Prepared by Angela Lynch and Zoe Rathus

August 1999

Thank you for providing us with an opportunity to comment on the Federal Magistrates

Bill 1999. We trust that you will take the time to consider the issues raised in our submission, despite the fact that it has been submitted late. We were not sent a copy of the proposed legislation when it was released for public comment and received a copy in response to a request from us on Friday, 6th August 1999, the due date for the receipt of final submissions.

We are disappointed that Women's Legal Services and the National Association of Community Legal Centres did not automatically receive a copy of the Bill. Women's Legal Services and other Community Legal Centres have been extremely active in the area of family law reform for over a decade. Community Legal Centres have been in existence for over 20 years and are now an established feature of the Australian legal system.

As advised, we will not be making a detailed submission but would merely like to raise some issues of concern we have with the Bill and its underlying policy.

Our fundamental concern with the proposed legislation is that it is the wrong solution to the problems that are confronting the family law system in Australia, at the moment. The most pressing problem the system is facing currently is a chronic lack of adequate funding for both Legal Aid and the Family Court.

If the Bill is passed we have no doubt there will be detrimental outcomes for women, unexpected by government. The most common complaint that women have with the existing system is that it is difficult for the key players in the system to hear the issues women are concerned about. In financial cases, many women experience enormous difficulties in accessing information from their husbands about the true value and extent of the matrimonial assets. In children's matters, women find it extremely difficult to meaningfully raise issues concerning child abuse and domestic violence.

The more informal the process, the more difficult it is for these issues to be properly addressed. If the Federal Magistrates Court adopts an informal approach as outlined in the Bill, then it will become even more difficult for the issues women are concerned about to be heard and appropriately dealt with in decision making.

We question the need to establish a new court when the Family Court and the State Magistrates Courts already provide legal services, in the family law area to the Australian community. If this Bill is enacted, the family law system will have three courts exercising jurisdiction in the family law area, further complicating legal procedures and processes and requiring judicial time and resources to be spent on making decisions about jurisdiction and the transfer of proceedings.

We have been witness over the last few years to the devastating impact of the budget cuts to Legal Aid on our clients. The Attorney-General has stated that the cuts were required to promote 'efficiency' in the system. In light of this, we are dismayed that the government is willing to commit large amounts of money to the establishment of a new court system and its surrounding infrastructure and to the on-going financial support of the organisation. We would have thought it would be more economically prudent to work with the existing court structures to streamline proceedings and court processes to achieve efficiencies, rather than create a totally new structure. If the government is "concerned to ensure that all Australians have appropriate access to the court system", it may achieve this end better by committing these extra monies to the Legal Aid system.

We note that it is the government's intention to use existing courts infrastructure to the extent that it is practical to do so in order to minimise costs. This complicates the existing system. New forms will have to be created for the new court. Registry staff will be accepting documents filed both on behalf of the Family Court or the state courts exercising family court jurisdiction and also the federal magistrates court. It is possible that the two courts could be "housed" together in the same building. Again, this seems to back up our argument that it would be more sensible to make use of the existing court structures rather than create a new court and subsequent bureaucracy to carry out tasks that the existing courts already do.

We also question how the government is going to facilitate greater access to the courts for people living in rural and regional Australia when the federal magistracy will be using the existing court infrastructure in the region or town.

An issue already exists concerning the lack of safety for both for clients and staff in State Magistrates Courts. In our opinion, no court has a totally safe environment or adequate court safety protocols for clients or court personnel. However, at least the Family Court has safety protocols, most of the courts are more modern in their design and have federal police and security officers on site. Magistrates Courts in Queensland do not share these features.

If there are going to be increasing numbers of family law clients using the Federal Magistrates Court as a result of the passing of this legislation, then more people are going to be exposed to possible risk if the federal magistracy is housed with the state courts. If the federal courts are going to be using these state facilities then adequate monies have to be allocated in the budget to upgrade existing state magistrates courts facilities and to develop and implement safety protocols.

We have supported in previous submissions the training and appointment of magistrates who specialise in family law in the state courts. We recognised the need for specialised training in family law because of the complex issues that confront practitioners and judicial officers in this area, including issues of domestic violence, child abuse, child sexual abuse and cultural issues. The present model however does not necessarily provide for the magistrates to be specialists in family law. The appointments will be federal court magistrates and will also deal with a range of commercial and industrial issues. We believe that it is essential that the appointments have specialist knowledge in the area of family law.

We have also previously supported the a establishment of a small claims court dealing with small property matters. However, we believe the monetary limit should lower than $300 000, before the consent of the parties is required.

The proposed limit really means that most property settlements will be heard in the Federal Magistrates Court as this would cover the standard home, car and small investments situation. Only the significantly wealthy will enter the Family Court on property matters – successful business people and professionals. It is also unclear whether the Federal Magistrates Court will have power to hear disputes about superannuation entitlements, which could become quite common if new laws are introduced about superannuation distribution. Many couples would fall within the $300,000 total even including superannuation entitlements.

