Victim and Witness Rights

Section 11: Protection of the Family

The term ‘family’ has a broad meaning that recognises the many different types of families who live in the ACT. Family life covers close and personal ties of a family kind. It does not just cover blood ties or formal relationships and goes beyond the so-called ‘nuclear family’. It includes a right to develop normal family relationships and the right to ongoing contact if a family separates.

This right is a qualified right, which can be limited or restricted in certain circumstances to protect the rights of others or the interests of the wider community. For example, a child may be separated from their parents if there is evidence of child abuse. Any interference with this right must be lawful, necessary and proportionate.

Investigation Stage
Some relevant considerations for victims when considering the concept of protection of family during the investigation stage would include:

  • ACT Policing must ensure they consider the victim when making a decision about whether police bail should be granted to a defendant. They must consider the likelihood of the defendant harassing or endangering the safety or welfare of anyone [Bail Act 1992 (ACT) s 22], and take into account any concerns the victim has about their need for protection [Ibid, s 23A].
  • in situations where a victim has expressed concern about their need for protection from violence or harassment from a defendant, the police informant is required to inform the victim liaison officer about any bail decisions by police. The liaison officer is required to take all reasonable steps to tell the victim of bail decisions as soon as practicable.

Court stage
Some relevant considerations for victims when considering the concept of protection of family during the court stage would include:

  • in Childrens Court – when making decisions about whether a child needs to be removed from the care of a parent, and in considerations of suitable out-of-home care for that child;

Example: A woman living in a domestic violence situation, and Care and Protection Services (CPS) are concerned about the impact of violence on the children. Her children are removed from her care because she is unwilling or unable to guarantee the children will not have contact with the alleged perpetrator.

A human rights approach would consider examining the supports and services that would be needed for her to enable the children to remain in her care in a manner that would protect their rights to be safe, and if this is not possible finding a carer placement as close as possible to the family e.g. a grandparent. It would also involve ensuring appropriate resourcing for agencies to provide ongoing services after the “crisis” event to ensure trauma is not exacerbated. Lack of resources post-crisis can lead to victims of domestic violence situation deteriorating , for example becoming homeless.

  • in Childrens Court – when making decisions about the child’s contact with family members and significant people in their lives. The Children & Young People Act 2008 acknowledges that a child’s best interests may involve maintaining contact with a person outside their immediate family;
  • when considering whether bail should be granted to a defendant – the Court must consider the likelihood of the person harassing or endangering the safety or welfare of anyone [Bail Act 1992 (ACT) s 22], and to take into account any concerns the victim has about their need for protection [Ibid, s 23A];
  • when a decision has been made about the grant of bail or review of bail by a court, if the victim has expressed concern about the need for protection from violence or harassment, the police informant must tell the ACT Policing victim liaison officer and that officer must take all reasonable steps to tell the victim about the bail decision as soon as practicable [Bail Act 1992 (ACT) s 47A].

Case example (right to equality, rights to family)
A single mother in Victoria, living with cerebral palsy was at risk of having her daughter taken from her by Child Protection. She needed to demonstrate that with the appropriate assistance she would be competent, both emotionally and physically, to care for her daughter. The advocate in this case used the Victorian Charter of Human Rights to communicate the woman’s rights through mediation in the Children’s Court with Care and Protection.

These rights included recognition and equality before the law, and protection of families and children. The woman was provided the opportunity to demonstrate that she had adequate supports in place to ensure the safety of her child and to give her the full recognition of her capability of mothering her child, so that Child Protection are no longer involved.

Source: Leadership Plus: Submission for Review of the Victorian Charter of Human Rights and Responsibilities Act 2006.