SUBMISSION BY THE WOMEN'S LEGAL SERVICE, BRISBANE
September '98

TO THE ALRC  - ISSUES PAPER 22  REVIEW OF THE ADVERSARIAL SYSTEM OF LITIGATION  - RETHINKING FAMILY LAW
 

SUBMISSION CONTINUED...

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

ROLE AND OBJECTIVES OF FAMILY LAW PROCEEDINGS - CHAPTER 4
 

Specific Objectives - Family Law Reform Act - p 38

The IP sets out the specific objectives of the Family Law Reform Act (para 4.13). It is an interesting reflection on the driving forces behind the Bill to remember that initially section 60B(2)(b) did not contain any qualification regarding the child's "right of contact with both parents". In a submission written in May 1995 in respect of the Family Law Reform Bill we advocated for the qualification which was ultimately included:-

In particular the principle regarding the right of contact with both parents is clearly drawn from Article 9.3 of the Convention of the Rights of the Child which states that:

State's parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.

It is essential that this qualification be added to the principle as set out in s60(2)(b) so that there is overt recognition in this important section which underpins the whole of Part VII that in some instances contact with both parents may not be in the child's best interests.

The fact that it is not always in the best interests of children to have ongoing contact with both parents was recognised in the Family Law Council's Report, Patterns of Parenting After Separation "particularly in cases where abuse of the child has occurred or where serious family violence exists" (FLC, 1992, p. 18).

This qualification has proven critical to the interpretation of the amendments, although in our experience it has been more difficult for women to obtain orders or agreements which limit or restrict contact since the reforms were implemented. The reforms were based heavily on the UK Children Act 1989 which had only become operative in late 1991. There had been little opportunity for analysis of the social impact of the UK Act and we took the view that the Australian Government was acting with unnecessary haste to embrace untested legislative reform. In our submission on the Bill we said:-

The Family Law Act has now operated in Australia for nearly 20 years. Over that time, an enormous amount has been learnt about the social consequences of the legislation both in respect of arrangements concerning children and financial matters. The Family Court has developed sophisticated systems of case management and policy guidelines as a response to much of what has been learnt. Over the last few years the Family Court has dramatically improved its response to domestic violence by way of guidelines which apply to the operation of the whole of the Court, a number of important judicial decisions and the genesis of a gender awareness programme within the Court. Family Court judges have spoken at conferences on the changing attitude of the court towards domestic violence and have frankly discussed the lack of recognition of this issue in the past.

It therefore seems ironic that at such a critical time in the development of the law and the Court, Australia should throw out its own work, knowledge and expertise and turn to the virtually untried and untested UK Children Act as a source for legislative change.

Much of the new direction has been based on the Letter of Advice to the Attorney-General on the Operation of the (UK) Children Act 1989 provided by the Family Law Council. However, in that letter the Council itself noted:

Council does not have detailed empirical evidence about the operation of the (UK) Children Act but considers that reactions to date to the changes in terminology made in that Act have been positive and Council remains convinced that the custody/access model should be replaced and that a change in terminology similar to that in the UK legislation will assist in improving arrangements between separating parents in relation to the ongoing care of their children (p. 7).

The groups which the Council was able to consult in relation to the Act were largely high ranking officials and judges, some of whom were architects of the legislation and many of whom have a direct concern to see the legislation work. There were no consultations with community based groups who would be working directly with women with a history of domestic violence seeking to use the Act. In this regard, we have been able to access one article written by Carol Smart who is a well respected English commentator in the area of family law. She is currently undertaking a research project on the consequences of the Act. Her work is still preliminary, but the conclusions which she is beginning to formulate indicate that many of the problems predicted in the submissions by women's groups in respect of the Family Law Reform Bill are being revealed in the operation of the Children Act.

In her article Smart has identified a number of issues as proving problematic for women with a history of abuse:

• the principle of the stated preference for the Court making no order (p. 14 & pp. 15-20);

• the fact that parental responsibility does not flow with a residence order (p. 15); and

• the prevalence of private negotiations (pp. 26-27).

Smart describes the dilemmas faced by women as a result of the philosophy which underpins the UK Children Act (and clearly underpins our Bill):

What parents seem to be finding (and once again I am being tentative here) is that as long as they agree with each other on everything they want to do, they can do what they like within the usual constraints of not actually harming the child. Thus parents can agree that the father will leave and will never see the children again (although they can no longer agree that he should pay them no maintenance). If they agree to this, no one will object in practice that this is against the interests of the children. There is no mechanism to require fathers to see their children

However, if a mother feels she has reasons to try to restrict a father's contact with her children, she will find it almost impossible to implement her wishes because the dominant orthodoxy is that there should be no such constraints after divorce - just as there were none before divorce. Because contact is, a priori, regarded as in the best interests of the child, her wishes are seen as damaging and as obstructive (although a father's wish not to see his children is not). Thus the prevailing meaning of welfare is only enforced when parents disagree - or to be more precise, when mothers wish to restrict what fathers want. Thus the new orthodoxy is imposed on those who wish to restrict contact but not on fathers who wish to have no contact at all. In this way, the practice of the new Act always constructs the mother as the potential problem or obstacle to the desired outcome of the welfare of the child (pp. 19-20).

We are concerned that in 20 years England will have empirical studies to show the damaging consequences of this piece of legislation for women with a history of abuse. However, so soon into the operation of the Act such reports are not yet available. The lack of such vital information means that Australia should proceed with great caution down the untested track of the UK legislation.

It has certainly been our experience that the Reform Act has had exactly the consequence described by Carol Smart. The combination of substantive and procedural reform and the diminution of availability of legal aid have proved to be almost insurmountable obstacles to women who do not believe that it is in the best interests of the children to have on-going contact with their father, even if he is violent, abusive or has no previous experience in caring for the children. Courts seem loathe to limit or stop contact, even in the face of serious allegations of violence. At mediations, women are forced/encouraged to agree to overnight and weekend contact.

In a more recent article by Professor Smart and Dr Bren Neale they comment on the rapid change of ideology which has occurred in Britain. The right of contact now overrides all other issues and decisions are made which are "diametrically opposed" to the results which could have been expected before the implementation of the new Act. Their point is that there is little acknowledgment of what has occurred within legal culture. The new approach becomes the norm which is unacceptable to challenge.

In the space of two years cases are being decided in ways completely antithetical to the way they would have been dealt with previously, yet current decisions are always regarded as a sign of the good sense of the judiciary, rather than as shifts in ideology which should be subject to scrutiny. It is our concern that if anyone speaks out against the 'obvious merit' of contact they are now seen as arguing against virtue (p 332).

This is our experience in Australia, particularly within PDR processes. If women commence mediation from a position of wanting to limit contact because there is a history of domestic violence she may be told that it is irrelevant and that raising it will only make mediation and negotiation difficult.

The Smart and Neale article goes on the discuss the "robust" approach to enforcement of contact which is gaining ascendency. Two recent cases are cited where women were jailed for refusing contact. In both cases the fathers were very violent and the children young. In one of the cases the woman was sentenced to 6 weeks' imprisonment, the children were placed in foster care and the father was given contact supervised by social services.

The judge ruled that it would be far more harmful for the child to grow up without a relationship with her father than to see her mother go to prison (p 334).

We note that the Brisbane Sunday Mail (21 June 1998) reported that a Victorian mother of a 5 year old was jailed for refusing contact. The mother alleged domestic violence and child abuse.

The Children Act contains a "welfare checklist" which is similar in concept to s68F(2). Smart and Neale explain that this checklist-

was formulated to specifically avoid a narrowly prescriptive approach and to ensure an impartial and measured determination of the child's interests in each individual case (p 335).

However, it is their opinion that the relevance of the list is being whittled away by case law which gives dominance to the concept of contact. We would argue that this occurs in Queensland through Legal Aid conferences. Little reference is made to the factors listed in s68F(2) during settlement negotiations. The priority is to find an agreement not to formulate an arrangement for the chidren which is in their best interests, taking account of the factors listed in s68F(2).

Our concerns in relation to reliance on the UK Act have been echoed by Professor John Dewar:-
 

There has been no research in the United Kingdom into the effects of the private law aspects of the legislation on patterns and outcomes in children cases. We do not know, for example, whether the legislation has encouraged more fathers to seek residence or contact than previously. Nor do we know whether custodial parents now face greater scrutiny and control by the other parent, nor how legal co-parenting is working in practice (1996, p 23).

In research being undertaken by Maragaret Harrison and Regina Graycar on the effects of the changes to the FLA an early survey was conducted with 61 family law practitioners in Melbourne in May 1997 (Harrison and Graycar, 1997, 334). The responses given reveal changes in approach by the lawyers, the parties and the Court. Although four respondents suggested that contact was now "more likely to be set aside or not ordered where there is evidence of violence" (p 339), other responses indicate increases in shared arrangements and contact:-

I see subtle changes, for example more shared long term and day-to-day care, welfare and development orders (F);

Contact: when matter goes to judicial decision, the judges appear to give much more contact than the "standard" alternative weekends and half school holidays regime - and a lot of times over very strenuous and relevant objections of residence parents (F); and

Impact still evolving. Fathers fighting harder than ever for more involvement in children's lives and for an EQUAL rights approach to children. Alot of litigation about children seems to have been encouraged. It to some extent has been seen as a charter for non-residence parents' rights. Best interests of children perhaps diluted somewhat (F) 340).

Some British commentators are now advocating that there should be a presumption of no contact in case involving domestic violence and the burden of proof should be on the non-residence parent to explain why contact would be in the best interests of the child.

In 1996 the New Zealand Guardianship Act was amended to alter its approach to the relevance of domestic violence in custody and access proceedings. The relevant section of the Guardianship Act applies to all kinds of proceedings relating to custody of and access to children.

