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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

An end to direct questioning by abusive partners in family law proceedings

Women’s Legal Services Australia (WLSA) welcomes the Australian Government’s announcement that it will be introducing legislation to amend the Family Law Act 1975 to prohibit the direct cross-examination of victims of violence in family law proceedings.

Being directly questioned in court by an abusive ex-partner is not only traumatising it also affects the victim’s ability to give evidence.  This can prevent important information being made available to the court to protect children from violence in family law proceedings. Ending the cross-examination by violent ex-partners is a practical and important step to empower victims to give evidence without fear.

WLSA looks forwards to further detail being provided about the implementation of these critically important amendments, including in relation to how the reforms will be funded.  Proper funding to implement these amendments will be essential to success.

The Government has also announced additional funding for Community Legal Centres, Aboriginal and Torres Strait Islander Legal Services and the family law court system. WLSA welcomes greater investment in these areas, particularly additional funding for appropriately skilled family consultants in family law matters and for additional domestic units to deliver integrated specialist legal and social support to survivors of family violence. We look forward to hearing more detail in relation to these announcements.

The Government also announced a comprehensive review into the Family Law Act 1975, to be conducted by the Australian Law Reform Commission. WLSA is interested in learning more details about the proposed review and urges genuine consultation with the sector, in particular those organisations working on the front line with survivors of family violence, from the outset. The voices of women and children affected by violence must be strongly represented in the review process.

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

You can read the Australian Government’s announcement here

Help us stop cuts to a vital service for family violence survivors – community legal centres

Community Legal Centres (CLCs) are a critical, potentially life-saving, service for many women trying to escape an abusive partner. They are one important part of the service mix available for family violence survivors, and we support their expansion in step 3(b) of our Safety First Plan.

Yet inadequate funding already forces Centres to turn away 160,000 people a year – many of them women affected by family violence.

The Turnbull Government is planning to cut a whopping 30% of Community Legal Centres’ funding from 1 July 2017.

Rosie Batty, family violence survivors, law school deans, federal parliamentarians including those from Labor, the Greens, as well as Jacqui Lambie and Derryn Hinch, and family violence services are all calling for the government to reverse this devastating cut. So far, the government hasn’t listened.

Help us take action to try and stop this.

  • Support the #equaljustice campaign – print an #equaljustice placard, take a photo with it, and share it on Twitter and Facebook.
  • Stand with Rosie and the Never Alone Foundation by adding your signature to Rosie’s letter to the Prime Minister asking him to reverse these proposed funding cuts.
  • Sign the Fair Agenda petition calling on the Australian government to stop the 30% funding cuts to community legal centres slated for 1 July 2017.
  • Email your concerns to your local senator using this Fair Agenda tool.
  • Share this page with your networks and friends and ask them to sign Rosie’s letter and join the Fair Agenda campaign

Federal parliamentary inquiry on safety in family law for those affected by family violence

The federal House of Representatives Standing Committee on Social Policy & Legal Affairs has announced an inquiry on how the family law system could be improved to ensure the safety of those affected by family violence. Further details are available here.

Why is this important?

This is an important opportunity for family violence survivors’ voices to be heard by the federal government on what could be done to fix a broken system.

If survivors’ voices are not heard through this process, there is a danger that other voices will dominate.

The Terms of Reference focus on many important issues of safety in family law in the Safety First 5-step Plan. For the detail – see below.

The inquiry Principles also make clear that the Committee will: work to avoid duplication with previous family law inquiries and commissions; have particular regard to the needs of Aboriginal and Torres Strait Islanders and other disadvantaged groups; and, conduct the inquiry in a manner which does not re-traumatise people who have been affected by family violence.

What can you do?

For community members

We call on family violence survivors who have been through the family law process to:

  • complete this anonymous survey by 30 June 2017
  • if you feel comfortable to do so – express your interest in making a community statement (this would be by telephone)
  • if you feel comfortable to do so – make a written submission by 3 May 2017

If you do not feel confident to do the above – speak to your local Women’s Legal Service about getting support in participating.

For service providers

We call on family violence and community service providers to:

  • encourage all of your family violence survivor clients to participate in this process, where appropriate, and provide them with support to do so if necessary
  • make a written submission
  • let other community services working with family violence survivors know about this opportunity by email and social media, and encourage them to ask their clients to participate, and to participate themselves

The details – how is the Safety First Plan relevant?

