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Women’s Legal Services Australia Welcomes Announcement of Funding for New Family Violence and Cross-Examination Scheme

Women’s Legal Services Australia welcomes the recent announcement by the Morrison Government for $7 million of new ongoing funding for legal aid commissions to fund the new Family Violence and Cross Examination of Parties scheme.

It is anticipated the scheme will outline how the proposed legislative changes in the Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018 will work in practice. The Bill aims to ban family violence perpetrators from being able to directly cross-examine their victim-survivors in the family courts. This would bring the family court more in line with protections already available to family violence victim-survivors in most state based courts.

We welcome the Senate’s passing of The Bill.

Cross-examination is the legal process by which evidence put before the Court can be tested. It is essential that evidence to be relied on by the family courts in decisions where there is family violence can be tested but in a way which is safe for all family members concerned. These reforms are an important step towards making the family law system more trauma informed and bringing it into line with measures already available to protect women who have experienced violence in the family violence jurisdictions in some states.

Separate and ongoing funding stream was (and remains) critical to the scheme’s success.

Angela Lynch, CEO of Women’s Legal Service Queensland and Spokesperson for WLSA said:

“The ban on cross-examination is one of the key priority areas WLSA has campaigned for as part of its Safety First in Family Law Campaign”.

“The success of the bill was always going to be dependent on adequate funding for legal services, to ensure that both the victim and the perpetrator can have a legal representative to act on their behalf, and the ability of the courts to identify and respond in a trauma informed way to family violence in any given case.”

“The news of the Bill’s passage through the Senate, the establishment of the Scheme and the announcement of separate and ongoing funding is strongly welcomed and is an important step forward in increasing safety for women in the family court system”.

Read our full media release here.

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ALRC Review of the Family Law System

Women’s Legal Services Australia (WLSA) has made a submission in response to the Australian Law Reform Commission’s (ALRC) Review of the Family Law System Discussion Paper.  In this submission, we consider proposals made by the ALRC to improve the family law system and make it safer for family violence victim-survivors and their children.

We support several of the proposals discussed in the ALRC Discussion Paper. We note the 2014 Productivity Commission recommendation to increase legal assistance funding in civil law, including family law, by an additional $200 million a year, and we highlight the need for any future changes to the family law system to be adequately resourced.

We continue to call for the family law system to prioritise safety and we discuss the importance of putting safeguards in place for victim-survivors to ensure their safety and the safety of their children.

We also continue to advocate for greater accessibility to the family law system and for better recognition and understanding of diversity. We highlight the importance of the family law system being family violence, child abuse and trauma informed; culturally competent; and disability aware.

Read the WLSA submission to the ALRC here.

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Women’s Legal Services Australia Urges the Government to Extend Reporting Period before Dismantling Family Court

Women’s Legal Services Australia (WLSA) is deeply concerned that the Coalition Government is rushing the recent Federal Circuit and Family Court of Australia Bill and the accompanying consequential amendments bill through parliament without proper consideration about the impact of those changes to the safety of family violence victim-survivors and their children.

Together with the Law Council and other key stakeholders, WLSA calls for the government’s reporting period to be extended to allow for changes to the family court structure to be informed by the Australian Law Reform Commission’s Family Law Review and following proper consultation with the community.

WLSA fears the changes which will dismantle the Family Law Court and adopt a generalist court structure will result in a diminution of expertise in the family law system and may increase risk of harm for family violence victim-survivors and their children.

WLSA is further concerned that the changes don’t address the underlying problem of chronic underfunding that has long plagued the family law system.

Angela Lynch, CEO of Women’s Legal Service QLD and WLSA spokesperson, said “We are concerned these changes are being rushed through parliament without proper consultation with family violence experts and victim-survivors in order to understand exactly what the changes will mean for the safety of families experiencing family violence. Providing only a number of weeks for stakeholders to review the most significant overhaul of the family law system in 40 years is grossly insufficient and dangerous.”

“The ALRC Review commissioned by the government provides a unique opportunity for the family law system to be re-designed in consultation with the community and key stakeholders, including victim-survivors of family violence. We fear that rushing the changes through before hearing the outcomes of this Review will result in a piecemeal approach that does not take the needs of family violence victim-survivors and their families into account.”

