Family Violence and the Victims of Crime Assistance Act 1996: Consultation Paper
3. Family violence in the community
Introduction
3.1 This chapter defines family violence and describes its dynamics and characteristics.
3.2 This chapter also provides an overview of the current policy and reform context to clarify how this reference complements and intersects with other reform activities.
Dynamics and characteristics of family violence
3.3 Family violence includes a broad range of behaviours, not limited to acts of physical or sexual violence. Family violence also encompasses psychological, emotional, cultural, spiritual and financial abuse.[1] As discussed in Chapter 6, family violence may not always constitute a criminal offence, and so may not be an ‘act of violence’ within the meaning of the Victims of Crime Assistance Act 1996 (Vic) (the Act).
3.4 Family violence has distinct characteristics and dynamics. Perpetrators of family violence are motivated by a desire for coercion, control and domination which can take the form of restricting access to money, communication devices and transport, or limiting a person’s contact with friends and family with the aim of isolating or, in some cases, imprisoning victims in their home.[2] Perpetrators of family violence exercise power and control over another person with the intent to intimidate, humiliate, undermine or isolate a victim.[3]
3.5 Family violence is rarely experienced as a ‘one-off’ event. Victims often experience family violence over a long period of time. Family violence manifests as a pattern of behaviour involving an escalating spiral of violence. Family violence is also characterised by periods of increased risk such as during pregnancy, separation or attempted separation.[4]
3.6 The cumulative harm of family violence has a severe impact on victims’ health and wellbeing, and makes social and economic disadvantage even worse, limiting a victim’s ability to escape violence or seek help and support.[5]
3.7 It is widely accepted that family violence is a gendered crime:
While both men and women can be perpetrators or victims of family violence, overwhelmingly the majority of victims are women and children, and the majority of perpetrators are men.[6]
3.8 The Victorian Royal Commission into Family Violence (the Royal Commission) found that the most common manifestation of family violence is intimate partner violence committed by men against their current or former female partners.[7]
Prevalence and community impacts
Prevalence and reported incidents of family violence
3.9 The Royal Commission comprehensively examined the prevalence of family violence and determined that overall, it is difficult to definitively determine what proportion of the population has experienced family violence—that is, the prevalence of family violence.[8] This is because family violence still remains hidden. Many victims may not report incidents of family violence or identify as victims. Victims may seek information or support but not report a matter to police. There may also be poor or inconsistent information collection by agencies supporting victims.[9]
3.10 However, the Royal Commission found that Victoria has experienced a significant increase in reported incidents of family violence.[10] Victoria’s Crime Statistics Agency has reported that in 2016 there were 78,628 family violence incidents.[11] Although these incidents fall within the definition of family violence under the Family Violence Protection Act 2008 (Vic), they may not necessarily constitute criminal offences.
3.11 The number of finalised family violence intervention order applications in the Magistrates’ Court of Victoria nearly doubled between 2000–01 and 2013–14, from 16,889 to 35,135 finalised applications.[12] In addition, criminal charges for contraventions of a family violence intervention order have more than tripled since 2004–05.[13] In 2015–16, family violence concerns were indicated in almost 50 per cent of reports to child protection.[14]
3.12 Research indicates that family violence affects a significant proportion of Australia’s population,[15] and that it is prevalent across all cultures, ages and socio-economic groups.[16] However, there are greater barriers to detection of, and responses to, family violence for some specific groups.[17] These include Aboriginal people, people with a disability, people from diverse cultural, linguistic and faith backgrounds, members of the LGBTIQ community, older people, people who work in the sex industry, people in prison or exiting prison and people who live in regional, rural and remote areas.
