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SUBMISSION BY THE
WOMEN'S LEGAL SERVICE INC (Queensland)
PO Box 119
Annerley Qld 4103
email: wlsi@gil.com.au

TO THE AUSTRALIAN LAW REFORM COMMISSION
ISSUES PAPER 22: REVIEW OF THE ADVERSARIAL SYSTEM OF LITIGATION

RETHINKING FAMILY LAW

September 1998

Note: this submission is marked up on three pages. If you are printing the submission from the web print this page, then the submission continued, then Annexure 1
The ALRC issues paper to which this submission responds is on the web at: http://www.alrc.gov.au/current/adr/04.html

About the Women's Legal Service
Preliminary Issues
The Family Law Litigation System - Chapter 2
Information Needs - Chapter 3
Role and objectives of Family Law Proceedings - Chapter 4
Perceived problems in Family Law Proceedings - Chapter 5
Primary Dispute Resolution and Information Services - Chapter 7
Case Management and the Family Court of Australia - Chapter 8
Evidence and Procedure in the Family Court - Chapter 10
The Litigant in Person - Chapter 11
The Costs of Family Law Proceedings - Chapter 14
Enforcement - Chapter 16
Special Issues -Chapter 17
The Future of Family Law
Legal Aid
Annexure 1: Women's Experiences with the Family Court and Legal Aid
Bibliography

WOMEN'S LEGAL SERVICE INC

The Women's Legal Service (WLS) is a community legal centre developed and operated by women for women. Our work is grounded in and informed by women's experiences of the legal system and recognises the extent to which violence impacts on the lives of women at all levels of the legal system. We have been operating since 1984 and are involved in a range of networks throughout the State.

As part of the community legal centre (CLC) sector we endeavour to play a role in facilitating legal and social change by undertaking community legal education and law reform activities. Within the domestic violence network we work particularly towards effecting structural change.

The Service employs staff with a variety of expertise including solicitors, social workers and community workers. There is a full time social work position dedicated to working with survivors of domestic violence. We have an even broader range of expertise in our volunteers who also include academics and students. Our management committee similarly reflects a diversity of skills and comprises women from different cultural backgrounds, including two Indigenous women.

We offer free legal advice, information and referral to women in Queensland both by telephone and through face to face interviews. A 1800 facility and a designated rural worker ensure that we have contact with women from all over the state. In 1997-98 we provided assistance to over 6,000 women. Although we provide assistance to women on a range of legal matters, approximately 75% of our client contacts relate to 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. Therefore we believe that we have significant client and policy based expertise to bring to this reference.

Our consideration of Issues Paper 22 - Review of the Adversarial System of Litigation: Rethinking Family Law (IP) has been conducted through a sub-committee and consultations with members of staff, management committee, volunteers, solicitors and barristers specialising in family law in private practice, a deputy registrar and counsellor of the Family Court of Australia (the Court) (Brisbane Registry), women with mediator training, workers in domestic violence services and other CLCs and academics. We do not intend to answer all of the questions raised in the IP. Our submission will largely focus on important substantive issues which we have identified as falling directly within our field of expertise based on our understanding of the real consequences of the legal system and ancillary processes for women who have separated from violent partners.

PRELIMINARY ISSUES

Terms of Reference - p 5

Where is Safety of Women and Children?

It is instructive to note that the original Terms of Reference formulated by the then Attorney-General, the Hon Michael Lavarch MP, commenced with the words-

HAVING REGARD TO:

the need for a simpler, cheaper and more accessible legal system

Although the "operative terms of reference" were altered by the current Attorney-General, the Hon Daryl Williams, AM QC MP, we believe that the underlying theme through the IP is finding ways to make the legal system, as it pertains to family law, less costly for government. While cost is always a relevant consideration, we are concerned that it has been promoted to the central feature of the discussion. This has minimised the importance of safety for women and children, which is the greatest concern of our client group.

The Family Law Reform Act 1995 (the "Reform Act") amended section 43 of the Family Law Act ("the Act") to include "the need to ensure safety from family violence" as one the guiding principles of the Act. Given this clear policy directive, we would have thought that domestic violence, child abuse and the safety of women and children should have had a high priority in the IP, but this has not occurred in any serious way. Although these issues have been ventilated, it is our opinion that their real impact has not been understood.

