DVIRC Family Law Forum
“Barriers to Safety: Proposed Changes to the Family Law System”
Marie Hume
National Abuse Free Contact Campaign
1
1
I firstly would like to briefly explain to you about the National Abuse Free Contact Campaign. NAFCC is a national (and international) coalition of organisations who have formed to advocate on behalf of women and children going through the Family Law system with concerns about domestic violence and child abuse. Some of the issues that we aim to address are
- Child protection and the family law system
- Lobbying for a presumption of no contact in cases where there are violence and abuse issues
- Increased funding to legal aid, particularly in cases where there is domestic violence and child abuse.
- And lobbying to counteract the push for a presumption of joint custody in family law.
Our aims are political. Our major goal is to effect changes within the family law system to ensure safety of women and children from abuse.
We operate from a feminist analysis of domestic violence, child abuse and the way the law operates,without which we believe women and children will continue to face significant barriers to achieving safety from ongoing abuse and violence
I will be looking today at the proposed reforms to family law. It is important to examine the political context of these reforms and the political agenda of fathers’ rights groups to gain an understanding of what these reforms are about and how they reflect a right wing shift in political thinking away from creating safety from women and children towards fathers’ rights.
You would all be aware of the Government’s inquiry into family law which resulted in the report ‘every picture tells a story’. It is apparent that the inquiry was instigated as a result of the strong lobbying by the fathers’ rights groups for changes to the family law system with a clear agenda of a presumption in family law for joint custody following separation.
This is occurring in a time and political context where domestic violence is being discounted and with little acknowledgement of the gendered nature of domestic violence. Only this week I read a critique of domestic violence research arguing against research which shows the prevalence of domestic violence. So not only are we ignoring the gendered nature of domestic violence but arguments are being made that it is not a widespread problem.
We are also facing a time when the focus regarding child sexual abuse has moved away from interfamilial abuse towards child sexual abuse which occurs outside of the family.
In the 1970’s and ‘80’s when the women’s movement raised awareness about the extent of domestic violence and child sexual abuse, this was met with discounting and denial of these problems. I believe that the current environment in which these legal reforms are being proposed is indicative of a backlash which wishes to once again silence the voices of women and children who are victimized by violence and abuse within the family.
Today I will briefly outline the relevant family law reforms.
We were all very busy at the time of the parliamentary inquiry into family law ensuring that there were a large number of submissions highlighting the concerns about the barriers to women and children achieving safety from child abuse and domestic violence within the family law system.
Whilst these concerns have been acknowledged in the the changes, the reforms also appearalso to be highly influenced by the fathers’ rights agenda.
The argument could be made that the reforms clearly take into account domestic violence and child abuse by requiring that there be a clear presumption against shared parental responsibility in such cases.
It is useful here to have a look at the reforms to family law that were introduced in 1995. These reforms included 2 significant amendments. First was “the need to ensure safety from family violence” as one of the guiding principles of the Family Law Act”. The second principle that was added was, subject to the best interests of children, “children have the right to know, and be cared for by both their parents” and “children have a right to contact, on a regular basis, with both their parents”. Research (Rhoadeset al, 1999) and our own experiences has shown quite clearly that the ‘right to contact principle’ has been given greater emphasis than the domestic violence aspects of the reform and that this right to contact principle is not necessarily subject to the best interests of the child. The ‘right to contact’ principle has taken precedence over concerns about children’s exposure to domestic violence and child abuse.
If we compare the initial report from the inquiry with the resultant government discussion paper we can already perceive a right wing shift in the direction of fathers’ rights at the expense of women’s and children’s safety.
I firstly want to look at the ethos and ideology that is evident throughout the discussion paper in particular.
The blatant gender bias in the Discussion Paper is overwhelming. In the first paragraph the paper states that the committee placed a strong focus on separated fathers having greater involvement with their children. This is a sentiment that is repeated several times throughout the paper. In fact, the term mother is not used at all in the paper.