3.13 Despite increased detection and reporting, and the associated increase in proactive interventions by police and courts, family violence still remains hidden, under-reported and often undetected in our community. KPMG’s 2017 report The Cost of Family Violence in Victoria found that a high proportion of family violence is not reported to police.[18] KPMG estimated that in 2015–16, over 160,000 people experienced family violence in Victoria, more than double the 78,628 family violence incidents reported by Victoria’s Crime Statistics Agency in 2016.[19]
Effects on children and young people
3.14 Given the broader family violence data issues outlined above, ascertaining the extent to which children and young people are experiencing family violence is difficult. The Royal Commission concluded that the under-reporting of family violence made it difficult to determine the prevalence of family violence for children and young people, as with the general population. However, the Royal Commission also acknowledged that many homes in which family violence occurs will be homes in which children and young people reside.[20]
3.15 In this context, Victoria Police data analysed by the Royal Commission indicated children were present in around 35 per cent of family violence incidents. However, this figure is likely to represent only a portion of all actual family violence incidents against children and young people because of low family violence reporting rates.[21] The Royal Commission described children and young people as ‘silent victims’ because not only is there a lack of data, the family violence system has historically focused on the safety and wellbeing of women.[22]
3.16 The devastating effects of family violence on children and young people are now well established. These effects can be linked back to unborn children whose mother may be experiencing elevated levels of stress as a result of family violence, of which hormonal effects can be transferred to the foetus.[23] Infants have been found to be highly sensitive to prolonged periods of stress, and young children can suffer a range of physical, emotional and mental health effects arising from family violence occurring in the home.[24] Significantly, these effects occur irrespective of how a child or young person experiences family violence. As the Royal Commission found, the effects of hearing, witnessing or otherwise being exposed to violence are similar to the effects of experiencing direct physical violence.[25]
3.17 Aside from the physical, emotional and mental health effects, the Royal Commission also highlighted the connection between experiencing family violence as a child and later criminal offending behaviour. The intergenerational effects mean victims of family violence can also later become perpetrators of family violence themselves.[26]
3.18 Despite strong evidence confirming the physiological, psychological and emotional impacts of family violence, the Royal Commission found this knowledge has not been adequately translated into appropriate responses by the service system, including the legal system. The Royal Commission found that children and young people are not ‘passive’ witnesses or ‘secondary victims’, and that they should be recognised as ‘victims in their own right’.[27]
Impacts for victims of family violence in rural and regional communities
3.19 Although many issues faced by victims of family violence in metropolitan and regional areas may be similar, research suggests that living in a regional community can compound family violence victimisation.[28]
3.20 Accordingly, access to justice and support for victims of family violence in rural and regional communities was examined by the Royal Commission. The Royal Commission defined communities outside of Greater Melbourne as ‘regional’, based on the Australian Bureau of Statistics’ Estimated Resident Population statistics.
3.21 The Estimated Resident Population statistics show that as at 30 June 2016, 4,641,636 of Victoria’s population resided in Greater Melbourne and 1,428,000 (that is, approximately 24 per cent) resided in regional Victoria.[29]
3.22 The Royal Commission found that family violence victims living in regional communities are affected by a number of specific issues, including:
• geographic and social isolation
• privacy implications of reporting violence or seeking help in a small community
• cultural norms in small communities
• access to firearms and other weapons
• cross-jurisdictional issues in towns that border other states, including services being located across state borders
• surviving and recovering after natural disasters
• ‘intersectional disadvantage’—that is, some diverse groups being further disadvantaged by their rural or regional location.[30]
3.23 Similarly, research by Deakin University in 2013 found that ‘there are a range of issues unique to women living in rural and regional locations that compound barriers to safety including limited availability of services and geographic isolation’.[31]
3.24 Of particular relevance to this reference, the Royal Commission found a lack of family violence court specialisation in regional areas compared to metropolitan locations, leading to differences in court experiences for victims of family violence.[32] The Royal Commission also found barriers to accessing legal services in regional areas, including barriers to accessing lawyers from Victoria Legal Aid and Community Legal Centres.[33]
3.25 Other services, including medical and psychological services, can also be difficult for regional and rural victims of family violence to access. Services might not be available in a particular community and people may have to travel to access them. In some communities, multiple services may operate from the same location, posing privacy or safety issues.[34]
3.26 The Royal Commission concluded that ‘people experiencing family violence in rural, regional and remote communities face particular challenges. These include geographical and social isolation, greater economic vulnerability, cultural factors and a lack of access to services.’[35]
3.27 In light of the issues identified above, the Royal Commission found that regional communities pose specific challenges for government and the community in responding to family violence.[36]
Costs of family violence to the community
3.28 Family violence has significant social, economic and community impacts. These impacts are felt beyond the individuals and families directly affected by violence. They manifest in an increased burden on government and community services, as well as the broader economy. For example, family violence is the single largest cause of homelessness for women.[37] Intimate partner violence contributes to more death, disability and illness in women aged 18–44 than any other preventable risk factor.[38]
3.29 It has been estimated that violence against women costs Australia $21.7 billion a year, representing an approximate cost of $7.8 billion to each state and territory for health, administration and social welfare costs.[39]
3.30 KPMG’s 2017 report The Cost of Family Violence in Victoria estimated the total cost of family violence in Victoria as $5.3 billion in 2015–16.[40] In particular, service delivery for family violence was estimated at $1.7 billion, with over $1 billion of this going to justice-related services from Victoria Police, the courts and legal support services.[41] Costs to individuals and their families were estimated at $2.6 billion.[42]