Ironically, failure to address these concerns early often affects the public purse at the later date. Women who have been and continue to be subjected to violence are often required to rely on many public services including health care, counselling and support and social security. Domestic violence destroys self confidence. The violence often continues, even after separation, partly because women are unable to obtain proper protection from the law. In these circumstances women have less capacity to re-educate, re-train or re-enter the workforce. This renders some women reliant on social security and affects the quality of life of themselves and any children who reside with them.

Identified Key Issues - p 13

Selection of Key Issues

It appears that the ALRC selected the key issues on which to focus but, in our opinion, those identified in the Introduction do not necessarily represent the issues most in need of review. In particular, the relevance of a history of domestic violence to both adversarial and non-adversarial processes, should have been investigated.

Recommendation One

That the relevance of a history of domestic violence to both adversarial and non-adversarial processes should be a central theme of the ALRC's investigation.

Lack of Data - p 13

While it is true that there is much room for improvement in the collection of data at the Court, significant data already exists regarding the economic and social consequences of marriage breakdown and consequent legal proceedings. Studies have been constantly undertaken by agencies and individuals such as the ALRC, the Australian Institute of Family Studies (AIFS) the Family Law Council (FLC), various academics and community organisations. The findings and recommendations from these studies seem all too rarely to influence policy and legislative change.

Adversarial and Alternative Dispute Resolution - p 13

Some of the thinking which directs the IP appears to emerge under the heading "Adversarial and alternative dispute resolution":-

an adversarial approach may be desirable where matters are 'hotly contested' by the parties, such as allegations of spousal violence or child violence or sexual abuse or where there are complex or novel factual or legal disputes (IP p 13).

It is actually our experience that allegations of spousal violence are rarely "hotly contested" but rather are "excused", "explained" or the circumstances refuted by the alleged abuser. Child sexual abuse is often denied and, while it may be necessary for these matters to proceed to trial, the issue for the woman is to ensure the safety of the child. This is often described as a "conflict between the parties". Including cases with "novel factual or legal disputes" in the same sentence, and endeavouring to categorise these disputes in a similar manner demonstrates a fundamental misunderstanding of the issues women's groups are trying to place on the law reform agenda.

Consultations - p 15

Composition of the Advisory Group - p 15

Without in any way wishing to criticise the individual expertise of the members of the Advisory Group, we are disappointed at its gender imbalance and lack of specific expertise on domestic violence. Of the 18 members of the Advisory Group only four are women, and of the seven extra members added by the Family Proceedings Working Group, only three more women are added.

Although we do not know the background of all of the people listed, it appears that financial expertise was the only discipline enlisted from outside the law. There appear to be no social scientists or others who would bring a different and fresh perspective.

The ALRC should consider a more innovative approach and include refuge workers, domestic violence workers and lawyers from community legal centres on such committees. Their input would be new and truly challenging.

Recommendation Two

That the ALRC include refuge workers, domestic violence workers and lawyers from community legal centres on its committees.

Submissions - p 154

Appendix B provides a list of submissions but the IP does not disclose how those individuals or groups were invited to submit. Clearly it is important to obtain public input in early stages but the process has not been described. We note that of the authors whose gender is clear or known to us, over 80% of the submissions are from men. This issue also recently arose in the Interim Report on Penalties and Enforcement published by the FLC in March 1998 where over 90% of the preliminary submissions related to problems experienced by men (para 2.13).

In our submission to that Report we made the following observations:-

The writers wish to thank the Family Law Council (FLC) for drawing the paucity of earlier responses from women's groups to the attention of our sector. This has certainly galvanised some action, but the significant question which it generates is - why were women's groups not well represented in the first place?

There are a number of possible responses to this question but we believe it is important to make a couple of preliminary points raised by this issue-

1. Does the FLC have an effective list of women's services? This would include all women's legal services, Legal Aid Offices, refuges, domestic violence services, sexual assault services and many other organisations. In the short time frames which often prevail, it is not sufficient to send one copy of a Report to a State umbrella organisation and expect numerous responses. The lack of funding for major organisational infrastructure within this sector needs to be understood and overcome by the processes of the FLC.

If the FLC is not confident about its mailing list, we recommend that negotiations be opened with the Network of Women's Legal Services, WESNET (the national women's refuge group), the National Association of Services Against Sexual Violence and the various units in State Government Departments which are responsible for funding other types of domestic violence services.

2. Are women's services also weary of writing submissions which are not reflected in the ultimate reform process? WLS has responded, inter alia, to the following processes, papers and inquiries-

Patterns of Parenting After Separation;

the Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act (JSC Inquiry);

the joint work of the FLC and the Australian Law Reform Commission (ALRC) on complex access cases;

the ALRC Inquiry on women and equality before the law;

the Family Law Reform Bill; and

various papers and inquires into mediation and primary dispute resolution.

