FAMILY LAW AMENDMENT BILL 1999
NATIONAL NETWORK OF WOMEN’S LEGAL SERVICES (NNWLS)
SUBMISSION TO SENATE LEGAL AND CONSTITUTIONAL LEGISLATION COMMITTEE
1ST NOVEMBER 1999
CONTENTS
Introduction
A. NNWLS Concerns with the enforcement provisions
B. NNWLS cocerns with proposed amendments to introduce binding financial agreements
The National Network of Women’s Legal Service (NNWLS) is a national network of community legal centres, specializing in women’s legal issues. The NNWLS is comprised of the following agencies-:
· Women’s Legal Services located in each capital city in each State and Territory, including two services in Queensland (Brisbane and North Queensland) and two services in the Northern Territory (Alice Springs and Darwin);
· Indigenous Women’s Legal Services;
· Domestic Violence Legal Services (Alice Springs, Darwin, Melbourne and Sydney);
· Rural Women’s Outreach workers located at Toowoomba, Dubbo, Lismore, Mildura, Warrnambool, South Hedland.
Some of the agencies have been operating for over 15 years and all are involved in a range of networks at a local, state and national level.
We offer free legal advice, information, representation, counselling and advice for women. In 1997/98 we provided assistance to over 23 000 women across Australia. Family law and domestic violence are two of the key areas where women seek assistance.
As a consequence, the NNWLS has developed an expertise in the operation of the legal system, as regards women who are survivors of domestic violence. We believe we are well placed, therefore to comment on the current proposed amendments to the Family Law Act 1975.
The NNWLS is involved in legal reform activities, for the benefit of our clients. We endeavour to use our client’s experiences, and the trends identified from our own internal research and analyses to effect structural change, by ensuring women experiences, especially of violence, inform legislative and policy reform and development.
We are extremely concerned about the impact on women, especially those who have experienced violence, of the Family Law Amendment Bill 1999.
We commend the government on its commitment to and its work in the area of domestic violence, especially in giving the problem a national focus through such programs as the "Partnerships Against Domestic Violence" initiative. Unfortunately, any good work that has been done will be undermined by these amendments. And it will be undermined in a way that is not so readily apparent to the general population. However, for individuals who are aware of the dynamics of domestic violence, we have no doubt that the amendments will have serious and detrimental consequences on the lives of women and children, who live with domestic violence.
We would have thought it imperative that any legislative reform in the family law area should seek to ensure that women and children, especially those who have been victims of domestic violence, should not be adversely affected by changes to the law.
A. NNWLS CONCERNS WITH THE ENFORCEMENT PROVISIONS
The real policy objective is about the enforcement of contact orders and this is misguided
Although the proposed amendments speak in terms of "enforcement of parenting orders", we believe the actual policy objective behind the changes is the "improvement of enforcement of contact orders". Indeed, this is confirmed in the second reading speech by the Attorney-General when he refers to contact orders as being ‘the main problem’ as "in many cases contact order compliance in particular is seen as being optional".
Enforcement problems are a frequent cause of complaint made by men’s groups against women, for their allegedly unreasonable non-compliance with contact orders. The NNWLS is concerned that such a policy focus is misguided. There is little or no empirical evidence to back up these concerns. Any empirical research that has been conducted in this area finds that women generally want their children to have an on-going relationship with their father, even in circumstances where they and/or their children have experienced violence by the father 1. This is also consistent with the experience of NNWLS. If implemented, the changes will have consequences unintended by government. That is, detrimental consequences for women and children, especially those affected by domestic violence.
Stage One will not change current practice or apply to consent orders or parenting plans.
It is already a well established practice at the Family Court that legal representatives explain the meaning of orders and the consequences of breaches to their clients. This is an integral part of good legal practice. Further, we are aware that judicial officers of the Family Court spend significant time ensuring that unrepresented parties understand the nature of the orders that are made. Therefore, we do not envisage the introduction of Stage One will have any real effect.
