The pathways group will report to the Government in December 2000 with recommendations for reform in the family law system.

The Pathways Group is seeking public comment, to assist them in formulating their response to government. Public submissions are due by 25^th August 2000 and comment is sought on how to achieve the following:

1. Provide stronger and clear pathways to early assistance that ensure people facing relationship breakdown are directed to services most suitable to their needs;
2. Help families to minimize conflict, manage change more successfully and meet new obligations and commitments;
3. Improve the targeting, co-ordination and accessibility of information and support for families during transition to and settling of new arrangements; and
4. Better coordinate service delivery between the range of agencies (both public and private) involved in assisting families interacting with the system.

Submissions may make further comment on:

1. the range and nature of difficulties facing family members;
2. existing barriers (including cultural and linguistic) to access services and support;
3. customer service issues; and
4. best practice.

The NNWLS believes that it is very important that community agencies and individual women respond to the inquiry. This will ensure that women’s experiences and perspectives of the family law system can be incorporated into the advice that is ultimately given to government.

It is important that the pathways group hear about issues important to women, including domestic violence, abuse of children, women’s experience of being the primary carer of children, social isolation, geographic isolation, cultural issues and women’s vulnerable economic position in comparison to men.

Submissions can be emailed to: flp@ag.gov.au or posted to:

Family Law Pathways Advisory Group
Secretariat
C/ Attorney-General’s Department
Robert Garran Offices
National Circuit
Barton ACT 2600

They are due 25^th August 2000. Further information can be obtained from the Pathways Group home-page at http://www.law.gov.au/familylawpathways or by calling 1800 250056.

This position paper represents the NNWLS’s preliminary response, in summary form to the pathways group. Hopefully, it may assist/encourage other organizations, with an interest in women’s issues to provide their own response to the group. Groups are able to adopt the wording in this document, however your submission will probably have more impact if they are in your own words. Remember, your response does not have to be a detailed, it might only be a page. If you are able, incorporate individual women’s experiences. This can be an effective way of highlighting structural and systemic concerns!!

If you would like to discuss any of the issues raised in this document, please do not hesitate to contact Angela Lynch, NNWLS law reform coordinator on 07 3392 0644.

An overarching concern of the NNWLS is that the current family law system 1. is no longer responding to the best interests of children. Women’s Legal Services are daily assisting women who are representing themselves in the Family Court about children’s issues. These women have been unable to obtain legal aid or have had their legal aid withdrawn because they have reached the funding limit. Invariably, the matters are complex. Many of these women have been victims of domestic violence and their children have also been victims of abuse, sometimes sexual abuse. In these circumstances, it is difficult if not impossible for the Family Court to be able to make decisions that are truly in the ‘best interests of children’. Of course, for some women perhaps because of additional cultural, linguistic or other barriers the ‘choice’ of self-representation in these circumstances is simply not a choice they are able to make. Some women give up and/or are worn down by the process and may enter into inappropriate or unsafe consent orders or reconcile with violent men.

Other women ‘choose’ to mediate their disputes because they have no other option. Mediation and conferencing processes do not promote women raising issues of violence and abuse, as these issues can be obstacles to the parties reaching agreement. Women who have experienced violence and participate in mediation processes may enter unsafe agreements. Understandably, many of these agreements break down at a later stage and contravention applications and other litigation may result.

The dynamics of domestic violence are such that agreements reached through these conciliatory processes may not preserve the mother or the children’s safety. Current informal processes that are outcomes based mean that the concept of "the best interests of children" is no longer the paramount principle in decision-making about arrangements for children but it is about reaching an agreement. This is especially the case when the processes are mandatory in nature, such as the Legal Aid Queensland conferencing program.

In Queensland, the inflexible legal aid system provides only one pathway for resolving disputes, that is, by way of a conference. Clients have no choice and the strategic aspects of legal work, where a lawyer and their client decide how to approach a case, have been discarded. This is different for privately funded clients. It creates very different tiers of access to justice for members of the Australian community, depending on their wealth.

It is NNWLS experience that some mediation/ conferencing programs do not apply their guidelines exempting domestic violence and child abuse from their programs and routinely mediate/conference cases where are these issues. Again this issue is being ‘picked up’ in research being conducted into the area. The Justice Research Centre in their recent research found that cases involving allegations of domestic violence, a history of violence in the relationship or allegations of child abuse were slightly more likely than cases without those features to go to private mediation or a legal aid conference 2. Research by the Griffith University also raised concerns about the application of exempting guidelines in conferences in Queensland 3. In research conducted by the Abuse Free Contact Group and Women’s Legal Service in Queensland, the majority of the 34 focus group participants were reliant on Legal Aid, all had been victims of serious levels of violence, had concerns about their children’s safety on contact and all had been required to participate in a Legal Aid conference. 4.

The priority given to primary dispute resolution and the focus on the parties reaching agreement, can lead to domestic violence and child abuse issues being ignored or overlooked in these processes. In this important area of public policy, the result is a less transparent system, inconsistent decision-making and problems with monitoring and evaluation.