The WLS major position has never changed. It has always been, and remains, concerned at the inability of the Family Law Act, the Family Court, Legal Aid and other ancillary legal processes to fully comprehend the devastating effects of and effectively respond to violence against women in their intimate relationships.

Recommendation Three

That the ALRC and other law reform bodies develop appropriate strategies to ensure that women are actively involved in law reform processes.

Other Work - p 16

The IP refers to work which has been undertaken by both itself and other research bodies which are "relevant to this inquiry" (pp 16 & 17). To some extent it appears that the IP revisits much that has been examined. It is incomprehensible that many recommendations from inquiries such as the equality before the law reference have not been implemented but this means that there has been no opportunity for evaluation of the ideas in practice.

The WLS has provided submissions and lobbied extensively in relation to the development of and direction of family law. As well as the list provided above, we have made contributions to submissions produced within the CLC sector and lodged our own submissions in inquiries such as:-

Violence and the Family Law Act - FLC - 1995;

Family Support Services - House of Representatives - 1996; and

various legal aid inquiries.

For this reason we are frustrated that the issue of violence against women is so invisible. It is not sufficient to simply mention domestic violence sometimes and assume it has been dealt with appropriately. Violence against women is an insidious feature of our society which comes in many disguises. To be addressed it must be identified overtly and confronted. This has not happened in the IP.

We understand that the ALRC is conducting another inquiry into women's experiences of the legal system with a project that "looks at gender, violence and the law" (ALRC Interview Document). While we are pleased to see research on this topic, we believe that it is time for implementation.

It seems as if the submissions we have written to other references of the ALRC are not perceived as relevant to new references. We are also aware that many other groups who work daily with women clients have written similar submissions which are informed by their contact with their client population. However the conerns we raise are not generally reflected at policy and legislative level and instead we witness our predictions of potential problems and dangers for women coming true.

To illustrate our point we intend to quote from many submissions we have already made. Where that occurs we have used shading. Many of the concerns raised by women's groups over recent years have not been addressed and therefore our submissions remain relevant. In other instances, warnings by women's groups of potential problems for women in respect of certain reform directions have gone unheeded and our client groups have suffered the anticipated difficulties.

Annexure 1 contains the experiences of a number of women whose cases are referred to in our submission to the FLC's Interim Report on Penalties and Enforcement.

Bibliography - p 157

We are also a little disappointed in the bibliography which indicates that much of the feminist research in areas of mediation and jurisprudence was not examined. In particular we would refer the Commission to the Position Paper on Mediation which was prepared by Dr Hilary Astor for the National Committee on Violence Against Women in December 1991. Although this document is now 6 years old, the concepts dealt with are still relevant. Given its status as the position paper of the national apex body on violence against women, it should have been referred to when developing the approach of the IP.

Further, commentators such as Regina Graycar, Jenny Morgan and Juliet Behrens are absent as are the published works of Women's Legal Centres such as Quarter Way to Equal: A Report on Barriers to Access to Legal Services for Migrant Women, Women's Legal Resources Centre, Sydney, 1994.

THE FAMILY LITIGATION SYSTEM - CHAPTER 2

Family Law Reform Act - p 21

In chapter 2, The family litigation system, the IP begins to discuss the Family Law Reform Act 1995. It mentions the notion of parental responsibility and describes the new terminology of "residence" and "contact" to replace, and have a different meaning from, "custody" and "access".

The change in terminology is intended to change attitudes that a parent has a proprietorial right to a child and to emphasise that parents have responsibilities (IP p 21).

Violence and Orders about Children

From the outset the WLS has been concerned that the Reform Act would have many unacceptable consequences for women. We saw it as providing opportunities for violent men to harass and retain control over their former partners under the guise of exercising their "responsibilities". Women, on the other hand, are cast as uncooperative and unyielding if their actions to obtain safety for themselves and their children conflict with the strong philosophy of "sharing". This is discussed further in the commentary on Chapter 4, Role and Objectives of Family Law Proceedings.

In the WLS submission on the Bill written in 1995 we recorded our concerns regarding the separation of parental responsibility from residence:-

It is clear from the formulation of ss61A-61D and s64B that parental responsibility in no way automatically flows with the making of a residence order. This is a very attractive concept where parties are able to continue to effectively share decision making concerning their children after a separation. However, in some situations it is inappropriate and even dangerous.