Current policy context—an overview of recent relevant reviews and reforms
3.31 This part provides an overview of key recent reviews and reforms relevant to this reference.
3.32 These reviews and reforms provide a broader context for consideration of current issues in relation to family violence victims’ experience of the Victims of Crime Assistance Tribunal (VOCAT) and also reinforce that this reference is a small part of broader system changes and reforms being implemented in Victoria in relation to family violence.
3.33 For example, in response to Recommendation 37 of the Royal Commission, the Victorian Government has committed to developing a network of support and safety hubs.[43] Once these hubs are established, victims will be able to visit a single venue to access information and support, rather than having to seek these via multiple avenues.
3.34 These reforms are intended to improve linkages between victims, victim and family violence support services and the justice system, including VOCAT.[44] Five support and safety hubs are to be set up by the end of 2017.[45]
Royal Commission into Family Violence
3.35 The Victorian Royal Commission was established on 22 February 2015. The Commission was asked to report on how Victoria’s response to family violence can be improved by providing practical recommendations to stop family violence.[46]
3.36 As acknowledged by the Royal Commission, Victoria has been at the forefront of family violence policy development and reform for the past 15 years, providing a strong basis for improved responses to family violence in Victoria.[47] Key reforms already implemented in Victoria include:
• introduction of the Family Violence Protection Act 2008 (Vic)
• development of Victoria Police’s Code of Practice for the Investigation of Family Violence
• establishment of specialist family violence court divisions and services within the Magistrates’ Court of Victoria.[48]
3.37 The Royal Commission comprehensively assessed all components of the government’s and community’s response to family violence. On 29 March 2016, the Royal Commission handed down its final report.
3.38 The Royal Commission concluded that despite a sustained effort to address family violence in the community through structural and procedural reform, serious limitations to the existing approach remained.[49]
3.39 In making 227 recommendations, the Royal Commission has proposed an agenda for change across Victoria’s health, justice and social service systems.[50] The recommendations aim to improve outcomes for victims of family violence, improve perpetrator accountability and bring about change in community attitudes towards family violence.
3.40 The Royal Commission recommendations encompass significant reforms to:
• risk assessment and management, pathways to services and information sharing
• specialist family violence services and creating a safe home
• responses to children and young people’s experience of family violence (including the child protection system) as well as to adolescents who use family violence
• sexual assault and family violence responses
• police operations and leadership
• court responses, offences and sentencing, restorative justice and family law
• prevention and perpetrator interventions
• health and wellbeing approaches, including in the workplace
• family violence and diversity, vulnerable cohorts and impacts on specific communities
• governance arrangements, industry planning and investment in data and research (including ongoing review of family violence deaths).[51]
3.41 This reference directly relates to matters raised by Recommendation 106 of the Royal Commission, which recommends that:
The Victorian Law Reform Commission consider the matters the Commission raised in this report in relation to the Victims of Crime Assistance Tribunal and the Victim Assistance Program in its Victims of Crime in the Criminal Trial Process review. To the extent that these matters do not fall within the terms of reference for that review, the Attorney-General should amend the terms of reference or ensure that a separate review of these matters is carried out.[52]
3.42 Recommendation 106 formed part of the Royal Commission’s findings about ‘recovery and wellbeing’ for victims of family violence. These findings emphasised that the cumulative effects of family violence can be made worse by difficulties victims have in navigating the justice and service system, including attempting to gain social and financial independence.[53]
3.43 The Royal Commission’s findings about access to VOCAT for victims of family violence are not specifically set out in Recommendation 106. Instead, the recommendation refers to ‘matters raised’.