Read our full media release here

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Women’s Legal Services Australia says Specialisation in Family Law is Integral to Women and Children’s Safety in the Family Law Court System

Women’s Legal Services Australia (WLSA) has concerns about the impacts on safety from the proposed dismantling of the family law court for domestic violence victims and their children.

WLSA acknowledges there are longstanding issues and concerns about the Family Court’s responsiveness to domestic violence cases and has advocated for years to change to this.  However, the reality is that moves to a more generalist court could make matters much worse for domestic violence survivors in the family courts.

WLSA is also concerned about the proposed removal of family law appeals from the Family Court appeals division where they are currently heard to the generalist Federal Court.

Specialisation is fundamental for the safe resolution of the large number of family law matters involving domestic violence that proceed through the courts.

Angela Lynch, CEO of Women’s Legal Service QLD and WLSA spokesperson said “We should be enhancing and building on current family law specialisation with increased and specialised responses to domestic violence and abuse in family law and not reducing it.”

WLSA calls for legislative protection of specialisation in family law and for the establishment of a domestic violence court pathway in the family law system to better respond to risk and safety issues.

The need for specialist knowledge and skills in dealing with family law matters has already been recognised by the Federal Government in the recent parent management hearings bill currently before parliament, where decision makers in this new program are required to have expertise in these areas. At the same time the Federal Government appears to be reducing such specialisation in the court system.

We caution that any change to the family law court system must be supported by increased resources across the board and inclusive of women’s legal services and other similar agencies, in order for it to be successful.

WLSA is concerned by the lack of a comprehensive consultation process that hears directly from victim-survivors to inform the proposed changes to the court system.

The current ALRC Family Law Inquiry provides a unique opportunity for the family law system to be re-designed. To ensure that family law reform is not piecemeal and is informed by the findings of the ALRC Inquiry we urge the Government to postpone any changes to the structure of the family law courts to after the ALRC Inquiry.

Read our full media release here.

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Women’s Legal Services Australia Welcomes Cross-Examination Bill But Says Funding and Reforms to Better Identify and Respond to Family Violence Are Needed if Reforms are to Work

Women’s Legal Services Australia (WLSA) congratulates the Turnbull Government for introducing long overdue legislation to ban the direct cross-examination of family violence victim-survivors by their abusers in the family court system.

These reforms are an important step towards making the family law system more trauma informed and bringing it into line with measures already available to protect women who have experienced violence in the family violence jurisdictions in some states.

However, WLSA is concerned about what implementation of the reforms will look like in practice. These changes can only make a real difference with proper funding to ensure that both the victim and the perpetrator have a legal representative to act on their behalf and conduct the cross-examination properly for them.

Sarah Bright, National Policy Coordinator for WLSA said “the bill prevents a party directly cross-examining the other in cases where there has been family violence. It applies to both victims and perpetrators. Cross-examination can still take place but must be conducted by a legal representative acting on behalf of that party. This reform is strongly welcomed”

“As you could imagine, the act of personal cross-examination by a perpetrator of violence of their victim, causes significant harm, re-traumatises victims, and can produce questionable and unreliable evidence.”

“If implemented well, this is a win for family violence victims. WLSA, along with other services and survivors have been campaigning for these changes for many years,”

“The success of the new bill is predicated on adequate funding for legal services, to ensure that both the victim and the perpetrator can have a legal representative to act on their behalf, and the ability of the courts to identify and respond in a trauma informed way to family violence in any given case.”

Angela Lynch, CEO of Women’s Legal Service Queensland and spokesperson for WLSA stated issues of the bill’s implementation require clarification: “We need to ask will there be funding for community legal centres or legal aid to represent perpetrators? It’s unclear what will happen if these individuals aren’t able to gain legal representation as the wording precludes personal cross-examination. It could result in the “haves” and “have nots”.

“Many people are not eligible for legal aid, can’t afford, or choose not to have a lawyer. We need to think through what happens in these circumstances. This is a serious access to justice issue that needs to be properly addressed.”