The issue which arises is that this will effectively mean that jurisprudential developments in the area of property and financial matters in family law will be almost entirely within the realm of the Federal Magistracy. This certainly highlights the importance of ensuring that the relevant levels of expertise exist in the persons appointed. Further, the expertise must extend beyond the "black letter" law. There will need to be a deep understanding of the economic consequences of the breakdown of marriages and other socially relevant information so that appropriate decisions are made. On-going judicial education and awareness will be an essential part of the structure of the court.

We note that discovery and interrogatories will only be permitted if the court considers them appropriate and in the interests of the administration of justice. The proposed procedures will invariably disadvantage the party with less information in property proceedings, usually the woman. An onus will be placed on the weaker party to make the application to the court and to satisfy the court that the application is required. We believe that this is unfair and that both procedures should be available to litigants, as of right.

In the second reading speech the Attorney-General says that a new judicial culture will develop out of the federal magistracy with the emphasis being on the creation of a user friendly court. Little attention seems to have been given to the fact that when the Family Court was established in 1975, there was a similar emphasis on informality. When two judges were murdered in the early 1980's, the court reassessed this approach. It decided to adopt a more formal approach to proceedings believing that such an approach would increase the 'authority' of the court in the eyes of the public and especially in the eyes of violent men.

Our service works with many women who have been the victims of domestic violence and we know anecdotally that the more formal process and rigorous procedures of the Family Court can place constraints on violent litigants and decrease their opportunity to use the process to satisfy their own ends. If the new federal magistrates identify violent litigants and begin to make orders against them then history has proven that there are real safety considerations that need to be carefully thought through in relation to court personnel and clients of the court.

We are extremely concerned that the less formal procedures in the federal magistrates court will increase its attractiveness to violent men. Violent men will choose this forum to litigate because of its informality and accessability. The promotion of the court as a "user-friendly" court will encourage litigation and the less formal rules will make it easier for violent men to choose to represent themselves.

We predict that one area where litigation abuse will be most obviously played out against women is contravention applications. In our experience, women do not contravene family court orders for contact lightly and when they do it is because they believe the contact will expose their children to abuse or themselves to violence.

Unworkable, inappropriate and unsafe contact orders are made because family law processes do not properly take into account domestic violence and child abuse. Women report to us on a daily basis that the issue and relevance of violence is downplayed in the system and that their accounts of violence are disbelieved. The current crisis in legal aid has exacerbated the issue because women have no alternative but to mediate their disputes, through mediation services or legal aid conferences. Many women feel they are unable to raise concerns about violence and abuse within these processes and end up agreeing to unsafe consent orders because they are aware there is no legal aid funding to commence court proceedings, if an agreement is not reached. These women may break the orders when the violence or abuse re-occurs and are immediately at risk of being subject to a contravention application.

The recent interim report by the University of Sydney and the Family Court, researching the impact of the Family Law Reform Act found that there had been a substantial increase in contravention applications, alleging breaches of parenting orders and there was some evidence that many of them were unmeritorious and were being brought by men as a means to control and harass their former spouse.

The lack of formality in the federal magistracy will appeal to perpetrators of violence who will increasingly use these applications against their former spouses. If the federal magistrates are not specialised in family law they may not appreciate the underlying dynamics, thereby enforcing orders in situations of violence and abuse.

In the second reading speech, the Attorney-General concludes that the use of alternative dispute resolution strategies to resolve disputes Ais more likely to result in a more enduring resolution of a dispute because the parties are more likely to accept agreed outcomes. This is a significant assumption and we note that no research has been referenced to support this statement. It is becoming increasingly clear that the lack of availability of legal aid to litigate disputes leads to a situation where more and more consent orders are not actually "true" consent orders, as they do not reflect a free and voluntary agreement necessarily being made. Women are forced to consent to unsatisfactory orders because legal aid will not or cannot fund their matter further. WLS research suggests that it is these non-consensual "consent" orders which lie behind the contravention applications which have become so prolific.

We note that in relation to contravention applications parties are able to commence proceedings in either court for contravention, even though family law proceedings may be pending or proceedings in the other court or the order may have been made by the other court. We believe serious problems can eventuate when one court has the authority and power to enforce orders made by another court, particularly when the decision-makers cannot access the file history.

Again, the policy makers have assumed that contravention applications are straight forward matters involving the mere enforcement of orders that have been breached and the potential punishment of the offending party. However, as previously advised this is rarely the case and it is widely acknowledged by members of the judiciary and the legal profession that they can represent the most complex of cases. It is absolutely necessary therefore that the decision-makers have the full file history before them before making a decision. We would also recommend that because of the complexities of the issues involved, that the Family Court be the only court who can deal with the issue of contravention.

The proposed jurisdiction of the federal magistracy is very extensive. Most matters could be dealt with by a federal magistrate including contravention applications, contact orders, property orders up to $300 000 and other orders concerning children, except residence (which would require the consent of both parties). It is an absurdity to believe that the court would be dealing with less complex family court matters, as the Attorney-General advises in his second reading speech. Most matters which are actually dealt with by the Family Court are not easy and often involve complex family dynamics including violence and abuse.

If the government actually believes that the court will be dealing with less complex matters, then the entire policy basis behind the establishment of the court is flawed and requires urgent re-thinking and reassessment.

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