Where there has been a history of violence, the point of separation is often the most dangerous time for the woman. The chilling results of Alison Wallace's study of homicides in NSW between 1968 and 1981 (which have been shown to be generally accurate throughout Australia) must not be forgotten. She ascertained that nearly half of all women homicide victims were killed by their spouse (p. 83) and 46% of these were killed at a time when separation was on the agenda (pp. 98-99). There is absolutely no recognition of the results of this empirical research in the legislation.

For women with a history of domestic violence, it is essential that any residence order made in their favour also carry with it at least responsibility "for the day to day care, welfare and development of the child" which at present would appear to require a special purpose order (see s64B(6)). In his paper, at the Sixth National Family Law Conference held in October 1994, Justice Chisholm suggested:

that practitioners who seek what used to be called custody may routinely seek special purpose orders giving the person having residence the power now provided for in custody. However they will have to persuade the court to make specific orders to that effect.

He went on to say that he thought special purpose orders would:

be very commonly made, since it would normally be necessary for the court to identify who is to have responsibility for various kinds of decisions relating to children (Chisholm, 1994, p. 7).

It is an onerous burden to impose on women who have been the victims of abuse to convince the court that they require a special purpose order to do what they have always done - make the daily decisions regarding the children. The reality is that in relationships where there has been violence, the man frequently takes no responsibility for the children during the relationship but explores his legal rights relating to the children with fervour if the relationship breaks down. The current Bill gives to violent men a greater level of responsibility for their children than they ever exercised prior to the separation. This provides a right to involve themselves in the lives of their former partners and children at precisely the moment at which they present the highest risk to them.

The level of risk is often felt by the women but it can be difficult for them to articulate or convince others of its reality. It becomes another of the many factors which lead to the women being labelled as uncooperative during negotiations for arrangements for children.

The treatment of parental responsibility under the Bill has been of specific concern to people who have worked in the area of violence against women. The avenue of control created by this aspect of the Bill has all the hallmarks of serious risk for women. Violent men are experts at trumpeting their legal rights as a way of intimidating their partners. The ongoing sharing of parental responsibility will provide a means of self-righteous and legitimate interference in the lives of women survivors of domestic violence. As recommended in the submissions from the Victorian Working Group on Violence Against Women and Children and the New South Wales Women's Legal Resource Centre, it is essential that this provision be amended.

It is not sufficient that the reforms included family violence as a relevant factor to be taken into account when deciding what is in the best interests of children (s68(f)(2)). Where there is domestic violence, this is central to the welfare of children. It should be at the front of all decisions about both residence and contact - whether those decisions are being made by a judicial officer or in the context of some form of PDR.

It may mean that:-

the mother feels she is unable to have meaningful on-going discussions with her former partner about the welfare of the children;

the mother fears contact hand-overs;

the mother fears for the children's safety while they are with their father;

the children are frightened of their father; or

contact exchanges are terrifying or traumatic for the children because they do not want to go or because they sense their mother's distress.

Recommendation Four

The Family Law Act should be amended so that the relevance of domestic violence is fully integrated into its philosophy and principles.

Has the Reform Act Achieved its Purpose?

Many aspects of the Reform Act will be discussed throughout our submission but the overall impact of the amendments requires careful analysis. We believe it is essential that legal and social research, which identifies issues of gender, power and violence, be undertaken as a matter of some urgency.

The IP states that:-

A primary aim of the amending Act is to encourage parents wherever possible to make their own arrangements about the care of and contact with their children with minimal Court intervention. The new legislation is designed to free up Court resources which can be re-allocated to the management and disposition of complex cases (IP p 21).

The Act sought to increase the role of alternative dispute resolution (and hence make it "primary dispute resolution" - PDR) within both formal legal processes and outside the legal system. It appears that PDR was expected to provide a more cost effective means of resolving disputes between parties and that the availability of PDR avenues (and other "simplifications" under the Reform Act) would minimise, not only the need for matters to proceed to trial, but also the number of applications brought in the Court.