3.44 Matters raised by the Royal Commission in relation to VOCAT included:
• eligibility requirements for VOCAT and the Victims Assistance Program (VAP); ensuring victims of family violence do not face additional barriers to accessing assistance; and the merits of a combined VOCAT/victim support system
• the ‘criminal’ threshold for accessing VOCAT, which excludes family violence victims when conduct is not criminal in nature
• whether a victim of a breach of a family violence intervention order should be eligible to access VOCAT
• whether the Act adequately takes into account the cumulative harm and long-term effects of family violence
• whether the Act should be amended to increase the maximum amount of special financial assistance that can be awarded to victims of family violence to the Category A maximum amount where there are related criminal acts
• whether the Act should be amended to ensure the nature and dynamics of family violence are appropriately taken into account by VOCAT with respect to notification provisions, time limits for applications and consideration of the conduct of applicant victims
• whether magistrates need increased education and training in relation to family violence dynamics as they relate to VOCAT applications.
3.45 The Royal Commission recommended the Victorian Law Reform Commission (VLRC) consider these matters either as part of its reference relating to the role of victims in the criminal trial process or as part of a separate review.[54] The VLRC report, The Role of Victims of Crime in the Criminal Trial Process, was delivered to the Victorian Attorney-General on 31 August 2016. Its terms of reference did not cover the matters specified in Recommendation 106 of the Royal Commission. Accordingly, the Victorian Attorney-General referred these matters to the VLRC in this reference.
Victorian Government response: Ending Family Violence: Victoria’s Plan for Change
3.46 The Victorian Government has committed to implementing all recommendations of the Royal Commission. Ending Family Violence: Victoria’s Plan for Change outlines how the Victorian Government intends to implement the 227 recommendations of the Royal Commission.[55] The government has acknowledged that implementation of the recommendations is ambitious and the breadth and scale unprecedented.[56]
3.47 There are four broad outcomes articulated in the plan:
1) Family violence and gender inequality are not tolerated.
2) Victim survivors, vulnerable children and families, are safe and supported to recover and thrive.
3) Perpetrators are held to account, engaged and connected.
4) Preventing and responding to family violence is systemic and enduring.
3.48 VOCAT is a key component of victim support and recovery, and directly relates to Outcome 2: Victim survivors, vulnerable children and families, are safe and supported to recover and thrive.
3.49 The plan also articulates key improvements to family violence support which are relevant to, although out of the scope of, this reference, including expanding specialist family violence courts across the state and establishing support and safety hubs.[57]
Other relevant reviews
Victorian Law Reform Commission—The Role of Victims of Crime in the Criminal Trial Process
3.50 In October 2014, the Victorian Law Reform Commission (the Commission) was asked to review the role of victims of crime in the criminal trial process. As part of this review, and of direct relevance to this reference, the Commission was asked to consider the making of compensation, restitution or other orders for the benefit of victims against offenders as part of, or in conjunction with, the criminal trial process.
3.51 In August 2016, the Commission delivered its report, The Role of Victims of Crime in the Criminal Trial Process. The Commission made recommendations aimed at improving the legislative framework and practical operation of restitution and compensation orders against offenders.[58] However, the Commission also acknowledged that for some victims of crime, state-funded financial assistance through VOCAT might be the only means of obtaining financial reparation.[59]
3.52 The Commission also identified some preliminary concerns with access to VOCAT for victims of family violence. In a roundtable with magistrates, the Commission was told that the Act does not accommodate the particular dynamics and characteristics of family violence and is framed around a conception of crime as a single violent act.
3.53 Section 52 of the Act requires VOCAT to refuse an application where an act of violence has not been reported ‘within a reasonable time’ or where a victim has failed to provide ‘reasonable assistance’ to investigatory or prosecutorial bodies. Stakeholder proposals included that section 52 be amended to list family violence as a factor VOCAT should be able to take into account when deciding not to refuse an application.
3.54 Although raising the above matters, the Commission acknowledged that further consideration of these issues was beyond its terms of reference.
