SUBMISSION TO ATTORNEY-GENERAL’S DEPARTMENT

DECEMBER 1997

Introduction * Encouragement to Use "Primary Dispute Resolution" (PDR) Mechanisms *Objectives of Structure * Physical Shift From Family Court * Conclusion

Introduction

We offer free legal advice, information and referral to women in Queensland both by telephone and face to face interviews. A 1800 facility and a staff position dedicated to rural work ensures that we have contact with women from all over the state. The Service employs a social worker who provides counselling to women who have experienced or are continuing to experience domestic violence in their relationship.

Although we provide assistance to women on a range of legal matters, the majority of inquiries to our Service relate to the areas of family law and domestic violence. Women often seek assistance from us when they are dissatisfied with the mainstream services through which they have been channelled or when they feel their concerns (particularly about violence) are not being taken seriously within the legal system.

It is not our intention to answer all of the questions posed in the Discussion Paper. Rather we wish to highlight the concerns we hold for some of the ideas expressed, based on our understanding of the real consequences of the legal and ancillary processes for women who have separated from violent partners.

Encouragement to Use "Primary Dispute Resolution" (PDR) Mechanisms

One of the most serious concerns of the WLS is the way in which non-judicial mechanisms are being given primacy (as the new term primary dispute resolution reflects) as the acceptable way to resolve issues at the time of a relationship breakdown. While it is valuable to encourage parents or former partners to reach agreement about future arrangements for their children or the distribution of their assets and finances, in many instances this may be extremely difficult and traumatic.

The Discussion Paper states frankly that the "overall emphasis [is] on seeking non-judicial solution for families, although we note that the qualification that

. . . PDR may not be an appropriate dispute resolution mechanism in all cases, such as those involving violence or abuse, where there are significant power imbalances between the parties (p. 6).

Our difficulty with this approach is that it appears to ignore the reality of what is known about the prevalence of domestic violence in the community and the way in which that intersects with people who require formal intervention in dealing with separation issues. Many women who contact the WLS for assistance have suffered domestic violence ranging from severe verbal abuse to brutal physical attacks requiring hospitalisation.

These women will often be unable to negotiate any satisfactory solutions directly with their former partners and will require some type of intervention. The findings of the Research/Evaluation of Family Mediation Practice and the Issue of ViolenceFinal Report (Family Violence and Mediation Report) are not surprising. The exit surveys of female clients-

indicated that the incidence of physical violence or other forms of abuse is high in relationships which are currently presenting to family mediation agencies funded by LAFS (p. ii)

The agencies had assessed almost one third of the cases as involving violence, but almost three-quarters of the women who participated in the survey reported that they had experienced some form of violence or abuse.

The reality is that domestic violence is wide spread throughout the community and is one of the most significant factors in determining appropriate mechanisms for resolving disputes after a separation. For many couples who require formal intervention, domestic violence will be an issue. Therefore any mechanism which does not work well for couples where there is a history of abuse will be of limited benefit to the community.

It is our view that it is time to pause and reflect before expansion of the non-judicial infrastructure continues.

Objectives of Structure

Good Outcomes for Clients

Some of the assumptions which underpin the Discussion Paper seem to be inaccurate and this may mean the incorrect proposals result. For example, the Paper states that-

The outcomes for clients from PDR should be better than those achieved from litigation because, in most cases, resolution will have been achieved with greater ownership and control for them (p. 8).

When preparing our submission on the Family Law Reform Bill in 1995 the WLS examined the Evaluation of the Family Court Mediation Service in Melbourne. We expressed our concern about the appropriateness of agreements reached and the lack of objective empirical data-

We hold significant concerns about the appropriateness of agreements made as a result of mediation. The Mediation Evaluation did not contain any assessment of the objective fairness of agreements reached judged against any social justice formula. For example, there is no breakdown of the extent to which the parent who was the primary care giver of the children during the relationship retained custody of the children after the separation or the way in which access arrangements were a true reflection of the ability of the non-custodial parent to care for the children.