Increasingly, resources of NNWLS and other community legal centres are being directed towards assisting women who are self-representing in the Family Court and in other Courts. The profile of a female litigant in person is one who is a mother of young children, poor and a survivor of domestic violence. Invariably, she also has concerns about child abuse.

Self-representation places women under a huge emotional strain. They have difficulties in gathering evidence, formulating argument and being able to determine the relevance of information. They are exposed to their former spouse in the court, during cross-examination and other court processes without legal protection. Additionally they are providing care to their family. A court requires the best evidence to be produced to be in a position to make the ‘best’ orders in a case. In circumstances of self-representation, it is difficult if not impossible for the court to make decisions that are truly in the best interests of children. It is a fundamental principle of justice that women in these circumstances be entitled to proper legal representation, through the appropriate funding of Legal Aid.

Current Legal Aid resource allocation is not complying with Commonwealth priority areas in family law, partly because the Commissions are working within restricted budgets but also because of the way that they choose to spend their money. Increasingly, resources are being allocated towards call centres, conferencing, video interviews and self-help kits. These strategies do not provide detailed, individualized assistance and representation for women, where the issues in their case may be complex. Eg. Issues involving domestic violence, child abuse, mental health issues and women from non-dominant cultural and linguistic backgrounds.

The NNWLS is concerned about the recent funding by the Attorney-General’s Department of Clinical Legal Education courses, because this could result in law students being used by the government as a "gap-fillers" in the system. These CLE courses should primarily be the responsibility of the individual law school at the local level and the federal Education Department. They should not be viewed as a cheap alternative to the proper and adequate funding of Legal Aid.

The Attorney-General’s support of the Family Court Majellan project recognizes, in some families, early intervention is required to be able to resolve the issues in dispute and to be able to properly provide safe arrangements for the children post-separation. At the moment the project focuses on cases identified as ‘child abuse’ cases. However, the links between domestic violence and child abuse are well-established and we believe the project should be extended to domestic violence cases eg. Legal Aid for parties, early court intervention, case management and a coordinated response from legal and social welfare agencies.

Unlike the Family Law Act 1975, the New Zealand legislation prioritizes the safety of children by requiring, where there has been a history of domestic violence that a strong case must be made that contact would be in the best interests of children. Prior to the introduction of the 1995 changes, the New Zealand legislation was similar to our current Family Law Act. That is, conciliation and agreement about custody and access disputes was promoted between the parties, even where there was domestic violence.

In a recent evaluation of the new legislation by the Ministry of Justice, key informants believed the legislation had enhanced the safety of children who were experiencing domestic violence 5. In light of the recent research by the University of Sydney and Family Court of Australia, that interim contact orders are being made in circumstances where contact is not in the child’s best interests, and when it may well be unsafe for the child and the resident parent 6, priority should be given to investigating a similar legislative change.

The client’s experience is that domestic violence and child abuse are not given significant weight in the family law/legal aid processes. The system currently responds to families, where there are issues of violence and abuse from a ‘partnership breakdown’ perspective. That is, it approaches these families assuming that the central problem is one of the adults in the relationship no longer wanting to live together. This approach invisiblizes issues of violence and abuse in decision-making and inappropriate and unsafe parenting orders can result.

The more appropriate response is that which adopts a "family violence" framework. Such a framework views the separation as largely irrelevant to the issues facing the family, identifies the violence as the central problem, recognizes that violence continues after separation and that abuse of children may be part of the pattern of violence. This framework underlies the legislative approach in New Zealand to custody/access disputes.

Where a mother of children is regularly subjected to violence perpetrated on her in the home where children live, that is a form of child abuse. Domestic violence has short, medium and long-term consequences on women and children. For children, it manifests in different ways at different stages of a child’s life. Children are affected by domestic violence in their environment whether or not they are the direct target of the abuse, they witness, hear, sense the tension in the home.

It is increasingly recognized that witnessing domestic violence by children is a form of child abuse. Although witnessing domestic violence is one of the factors the system must consider in making decisions about the best interests of children it is our experience the system does not give the issue sufficient weight

There is significant data now available which establishes the links between spousal and child abuse. In fact there is evidence that the presence of domestic violence can be an indicator of direct child abuse.7.

The system’s current response however, is to treat spousal violence and child abuse as discreet issues. If a woman presents to the system with concerns about domestic violence, issues about possible child abuse are not necessarily considered or explored. Similarly, if child abuse issues are raised they are not necessarily considered in the context of domestic violence. This can lead to unsafe and inappropriate orders being made about contact and residence.

Women’s separation from the violent men does not bring an end to the violence experienced by themselves or their children. This is consistent with research into the area of domestic violence including from the Duluth project in Minnesota where a coordinated response to domestic violence has been developed throughout all key agencies.

This is consistent with the NNWLS client experience.

FOOTNOTES