Notwithstanding the amendments, which came into effect in mid 1996, over four thousand five hundred (4500) more files were opened in the Court in the 1996-97 financial year, as compared to the 1995-96 financial year. Whilst there was only a minimal increase in the number of applications for divorce filed in 1996-97 year (almost seven hundred (700) - and this figure includes Form 5's), there was a substantial increase, of almost seven thousand (7000), in the number of applications for ancillary relief. While it can be assumed that duplication between the Forms 7 and 8 would have had some impact on this figure, the following must be noted:-

the number of property orders sought increased only by some one thousand nine hundred (1,900) between the two financial years. (Please note that this statistic relates to the number of orders sought and not the number of property settlement applications filed and there could be as many as ten or twenty orders sought in relation to many property settlement applications);

the minimal increase between the two financial years in the number of applications for divorce filed, cannot have had a substantial impact upon the increase in the total number of files opened between those two years;

the Annual Report of the Family Court of Australia 1996-97 would seem to indicate that not even sixty percent (60%) of all Form 7's are accompanied by a Form 8 application; and

in the financial years from 1992-93 leading up to the 1995-96 year the number of orders sought for custody and guardianship (under the previous arrangements for parenting ) had actually started to decline.

The 1996-97 Annual Report also indicates that a significant majority of matters are defended and are still proceeding beyond the stage of the Directions Hearing. Further, contrary to case management mechanisms which have been instituted, there continues to be a significant number of adjournments at the Directions Hearing stage, and even at the second Directions Hearing stage.

(The statistics which have been utilised above relate to the Family Court of Australia. Statistics for the Family Court of Western Australia have been excluded to avoid any misrepresentation by reason of differences in the practice and procedure employed by that Court.)

It must be remembered that it was precisely applications for ancillary relief which the 1996 amendments were predicted to reduce in number. From the statistics outlined above it seems that the change in terminology and approach to parenting matters has not assisted in reducing, or even maintaining, the number of matters brought before the Court for consideration.

In addition the 1996 amendments made provision for parents to enter into parenting plans without the need to rely on more formal documentation and court procedures. From the rise in the number of applications made in relation to parenting arrangements, it would appear that neither this mechanism nor the availability of applications for consent orders could have had a substantial affect on the resolution of disputes by parents. It should be noted that, notwithstanding the simplification of court procedures and the availability of "user friendly" kits to assist in the preparation of both parenting plans and consent orders, the number of applications for consent orders lodged in the Court only increased by approximately 250 between the 1995-96 and 1996-97 financial years. Further, in the 1996-97 financial year only some four hundred and ninety seven (497) parenting plans were lodged in the Court and only three hundred and thirty seven (337) of those were registered.

Recommendation Five

That, in respect of the Reform Act, legal and social research, which identifies issues of gender, power and violence, be undertaken.

This would include examining the following questions:-

has there been a real increase of applications filed for parenting orders;

has there been a change in the gender breakdown of applicants for parenting orders;

is it less likely that restricted or no contact will be ordered where there are allegations of domestic violence or child abuse; and

are there significant differences in the nature of arrangements when the parties have apparently reached agreement (as evidenced by the filing of a consent order or parenting plan) and when the order results from a judicial decision.

Litigation Processes in the Family Court - p 26

Adversarial System

There seems to be an illogicality in the direction of the IP. On the one hand it is well documented that only about 5% of matters in the Court proceed to fully contested proceedings. These are often cases where there are serious issues of concern. People who litigate are rarely anomalous and intransigent exceptions to the rule. There is usually a history which often involves violence. After separation this manifests in protracted litigation. The woman may refuse to compromise the children's safety while the violent man pushes on with his case, sometimes continuing the litigation as a form of harassment.

Although the issues paper is cognizant of the issue of violence, we would submit that its real impact has not been understood and integrated into its approach of the issues paper.

Q.2.3 Are the assumptions about the adversarial system being the fairest and most effective legal decision-making method correct in relation to family law proceedings?

Initially the IP focuses on the "pros" and "cons" of an adversarial system and the possibility of increasing the role of PDR in the Court. It acknowledges that the prevailing system is a modified adversarial system, however, it then continues, (as demonstrated by question 2.3), to fundamentally review an adversarial system. The overall approach of the IP fails to take into account the precise features of the system in question.

It is not possible to respond to question 2.3 by merely looking at the workings of a truly adversarial system. It can be supposed that the modifications to the standard adversarial system have been implemented to meet the limitations of such a system in the context of family law. The system which currently operates is an amalgamation of an adversarial system, an inquisitorial system and ADR. The elements of ADR, implemented as PDR, which have been utilised are counselling, mediation and conciliation. The elements of an inquisitorial system, as we understand it, which have been utilised are demonstrated by:-

(a) the implementation of managerial judging, ie. the pro-active role that a judge may play by-

(i) making orders for the appointment of a Child's Representative;

(ii) making orders for the preparation of Family / Expert Reports;

(iii) calling experts and other witnesses and directly questioning them, and

(b) the use of case management guidelines.