In respect of property matters, the issue of financial disclosure was briefly canvassed. It was reported that in 87% of cases the parties "disclosed the required material although 13% of clients were willing to settle without the need or benefit of a full financial disclosure" (p. 60). The problems with this are, firstly, it is inappropriate that any party should settle without the benefit of full financial disclosure and, secondly, it is impossible to assess the extent to which genuinely full disclosure was made in the 87% of cases where some disclosure was made. Particularly in instances where the parties were not receiving any legal advice, it is quite possible that the financially powerful and knowledgeable party (usually the husband) may only make partial disclosure and this would be unknown to the other party.

The only way in which the true appropriateness of mediation in property settlement cases could be assessed would be to compare the actual outcomes of agreements reached through mediation with judicial decisions in similar cases and then apply some objective criteria. For example, it would be useful to compare the extent to which the party who had ongoing day to day responsibility for the children was able to remain in the former matrimonial home and the ways in which superannuation was handled.

The evaluations which have been conducted since then do not allay concern. There are suggestions that women "understated their claims on property for fear that their ex-partners would attempt to gain access" (Family Violence and Mediation Report, p. 102).

Our clients who have been through Legal Aid Conferencing processes tell us that they feel to obliged to compromise and strike an agreement. They believe that if they do not agree, they will not receive legal aid funding to litigate in the Family Court. They know that they must appear "reasonable". This is very difficult for a woman who has been subjected to horrendous abuse by the person with whom she must negotiate and when she has been emotionally drained by his failure to nurture a relationship with his children.

In respect of financial matters, full information about the assets available is essential to any assessment of the "fairness" of the agreement reached. However, the exit survey of women conducted for the Family Violence and Mediation Report revealed that-

22 respondents (27%) thought that their ex-partner had made a full and frank financial disclosure during mediation, but 39 (48%) disagreed with this proposition (p. 64).

Furthermore, only 11% of the women in the cases where the agency had identified violence thought that full disclosure had been made, whereas this figure rose to 35% amongst women identified as the "no violence" cases.

The quality of life women affects the quality of life of the whole community. Where women do not receive adequate financial assistance from the fathers of their children and feel unable to protect their children against violent and abusive fathers, the quality of life of the nation is reduced.

Satisfaction With and Durability of Agreements

The Discussion Paper also claims that-

Experience has shown that non-litigated resolutions, like mediation, more effectively meet the particular needs of the parties, producing high satisfaction rates, and are durable (p. 8).

However, the exit survey of women clients in the Family Violence and Mediation Report found that-

Feedback on the issue of satisfaction [with agreements] was mixed and sometimes contradictory (p. 105).

The Report on Outcomes, Costs and Client Satisfaction of Federally-Funded Family Mediation in Sydney (Sydney Report) discovered that some parties will find the need to litigate in the Family Court within three months of reaching a mediated agreement-

Only [not a word WLS would use here] 11% of the respondents had filed an application related to the subject of mediation which was being contested in the Family Court; and only 2% had completed a contested hearing (p. 23).

Exclusion of Family Violence Cases

In recognition of the need to screen out some cases the Paper states-

A realistic goal is to ensure that those people who turn to the adversarial system only do so after trying every other means of resolution. This would not be appropriate in some cases where there is a history of family violence (p. 8).

However, it is our submission that this paragraph shows a misconception of the extent of domestic violence in the community and the number of cases which should be screened out of mediation processes.

The WLS does not suggest that every women who has been a victim of domestic violence should be prohibited from using mediation, but we believe that, where there is a history domestic violence, the decision to use mediation must be the choice of the victim. Otherwise mediation must be assumed to be inappropriate for that couple and they must be assured Legal Aid funding to initiate proceedings in the Family Court regarding the matters in dispute between them. The Discussion Paper notes that "for those cases that are unsuitable for PDR, it would be essential to ensure that clear access to the Court is maintained" (p. 14). This is true whether or not increased or different forms of PDR are established.

An already existing problem is that exclusion from community based mediation processes does not mean an automatic grant of Legal Aid (providing financial eligibility tests are met). In our experience, all applicants for Legal Aid are required to try to find a mediated resolution to their dispute. A history of domestic violence is not an exclusionary factor at Queensland Legal Aid.

Many of our clients come to our Service as a last resort when they are unable to live with the consequences of an inappropriate order which has resulted from Legal Aid Conferencing. In some cases the women are seeking variations of the orders but are not getting to first base because they cannot get legal aid to vary a recent consent order made in the Family Court. The fact that the order was driven by Legal Aid's own conferencing process is not considered relevant and the concerns that this should raise are not understood.