Where, in such proceedings, there is an allegation that violence has been used by one of the parties against the child or the other party, the court is required to determine whether or not the violence is proved (s16B(2)). Where this is proved, the court shall not-

• make any order giving the violent party custody of the child;

• make any order allowing the violent party access (other than supervised access) to that child -

unless the court is satisfied that the child will be safe while the violent party has custody of or access to the child (s16B(4)).

In considering these matters the court is required to have regard to-
 

• the nature and seriousness of the violence used;

• how recently the violence occurred;

• the frequency of the violence;

• the likelihood of further violence occurring;

• the physical or emotional harm caused to the child by the violence;

• whether the other party to the proceedings-

• considers that the child will be safe while the violent party has custody of or access to the child; and

• consents to the violent party having custody of or access to the child;

• the wishes of the child having regard to the age and maturity;

• any steps taken by the violent party to prevent further violence occurring; and

• such other matters as the court considers relevant

This legislation literally puts the violence at the front of the decision-making process. It ensures a judicial determination on the issue and takes the other party's perspective into account. Such a law should also ensure that violence is relevant to mediation because all parties would know the legislative framework in which legal proceedings would occur. We have not had an opportunity to explore the practical effect of this provision but it would appear to answer many of our concerns.
 

Recommendation Ten
 

That the ALRC investigate the practical effect of s16B of the New Zealand Guardianship Act and, if appropriate, recommend that the FLA be amended to include a similar provision.

Streaming family law disputes - p 40

Q.4.8 Is it possible or desirable to develop criteria for streaming family law disputes to different forums and dispute resolution processes? If so, what criteria should be considered and how should streaming take place?

It is our understanding that the integrated client services pilot project ("ICS"), which has been trialed at the Parramatta Registry since September, 1996, will now be universally adopted by the other registries of the Court. It was primarily designed to overhaul intake procedures to ensure client suitability for mediation (rather than focussing on the range of PDR services) and to identify at an early stage those cases where litigation was inevitable and stream those cases accordingly. The project can be distinguished from the tracking procedure which is currently utilised in each registry of the Court. (Under this tracking procedure cases are defined as standard, direct or complex and it is our view that these categories have no real impact on the procedures adopted for the resolution of matters.)

The Family Court of Australia Annual Report 1996-97 (pp16 & 17) suggests that the project has three major roles, including the following:-

• the provision of an information session. This information session is held after a court application has been made and appears to differ from the sessions currently held at each Court registry. The session outlines the case management and dispute resolution options available to litigants;

• the conduct of a case conference by a Registrar and a Court Counsellor with the litigants and their legal representatives. Provision has been made for the respondent to attend the conference by way of a telephone link-up if there are any "concerns". Depending upon the nature of the application filed the conference is held approximately four to six weeks after filing and is about thirty minutes in duration . The Annual Report states:-

as always, screening for family violence and special needs is an integral component of the service;
 

1. the provision of a client services counter which serves as an information counter and provides litigants, and the general community, with procedural assistance.

It is our view that the implementation of more diversified procedures for PDR has been a vital shift for the Court in terms of accommodating the needs of a diverse group of litigants, however, we hold concerns that such procedures primarily assist those litigants and disputes which would settle anyway. Further, the Court does not employ sufficient assessment mechanisms to determine those cases for which PDR should not be an option (or even to determine which PDR process is best suited to a particular case).

ICS would seem to provide the Court with an excellent opportunity to ensure that each and every case is properly assessed and assigned to the best resolution procedure. In our view, however, a thirty minute conference/consultation cannot arm Court staff with adequate information, or a sufficiently comprehensive understanding of the matter, to ensure that the most appropriate option is pursued. Even where the respondent participates in the conference by way of telephone link-up, the parties' pattern of communication and behaviour and any power imbalances may make it impossible for important factors, such as the existence of domestic violence or sexual or other child abuse, to be disclosed.

Even where such matters are disclosed, the impact upon each party and, more importantly their ability to communicate and/or negotiate or (in the case of unrepresented parties) even to assert themselves in the presence of the other party, cannot be determined at such a consultation. It is our concern that whilst the IP, and obvious methodology behind ICS, overtly acknowledge the impact of domestic violence, the concept of violence acknowledged is abstract and fails to recognise the fundamental issue of safety.

While the proposed conferences go some way to ensuring that litigants are provided with access to the services that best meet their needs, interviews should perhaps be conducted on a more individual basis (ie, deal with each party separately). There should also be some capacity for more than one interview (say, a maximum of five) to be conducted to ensure that the correct assessment is made. The limited time period of approximately thirty minutes, even where experienced staff conduct the conferences, may lead to the drawing of inaccurate assumptions and conclusions. Further, there continues to be a significant number of matters that may require urgent action after the assessment and it is of considerable concern to us that these clients may have to wait four to six weeks for this assessment to take place.

We appreciate the drain on staffing and other resources in guaranteeing assessment at an earlier stage, but it is our view that an early accurate assessment of the needs of the parties would conserve the resources of the Court (and the parties) in the long term. It would ensure that valuable resources and services such as mediation, counselling and conciliation are not wasted on those cases where they are not viable at all, or where, because of the parties relationship, they are a more expensive alternative. Accordingly, to better facilitate urgent action (as required) and efficient and effective management of each client, we hold the view that the conference should take place within one week of the filing of the application, and in cases of greater urgency, within twenty-four hours.

It would appear, also, that even under ICS, the streaming continues to focus on channelling the majority of matters into PDR avenues. The IP and literature published by the Court appear to give lip service to concepts such as individual client needs and the affect that domestic violence, allegations of sexual and other childhood abuse and other power imbalances, may have upon the applicability of PDR processes. The current culture of the Court dictates that, in practice, matters continue to be channelled into PDR processes.

It has been acknowledged that there are cases where any form of counselling, or other PDR, is not appropriate. There must now be overt recognition within the FLA that PDR is not appropriate in all cases and that in some circumstances the parties, and the paramount consideration of the Court, "the welfare of the child", may require that an urgent interim hearing be conducted to provide an effective, fast determination of the matter. We will discuss some concerns in respect of interim hearings later.
 

Recommendation Eleven

That the FLA be amended to provide a specific and clear avenue of litigation for those cases where PDR processes are inappropriate. This would require parallel procedural reform to ensure the availability of urgent interim hearings in such cases.
 

PERCEIVED PROBLEMS IN FAMILY LAW PROCEEDINGS - CHAPTER 5

General problems with family law proceedings - p 42

The IP states that "[t]here is a perception of widespread dissatisfaction within the community with the operation of family law" and lists a number of "major concerns" (p 44). Although we agree with the statement generally, our list of concerns would look quite different. The list in the IP is not referenced and it is impossible to tell from where they were derived. For example, it has not come to our attention that solicitors or clients feel that judges are hearing matters "that do not require judicial determination". If anything, some of our clients who would have liked their case to go before a judge were dissatisfied with the alternative provided - eg. "mediation" or "negotiation" leading to an unsatisfactory or unsafe "consent" order.

If we were to make a list of major concerns they would include:-
 

• lack of appropriate recognition of the impact of domestic violence both in the process used and the orders and agreements made;

• difficulty in accessing the Court because of the crisis in legal aid availability;

• lack of real choice in whether to engage in PDR processes; and

• failure to genuinely promote safety of women and children.

Suggested difficulties and advantages of adversarial family law proceedings - pp 43 & 44

Although we accept some of the difficulties with adversarial proceedings, we believe that the tide has now turned the other way. In other words, there is such emphasis on diverting parties away from a litigious course, that this now occurs in instances where litigation and a judicial decision would have been appropriate.

We also consider that far too much gloss cloaks the realities of PDR. For example, the IP says that "[a]dversarial litigation tends to be regarded as finding a winner and a loser" (p 43). In fact, some creative orders made by judges do strike a balance between the parties' desires where there is real merit in both cases. Further, it is the experience of our clients that PDR processes, particularly mediation, also produce winners and losers - and women are largely the losers.

In respect of the comments on the advantages, we are not sure that the ability to "test the credibility of witnesses by means of cross-examination" is particularly helpful in sexual abuse cases. We have never heard of a case where an alleged absuer has suddenly confessed under cross-examination, nor even where the cross-examination has been the critical feature of the judges finding on sexual abuse. In fact, in these cases the most important aspects tend to be the inquisitorial evidence gathering and the management of that evidence. These depend on the competence and experience of the formal investigators such as the police and medical professionals who examined the children and the expert witnesses who present their opinions.

Repeat applications - frivolous or unmeritorious claims

Although the IP does not make it clear, submissions received by the ALRC on both the Complex contact cases work and the Equality before the law reference suggest that women are often subjected to frivolous applications for enforcement of contact or variation of contact or residence by violent partners. It is clearly a means of harassing the woman and obstructing her ability to "get on with her life". This has occurred to a number of our clients.

Q5.7 What is the best way for courts to determine who is a vexatious litigant?

What is the best way for courts to deal with vexatious claims?

In particular, we are noticing increasing numbers of women being dragged back to Court on contravention applications relating to contact, when the reason for non-compliance with the terms of the order relates to the man's on-gong violence or the reluctance of the children to spend time with the violent parent. Many of these orders seem to have been made by consent in circumstances where the women were unable to obtain legal aid to pursue the order they really believed would work and ensure the safety of themselves and their children. The men are frequently unrepresented.

Of great concern to us is the fact that it is almost impossible for the women to obtain legal aid to defend the proceedings because if they are technically in breach of the order, Legal Aid assesses their case as having no merit. We are aware of a number of cases where women have successfully defended these cases notwithstanding the "no merit" assessment from Legal Aid.

Monica's story, which was attached to our submission on Penalties and enforcement is a classic example. As predicted when writing that submission, the husband did bring a further contempt application. Private solicitors represented our client in the vain hope of obtaining legal aid. Our client successfully defended the application and one week later received the result of her application for legal aid - refused on the basis of merit! She has been refused legal aid to vary the contact order, so it is likely that there will be further contempt proceedings in the future. Further, no orders have ever been made declaring the husband a vexatious litigant.