These aspects assist the Court in understanding the true nature of the issues in a case and facilitate its progress throughout the Court process.

It should be noted that we do not have the resources to undertake detailed academic research in responding to this IP. Therefore, particularly on subjects such as different legal systems in place around the world, we have had to rely largely on the IP. Without taking this issue much further, it has come to our attention the the "inquisitorial" model is mainly employed in criminal cases in European countries and therefore its applicability to family law cases begs close scrutiny.

The use of an adversarially based system provides important safeguards to litigants and to the community, in that the issues in dispute are defined by the parties and the litigation is then fundamentally conducted by them, under the supervision of the Court, in conformity with identifiable rules of court and rules of law. A public accountability which is not present in other systems is intrinsic to an adversarial system of litigation.

In world-wide research undertaken by Joan Kelly of the Northern California Mediation Centre she reveals some interesting findings when comparing adversarial and mediated processes:-

1. In general, mediation results in more joint legal custody compared to adversarial processes. While physical custody and visiting agreements did not differ in mediation and litigation groups in Virginia in California, a less conservative jurisdiction, mediation resulted in more extended visiting patterns for the non-custodial parent. [Research] in Canada found more shared parenting agreements in the mediated group (1996, p 151).

2. When mediation samples are compared to litigation samples, mediation clients are significantly more satisfied than adversarial comparison groups. In most studies, no significant gender differences in satisfaction with mediation were found, in contrast to the adversarial process, in which men, in particular, are significantly more dissatisfied than women with the process and outcome (1996, p 152).

We will explore these findings further is the section on PDR but there are some possible explanations:-

the clients who used mediation services would involve a degree of self-selection, providing appropriate screening mechanisms are in place. They are more likely to be parties with some equality of bargaining power who always had real prospects of reaching agreement;

those who relied on litigation processes are likely to be couples where there were issues of inequality, perhaps as a result of violence and abuse;

in those situations, some women may have felt that they were able to raise their concerns and were granted an order which reflected their concerns; and

on the other hand, men involved in litigation seem to have felt aggrieved that a higher authority has weighed in and told them what they can do. For violent men, used to controlling their wives, the intervention of an authoritative institution, such as the Family Court, which has the power to undermine or prevent their control, usurps their accustomed position.

The public nature of a fundamentally adversarial system not only provides, but also projects, an air of independence and integrity. It should be a system that women can trust. In some instances access to a court is the first opportunity that women, who are victims of domestic violence, have to negotiate, or present their case for determination, in a setting where the power imbalance between the woman and her former partner is minimised.

Q2.4 Does the current modified adversarial system in family law represent the best balance between public and private interests?

This question must be answered in conjunction with question 18.17.

Q.18.17 In what circumstances and to what extent is an adversarial approach necessary or desirable in family law proceedings? When is an alternative approach desirable or necessary? What should it entail?

Notwithstanding the discussion above, the benefits of an adversarial system, particularly for women, depend upon the parties being in an equal position to present their case in court. The financial means available to each party, power imbalances and different levels of self confidence may mean that no such equality exists. Further, as we will later explain, apparent conformity with the legal orthodoxy of the time can advantage one party.

For example, real equality will not exist where only one party has the resources available to engage legal representation (whether legally aided or not) or where both parties are legally represented, but one is legally aided and hence subject to a non discretionary cap of $10,000 on the grant. The inquisitorial aspects of the current system have largely been introduced, in the interests of justice, to address these issues of inequality.

In our view, because of the existing modifications to a strictly adversarial system, and the inherent safeguards that the system now holds, it is not necessarily the "system" itself that requires review, but rather the implementation of that system. It seems that the system currently embodies the essential components which should enable it to meet the needs of each individual litigant, but it continues to be implemented in a way that means some individual litigants are pushed down particular avenues which do not suit their circumstances.

As we noted earlier, it is frustrating that so few of the recommendations of previous inquiries have been implemented. If they had been, the turn of the millenium would have been a perfect time for evaluation.

It has previously been discussed that cases involving violence or allegations of sexual or other childhood abuse are not generally suited to forms of PDR. In order to provide for those matters where PDR is not suitable, adequate and substantial resources must be channelled into providing efficient and effective final trials. Similarly, in cases where one or both of the parties are not legally represented , it may be necessary for the Court to employ, to a greater extent, its powers of intervention to ensure equitable treatment of the parties, fairness and the pursuit of justice. Where the parties are not legally represented, it is only the intervention available at court hearings which can truly safeguard a just result which accords with the overriding concerns and principles of the FLA. This is especially true where the existence of violence and/or sexual abuse dictates an imbalance in the parties bargaining powers.