3.55 However, the Commission did make recommendations relating to restricting access to, and use of, VOCAT records to protect victims of crime during the VOCAT and criminal trial process. Given victims apply for assistance from VOCAT to help them with their recovery, the Commission found that victims should not be discouraged from seeking financial assistance out of fear that an offender or family violence perpetrator may access or use their VOCAT records in a criminal proceeding.[60]
Australian Law Reform Commission and New South Wales Law Reform Commission review
3.56 In 2010, the Australian Law Reform Commission and New South Wales Law Reform Commission jointly undertook a review of legal responses to family violence across Australian jurisdictions. The terms of reference asked the commissions to examine:
• the interaction in practice of state and territory family/domestic violence and child protection laws with the Family Law Act 1975 (Cth) and relevant Commonwealth, state and territory criminal laws
• the impact of inconsistent interpretation or application of laws in cases of sexual assault occurring in a family/domestic violence context, including rules of evidence, on victims of such violence.[61]
3.57 The terms of reference also asked the commissions to consider what improvements could be made to relevant legal frameworks to protect the safety of women and their children.[62]
3.58 The review also considered state and territory victim compensation and financial assistance schemes and their application for victims of family violence. The review found that compensating victims of crime is part of a trend towards greater recognition of victims of crime and affirmed that such schemes are an important element of victim support.[63]
3.59 The review recommended changes to victims’ compensation legislation to ensure victims of family violence are not disadvantaged. In particular, they recommended that applicable state and territory legislation be amended to:
• expand the definition of ‘act of violence’ or ‘injury’ to include ‘family violence’
• ensure acts are not treated as ‘related acts’ merely because they are committed by the same person (and legislation should allow a victim to object if claims are to be treated as ‘related’)
• ensure compensation is not denied on the basis that it would advantage or benefit an offender, specifically as these provisions discriminate against victims of family violence.[64]
3.60 These issues largely remain unresolved in Victoria and were raised again by the Royal Commission. The Victorian Law Reform Commission considers these issues in detail in Part Two of this consultation paper.
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Department of Premier and Cabinet (Vic), Ending Family Violence: Victoria’s Plan for Change (2016) vi.
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Victoria, Royal Commission into Family Violence, Report and Recommendations Volume I (2016) 18–19.
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Department of Premier and Cabinet (Vic), Ending Family Violence: Victoria’s Plan for Change (2016) vi.
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Victoria, Royal Commission into Family Violence, Report and Recommendations Volume I (2016) 20–3.
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Ibid 37. See also Department of Premier and Cabinet (Vic), Ending Family Violence: Victoria’s Plan for Change (2016) 2.
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Department of Premier and Cabinet (Vic), Ending Family Violence: Victoria’s Plan for Change (2016) vi.
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Victoria, Royal Commission into Family Violence, Summary and Recommendations (2016) 2.
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Ibid 18.
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Victoria, Royal Commission into Family Violence, Report and Recommendations Volume I (2016) 47.
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Victoria, Royal Commission into Family Violence, Summary and Recommendations (2016) 18.
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Crime Statistics Agency, Family Incidents (19 May 2017) <www.crimestatistics.vic.gov.au/crime-statistics/latest-crime-data/family-incidents-2>.
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Magistrates’ Court of Victoria and Children’s Court of Victoria, Submission No 978 to Royal Commission into Family Violence, Royal Commission into Family Violence (June 2015) 20.
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Ibid 20.
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Department of Premier and Cabinet (Vic), Ending Family Violence: Victoria’s Plan for Change (2016) 3.
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Centre for Innovative Justice, Opportunities for Early Intervention: Bringing Perpetrators of Family Violence into View (RMIT University, 2015) 15.
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Janet Phillips et al, Domestic Violence: Issues and Policy Challenges, Research Paper Series 2015–16 (Parliamentary Library, Parliament of Australia, 2015) 4.
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See, eg, Department of Premier and Cabinet (Vic), Ending Family Violence: Victoria’s Plan for Change (2016) 3.
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KPMG, The Cost of Family Violence in Victoria, Summary Report (2017) 5.
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Crime Statistics Agency, Family Incidents (19 May 2017) <www.crimestatistics.vic.gov.au/crime-statistics/latest-crime-data/family-incidents-2>. The Crime Statistics Agency publishes recorded crime statistics every quarter and annually for each year ending in December. Latest crime statistics for family incidents is for the year ending December 2016.