The Terms of Reference ask questions on many important issues addressed in the Safety First 5-step Plan. They include:

1. How can the family law system more quickly and effectively ensure the safety of people who are or may be affected by family violence?

This includes how the family law system could better facilitate the early identification of and response to family violence.

And – what legal and non-legal support services are required to support the early identification of and response to family violence?

> See Step 1 of the Safety First Plan, which calls for early risk assessment by family law registries in family violence cases

2. How can we make sure that consent orders made by family law courts support the safety of family members?

> See Step 3a of the Safety First Plan, on the need for legally assisted dispute resolution in family violence cases.

Many victim survivors of violence feel pressured to enter into consent orders following family dispute resolution that they feel are not in the best interests of the child and do not adequately take into consideration family violence concerns. If legally represented this is in circumstances where their lawyer may not have had the opportunity or the time to obtain full instructions regarding the violence.

> See Step 2c of the Safety First Plan, on the need for an end to direct cross-examination of family violence survivors by their abusers in the family courts.

Further, family violence victim survivors are more likely to consent to court orders which are not in the best interests of the child or which do not adequately address family violence concerns, if they fear they will have to endure direct cross-examination, or are fatigued due to a lengthy court proceeding.

3. How can the family law system better support families before the courts where one or more party is self-represented, and where there are allegations or findings of family violence?

> See Step 2c of the Safety First Plan, on the need for an end to direct cross-examination of family violence survivors by their abusers in the family courts.

4. How can the family law system better support people who have been subjected to family violence to recover financially?

This includes considering the extent to which family violence should be taken into account in the making of property division orders.

> See Step 4 of the Safety First Plan, on (a) promoting early resolution of small property pool matters (b) requiring courts to consider family violence when determining a property division and (c) simplifying court processes and forms to make them more accessible.

5. How could the capacity of all family law professionals—including judges, lawyers, registrars, family dispute resolution practitioners and family report writers—be strengthened in relation to matters concerning family violence?

> See Step 5 of the Safety First Plan, on (a) a mandatory national accreditation and monitoring scheme for family report writers with mandatory family violence training for writers (b) a comprehensive family violence training package for judges and (c) a comprehensive family violence training program for lawyers.

6. What is the potential for a national approach for the administration and enforcement of personal safety intervention orders?

Calling on COAG to put safety in family law at top of its agenda

Women’s Legal Services Australia (WLSA) has written to all state and territory leaders asking them to address safety in family law at the Council of Australian Governments (COAG) meeting tomorrow.

Family violence cannot be taken seriously without taking family law seriously. This is something that COAG – all state, territory, and federal governments – must consider and address.

One urgent priority is ending the direct cross-examination of family violence victims by their abusers in the family law system. This is something that can be changed now.

Direct cross-examination re-traumatises victims and limits evidence in relation to safety that comes before the courts. This risks court decisions being made that put children at risk of violence. Everyone knows there is no excuse for it and we are calling on all states and territories to back us up at COAG.

The family law system is full of hard working, passionate advocates and legal professionals. However, structural and institutional problems are consistently contributing to decisions that put people at increased risk of violence and abuse.

This means that when women and children flee a violent relationship, the family law system can be a hindrance rather than a help and that can result in them being placed in greater danger.

On 25 November 2016, Prime Minister Malcolm Turnbull was asked by Opposition Leader Bill Shorten in Parliament about how he intended to end direct cross-examination. Prime Minister Turnbull answered that “addressing domestic violence is a priority for all of us. We have to stop it. Violence against women and children is utterly unacceptable.”

It is for these very reasons that WLSA calls on all governments to work together to end direct cross-examination of vulnerable witnesses in family courts.

Measures to protect victims from direct cross examination was supported by South Australian and Victorian Premiers at the COAG family violence summit on 27-28 October 2016, as well as in recent announcements by the federal opposition leader and the Family Court on its family violence best practice principles.

Even one case of a victim being directly cross-examined, or one family in which a court doesn’t hear a victim’s concerns about the safety of children due to fear, is one too many.

See our media release on this issue here.