The IP suggests that one way of dealing with vexatious litigants may be to-

allow evidence of violent or other harassing behaviour by the other party as a means of presuming that any further actions are brought with intent to harass, not for the best interests of the child (p 47).

We believe that this approach has significant merit and is worth investigating. It is clear that violence plays a central role in many repeat applications and it should be encumbent on the Court to probe that issue - particularly when repeat applications for enforcement of contact, and/or variation of contact or residence are brought by the non-residence parent.

We set out below our recommendation in respect of this issue. Our only concern is that these ideas could backfire on women who bring a number of applications in situations where they have on-going concerns in respect of the children's safety. This could take the form of applications for variation of contact terms or applications for change of residence - particularly where a father, who was not the primary carer of the children during the subsistence of the relationship, has been awarded residence - whether or not with the "consent" of the mother.

Recommendation Twelve

That the FLA be amended so that Courts are required to consider the relevance of domestic violence in assessing whether a litigant is vexatious or whether proceedings are frivolous or unmeritorious. Courts should be more willing to declare certain litigants as vexatious and orders which should flow include-

• a declaration that the party is vexatious;

• a costs order against that party; and

• the requirement that the party obtain the leave of the Court before being entitled to file further proceedings.

There may be circumstances in which a history of domestic violence may explain why repeat applications are not vexatious.

Violent litigants

Before commencing our discussion on violent litigants, it must be remarked that the IP has hidden behind gender neutral language to disguise the totally gendered nature of the problem under consideration. To the best of our knowledge, no women has instilled fear into the Court or its personnel. This has been an entirely male phenomenon. Such realities such not be covered up - they should be overtly stated and confronted. The risk for the Court (meaning all of its personnel), some of its litigants and the public who use the Court at any time is violent male litigants.

Further, the term "violent litigant" not only disguises gender, it also implies that it is as litigants that these men are violent. It is always as partners, sometimes as fathers, and very occasionally as litigants that these men are violent. How is it that women's fears of violence are so often rendered invisible in the legal system and the orders which emerge while the Court, understandably, protects itself with metal detectors, the anonymity of wigs and gowns and the constant presence of security staff.

Q5.9 To what extent does the fear of violence impact on family law decision making?

Many aspects of our submission discuss the impact of violence on the operation of family law and the inadequacies of the current system in addressing this impact. The IP discusses fear of violence primarily in the context of how this affects the way in which matters are handled by judges and/or the Court generally, however, the affect of the violence is much broader.

In understanding this issue it is important to acknowledge the prevalence of domestic violence in the Australian community. This was discussed in our submission to the ALRC reference on children and the legal system in July 1997:-

From our experience and from the available statistics on domestic violence and separation, the majority of families that use the Family Court in children's matters would be affected by domestic violence.

The following statistics from the Australian Bureau of Statistics (ABS) Women's Safety Australia Survey in 1996 give some indication of the extent of domestic violence in former relationship:-

• in Australia 1.1 million women experienced violence by a previous partner. This includes violence that occurred both during and after the relationship. However, for 74,700 women, violence occurred only after the relationship had ended (p 51);

• of women who had been in a previous relationship, 42% reported an incident of violence by a previous partner. 42% experienced physical assault and 10% experienced sexual assault. 74% said the violence occurred more than once (p 51);

• 701,200 women were pregnant at some time during their relationship with a former partner who had been violent. 42% of these women experienced violence during the pregnancy (292,100) and 20% experienced violence for the first time while they were pregnant (p 52); and

• women separated from their previous partner and then returned, before finally separating. During the time that they were separated 35% experienced violence by that former partner. Half of the women who experienced violence by a previous partner finally ended their relationship because of the violence they experienced or because of threats against the children (p 52).

Children affected

61% of women who experienced violence by a current partner (211,600) reported that they had children in their care at some time during the relationship and 38% said that their children had witnessed the violence (132,400). 46% of women who experienced violence by a previous partner said their children had witnessed the violence (p 52).

These alarming figures may assist to throw some light on the extent to which violence is likely to be present in the cases which go before the Family Court. For many women it violence which has ultimately motivated them to leave. If the violence was inflicted on them while they were pregnant or if the children were also direct victims or witnesses, these facts are the real experiences of these women's lives which they will bring to their consideration of what arrangements may be suitable in terms of the children after separation.

Therefore violence, and the threat of violence, impacts upon decisions made in the context of family law for the following reasons:-

• the prevalence of violence - many cases in the system have a history of violence;

• the over-use of dispute resolution processes, such as PDR, (either because of current trends or a failure to identify inappropriateness) which may result in outcomes that do not accord with the principles of the FLA;

• fear of violence by women and the affect this has on her choice of an avenue or forum of redress (where this is possible) and on her bargaining power during the resolution process;

• fear of violence by Judges and other Court personnel and the affect this has on the assignment of a matter to particular dispute resolution avenues. Are court personnel choosing options such as PDR, that "pander" to the violent man's exercise of "power" and does this result from fear for themselves, the Court or the woman?; and

• the conduct of court proceedings (i.e leniency such as the hearing of unmeritorious cases and time frames for proceedings).

Q.5.1 Can it assist to deflect or deflate potential family violence if judges/registrars permit the 'violent' party to pursue unmeritorious cases or issues?
 

Q.5.1 What is the best way of dealing with violent litigants? What empirical or other evidence (eg psychological evidence) is available to support different approaches?

The Court must take a strong approach when dealing with violent, or potentially violent, litigants. We hold concerns that permitting a violent party to pursue unmeritorious cases or issues would serve not to deflate or deflect the violent man's potential for violence, but rather, afford him yet another opportunity to exert control over the woman and harass her. We already indicated that we believe violent litigants (men) frequently engage in frivolous or vexatious litigation as a way of harassing the woman and prolonging the (or the affects of the) violence.

Often, the issue for the violent man is one of control and allowing him to pursue such claims may enable him to believe he controlled the Court process. It must be noted that this would, in fact, be the case, at least to the extent that the Court was prepared to utilise recognised finite public and private resources to "appear" to give consideration to the man's claims. This in turn may give him a greater sense of power. Conversely, the same approach would frequently further disempower the woman who has already been disempowered by, perhaps years of, violence and abuse.

The Court, as an institution, cannot react/act in "fear" of violence or the threat of violence. As the bastion of the law and justice the Court cannot be, or be seen to be, controlled or "black-mailed" by people who abuse the laws and the legal system which have been enacted and developed for the intended benefit of the community. A woman who is a victim of domestic violence, and the community at large, could not have confidence in a court, and it's ability to effect justice, if the judicial process was "held to ransom" by a violent man.

In any event, we do not believe that the Court can justify waste of its own critical resources or those of Legal Aid and individuals, that would result from affording violent litigants such leeway. It would be completely unacceptable if such limited resources were utilised in accommodating violent litigants, while legal aid funding is denied in meritorious cases and parties are forced into PDR processes in inappropriate situations partly because of the lack of resources for litigation.

The IP's proposal to, more or less, accommodate the whims of a violent litigant, is dictated by considerations of "fear" of violent consequences if such demands are not met. It clearly discusses threats and violence directed to judges and Court personnel in this context. It is important to note that the conduct and factual circumstances that have incited fear in an institution and it's personnel cannot begin to touch on the experiences and terror of the woman who has been subjected to this behaviour. The Court has a duty to exercise it's authority in the administration of justice and protect these women and the community.

Q.5.11 What percentage of litigants could be identified as violent or potentially violent? What methods could be used to identify such litigants?

It is our view that violent, or potentially violent litigants, could be identified by more effective streaming of cases. This would enable the Court to isolate cases where violence, or the potential for violence, exists. After identifying such a case, the Court should give consideration to the special needs of the case (such as specially trained Judges and extra security), to ensure the safety of all Court personnel, the parties, all legal practitioners and other clients, professionals and the general public utilising the Court and it's services, before accommodating the case into the Court process.

This procedure would facilitate the type of authority that the Court must exert over violent litigants. Further, it would enable the Court to take control of all litigation from the outset and use tools, such as managerial judging and case management guidelines, to ensure that all litigants are subject to the same regulation. This should also ensure that the behaviour and tactics of a violent or potentially violent litigant is monitored at all times.

Q5.14 Would the pressures on litigants in the Family Court lessen if there was less overt security in the Family Court?

From the analysis above, it is clear that we do not believe that less overt security in the Court would lessen the pressures on litigants. For all litigants, but particularly women who are victims of domestic violence, the Court must actually provide, and have the appearance of providing, a neutral, safe environment where they can pursue their rights. The Court must be in a position to protect all women from their violent, or potentially violent, former partners.

PRIMARY DISPUTE RESOLUTION AND INFORMATION SERVICES - CHAPTER 7

Primary dispute resolution - p 53

At the outset in this chapter we should state that for many of our clients the only form of ADR which they experience occurs at the Legal Aid Office. It is probably true to say our impressions of PDR are significantly shaped by the reports and experiences of those clients. Because many women who choose to use the Women's Legal Service have been subjected to violence in their relationship, we rarely have an opportunity to refer clients to the family mediation services which exist in Queensland. When an apparently appropriate case presents we do make referrals to the mediation service at the Family Court, Relationships Australia or the Queensland Alternative Dispute Resolution Branch, Attorney-General's Department.

It may be a good sign that we see few women who have used the Court's mediation service. Perhaps those women have reached satisfactory agreements and are getting on with their lives. Perhaps those services are better suited to middle class women with greater personal and financial resources who use other avenues if the agreement fails in some way. We simply do not know.

Our concern about the current system and approach, however, is that the new culture of dispute resolution through mediation channels has taken on an almost magical quality on both a theoretical level in the literature and a practical level in terms of service delivery. The IP discusses the possibility of mandatory or compulsory referral to PDR processes in a number of places. Even the term primary dispute resolution assumes that all non-litigious processes are to be preferred over litigation. We consider that this creates a culture in which it is difficult for women to assert their right not to mediate but to have their case determined by a judge.