The Family Violence and Mediation Report stressed the on-going pressure that some women experienced-

a significant minority of women described themselves as experiencing ongoing harassment and intimidation directly related to the matters to be mediated. This ranged from continuation of the emotional abuse which had characterised the relationship (including, for example, threats to children and threats to pursue access or property matters in Court unless the partner's claims were accepted), to direct physical intimidation . . . (p. 108).

Not only are women forced to mediate despite the history of violence, but they also report that the violence is not taken into account in the negotiations. For example, women have told us of situations where the impression they gain at the conference, through their solicitor and the conference facilitator, is that the history of violence is not very relevant to questions of contact. They feel they will be branded as unreasonable if they do not allow significant contact and it is made clear that they will not be granted legal aid to litigate.

They are often surprised when we inform them of the relevance of family violence under s68F(2) of the Family Law Act. It is our opinion that the approach to legal aid is affecting the jurisprudence of the Family Court because so many cases involving family violence are inappropriately "settled". While this happens, and the jurisprudence remains largely static, solicitors will continue to convince women to grant contact to violent fathers because it is thought that the Family Court will not deny contact. Recent decisions such as Re Andrew (1996) FLC 92-692 suggest otherwise, but the culture of acceptability at the Legal Aid Office is that some contact must nearly always be offered.

Legal Aid is the de facto gatekeeper of the Family Court. If effective screening processes were established there must be a clear path open to the couples who are excluded from mediation. If a registered mediation agency excludes a couple, they must be automatically entitled to legal aid and adequate budgetary allocations must be made.

Contestability

The Family Violence and Mediation Report found that there was a-

sense of competition in the mediation 'market'. Several coordinators reported that they felt their agency must 'compete' with mediation services or other alternative dispute resolution services provided by the Family Court, Legal Aid, State-funded community justice centres and private solicitors (p. 33).

If private practitioners enter the field, the parameters change again because very direct financial interests are influenced by the particular assessment made.

Physical Shift From Family Court

Would There be Less Litigation (Q. 13)

The Paper comments that-

A key question would be whether families in crisis would be less likely to become embroiled in legal proceedings if the first services used were not within a court environment (p. 12).

Speical Characteristics of Family Court Counselling Section (Qs 4,5 & 23)ny of the specific questions posed by the Paper impliedly recognise the special charactnswering each question in detail the WLS wishes to record the following observations-

a. the manner in which Family Court counsellors deal with clients of the Family Court is to provide counselling first, not formal mediation. This is a very important service for separating parties and is a vital adjunct to court processes. The Sydney Report found that "[r]elatively few people agreed that mediation helped them understand their children's needs and reactions to separation";

b. the only really practical way to provide urgent counselling during court proceedings is to have the facilities on the premises;

c. court counsellors have developed a unique expertise which has developed, and can only be maintained, by the many informal and intangible results of operating within the framework of the Family Court itself;

d. the presence of the counselling section within the courts themselves also means that judges can have both formal and informal contact with professionals skilled in social welfare issues. It is impossible to estimate the potential impact on the jurisprudence of the Court of any removal or reduction of the counselling section;

e. although, in our opinion, some reports written by Family Court counsellors do not adequately address family violence issues, the WLS believes that the most consistent expertise on the relevance of family violence to Family Court proceedings vests in those counsellors; and

f. many women find it difficult, if not impossible to get their partners to attend counselling. It seems that the authority of court based counselling sometimes facilitates this process - a critical service for women with these unwilling partners.

Security Issues

The WLS is doubtful that the community sector can easily provide the kind of flexible and broad ranging security arrangements which the Family Court can implement.

Conclusion

Overall we hold concerns about the current drive towards expanding PDR in Australia. It is fast becoming an industry with a complex infrastructure. It is questionable whether it is much cheaper to engage a couple in hours of mediation or run a simple matter through the Family Court. For some women, the mediation process is obviously exhausting and unsatisfactory.

There must continue to be a mix of services for people to select from at a time of separation, but the WLS believes that it is inappropriate, and even dangerous, for PDR to be given a predominant position in this arena.

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