“The bill relies heavily on judicial discretion. For the reforms to improve safety for victims, we also need to ensure that the judiciary can use the discretion they have been granted under the bill to properly identify domestic violence victims to protect them from being directly cross examined by their perpetrator and to conduct the proceedings in a trauma informed way.

WLSA has identified a number of reforms in its submission to the ALRC review into family law to improve the early identification of family violence in the system”.

Read our full media release here

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WLSA Cautions for DV Victims’ Safety in Family Court Overhaul

Women’s Legal Services Australia (WLSA) cautiously welcomes some aspect of the planned amalgamation of the Family Court and Federal Circuit Court and attempts to reduce court waiting times, but fears decreased specialisation may lead to unsafe outcomes for domestic and family violence (DFV) victims and for children.

Federal Attorney-General, Christian Porter today announced the Family Court of Australia and Federal Circuit Courts will be combined into a new court to be known as the Federal Circuit and Family Court of Australia (FCFCA) from 1January 2019 in an effort to cut substantial waiting times.

WLSA spokesperson Angela Lynch says the organisation cautiously welcomes part of the proposal.

“WLSA welcomes the rationalisation of rules between the two courts. For our clients, the current system is complicated, confusing and expensive with two sets of rules leading to inconsistent outcomes. We’re supportive of moves to rectify this.”

However, Ms Lynch says WLSA has fears the approach may dilute specialisation of the family court needed to safely deal with its high volume of domestic and family violence matters as the proposed changes will potentially see more Judges without family law expertise hearing family court matters.

“The numbers are huge. We know at least 50 per cent of Family Court matters involve domestic violence and child abuse,” Ms Lynch said.

“At a time when other jurisdictions across Australia are recognising the magnitude of domestic violence in the community and are responding with specialised services such as the Gold Coast DV specialist court it’s an interesting choice to say the least to move away from a specialised legal response.”

“If we have Judges without the specialised knowledge and training in the complex dynamics of domestic violence and experience in family law, we will see an increase in unsafe and unfair outcomes for victims of domestic violence and their children.”

“We should be increasing judge specialisation not reducing it,”

Ms Lynch said WLSA awaits further detail on the planned changes but says there are also fears that ultimately the decision may result in less resources for family law as the new court may have to compete with the federal court for funding.

“We would like to see more detail. At present there are a lot of questions. It’s not yet clear to us how a rationalisation, without investment in resources will increase capacity.”

Read our full media release here

Read a Guardian interview with our National Coordinating Committee member, Angela Lynch, CEO Women’s Legal Service QLD, about these reforms here

Read the Government’s announcement here

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ALRC Review of the Family Law System

Women’s Legal Services Australia (WLSA) has made a submission in response to the Australian Law Reform Commission’s Review of the Family Law System Issues Paper.  In this submission, we advocate to prioritise safety, to improve accessibility and to recognise diversity.  We call for better recognition that harm perpetrated against the adult victim-survivor is also harm perpetrated against the child. We also call for better recognition that coercive and controlling behaviour can continue and escalate post separation.

WLSA’s submission highlights the importance of the family law system being family violence, child abuse and trauma informed; culturally competent; and disability aware.  We also highlight the challenges in regional, rural and remote areas and call for equity of access to legal and support services in RRR areas.

We highlight the importance of implementing the 2014 Productivity Commission recommendation to increase legal assistance funding in civil law, including family law, by an additional $200 million a year and the need for additional resourcing of the family law system, including family dispute resolution, specialist social support services, contact services, family consultants and judicial officers.

Read the WLSA submission to the ALRC here.

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Senate inquiry into Parent Management Hearings

Women’s Legal Services Australia (WLSA) has made a submission to the Senate Legal and Constitutional Affairs Committee in response to the Family Law Amendment (Parenting Management Hearings) Bill 2017.  This Bill was introduced into the Senate on 6 December 2017 and was referred to the Senate Committee for inquiry and report. The Committee released its report on 26 March 2018. You can read the Committee’s report here.

The proposed Parent Management Hearings (PMH) model is a large shift away from any current approach in Australia for resolving family law disputes.  Innovative practice, new ideas and a culture of continuous improvement should be encouraged in any court system.  However, when the outcomes of untried and untested processes can have enormous ramifications on the safety of women and children, such as the introduction of PMH, we advocate any new model should be based on research and evidence and informed at every step by domestic violence experts.  WLSA recommends the PMH model be referred to the Australian Law Reform Commission which is currently undertaking a comprehensive review into the family law system.