In our submission to the Attorney-General's Discussion Paper on Delivery of Primary Dispute Resolution Services in Family Law we said:-

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 Violence: Final 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 (p ii).

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.

Regulating PDR practitioners - p 54

Q.7.1 Should PDR practitioners, within or outside the Family Court, be subject to regulation including accreditation? How should they be regulated?

The WLS believes that it is essential to require some form of accreditation for PDR practitioners. They are dealing with matters concerning how other people manage their children, in circumstances of stress and relationship breakdown. Some minimum standard training in the skills of mediation and family dynamics are critical to this important role. Without any formal requirements, any person could simply call themselves a mediator and set up practice.

Although the mediator is not the decision maker, parties look towards the mediator as someone with authority and skills. This trust must not be betrayed.

It would also be appropriate for there to be a process of de-registration if it were proved that a "mediator" was not fulfilling the required ethical, training and other criteria.

Q.7.4 What training, accreditation and practice standards should be required of PDR practitioners whether within the court system or external to it?

We do not claim to have any expertise in PDR training. For our clients it is essential that PDR practitioners and intake staff have training on domestic violence. In many instances this will be to assist them to identify those cases which should be excluded from mediation processes.

There will also be situations where a mediation is occurring notwithstanding a history of violence. It may be that the woman has consented to the process, or that the domestic violence was not initially identifed. It must be understood that domestic violence is not always physical. Emotional and psychological violence is much harder to identify in intake interviews and these cases will not always be screened out, no matter how thorough the process. A well-trained mediator, however, should pick up the subtle signs within the process. They must be trained to recognise and manage such dynamics. That may involve terminating the mediation in some cases or using other strategies to minimise or circumvent the power imbalance which is likely to emerge.

It should be pointed out that our clients often feel that trained experts, such as social workers or psychologists are "taken in" or deceived by those abusers who are able to present a charming face to the world. When this occurs in the context of providing counselling or preparing a Family Report in family law proceedings the women lose confidence in ever having their fears believed or understood.

Recommendation Thirteen

That PDR practitioners be subject to regulation, accrediation and de-regulation.

That PDR pratitioners be trained in the dynamics of domestic violence for the purposes of:-
 

• dealing with intake processes with a view to generally excluding such cases;

• assisting victims of domestic violence who are interested in mediation to make a genuinely informed choice; and

• dealing with the dynamics when they arise within a mediation process.

Should there be mandatory referral to PDR? p 55

Q.7.2 What role should the Family Court and other courts exercising federal family law jurisdiction adopt to persuade parties to use PDR processes before commencing or continuing with litigation? What forms of persuasion are appropriate?

Q.7.3 Should parties be required to participate in PDR, and if so, at what point(s) in the court process should it be considered? Under what circumstances and subject to what rules and cost arrangements should it be considered?

We not not believe that any forms of persuasion or mandatory processes are appropriate in PDR in family law. There are many reasons why one of the parties may feel disempowered in any situation of forced negotiation. Women, in particular, may be disadvantaged by having less education, self-confidence or information (particularly about the family finances) than the male partner.

A balance must surely be found to meet the needs of those cases that can settle (and will always be conducive to settlement) and those that will not. This balance must incorporate a balance of funding, staffing and other resources to ensure that PDR processes are tailored to those matters that are able to respond to the processes, and to ensure that sufficient resources are available for trials for those parties who cannot and will not resolve their disputes by any other means.

Recommendation Fourteen

PDR processes should not become mandatory either by way of law reform or by introducing procedures which require non-litigious avenues to be taken before litigation can commence.

Reporting to the Court - p 56

Although we recognise that there various adminstrative and expense problems associated with formalising results in the Court, the WLS believes that this often a critical step. We do not suggest that all parties should be made to formalise their agreements, and, for some women, it may be advantageous for an inappropriate agreement to remain private.

However, where the parties require security and certainty around issues such as contact arrangements, then the agreements should be registered and the Court should have a role in scrutinising the order for "fairness". In this regard some minimal material should be filed.

In undertaking her Masters of Laws thesis on The Use of Litigation and Mediation for the Resolution of Custody and Access Disputes: Some Issues for Women, Rachel Field conducted a survey of family law practitioners' and mediators' responses to a number of statements. One statement posed was:-

"Mediation may focus on the parties' own needs rather than on the best interest of the children".

The results of the lawyers' survey is as follows-

 

	Strongly disagree	Disagree	Un-decided	Agree	Strongly  agree	Total  disagree	Total  agree
Male	1%	52%	22%	22%	3%	53%	25%
Female	2%	23%	35%	35%	4%	25%	39%
Total	2%	40%	26%	27%	4%	42%	31%

 
The results of the mediators' survey is as follows-

 

	Strongly disagree	Disagree	Un-decided	Agree	Strongly agree	Total isagree	Total  agree
Male	16%	36%	28%	12%	4%	52%	16%
Female	0%	45%	36%	15%	3%	45%	18%
Total	7%	41%	33%	14%	3%	48%	17%

In her analysis of these results Ms Field commented on the gendered response of the practitioners and suggested that:-

female practitioners are better apprised of mediation's process dangers than their male colleagues, in that they recognise that the agenda setting process in mediation is vulnerable to the whim of the party with the power imbalance in their favour.

In respect of the mediators she noted that-

In general mediators did not agree [with the statement] indicating that in their experience, sufficient focus is placed on the best interests of children in mediations. It must be remembered, however, that as [the mediator group chosen] were not required to be legally trained, most would not be aware of the comparative legal standards on the best interests issue.

However the results are interpreted it is clear that professionals engaged in, or observing, mediation, are not confident about the position of the concept of the best interests of the children in mediation. This seems extraordinary given its paramountcy in the legislation and case law. There is something ironic about the time, energy and money being spent on mediation when there is no proof that it promotes the central principle of the FLA which has been formulated to reflect years of sophisticated, reasonably bipartisan, government policy and to incorporate much of the precedent developed in the Court.

Evaluating dispute resolution options - p 59

We have discussed our concerns with standard evaluation processes for PDR earlier in our submission.

However, we note that the IP again states that PDR processes may "result in a higher level of compliance with outcomes" (para 7.29). As we will explore further in the chapter on Enforcement, we have a growing concern about the number of contravention applications which appear to be based on "consent" orders. Until proper research is devised and undertaken it is not possible to ascertain the circumstances and processes which led to those consents, however, it may well be that PDR processes played a role.

Further, where proper screening processes are used it is hardly surprising that mediation reaps good results. The group that almost self-selects is couples who believe that they have a prospect negotiating with equal bargaining power. These are the couples who are always likely to reach agreement and be flexible about its impementation. They are the ones who used to settle through solicitors' correspondence, at a round table meeting or the first return date. These are not the couples who have always filled the courts with lengthy and complex litigation.

In some ways we are mystified by the focus on these couples in the law and legal system reform process. The legal system should be geared to respond to the couples who have reason not to agree; who are dealing with violence, child abuse and hidden assets.

In our submission to the Attorney-General's Discussion Paper on Delivery of Primary Dispute Resolution Services in Family Law we covered two significant issues - clients satisfaction with and durability of orders and the exclusion of family violence cases. We set out our comments below:-

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).

In our opinion these statistics indicate quite a high and rapid rate of breakdown of agreements. When parties are filing contested applications in the Family Court within three months this suggests that the agreement itself was inappropriate rather than a change of circumstance which requires alteration to the agreement. There is no way that parties would be able to consider returning to the Family Court within three months to re-litigate a case where a court order had been made within the course of ordinary proceedings.

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.

In terms of understanding the extent to which family violence is likely to impact on the processes of the Family Court, it is interesting to note the statistics provided by the 1996-97 Annual Report relating to the Counselling Section. In accordance with the Court's Family Violence Policy

single interviews are offered when there has been a history of domestic violence in the relationship and one of the parties indicates they are worried about their physical safety and are afraid of attending a joint interview with the other party (p 28).

The option of separate interviews is offered in various ways. Of the 25,869 cases in person dealt with by the Counselling Section, approximately one-third (8,597) cases were conducted by separate interviews because of family violence.

Neutrality

An intersting question which arises is the extent to which mediators can truly hope to be neutral - and to what extent that is the best approach.

This same question has arisen with Family Court counsellors. At a conference entitled Challenging the Legal System's Response to Domestic Violence held in Brisbane in 1994, Helen Pavlin, then the director of Court Counselling for that region explained-

issues of violence in a relationship may not always have received an appropriate level of investigation, being too readily grouped perhaps with other matters on which the couple disagreed. the honing of the counsellor's particular skill of avoiding being sucked into a coalition with one member of a separated couple against the other was achieved at the cost of becoming blunted in some way to issues of domestic violence.

It has been a significant shift for counsellors today to make specific enquiries of their clients as to whether domestic violence has been an issue in their lives and whether they would be fearful in the presence of their former partner. It is now an expectation within the Service that it is the counsellor's responsibility to ascertain the presence of any such concerns and to plan the management of any interviews accordingly.

Just as Carol Smart has shown a shift in orthodox thinkng with the British judges to grant contact in almost all situations, again we see a shift in orthodoxy in Family Court counsellors and the recognition of the relevance of domestic violence. The WLS argues that these shifts demonstrate that "neutrality" is something of an artiface which moves with the accepted thinking of the time.

PDR practitioners are just as subject to these shifts in philosophy and mood. We believe that at present, there is not sufficient attention given to these matters once a mediation process has commenced. If a couple has not been screened out, mediation may continue without recognition of the extent to which the women is actually being disadvantaged by her history with her former partner. For the mediator to take this on board and confront or challenge the aggressive partner, may well fly in the face of current mediation practices.

As Rachel Field points out:-

[a] major concern arises out of the conflict between the theory of mediator neutrality and mediator assertions of an ability adequately to address power imbalances. The mere process of power imbalance identification could be argued as being biased towards one party, usually the mother. Actually to take steps to redress the imbalance is unavoidably non-neutral (p 220).