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Victoria, Royal Commission into Family Violence, Report and Recommendations Volume II (2016) 103.
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Ibid.
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Ibid 101.
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Ibid 105.
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Ibid 106.
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Ibid 107.
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Ibid 111.
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Ibid 142.
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Amanda George and Bridget Harris, Landscapes of Violence: Women Surviving Family Violence in Regional and Rural Victoria (Deakin University School of Law’s Centre for Rural and Regional Law and Justice, 2014) 46; Victoria, Royal Commission into Family Violence, Report and Recommendations Volume V (2016) 223.
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Australian Bureau of Statistics, Regional Population Growth, Australia 2015–16, cat no 3218.0 (2017) <www.abs.gov.au>.
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Victoria, Royal Commission into Family Violence, Report and Recommendations Volume V (2016) 216–23.
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Lucinda Jordan and Lydia Phillips, Women’s Experiences of Surviving Family Violence and Accessing the Magistrates’ Court in Geelong, Victoria (Deakin University School of Law’s Centre for Rural and Regional Law and Justice, 2013) 9.
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Victoria, Royal Commission into Family Violence, Report and Recommendations Volume V (2016) 224.
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Ibid 225.
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Ibid 225.
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Ibid 229.
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Ibid 216.
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Department of Premier and Cabinet (Vic), Ending Family Violence: Victoria’s Plan for Change (2016) 2.
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Ibid.
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PricewaterhouseCoopers Australia, A High Price to Pay: The Economic Case for Preventing Violence Against Women (2015) 2.
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KPMG, The Cost of Family Violence in Victoria, Summary Report (2017) 2.
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Ibid 7.
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Ibid 8.
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Department of Premier and Cabinet (Vic), Ending Family Violence: Victoria’s Plan for Change (2016) 36. In May 2017, the Victorian Government announced funding of $448.1 million to establish 17 support and safety hubs, with the first hubs to be launched in Barwon, Bayside Peninsula, Inner Gippsland, Mallee and North-East Melbourne regions from late 2017: Department of Treasury and Cabinet (Vic), Getting on with the Job, Victorian Budget 17/18 Overview (2017) 20.
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See, eg, ‘Case Study: Marla’s Experience in the Future’, which envisages a support and safety hub connecting victims with a lawyer to assist with an application to VOCAT: Department of Premier and Cabinet (Vic), Ending Family Violence: Victoria’s Plan for Change (2016) 40–1.
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Ibid 20.
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Victoria, Royal Commission into Family Violence, Summary and Recommendations (2016) 1.
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Ibid 5.
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Ibid.
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Ibid.
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Department of Premier and Cabinet (Vic), Ending Family Violence: Victoria’s Plan for Change (2016) 2.
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This is a high level thematic summary of the 227 recommendations. For a comprehensive list, see Victoria, Royal Commission into Family Violence, Summary and Recommendations (2016) 45–106.
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Victoria, Royal Commission into Family Violence, Report and Recommendations Volume IV (2016) 87.
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Ibid 65.
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Ibid 87.
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Department of Premier and Cabinet (Vic), Ending Family Violence: Victoria’s Plan for Change (2016) IX.
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Ibid.
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In May 2017, the Victorian Government announced funding of $448.1 million to establish 17 support and safety hubs and $269.4 million to enhance the response of Victoria’s legal system to family violence, including implementation of the specialist family violence court model in several locations across the state: Department of Treasury and Cabinet (Vic), Getting on with the Job, Victorian Budget 17/18 Overview (2017) 20.
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Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process, Report No 34 (2016) xxvii–xxviii.
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Ibid xx.
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Recommendations 50 and 51 recommended that documentation in VOCAT proceedings should be inadmissible as evidence in criminal proceedings except in certain circumstances, and that such documents must not be subpoenaed.
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Australian Law Reform Commission, Terms of Reference (Family Violence, 2009) <www.alrc.gov.au/inquiries/family-violence/terms-reference>.
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Ibid.
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Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence—A National Legal Response: Final Report, ALRC Report No 114 and NSWLRC Report No 128 (2010) 182.
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Ibid 1395.
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