This is compounded by frequent use of consent orders, in which cases Stage One would not appear to have any relevance. It appears to be contingent upon both parties to the order being present in the court at the time the order is made.
The NNWLS does not believe that failure to comply with contact orders occurs because women do not understand the meaning of the order or the consequences of breach. Women do not fail, in general to send children on contact in accordance with court orders without giving the matter very serious consideration. In our experience, they are often terrified of the consequences of the breach and simultaneously terrified of the consequences of contact for the child. Therefore, we do not believe that these legislatively mandated explanations would change current levels of failure to comply with contact orders.
The fundamental problem that women have with the current law system is not about compliance but that inappropriate contact orders are made in the first place. The front end of the process concerning the way that orders are being made requires attention. Focusing attention on enforcement is beginning at the wrong end, if solutions to the issues confronting the family law system are going to be properly understood and adequately addressed.
A similar approach has been adopted by the Majellan pilot project that is running in the Family Court in Melbourne. This pilot project establishes a special case management program to deal with child abuse cases. It was instigated after research by Brown T. et al concluded the Family Court was not dealing well with child abuse cases 2. In the project resources are allocated at the early stage of a matter and early intervention strategies for both legal and social science practitioners are integrated into the system. The project has the support of the Attorney-General’s Department and early indications are that it has been quite successful. The project is being extended to the Parramatta Family Court registry. We believe a similar approach should be adopted for cases involving domestic violence.
The legislation and the model proposed fails to incorporate the dynamics of domestic violence
The legislation and the proposed model for dealing with breaches of parenting orders fails, in any respect to take into account the dynamics of domestic violence. Programs that do not acknowledge domestic violence and do not address it as an issue "up front" can be dangerous for women, as it can give violent men the freedom to continue to perpetrate abuse under the apparent sanction of the authority of the Family Court. Strategies to encourage co-operative parenting such as "counselling" and "communication enhancement" will not succeed where domestic violence has occurred.
Recent empirical research by Rhoades et al study has found that the ‘right to contact’ principle has been given greater emphasis by most practitioners and judges than the domestic violence aspect of the reforms (Family Law Reform Act 1995) 3 . Reference can also be made to the research by the Griffith University that found the family violence provisions introduced in the 1995 family law amendments have had only a very limited practical affect and that the significance of violence has been downgraded in practice 4 .
In our experience unworkable, inappropriate and unsafe contact orders are made in the first place because family law processes do not properly take domestic violence into account. Women report to us on a daily basis that the issue and relevance of violence is down played in the system and that their accounts of violence are disbelieved. This recent research is therefore beginning to validate women’s experiences of the family law system and the long held concerns of women’s groups.
The current funding 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 within these processes and they 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. Again, empirical evidence is now being produced that confirms a concerning correlation between cases involving domestic violence and use of mediation services. The Justice Research Centre research found that cases involving allegations of domestic violence or allegations of child abuse were slightly more likely than cases without those features to go to private mediation or a legal aid conference. They commented that "there was certainly not a clear negative relationship as one might expect if cases involving violence were rigorously screened out of mediation in accordance with Family Court guidelines."5.
In the Australian Law Reform Commission report "Review of the Federal civil justice system" it was noted that 81% of legal aid conferences (similar to mediations) in Queensland were settled or partly settled. Research suggests that if a high percentage of cases are settled quickly that this could indicate that the process is coercive and that some of the settlement agreements made may not be appropriate or durable 6. This is also consistent with our experience.
In our experience, women do not contravene contact orders lightly. When they do so it is usually because there has been a history of domestic violence and the mother is afraid of the possible consequences, for her or her child’s safety about sending the child on contact.
Women will be frightened of the message these proposed changes communicate to them. Even in circumstances where it is arguable they have a ‘reasonable excuse’ to break a court order because of fear of violence, they may be reluctant to stop contact because of the threat of further litigation against the father.