A combination of the "public accountability" of an adversarial system, implementation of ADR and aspects of an inquisitorial system auger well for balancing competing public and private interests. It is our view that the inquisitorial components should be strengthened, by increasing the role of Managerial Judging and refining the role of Case Management Guidelines (this will be further discussed below under the heading "Recommendations for the Future"), to better assist and empower the Court's more vulnerable clients. However, it is that balance between the system's components which is essential and it should be remembered that neither ADR nor powers of inquisition can effectively dominate a fundamentally adversarial system.

Q.2.6 Should family law matters generally require non adversarial pre-trial and trial procedures?

In light of our clearly outlined concerns regarding PDR we believe that it would be completely inappropriate to require non-adversarial pre-trial and trial procedures. Although such procedures can assist settlement in some cases, the current emphasis on reaching agreement greatly disadvantages our most vulnerable clients. Where a history of violence is alleged by a litigant, we believe that generally such cases should be directed towards judicial determination. The litigant who alleged violence should not be cajoled into mediation and other forms of PDR to a point where she feels she must settle. The subtle (or not so subtle) pressure on women to grant overnight weekend contact to violent fathers is an overwhelming concern raised by our client group.

Our clients are already required to undergo a "mediation" process through the conferencing system of Legal Aid Queensland. This is not a truly voluntary process because the future prospects of the client receiving legal aid is inextricably linked to their apparent "reasonableness" at the conference. Where the woman alleges violence and the man is denying or minimising it, there is little scope for agreement. The woman's proposals will always reflect her fears and the man's will reflect his denials. If he is looking for fairly standard arrangements she has little prospect of being heard. Her solicitor will advise her to settle, warning that she will not get legal aid to continue. We will outline more of our concerns at a later in our submission.

Those few women who pass this stage and get their material before the Court should not be sent off to mediate again. We believe that in cases where there are issues of violence or child abuse raised, there should generally be a judicial determination. However, we have some concerns in respect of the practices and procedures relating to interim hearings and these will be canvassed later.

Recommendation Six

In cases where there are serious allegations of domestic violence or child abuse, early and appropriate judicial determination should be facilitated.

INFORMATION NEEDS - CHAPTER 3

Information Useful to Providing a Gendered Understanding

To the extent that we have tried to find empirical data to support our anecdotal information we have found that the Family Court lacks the statistics we require. There is no question that data should be more effectively collected at the Family Court so that various trends can be understood. However, it is essential that a gender perspective be brought to this process.

As an aside we note that on p 32 of the IP, as an example of information available, there is a list of the "factors associated" with "complex contact cases" in the Parramatta registry as determined during earlier research by the ALRC. This has been largely lifted from Appendix 2 of For the sake of the kids. However, if the body of the Report is examined it becomes clear that the first factor listed "ongoing conflict in the relationship between the parents" often relates to situations where there are allegations of violence. The absence of this point in the IP demonstrates how quickly qualitative information can disappear in statistics.

When we tried to understand the possible reasons for the increase in applications for children issues since the implementation of the Reform Act, we wrote to the Family Court requesting a gender breakdown of the applicants over the last 2 years as compared to previous years. Our hypothesis is that there are now many more male applicants (possibly often self representing) due to the new concepts. We were advised that such statistics are not available.

It is important that statistics collection is carefully monitored to ensure that qualitative information is not lost. The design of collection procedures must reflect what is most needed to be known. In the Family Court persons with expertise in domestic violence should be involved in the design of any new statisics collection system.

Recommendation Seven

That persons with expertise in domestic violence should be involved in the design of any new statistics collection system in the Family Court.

Family Law Council Research on enforcement

The IP refers to the research project of the FLC on enforcement. We have prepared a detailed submission on the Interim Report on Penalties and Enforcement. One of our concerns was the focus on the end product - failure to comply with a court order - rather than trying to understand why so many orders appeared to be made which are unworkable. Some of our comments are relevant to information collection:-

Common Features of Enforcement Cases

In our experience, the following are common features in enforcement proceedings against women-

a history of domestic violence by the man towards the woman which has often been confirmed by the successful obtaining of a protection order;

there have often been breaches of the protection order and successful prosecutions. Given the difficulty which women often experience in convincing the police to take any action, successful prosecutions are generally solid evidence of serious and repeated violence;

the woman often has some evidence of sexual abuse (eg. vaginal discharge - see Soprani's story) or neglect during contact (see Patricia's concerns about drug and alcohol abuse);

one or both parties is/are unrepresented. The gendered nature of this needs to be understood. The men sometimes choose to be unrepresented because they enjoy the chance to directly cross examine their former partner and are happy to lose the slightly moderating influence a lawyer might have brought to their case. On the other hand, the women are usually terrified and exhausted by the process. They dread the thought of cross-examining and fear even being in the court precincts alone; and

the relevant order will often have been made by consent.