Recommendation Fifteen

That careful analysis be undertaken of the extent to which the "neutrality" framework of mediation actually works against achieving genuine redressing of power imbalances.

Range of PDR processes

Assessing the value of the Court Counselling Service - p 62

Q.7.11To what extent and in what ways does family counselling contribute to resolving family law disputes? In particular

does it help in cases that would settle in any event?

does it accelerate the dispute resolution process?

to what extent is it effective in reconciling parties?

what is its usefulness for resolving (i) simple disputes (ii) complex disputes (iii) intractable disputes?

Without trying to answer the question in detail, it is intersting to note that the settlement rate for disputes in the Counselling Section is about 38% (para 7.40). We are of the opinion that this may represent a natural rate of settlement where the focus is on the children's interests and counselling, rather than on reaching agreement. We support the role of the Counselling Section in providing counselling for the parties and believe that it would be counter-productive to change this role to create a more settlement driven process.

PDR and legal aid - p 68

We have canvassed our concerns about legal aid throughout this and other submissions. The most significant feature about the "mediation" process at Legal Aid is its lack of voluntariness and the judgments which are exercised about the parties during their participation.

In our 1996 submission to the Senate Committee Legal Aid Inquiry we described the inappropriate cicumstances in which some legal aid conferences were held:-

Until recently the conferences were chaired by both a solicitor and a social worker. However, because of the recent tightening of guidelines, the conferences are now only chaired by one person (either a solicitor or a social worker). The Legal Aid Office, for [some length of time] has had a policy of favouring conferencing over court action as a method of resolving disputes.

Although the conference for some women proves to be a quick way to reach a resolution of matters and obtain a court order, for other women the experience has been deplorable. We are aware of circumstances where Legal Aid conferences have been organised in clearly inappropriate circumstances and sometimes where there are severe allegations of violence and abuse. We believe with the increased financial pressure on the Legal Aid Office because of economic considerations, there will pressure on staff to work within an even more restricted budget. We fear that this could result in even more inappropriate conferencing taking place. Or indeed, that conferencing will become the 'norm' and legal aid clients will be unable to access the courts except in the rarest of circumstances.

Case Study

A woman contacted the Service from a Queensland regional city to seek advice about entering what she now believed was an inappropriate contact agreement with her former husband in a legal aid conference. The woman had three children and had separated from her violent spouse. During the marriage he beat her severely and subjected her to psychological abuse. At the time of separation the husband had driven off with the children in his car with a gun and had threatened to shoot both himself and the children. The children were eventually returned safely after the intervention of the police. The husband sought contact with the children and a legal aid conference was organised. The husband turned up drunk to the conference, however the conference was allowed to continue and an agreement was reached!

When women have been constantly put down and savaged, they rarely have the confidence to assert their concerns, particularly in a conference setting. Although she accepted the conference agreement at the time, it was totally inappropriate. Afterwards, she contacted this Service for advice.

On the information which we receive from clients about the Queensland Legal Aid conferencing system, we make the following observations:-

• the process is not voluntary in any way;

• it is almost impossible to have a case excluded on the basis of domestic violence - we know of no case where this has occurred;

• women are adivsed by their solicitors before they commence that it is important that they appear to be reasonable and co-operate with their former partner, otherwise they will not be given a grant of aid to proceed to the Family Court;

• it is impossible to emerge with an agreement that does not provide significant contact unless there is medical evidence of sexual abuse of the children - rarely available so early in the process;

• women are often told that a history of domestic violence is irrelevant to the question of contact;

• many women seek out our Service to try to change the terms of "consent" orders made at legal aid conferences; and

• many women are prosecuted for contravention of consent orders made at legal aid conferences.

Recommendation Sixteen

That the process of legal aid conferencing be reviewed with a view to ensuring that the relevance of a history of domestic violence and/or child abuse is reflected both in the process and in the anticipated outcomes. Where there is a history of serious violence, such that the parties are inappropraite candidates for mediation, legal aid should be provided to institute proceedings in the Family Court.

Role of children and other parties in PDR - p 69

Q.7.34Should children and possibly other relevant people to a dispute participate more in PDR processes? If so, how could this take place? Are changes to particular policies or rules regarding PDR required?

We would be loathe to see PDR become a "free-for-all" in which everyone in the extended families and friendship groups of the parties got to have a say. However, there are obvioulsy instances where key persons ahve a vital contribution to make.

Recently the WLS was contacted by a woman who was the "new" wife of man who has custody of his children. They had been married for about 5 years and she was, for day to day purposes, the primary care giver of the child. She was excluded from a legal aid conference which had been set to discuss contact arrangements with the former wife, because she was defined as a thrid party. It may be that the mediator had not read the file closely and this may not be a general policy, but such exclusions only serve to anger the parties. She had much useful information to contribute about practical matters.

Deciding to include third parties can obviously be sensative, particuarly where they are new partners of one of the parties. However, their blanket exclusion can be impractical and hurtful.

Recommendation Seventeen

Where a third party plays an integral role in a child's life, strategies should be developed to allow their input at mediation. However, it must be recognised that such a person will often be a "supporter" of one of the parties and steps must be taken to ensure that their presence does not create an unnecessary and/or unfair power imbalance.

CASE MANAGEMENT AND THE FAMILY COURT OF AUSTRALIA - CHAPTER EIGHT

An alternative approach to case management - p 77

Q.8.14Should courts and legal practitioners dealing with family proceedings pay greater attention to assessments of cases in terms of conflict models, personalities of the parties involved and the level of progress through the separation process? If so, how should these types of factors be incorporated and used?

We would be very concerned about any approach to case management which employed a diagnostic tool such as "the personalities of the parties" (p 77). We agree with the suggestion that this could lead to "negative labelling of the parties" and, at the very least, apparently self-fulfilling consequences. It is our view that this could have an extrememely adverse impact on women.

As we have said, we believe that allegations of violence and shild abuse are the most useful indicators of "complex" cases which will require careful management.

EVIDENCE AND PROCEDURE IN THE FAMILY COURT - CHAPTER TEN

Discovery - p 85

Q.10.5What is the effect of limiting discovery until after the conciliation conference? Are settlements difficult to achieve without the power of subpoena or discovery? Are settlements being delayed until disclosure can be forced?

It is problematic that formal discovery procedures generally become available quite late in family law proceedings. Many women have little idea about the marital finances and assets and therefore cannot participate meaningfully in settelment negotiations. The total lack of any procedures for discovery to occur before property mediations means that evaluations of these processes have been unable to provide any assessment of the "fairness" or appropriateness of any agreement made.

We believe, that in the interests of assisting settlements and meaningful negotiations in financial matters methods of obtaining accurate access to relevant information should be explored. This may involve both parties signing standard forms authorising financial institutions, superannuation funds, employers and tax agents/accountants to release information to the other party.

For these purposes, we do not believe that it should be necessary to swear affidavits of documents, which are costly to prepare. A simple form on which documents are listed and assets (and their value) are disclosed would be more useful.

Recommendation Eighteen

That consideration be given to developing informal discovery procedures with which parties should be encouraged/required to comply before attending property settlement negotiations/mediation.

The procedure should allow for:-

• a listing of all relevant assets and the documents which relate to them;

• an estimate of the value of the assets; and

• a simple process to facilitate release of informationby relevant third parties to the other party to the marriage.

Evidence and procedure in cases involving children - p 91

Family Reports - p 93

Our concerns in respect of Family Reports were recently set out in our submission to the FLC on Penalties and enforcement:-

Family Reports

One growing concern relates to the use of family reports. The way in which the Family Court has directly involved people with social science backgrounds in children's cases is one of its most innovative and vital features. However, the Court has come to place huge trust and reliance on the assessments of these experts. When they do not have a good understanding of the dynamics of domestic violence, the reports which emanate can be devastating for women.

Clients report instances where the report writer has appeared to be charmed by the violent man. The consequence of this is that the woman is described as difficult or unreasonable. Her attitude towards her former partner is seen as bitterness or irrational hatred. For years women working in the field of domestic violence have tried to explain that some men who are violent in their intimate relationships can be quite charming in public life. At one of the first major conferences on domestic violence in Australia in 1985, Dawn Rowan, a refuge worker explained-

From the women in our client group, 80% of men who beat their wives are charming to everyone else and are not identifiable outside the family as violent or criminal (p 27).

Despite this, there are many report writers who appear to be attracted to these charming men who are able to present as unusual and caring fathers. It is our view that this unusual interest in their children is often a manifestation of the flip side of an obsessive desire to control their wives and prevent them from creating a new and independent life.

It has been observed that there is often a small group of professionals who become willing to appear regularly in the courts as experts. This phenomenon is not limited to the Family Court and is probably a natural consequence of the fact that most professionals never want to go near a court! However, it means that a small group of people become well known and respected by the judges and their views become very influential. If one of these experts has a blind spot about an issue such as domestic violence, this can affect the lives of a significant number of women. WLS has noticed the repeated influence of a couple of individual experts in the cases of [our] clients who have contacted [us] in desperation after apparently unsafe residence or contact orders have been made in response to a family report.

Interestingly, field workers such as refuge workers and domestic violence workers are given little credibility in the Family Court and are not regularly called upon to give evidence or explain the conduct and responses of women who may appear to be acting "unreasonably" or "irrationally".

WLS has worked with a number of women who have lost residence of their children to violent men largely as the result of the assessment of the parties contained in the family report. The case of Carmel is one of the most graphic recent cases where the domestic violence was not understood and this contributed to the fact that the sexual abuse of the children was not believed.

Child's Representatives - p 93

Again we quote form our recent submission:-

Child Representatives

Similar problems arise with child representatives. Many clients report that they feel no sympathy for their position from the child representative. This has always been the problem with the Family Court's philosophy that counsellors, judges and children's representatives should maintain neutrality. It has led to inappropriate processes and unsafe practices in the past. The 1993 Practice Direction on Family Violence seems to have partly been introduced to break down the consequences of the accepted approach. [We have referred to the paper of Helen Pavlin on the shift in attitude by Family Court counsellors.]