Women may also fear that fact that they may not be able to obtain legal aid’s support to fund their defence and therefore, they may have to act for themselves in court, facing their violent spouse.
Domestic violence is about power and control and these amendments hand violent men further ‘weapons of control’ to use against women. Women’s increased reluctance to stop contact because of the fear of exposing themselves to a possible contravention application may mean they choose to send the children when previously they may have reasonably stopped contact and this could result in more women and children being exposed to violence and abuse.
Even if the government disagrees that the amendments are fundamentally about improving enforcement of contact orders, violent men will interpret them in this way. They will ‘perceive’ they have more rights and entitlements and the result will be more litigation, in this already overloaded area 7. This is a concerning reality 8. Even if a violent man is not successful by the court actually making a finding of contempt, he will be very successful in other ways, especially if his primary purpose is intimidation and harassment. Legal Aid is not necessarily available to assist women to defend themselves against such applications and many women will be forced to represent themselves against the perpetrators of the violence in court.
Evidence already exists that violent men are using contravention applications as a means to harass their former spouse. In their research into the Family Law Reform Act 1995, Rhoades et al report that some judges and solicitors who were interviewed suggest that many of the Form 49 applications are brought by unrepresented contact fathers, that many of these applications are unmeritorious and are used as a mechanism to harass the resident parent, and that much court time is being wasted in dealing with them 9.
We predict if these changes are implemented, unmeritorious applications will increase and the already existing problem of litigation abuse, involving the harassment of women through the court process, will be exacerbated.
The policy that underlies these legislative amendments assume that contravention applications are straightforward matters merely involving the enforcement of orders that have been breached and the punishment of the offending party. However, contraventions applications in our experience are widely acknowledged by members of the judiciary, the legal profession and other professionals involved in the family court system that they can represent the most complex of cases. They often involve issues of domestic violence and child abuse. It is absolutely necessary that the court retain its discretion about whether a penalty should be imposed.
It is particularly concerning that violent men may repeatedly breach a woman on ‘technical breaches’ (ie. not substantive issues) and the court will be obliged to impose a punitive penalty for any subsequent breach, whether it is of a technical nature or not. Once again we refer you to the research of Rhoades et al and use of contravention applications as a means of harassment against women.
It is interesting that a court must not impose a sentence of imprisonment on a person in respect of a contravention of a child maintenance order under the Family Law Act unless the court is satisfied that the contravention was "wilful or fraudulent". (Section 70NJ(6)) This added protection will mainly work for the benefit of men, as they are the majority of payers of child maintenance. Historically, under the Family Law Act has been one of the most frequently contravened orders and it was for this reason that the Child Support Act (CSA) was enacted. Interestingly, imprisonment is not an available sanction under the CSA.
B. NNWLS CONCERNS WITH PROPOSED AMENDMENTS TO INTRODUCE BINDING FINANCIAL AGREEMENTS
We believe bfas will decrease the size of the overall matrimonial property pool available for distribution between spouses after separation. This will, therefore increase the numbers of women and children living in poverty in Australia and subsequently being reliant on the social welfare system.
That legislative reform in this area be delayed until the completion and public release of -:
- the Australian Institute of Family Studies (AIFS) study into the economic consequences of marriage breakdown in Australian;
- AIFS study into the impact of violence on property settlements commissioned by OSW. (We understand the research has been completed but for some time but has not been publicly released).
Both of these studies will provide a more up-to-date picture of the economic consequences of marriage in Australia as between women and men. We would have thought it essential to have this understanding before making substantial changes to the property section of the Family Law Act 1975.
We note with interest that the Attorney-General, Mr Darryl Williams has recently announced that he has delayed making substantial changes to the property section of the Family Law Act 1975. He identified there was a need to "better understand the matrimonial property laws under which we operate" and has spoken to the Australian Law Reform Commission and the Australian Institute of Family Studies about conducting further research into the area of property outcomes 10.We believe a similar approach should be adopted before introducing binding financial agreements.