We would now add to this list:-

legal aid being available only for a conference and the woman understanding that there will be no legal aid for court proceedings if the only dispute is about the terms of contact arrangements; and

where there have been significant court proceedings, including the preparation of a Family Report, the woman is often described as hysterical, difficult and derogatory towards the father, while he is found to be so charming that one wonders why she ever left him.

Recommendation Eight

That processes be developed to measure the following:-

a gender breakdown of all applications in filed in the Court;

a comparison between the gender breakdown of applications for children's orders before and after the implementation of the Reform Act;

the number and gender of self-representing parties - the existence of a history of violence will be relevant to understanding these cases;

the connection between allegations of violence and "complex cases";

the connection between consent orders and subsequent compliance issues or enforcement action; and

the impact of the reduction in the availability of legal aid.

Counselling and Mediation Surveys

WLS has long been concerned by the manner in which mediation processes are evaluated. The focus is usually on the proportion of cases which settle and apparent client satisfaction, rather than examining whether the agreements struck are "fair", "just" or in the best interests of the children. It seems ironic that so much thought goes into formulating legislation to regulate family law decision-making, but the policy concepts which direct this legislative reform play no role in the framework of mediation. The irony is exacerbated by the policy push for increased use of mediation which can result in agreements which entirely fail to reflect the policy concepts which have informed the legislative reform.

For example, it is our experience that a woman has almost no chance of reaching a mediated agreement at the Family Court or Legal Aid that denies or severely restricts the father's contact with his children - no matter what she alleges in respect of violence and lack of care-giver experience before the separation. (Some of our clients advise us that their solicitors have told them domestic violence is not relevant to questions of residence and contact.) However, the Court is bound to take the violence into account and it is possible that safer orders would be made if more of these cases were judicially determined rather than mediated.

Our arguments in relation to the lack of information about the fairness of mediated agreements were summarised in our submission to the Attorney-General's Department on its Discussion Paper on Delivery of Primary Dispute Resolution Services in Family Law (August 1997):-

Objectives of Structure

Good Outcomes for Clients

Some of the assumptions which underpin the Discussion Paper seem to be inaccurate and this may mean that 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 of 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.

There is no proof that women obtain better settlements from mediation that from the Family Court. In fact there are strong suggestions that the objective value to women (and the children who reside with them) of mediated settlements is less than the value of a Court Order. Therefore, one of the fundamental assumptions of the Discussion Paper is flawed.

The IP makes the point that:-

there is a lack of material that compares alternative methods of dispute resolution, for example, litigation, mediation, counselling and arbitration in terms of fairness, effectiveness, costs, efficiency and compliance (IP p 33).

We agree with this comment and believe that such research is essential before any steps are taken to increase the use of PDR in the Family Court. Such research will be quite complex and will require careful scrutiny of relevant files. One difficulty with the research may be that, in some cases which are mediated, little material may have been filed by the parties.

To undertake the kinds of evaluations which we believe would be useful it is critical that the files reveal:-

sufficient information to ascertain the basic facts of the "family" (eg. number of children, comparative incomes of the parents, who was the primary care-giver prior to separation, are there allegations of violence or abuse?); and

terms of the agreements reached.

Recommendation Nine

That information be collected on the terms of agreements reached at "mediations" at the Family Court and Legal Aid. The outcomes should be assessed against a variety of objective and/or social justice criteria and compared with the outcomes of court imposed orders. The criteria would include-

the percentage of assets of the parties obtained in property settlement agreements by the parent with primary responsibility for the children;

the existence of allegations of violence;

the existence of allegations of child abuse;

the extent to which agreements for overnight contact are made where domestic violence or child abuse has been alleged;

the extent to which "shared parenting" agreements are reached where domestic violence or child abuse has been alleged;

the extent to which "shared parenting" agreements are reached where the father played little active role in the care of the children prior to the separation; and

client satisfaction with process.

Submission continued...

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NATIONAL WOMEN'S JUSTICE COALITION INC
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