Where the children's representative demonstrates no apparent understanding of domestic violence, a woman survivor feels alienated and desperate. She may then either appear to act hysterically in her desire to have her concerns heard or may become silent about her concerns, convinced that she cannot be heard.

The guidelines for Children's Representatives provide useful information on how to deal with family violence (see Representing the Child's Interests in the Family Court of AustraliaReport to the Chief Justice of the Family Court of Australia, Sept 1996, pp 42-43). These do not appear to necessarily be followed by all children's representatives.

A WLS client reported recently that the children's representative refused to speak directly to her during the lead up to the interim hearing. This was despite the fact that the woman was acting on her own behalf because she had been refused legal aid on the merit test on the basis of an adverse family report. On the other hand the children's representative was in regular contact with the father's solicitor. The judge awarded residence to the husband at that interim hearing notwithstanding the facts that the mother was unrepresented, she challenged the contents of the family report and she had always been the primary care-giver of the child both before and after separation.

Interim Hearings

We have long held concerns about the application of the law and procedures which apply to interim custody hearings in the Family Court. In particular, we believe that the old notion of the importance of preserving the status quo is is urgent need of revision in the light of changed attitudes on the relevance of family violence.

In a Master of Laws paper on Family Violence Interim Custody/Residence and the Family Court, Toni Dick drew on her long experience as a practitioner in Brisbane and her research into the relevant case law. She is concerned about the following featres of interim decision-making:-

• the two hour limit prevents any real exploration of family violence;

• status quo tends to be defined as leaving the children in the family home, rather than as leaving the children with their primary care-giver;

• therefore, if the mother has been forced to flee because of violence and leave the children with their father, it can be very difficult to change this situation at an interim hearing (WLS cases support this view);

• if the man denies the violence in his affidavit material there is no opportunity for the judge to investigate where the truth might lie and therefore the children are likely to be left with the violent father;

• the procedures and law allow the judges to avoid making contentious decisions to change the status quo and therefore the old case law has not been effectively challenged. (WLS adds that the practical problems with appealing interim decisions due to expense, unwillingness of legal aid and delay factors exacerbate this problem); and

• legal aid's attitude regarding early settlement meant that resources are always limited in the early stages of cases, so interim hearings proceed on limited documentation.

Recommendation Nineteen

That there be urgent consideration given to reviewing the laws and procedures which apply to interim hearings to ensure that the Court has a real opportunity to explore allegations of domestic violence and/or child abuse where they are made.

THE LITIGANT IN PERSON - CHAPTER ELEVEN

In respect of litigants in person our major concern is that the gendered aspect of this be fully understood. There is no doubt that either or any party can find themselves unwillingly representing themselves in the Court but in our experience, men sometimes choose this course, whereas women are rarely in that position voluntarily.

Men use self-representation as a way to shake off the moderating influence a lawyer might bring. It allows them to bring repeat applications without cost and to directly cross-examine their former partner.

Women are often fraught by the thought of representing themselves and become extremely stressed during their preparations and appearances. Due to the current lack of legal aid funding we are assisting a number of women to represent themselves in Court. We are assisting with the preparation of documents and providing advice on court procedures. Some of our clients are successful and others obtain appalling results.

Our workload has become totally skewed by these demands and we are unable to meet the need for new client appointments because of the on-going demands of these cases. Further, most women who do not live in the south east corner of Queensland have no access to such services. As a small organisation, we obviously do not make any real impact on the overall situation of women who are self-representing.

On a technical note, self-representation prevents the right of re-examination. A client of ours of who represented herself recently in the Family Court has reported that after she was cross-examined she had wanted to clarify some points which had arisen but could find no avenue to do that. We realised that the rules of procedure seem to exclude the right of re-examination for self-representing parties. Perhaps judicial officers need to be more creative or perhaps there is a need to re-visit rules relating to procedure where there are litigants in person.

We also believe that there is a subtle problem caused when women represent themselves. To some extent lawyers play a "shielding" role in the courts. Clients who are emotionally stressed by the proceedings can "let off steam" with their lawyer and present a calm exterior to the court. When the lawyer is removed they are exposed in all their vulnerability. Where a violent man is represented, his aggression is often concealed. Meanwhile his frightened partner, who is terrified about the consequences of the hearing, is forced to be her own advocate. She is often battling against a Family Report that has described her as "over-anxious" and has been frustrated and demoralised by her contact with Legal Aid. This creates an extraordinary disadvantage as she exposes her "hysteria". All that the father has said about her appears to be played out before the judges eyes.

We note that the recent report of the FLC, Child Contact Orders: Enforcement and Penalties shows scant regard for the trauma of self-representation or its gender implications:-

For some people, the present system militates against effective self representation and, as a result, the system is seen to be responsible for some parents losing contact with their children. Council believes that where there are ongoing disputes about alleged breaches of contact orders the parents involved should normally be able to represent themselves. If self representation is to be a feasible proposition there would be a need for greater assistance to be available for litigants-in-person. In this regard Council draws attention to its proposal to establish a project dealing generally with litigants-in-person and such matters could be examined in that project (p 34).

Recommendation

That any attempt to encourage or faciliate self-representation could adversely affect decisions about funding allocations. Money should not be spent assisting people to represent themselves. It should be spent improving access to legal representation through Legal Aid bodies.

However, given the reality of the phenomenon of litigants in person, the Court should review its rules of practice to ensure that such litigants are not disadvantaged on a technical level.

THE COSTS OF FAMILY LAW PROCEEDINGS - CHAPTER FOURTEEN

Q.14.1Does adversarial litigation affect public and/or private costs in family proceedings? If so, how? Would non-adversarial methods of dispute resolution reduce private and/or public costs?

We have raised many concerns about the use, and more particularly the misuse of PDR. Whilst there are various schools of thought on the effect of different legal systems on public and private costs, it is our view that it is the implementation of these systems which should cause costs concerns. The misuse and over use of mechanisms such as PDR causes inefficiencies and ineffectiveness in the operation of the legal system. We believe that the greatest cost benefit will be achieved by establishing that balance between adversarial, inquisitorial and PDR mechanisms which most effectively meets public and private interests in family law. We hold the view that PDR is currently used, in some cases, inappropriately and this waste of resources causes unnecessary inefficiencies in the legal system. Maximum cost effectiveness cannot be achieved simply by promoting increased use of PDR.

Q.14.2Is the Family Court inaccessible to many potential litigants due to financial barriers? Would an Australian of average means be able privately to finance family law proceedings? To what extent are current costs of litigation an appropriate disincentive to unnecessary litigation?
 

Family law is a system of rights and obligations which is intrinsic to modern society. We believe that these rights are so fundamental as human rights that any system of justice administering this body of law must be accessible to every person, regardless of their sex or educational/economic background. As the administration of the system currently stands, the costs of litigation make it inaccessible, without financial assistance, to a person of "average" means. Many of the women who consult us have means far below this "average" and as such are frequently precluded from accessing the very system that has been developed to protect and assist them.
 

With the ever increasing demand for family law we believe that governements must accept and integral role in providng relevant and appropriate services to the community. After separation, at a time of disruption and perhaps confusion, women and children need access to a system that will facilitate a determination of the parties' respective rights and enable the woman and children to enjoy a degree of certainty in relation to daily activities and responsibilities. This system plays a vital role in affording women the ability to take control of their destinies and it must also be focussed on guaranteeing long term security and safety. To facilitate access to justice, the provision of family law Ssrvices must be supported by the availability of adequate and substantial legal aid.
 

We have previously stated that the key to an effective and efficient legal system lies in balancing the components of that system and in the system's effective implementation/administration. We believe that the safeguards and controls that are currently in the system, such as managerial judging and case management, could effectively be used to discourage unnecessary litigation. Our society is, however, built upon basic freedoms and, fundamentally, it would appear that the decision to litigate should continue to be a matter for the individual party. A decision by the Court that certain litigation is "unnecessary" is one that should not be made lightly. It is our submission that under no circumstances should the cost of litigation should not be a determining feature as to whether or not litigation is "unnecessary".
 

Q.14.3In what types of family law proceedings is the cost of litigation most evident as a barrier to access to justice? What types of people are most affected by the cost barrier?
 

Taking into account the cross section of the community, men are frequently more financially secure than women, because they often have a higher level of education and a greater earning capacity. Men have also often controlled the finances in the relationship, leaving women without access to joint funds after separation. As a result of intrinsic power imbalances and a violent man's use of control, these discrepancies between parties are often exacerbated in situations of domestic violence.
 

It is our view that women are most affected by cost barriers to justice.
 

Q.14.5Are parties in state magistrates courts, necessarily motivated to litigate family law proceedings in such courts because of the costs of Family Court proceedings?
 

We submit that cost considerations frequently motivate decisions to litigate in the Magistrates Court rather than the Family Court. Further, this consideration is even more persuasive for women in remote areas as a result of the additional costs of litigating in the Family Court. Improvements in the operation of the legal system and greater access to legal aid for family law would lessen the impact of these costs consideration, however, issues of remoteness will continue to impact upon a woman's choice of forum. Accordingly, we hold the view that adequate safeguards must be instituted and comprehensive training for Magistrates must be implemented to ensure consistency between each Magistrates Court and the Family Court.
 

Q.14.25 Should the Family Court charge for information sessions, group sessions, emergency telephone counselling and other methods for the provision of information (eg divorce kits, parenting kits)?
 

In accordance with our answers above, it is our view that the Court should not charge a daily hearing fee, additional fees for appeal proceedings or for any information/counselling sessions.

ENFORCEMENT - CHAPTER SIXTEEN

Q.16.1Are there problems with the practice or procedure for enforcing court orders in family law proceedings?