That legislative reform be delayed to allow time for proper community consultation.
The Senate Inquiry has been the first opportunity for the community to comment on these major reforms. Previously any information about proposed reforms has been limited to press releases. The proposal for bfas did not even form part of the government’s recent property Discussion Paper, Property and Family Law: Options for Change. The community has therefore, not been given a proper opportunity to participate in a debate about these major reforms, as two weeks is a wholly inadequate time frame to respond. Responses will also be limited as the reforms are framed in legalistic terminology and contained in a parliamentary Bill and this immediately excludes participation by large sections of the community. There are very specific reasons why pre-nuptial agreements were never part of the original Family Law Act, including issues about power imbalance and other reasons that we will outline below. This reflected a policy position in relation to the potential unfairness, which was likely to result from enforcement of such agreements. Therefore, the Family Law Act allowed the court to distribute property at separation in a just and equitable manner taking into account the matters listed in Sections 75 and 79(4). This Bill represents a radical shift in social policy, which the Australian people have been given no real opportunity to consider or debate. It is outrageous therefore, that the Australian community has only given two weeks to respond to reforms in this area, changing the legal status of such agreements.
The policy position is confirmed in the second reading of the Attorney-General when he states that "binding financial agreements will be of particular benefit to people who are entering subsequent marriages as well as to people on the land and those who own family businesses". It seems therefore that bfas are a mechanism to protect men’s financial interests from ‘attack’ by unscrupulous ex-wives. Again, there is no empirical research that backs up the position that women are unjustifiably benefiting from property settlements in the Family Court. Indeed, all the research shows that women, as compared to men do far worse economically after marriage breakdown11 and when there has been violence, this disadvantage is compounded. (We have little doubt that the AIFS study into violence and property settlements will produce this evidence). Again, this is also consistent with our experience. Of particular concern is that bfas will provide an easy legal mechanism for rural women to be excluded from farming properties and further disadvantage women from non-English speaking background and women in domestic violence relationships.
It is well documented that women earn less than men and have less access to and control of property and assets 12. The weaker economic position of women will always make it more difficult for them to fund a court application to set aside an inequitable agreement.
The Legal Aid guidelines to fund property settlement are highly restrictive and for all practical purposes there is no legal aid to assist women with property settlements. Even though new guidelines are being introduced in November 1999 that widen to some extent those that may be assisted, they are still highly restrictive and Legal Aid Commissions have not been provided with any further funding to meet any increase in demand. Legal Aid Commissions are operating in a highly restrictive funding environment and must prioritise children’s issues. They do not have enough funds to meet the needs in this area. Therefore, we are certain that the change in guidelines in November will not assist women who may need to apply to the Family Court to overturn unjust or unfair bfas.
We support the proposals made by the Australian Law Reform Commission Report Matrimonial Property No. 39 and endorsed in the Australian Law Reform Commission Report Multi-culturalism and the Law No. 57 which require the court to consider-:
- the fairness and reasonableness of the agreement, both at the time it was made and in the light of changes in circumstances since that time;
- whether or not the parties obtained independent legal advice at the time it was made;
- whether enforcing the agreement would leave one of the parties reliant on social security.
We would support the inclusion of a further provision considering-:
- whether there was any domestic violence in the relationship;
- any other provisions as set out in the existing Section 79(A) of the Family Law Act including where there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence, the giving of false evidence or any other circumstance.
The provisions proposed in the legislation are too narrow and, unlike our proposal, do not encompass all the circumstances in which agreements may be inequitable for example, illness of a spouse, being compelled to enter an unfair agreement because of domestic violence or failure to disclose financial assets and resources.
Section 79(A) is already a substantially difficult section to access and the evidentiary burdens placed on the applicant make it expensive and complex. If the grounds for setting aside bfas are not even as comprehensive as the existing law then the less powerful party will have very little chance of success.
