumstances of defendants.

In order to begin to address entrenched intergenerational disadvantage of First Nations Peoples, there is a need to make it more visible to all decision-makers.
People who identify as LGBTQI+ Subsequent to our initial submission, new ANROWS research entitled Developing LGBTQ programs for perpetrators and victims/survivors of domestic and family violence was published, echoing some of the suggestions we made to address the family law system being accessible to people who identify as LGBTQI+.
Along with the suggested system audit to ensure all points on the pathway for reporting and preventing DFV/IPV are LGBTQ inclusive, and aware of LGBTQ DFV/IPV specificities, this research also recommends increasing workforce confidence in engaging with LGBTQ people experiencing or perpetrating DFV/IPV via LGBTQ inclusivity training co-developed with affected communities (Gray et al., 2020).
In specific reference to the family law system, the research suggests a long term investment in strengthening referral pathways from the family law system into LGBTQ- specific or LGBTQ-friendly DFV/IPV programs by working with legal personnel such as court support workers, mediators, and magistrates (Gray et al., 2020).

This research also emphasises that LGBTQI+ people are not a homogenous group (Gray et al., 2020).
ANROWS has a forthcoming research project called Crossing the line: Lived experience of sexual violence among trans women of colour from culturally and linguistically diverse (CALD) communities in Australia that deals with the intersectionality of race, sexuality and gender diversity, highlighting the specificity required to reduce barriers to justice for particular parts of the LGBTQI+ community (Ussher et al., in press).
Culturally and linguistically diverse (CALD) people ANROWS has a forthcoming research project entitled Multicultural and settlement services supporting women experiencing violence: the MuSeS project that will shed more light on how improved interaction between multicultural and settlement services could benefit the family violence sector, including the family law system (Vaughan et al, in press).
anrows.org.au 7 References Blagg, H., Williams, E., Cummings, E., Hovane, V., Torres, M., & Woodley, K. N. (2018).

Innovative models in addressing violence against Indigenous women: Final report (ANROWS Horizons, 01/2018).

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Building effective policies and services to promote women’s economic security following domestic violence: State of knowledge paper.

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Douglas, H., & Fitzgerald, R. (2018).

The Domestic Violence Protection Order System as Entry to the Criminal Justice System for Aboriginal and Torres Strait Islander People.

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Ussher, J. M., Hawkey, A., Perz, J., Liamputtong, P., Marjadi, B., Schmied, V., … Brook, E. (in press).

Crossing the line: Lived experience of sexual violence among trans women of colour from culturally and linguistically diverse (CALD) communities in Australia (Research Report).

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Sydney: ANROWS anrows.org.au 9