It is unfortunate that the IP has chosen to focus on enforcement issues mainly as they apply to contact orders. This also occurred in the FLC's Interim Report on Penalties and enforcement. In our submission on that Report we explained that men breach the terms of property orders but the women are rarely able to pursue these breaches. Further, small breaches of the terms of contact orders regularly occur but do not result in proceedings:-
 

Focus on Non-Compliance with Contact Orders by Residence Parent

¶1.05 We are not surprised that most of the information received related to non-compliance with contact orders. It is often men who have the emotional and financial resources to pursue enforcement cases. As Doris' and April's cases suggest, many women are simply too exhausted by the process to pursue enforcement proceedings in property cases.

However, we are concerned that the concentration on contact cases allows false assumptions to creep into the growing pool of research material on family law in Australia. This can become influential and lead to law reform changes in areas of law which impact detrimentally on women, while men continue to flout property orders.

To balance the picture we have included the cases of Doris and April which show the flagrant disregard some men hold for property orders and the inability of women to enforce those orders. This leads to a skewing of the statistics. There is no record at the Family Court that both of these orders have been entirely flouted. Neither case would emerge in any research on contempt or non-compliance with orders because they simply appear to be finalised property cases.

It should be remembered that the entire child support scheme had to be introduced to counteract chronic non-compliance with maintenance orders by men.

¶1.06 It would be impossible for women to litigate every time there was a non-compliance with the precise terms of a contact order. Collecting and returning the children late is frequent and last minute cancellations or sudden requests for the children are also common. The latter situations often occur where men wish to disrupt the lives of their former partners and make it difficult for them to plan weekend arrangements.

Even where there is a total failure to return the children women, do not automatically receive legal aid. Often a conference will be organised and by the time it occurs the father has established a status quo. On the other hand, failure to provide access seems to be a basis for a grant of aid for enforcement proceedings.

Q.16.3What specific problems are there with the enforcement of contact orders? Are they being effectively enforced?

In the same submission we considered that the important question to ask was "Are appropriate contact orders being made?"

Based on the experiences of the clients of [the Combined Women's Refuge Group] (CWRG), WLS and the networks in which we operate, we have a fundamental concern with the Interim Report because of its focus on penalties and enforcement of orders. We believe that it is the front end of the process which needs to be changed and looking for ways to enforce orders is beginning at the wrong end.

The FLC is faced with a difficult investigation - and the Interim Report demonstrates the Council's keen awareness of this. Generally, the legal system relies court orders being enforceable. After an order has been made and no appeal has ensued, it is expected that it will be complied with - either "voluntarily" or by enforcement action. There is rarely an opportunity to go behind the order and examine its "fairness" or "correctness". As lawyers, the position is a technical one. There is an order. There is failure to comply. How could it be enforced?

But the concern of the writers is that our clients seem to be trying to comply with orders which are inherently unreasonable. They have often been entered into in compromise "consent" situations at legal aid conferences or in the corridors of the Family Court. Our clients constantly report that their lawyers tell them to settle because they will not get legal aid to pursue the matter. This is clear from Patricia's story. In her words she felt "threatened" by her own solicitors and court counsellors because she cannot prove the abuse.

Monica's story demonstrates that, even where there is a history of harassing contempt applications, women will still be encouraged to settle the proceedings and enter into arrangements that require good will from men who have been violent and obsessively controlling.

Paragraph 4.13 of the Interim Report quotes from an English text which suggests that when courts are faced with non-compliance with their orders they should consider why the order "has not worked and consider whether a variation would solve the problem" rather than punishing for disobedience. Unfortunately this notion was not pursued in the Interim Report, but in our experience this is the real issue.

The question should not be - "How can this woman be made to comply with this order?" but "Are there terms in this order that make it unworkable for the woman?" or "Are these proceedings an on-going form of harassment?"

Unworkability of Orders

Jan's story is an example of an unworkable order. The son does not want to go on contact visits but the mother must drive him across town three times per week to comply. The future success of this order is obviously in doubt and the potential for breach is high but the order was made and, despite the violence which the husband perpetrated, it is now Jan who lives under threat of being punished for non-compliance with a court order that her son hates and that she believes is detrimental to him.

In the JSC Inquiry Justice Buckley acknowledged the difficulties of enforcing contact orders, but explained the impracticability of the situation sometimes-

I am familiar with correspondence [complaining about access orders]. Much of that, on the face of it, is quite convincing until you dig up the file and have a look at what that person is trying to impose on the children they are impossible cases (JSC ¶7.30).

Enforcement Proceedings and Harassment

The writers believe that contempt proceedings are often brought by men as a form of on-going harassment of their former partners. It serves to prevent the women from getting on with their lives by locking them in a stream of court proceedings. Monica's case exemplifies this situation.

The insidious nature of the proceedings is that they can lead to some form of punishment. The worst form of punishment for many women is the threat of losing residence of the child - and this is a real possibility. It has happened to a number of clients of the WLS and children have been shifted to fathers who have, without doubt, been violent towards their former partners.

The Chief Justice of the Family Court, Justice Nicholson, commented on this at the JSC Inquiry-

there may be cases where judges have taken an unduly lenient attitude to breaches, although often when you examine the circumstances you can understand the leniency it may be the application for enforcement is really part of a harassment process (JSC, ¶7.31).

We described some recurring features we observed in enforcement cases in our discussion of chapter three.

Returning to the submission, this was the first time we postulated the connection between consent orders and contravention applications:-

Consent Orders and Contempt

In the early stages of the ALRC and FLC investigation into contact cases the researchers noted a relationship between difficult contact cases and consent orders. "Many difficult contact cases seem to have consent orders made by the court at some stage" (ALRC Issues Paper No. 14, p 49).

A number of submissions to that Paper addressed the issue of "consent" where there is a history of violence-

The Court may assume that the parties are able to negotiate freely and come to an agreement when the women is intimidated because of the violence. It may make consent orders when violence makes true consent impossible. Many women accept contact because they fear retaliation by partners or are pressured to do so by lawyers or by the Court, including its counsellors. In these ways the Court process itself becomes another experience of violence for some women" (ALRC Report No 73, pp 22-23).

Monica's and Patricia's cases are both examples of long court proceedings being settled by "consent" orders which the women actually considered totally unsatisfactory. In both cases children's representatives have pressed the women to agree. Both are acutely aware of the violence of which their former partner is capable and neither felt that this was understood by the professionals with whom they were dealing. Their concerns for the on-going abuse to which the children are subjected during their contact with their fathers was completely disregarded. In fact, raising such concerns tends to merely label the women as obstructive and hysterical.

An interesting opinion, consistent with our observations, was offered by one of the male practitioners in the survey conducted by Graycar and Harrison:-

I was initially cynical - took the view that the reforms would not change outcome. Anecdotal evidence suggests that greater contact [is] likely to be sought and obtained (often by consent) in contested matters (p 340).

Here again we see a combination of the Reform Act, increased use of PDR and the new orthodoxy on contact leading to greater contact being ordered by consent. In some situations this is a wonderful outcome for children who will ahve a better opportunity to develop a meaningful relationship with their father. In other instances this will be a prelude to tense exchanges, fearful mothers, traumatised children and contravention applications.

Set out below are other issues we canvassed:-

Breaches are Understandable and "Justifiable"

Although the Family Law Act provides that a person may contravene an order when they have a "reasonable excuse", it is impossible to advise a woman in advance about whether a particular denial of access will be considered reasonable. Where the children are older and are unwilling to attend, it is the woman's perception that she is merely complying with the children's wishes. It can be difficult to explain that the Court will see the denial as her conduct and her decision.

During the research for the complex contact cases inquiry many court personnel agreed that-

in many cases the custodial parent's actions to thwart or avoid contact are very understandable and in some cases completely justifiable. Custodial mothers may have legitimate reasons such as a genuine and reasonable fear of violence and abuse to themselves or their children. Many women have little trust in former partners who have been violent and continue to use threatening behaviour. Many do not have the resources, the confidence or the verbal skills to challenge the making of contact orders in the first place (ALRC Report No 73, p 26).

Lack of Understanding of Domestic Violence

These comments again raise the issue that the real problem is the nature of the orders which are made, rather than why it is that women fail to comply. It implies that, even by the early 1990s, the Family Court and the whole system of family law processes in Australia have not learnt to properly take domestic violence and child abuse into account when making or "assisting" parents to reach agreement regarding orders about children. This is despite rhetoric and some court decisions which suggest differently.

As the lack of availability of legal aid forces more women to represent themselves, this is likely to mean that even less information about the violence comes before the court. There will be no development of jurisprudence around the relevance of violence if the current trend continues. This does not only impact on judicial decision-making, but affects all of the ancillary processes such as legal aid conferences, mediation and counselling conferences which rely on the jurisprudence of the Family Court to establish a framework for negotiations.

Although the writers acknowledge that there is some case law which discusses the relevance of violence, the daily decisions which are reported to us down play the violence either by failing to appreciate its relevance to the issue at hand or by disbelieving the woman's account. These daily decisions are not limited to judicial officers of the Family Court. There is now a whole army of decision-makers through which women must pass before a judge ever looks at her case.

The following situations are frequently reported by women-

• told by their solicitor that domestic violence is not relevant to contact disputes therefore information about the violence is not included in applications for legal aid, in settlement negotiations or in court material;

• at legal aid conferences women receive strong messages that it is inappropriate to talk about the violence. It is made clear that they will not be given legal aid to litigate, therefore they settle for orders which often render the violence irrelevant or assume that the father will comply with certain behavioural standards. The undertakings in Patricia's case are a classic example of this;

• writers of Family Reports sometimes label women as hysterical and difficult when they insist on raising their concerns about violence and child abuse. When this occurs the women are at risk of losing residency; and

• child representatives are often quite unsympathetic to women's concerns. In Monica's case the child representative was entirely unhelpful regarding the Christmas presents.

The attitude of some judges and court counsellors is evident from the stories of Maria and Kim.