Although it may be useful to obtain the advice of a financial adviser in matters involving complex arrangements, financial advisers are only able to provide advice on the financial consequences of the agreement. They are unable to provide advice about the ‘fairness’ of the agreement as compared with Family Court case law and practice. A lawyer is the only person who is able to provide this sort of advice. It is of particular concern that women will be able to enter binding agreements without the necessity to obtain advice about whether the agreement is equitable.
The policy underlying the amendments is that bfas are agreements between individuals and that there is therefore no need for court registration of the ‘private agreements’. The NNWLS is concerned about the increasing trend towards privatisation in family law for example, the use and overuse of mediation. We favour registering agreements, as we believe it has a two-fold effect. Firstly, it acts as a safety net for vulnerable parties and secondly, it is acts as a single collection point of important public information eg. Highlighting what is actually occurring in family law property matters, as between men and women. The collection of this information is essential for the development of future public policy in this area. We refer you to the fact that the Attorney-General has recently spoken about the "the lack of comprehensive statistics about the outcome of property settlements" 13. Conducting this type of research in the future will be made all the more difficult if court records are not kept.
1. Hester M and Radford L "Safety Matters! Domestic Violence and Child Contact, Towards An Interdisciplinary Response" Vol 8 No. 4 1995. 2. Brown T, Fredrico M, Hewitt L, Sheehan R "The Management of Child Abuse Allegations in Custody and Access Disputes before the Family Court of Australia" The family Violence and Family Court Research Program, Monash University and the Australian Catholic University, February 1998. 3.Ibid. 4.Dewar J and Parker S "Parenting, planning and partnership: The impact of the new Part VII of the Family Law Act 1975" Griffith University, March 1999 at p.71 5.Hunter R "Family Law Case Profiles" Justice Research Centre June 1999at p.36. 6.Australian Law Reform Commission, Discussion Paper 62, August 1999. 7.Rhoades H. Graycar R and Harrison M. " The Family Law Reform Act 1995: can changing legislation change legal culture, legal practice and community expectations?" Interim Report, University of Sydney and Family Court of Australia, April 1999 that notes a substantial increase in the numbers of disputes involving alleged breaches of parenting orders since the introduction of the Family Law Reform Act 1995 in 1996. 8.See Dewar J and Parker S "Parenting, planning and partnership: The impact of the new Part VII of the Family Law Act 1975" Griffith University, March 1999 at p.75 for a discussion on how the perception of change by men raised expectations of contact brought about by the Family Law Reform Act 1995 was itself a powerful engine of change, especially for the majority of cases that never get to court. The researchers speak about how the perceptions of extra entitlement to contact, however unfounded (under the Reform Act) may have had powerful effects on inter-party negotiation, on lawyer’s advice giving and on legal aid policy. 9.Ibid. 10.The Hon Daryl Williams AM QC MP, Attorney-General speech to the National Press Club, 27th October 1999. 11.McDonald P (ed) (1986) Settling Up: Property and Income Distribution on Divorce in Australia, Australian Institute of Family Studies with Prentice Hall, Melbourne. Funder K, Harrison, M. and Weston, R (1993) Settling down: Pathways for Parents after Divorce, Australian Institute of Families Studies, Melbourne. This research demonstrates that women experience most of the detrimental effects of marital breakdown. In fact in the 1993 study, husbands surveyed three years following marital breakdown had returned to income levels equivalent to pre-separation while wives’ income levels had dropped by 26%.12. Australian Bureau of Statistics and the Office of the Status of Women, Women in Australia, ABS Catalogue No. 41130, Canberra 1994; Australian Bureau of Statistics and Ministry for the Status an Advancement of Women: Women in NSW, Catalogue No 4107.1 Sydney 1995; Office of the Status of Women, Facts About Women, March 1999, Australian Law Reform Commission: Equality Before the Law, Report no 69, Part 1, Canberra 1994.
13.Ibid @10.