Parent Management Hearings (PMH) have been described as “a fast, informal, non-adversarial dispute resolution mechanism” to resolve less complex parenting matters.

The Bill proposes that PMHs will be determined by a multi-disciplinary Panel made up of legal and non-legal experts and is designed for unrepresented parties. The Bill proposes Panel members will have the power to fully displace the parental responsibility of one parent.

We note that matters in which family violence and some forms of child abuse are alleged are not automatically excluded from the PMH forum.  It is our experience that such matters are generally complex.

While noting the PMH model does consider the issue of family violence, WLSA raises a number of concerns, including:

  • The Explanatory Memorandum says there will be a comprehensive risk assessment. The Practice Directions relating to this are yet to be developed and it is not clear if risk assessment will be ongoing.  Given risk in family violence is dynamic, ongoing risk assessment by suitably qualified professionals is important.
  • The Principal Panel member is the only Panel member required to have expertise in matters relating to family violence. However, the Principal Panel member is not required to sit on each panel.
  • All Panel Members and staff conducting risk assessments should be culturally competent with respect to working with Aboriginal and Torres Strait Islander families, culturally and linguistically diverse families and LGBTIQ+ families as well as disability aware and have ongoing training in cultural competency; disability awareness; family violence, child abuse and trauma informed practice; and working with vulnerable clients.
  • Legal representation will only be allowed by leave of the Panel. While family violence and power imbalances are relevant factors in granting leave, no funding has been allocated for legal representation. This means that those who are granted leave may not practically be able to arrange representation.
  • The Panel has the power to require the production of information and documents. It is not clear what procedures will be required to be followed, for example, regarding objections to providing such information and documents. There is a need for the development of guidelines about the use of sensitive records.

PMHs are proposed as a pilot in two sites – Parramatta and a second site yet to be confirmed.

On 27 September 2017, the former Commonwealth Attorney-General, Senator the Hon George Brandis QC, commissioned the Australian Law Reform Commission (ALRC) to undertake the most comprehensive review of the family law system in Australia that has ever been undertaken.  The ALRC is currently accepting submissions in response to their Issues Paper by 7 May. In our view, it makes sense that the PMH be delayed and its implementation be specifically considered by the ALRC in their review before piloting such an untested model.

Our submission was endorsed by a number of sexual and domestic violence and women’s peak bodies and services.

You can read our submission here.

WLSA appeared before the Committee to give evidence.  You can access  the transcript here.

 

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Federal Government legislation putting the safety of women and children experiencing family violence at risk

Women’s Legal Services Australia (WLSA) calls on the Federal Attorney-General to prioritise the safety of women and kids affected by domestic violence in proposed reforms to the family law system.

The Federal Attorney-General today introduced in the Senate legislation aimed at significantly reforming the family law system. Under these proposed reforms, self-represented parents in Parramatta and one other location will be able to have their parenting disputes resolved through a pilot tribunal program known as “parenting management hearings”.

Parents will need special permission to have a lawyer represent them at a hearing, and the hearings will deal with complex matters involving family violence and child abuse. Decisions made at the hearings are binding on parents.

WLSA has concerns regarding how the planned changes may impact women and their children affected by domestic violence. WLSA Representative and CEO of Women’s Legal Service Queensland, Angela Lynch says:

“We know at least 50% of matters that go before the family court involve domestic violence. In these cases there is an unequal power balance. When facing her abuser in this context a woman faces a disadvantage”

“A fundamental way that victims can be protected is by having lawyers advocating for them in hearings instead of having to deal directly with their abuser.”

Ms Lynch acknowledges that with lengthy Family Court of Australia waiting periods, alternative ways of responding to these issues must be explored.

“We need to reform the family court system by putting the safety of women at the forefront of any reforms. We can see the bill goes some way to respond to the risks faced by women and children experiencing violence but also creates barriers to a fundamental protection – legal representation.”

You can read our media release in response to the announcement here

You can read the Government’s announcement here