LAFS Pilot project

In June we were surprised to learn that the Commonwealth Attorney General's Office (LAFS) is considering developing a "Pilot Strategy to Resolve Disputes Around Child Contact Orders" which is drawn from suggestions in the FLC's Interim Report. While we support the exploration of non-litigious avenues to assist parents who have separated, we believe that the LAFS is acting prematurely by not waiting for the results of the consultative process in which the FLC has engaged.

The document describing the Strategy does not mention domestic violence as a possible reason for the breakdown of contact arrangements. It suggests more mediation and counselling to resolve or improve "management of conflict" between the parties and proposes that "offenders" attend an "educational program designed to change behaviour". We are concerned that this Strategy will simply further victimise many women who find themselves with contact orders which do not reflect their concerns for the safety of their children or themselves.

Q 16.6 What measures might assist in attaining greater compliance with orders in family law? For example, should there be a dedicated court for enforcement established to deal with all federal court orders? If so, what form should it take?

We do not believe that a separate court should be established to deal exclusively with enforcement cases. Enforcement procedures in the Family Court are sensative cases, often involving great emotional distress. They should be kept in the Family Court which specialises in these matters.

Despite our concerns about and criticisms of the Family Court we acknowledge that the judicial officers and other personnel work hard to understand the complex matters with which it deals. The court has been a leader in terms of judicial education and has been prepared to be innovative in its approach to its responsibilites. All of that effort would be wasted if its enforcement role were removed.

Q.16.7 What approach should the courts who exercise jurisdiction in family law take when imposing sanctions for breaches of their orders?

Imprisonment should remain an option of last resort. The workability of the original order should be investigated in an effort to prevent further contravention.

SPECIAL ISSUES - CHAPTER SEVENTEEN

Property and maintenance

Our main concern in respect of property matters is the fact that, in practice, the current legal aid guidelines have meant that legal aid is simply not available for property matters. Even in cases where it is clear that there are complications which will render the matter unattractive for the private profession to "spec" our clients cannot obtain legal aid. This is also the case for enforcement proceedings.

Given the importance of secure accommodation for women and children, the current situation is intolerable

Recommendation Twenty

That the legal aid guidelines in property matters be reviewed so that women can obtain legal aid for property disputes where it is unreasonable to expect a private practitioner to "spec" the matter.
 

THE FUTURE OF FAMILY LAW

Privatising family dispute resolution

As noted in the IP (para 18.3), the rise of PDR processes threatens the development of jurisprudence. In our submission to the Senate Legal Aid Inquiry we said:-

Legal Aid funding has been available throughout the life-time of the Family Court. The availability of funding has meant that issues such as domestic violence and child abuse have been raised, considered and argued in the court. Although the Family Court has a long way to go in it's understanding of the impact of violence on the lives of women and children, the Family Court has played an important role in providing a forum where these hidden crimes can be "aired". Historically, domestic violence was not considered relevant by the court to decisions about children. It is only in the last two or three years that cases have tried to take into account the dynamics of domestic violence.

With the restriction in funding and the push towards mediation and counselling as cheaper alternatives, such issues will be addressed behind closed doors. This will ultimately disadvantage the women and children who have already been abused as these matters are once again hidden from public view.

Solicitors advice to their clients and the way mediations and conferences are conducted are influenced and directed by case-law . Without the funding of court matters there will be no development and advancement in case-law. As a result, settlement and mediation conferences will be 'locked into' reaching agreements based on old or even outdated cases. Although mediation guidelines generally exclude mediations where there has been domestic violence or child abuse, the reality is that for a whole variety of reasons it happens and it is likely to increase with less funding available.

Our concerns about the development of case-law equally apply to property settlements. The case-law that has developed in the last few years has involved complex financial arrangements and substantial assets. There has been little case law involving separations of less substantial assets which basically affect the majority of separations.

It is coincidental that this has occurred since the restrictions to Legal Aid funding of property settlements and would lead us to believe that they are connected.

Similarly, the Family Court has only very recently started to generally consider the impact of domestic violence on families. There have been community and legal arguments that people who have been victims of violence should be compensated through property settlements. This is due to injuries sustained and/or the impact the violence has had on their self esteem has restricted their future earning capacity. The Family Court has started to accept these arguments and there have been decisions which have started to compensate victims of domestic violence. We fear that, the lack of legal aid will stymie the development of this important area of social concern.

A federal magistracy - p 143

Our comments on this section merely raise two questions:-
 

• why would federal magistrates be able to "better cater for litigants in person"? and

• if federal magistrates are "empowered to hear and determine contested children's matters" what will be the role of the Family Court?

LEGAL AID

Throught the submission we have identified our concerns about legal aid. We conclude by covering a few other aspects not raised in the submission.

Indirect gender bias

We believe that there is an indirect gender bias operating in the way that grants of aid are allocated. Merit is assessed on a basic system of "ticking boxes" under the heading of establishing whether there is a "genuine dispute".

The problem for women is that, if they leave with the children and apply to legal aid so that they can have formal residence/contact orders in place, they will be refused because there is no "genuine dispute" from their apparent perspective.

This leaves a woman who has separated from a violent man in a very difficult position. Either she gives him contact without the benefit of an order in place - and panics about the safety and return of the children, or she denies himm contact. As many women actually want their children to continue a relationship with their father after separation, even if he has been violent towards her, this stark decision is very disturbing. She actually wants to give contact but wants the security of a court order.

If her decision is to deny contact, the man will automatically obtain legal aid because he is being denied contact and the box of genuine dispute is ticked. (The woman is even at risk of the man obtaining legal aid and applying to a court - often a Magistrates Court - for ex parte residence and a warrant for the return of the children.) Otherwise the father at least starts off as the "denied" father and she as the "difficult and unco-operative" mother in the eyes of legal aid before any history of the case is revealed. The irony is that the mother may have even contacted legal aid for the sole purpose of trying to devise a situation under which she feels safe providing contact but her contact with legal aid is unlikely to even be recorded. It may just have been a telephone call to the Call Centre in which she will have been advised that her situation does not warrant a grant of aid.

If the parties get to a legal aid conference the "right" to contact for the father dominates the process. There is almost no legal aid to litigate about the terms of contact arrangements - eg. Whether it should be overnight or supervised. This really only happens where there is evidence of sexual abuse. It seems ironic that when women want to give contact, but propose appropriate conditions, they are either forced into "standard" arrangements or find themselves acting for themselves in the Family Court.

Women will be told by their solicitors to settle at a legal aid conference if the father is requesting "standard contact" (ie. every second weekend, half the school holidays and perhaps some other occasions). If the woman refuses to agree to this she will be judged unreasonable and therefore will not get further aid. Therefore, solicitors who are aware of this push their clients to settle belieiving this to be in their best interests. The clients come way feeling brow beaten and unheard. They have not even seen the outside of the Family Court.

If the woman applies for legal aid after this, or before, she will be refused on the basis of merit because what she is proposing (ie. a refusal of contact or a more limited arrangement, is not considered reasonable). The reasonableness of the man's proposal in the factual context of his relationship is not assessed.

In a recent case we assisted the wife of a very violent man who has hospitalised both our client and one of her children from a previous partner. The husband had applied to the Family Court for shared residence. The woman wishes to oppose this. Because she is not offering "standard" contact arrangements her proposal has been judged unreasonable and she has been refused legal aid on the basis of merit. There appears to have been no assessment of the reasonableness of the man's application which she seeks to oppose.

This seems to be a fundamental flaw in the guidelines. It is just the party who is applying for legal aid who is judged under the merit test. Their precise proposal has to be considered reasonable. The fact that their main purpose is to oppose an unreasonable (and maybe dangerous) Court application from the other party does not seem to be considered. In our view that should be the test. Is it reasonable for the legal aid applicant to oppose the proceedings or proposal made by the other side? The detail of their final position can be negotiated during the processes that should follow.

This was the situation in one of the case studies mentioned in the submission. Where our client had an adverse Family Report she was not even given the opportunity to oppose the husband's last minute application for change of residence notwithstanding the fact that she had always been the primary care-giver.

As we said in our submission on Penalties and enforcement:-

Women are frequently representing themselves in these cases because they fail the legal aid merit test. This may occur simply because they are in breach of an order or because of the view taken in a family report.

There is an irony here. Where the women have a strong defence which is easy to see they can get legal aid and a lawyer. Where the defence is more subtle and requires a re-examination of the original order and an exposure of the extent of violence in the case, they are refused legal aid and must argue the case themselves.

What has happened to the role of lawyers? Must they now only do the easy cases while the hard cases are presented by litigants in person who are already dealing with the huge personal stress inherent in their lives.

We should add that some of our clients have won various applications in the Family Court after being refused legal aid on the basis of merit. This should call the efficacy of the merit test into question.

Finally we are concerned about Legal Aid's increasing development of advice services while the money for legal representation diminishes. In Queensland, Legal Aid has established a "Call Centre" to provide advice and referral to clients. In reality it is mainly a referral service. Clients are not given substantive legal information to assist with their problem - the standard call lasts for about three minutes. While this service provides some basic point of referral to people all over Queensland, it deflects money away from what is, in our opinion, the area in most critical need - representation for women in the Family Court.

Legal Aid has also been successful in tendering under the Networking the Nation program and intends to establish a "Women's Justice Network" throughout south west Queensland. Again this will provide much needed access to legal information for women in rural and regional areas - but what is going to happen to those women for whom the advice is "You need to file proceedings in the Family Court".

Unless more resources are provided to Legal Aid these advice systems are in danger of raising the hopes of women who will find, when they really need legal assistance of a serious nature, it is not available.

Recommendation Twenty-One

That legal aid guidelines be reviewed to properly take into account a history of domestic violence:-

• where a woman alleges violence and wants to formalise contact arrangements through a court order, legal aid should be granted;

• careful consideration should be given to valid reasons why a mother may seek to grant less than standard contact to a violent man;

• there should be a consideration of the need to oppose the case of the other party without simply assessing the apparent reasonableness of the precise proposal of the legal aid applicant.

Go to:
Annexure 1: Women's Experiences with the Family Court and Legal Aid

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