And it is interesting to note that in talking about children’s relationships with their parents gender is strongly evident, promoting the view that fathers have been disenfranchised through the family law system.
Yet when ‘family violence’ and child abuse are discussed there is no mention of the gendered nature of domestic violence or child sexual abuse. This in itself discounts the experiences of victimised women and children.
If we assume that sequence can be equated with priority the fact that the need to protect children from violence and abuse is not mentioned until the fifth paragraph is concerning.I would argue that the discussion paper strongly suggests that this Government’s agenda prioritises fathers’ rights over children’s safety and fails to address the issue for safety for women from domestic violence.
Further when the paper discusses recommendations regarding domestic violence and child abuse it inevitably repeats the fallacy of false allegations. For example the paper states “For the presumption to be against equal shared parental responsibility, the court would need to be satisfied that there is evidence of violence, abuse or entrenched conflict involved in the case – it would not be enough just to make allegations about it.”The assumption being that women regularly make allegations of abuse and violence which are not true.
There is overwhelming evidence based on research conducted by the Family Court(Brown et al (2001) itself, Family Law Council (Family Law Council (2002),and others that false allegations of child abuse and domestic violence are shown not to be of significance in family law proceedings. Whereas research (Brown et al (2001), Family Law Council(2002),Rendell et al, 2000) has clearly shown that the barriers to women and children achieving safety from violence and abuse is a significant problem within the family law system.
Neither do we have any analysis of the extent of the problem of domestic violence and child abuse in family law proceedings. The Court’s own research suggests that in 60% of cases involved in family law proceedings there are concerns around violence and abuse.
A recent analysis of judgements in children's mattersexamined the frequency with which allegations of family violence had been made against a member of the child's immediate or extended family.
The analysis showed that violence was a factor in 75% of matters judicially determined during that period. (Family Court, Family Violence Policy)
The report from the parliamentary committee did recommend that an investigative body be established with powers to investigate allegations of violence and child abuse.
However, there is no mention of this in the reforms. The Government instead has announced that further research be conducted into this.
So let us take a closer look at what the report and the discussion paperare recommending.
The report ‘every picture tells a story’ did not go so far as to recommend a presumption of joint custody in family law. However, it did move very closely towards this concept.
The reportand the discussion paper relevant recommendations include:
- That there be a clear presumption of equal shared parental responsibility.Equal shared parental responsibility means parents share the key decisions in a child’s life – eg education, religion, health issues and where they live. It will be a requirement that parents consult with one another before making decisions about major issues.Shared parental responsibility will be the starting point in most cases.
- Thatin cases of entrenched conflict, family violence, substance abuse or established (an important term to consider) child abuse, including sexual abuse that there be a clear presumption against shared parental responsibility.
- Require mediators, counsellors, and legal advisers to assist parents for whom the presumption of shared parenting responsibility is applicable, to first consider a starting point of equal time where practicable. Advisors (mediators and lawyers) will be required by law to raise with parents the possibility of considering equal parenting time as a starting point.
- Require the courts to first consider substantially shared parenting time when making orders in cases where each parent wishes to be the primary carer.
Given the strong emphasis placed on equal shared parenting and the requirement to consider equal parenting time it is predicted that these will take precedence over concerns regarding violence and abuse.And consideration needs to be given to the standard of proof that will be required where there are allegations of violence and abuse. The definition of family violence has been changed so that there has now to be ‘reasonable’ fear of violence. As discussed earlier there appears to be repeated references to the fallacy of false allegations in the discussion paper.
- The report recommended that the Family Law Act be amended to require separating parents to undertake mediation or other forms of dispute resolution before they are able to make an application to the court for a parenting order, except when issues of entrenched conflict, family violence, substance abuse or serious child abuse, including sexual abuse, require direct access to courts.
The proposal is that to file an application in the courts seeking any orders relating to children, a person would need a certificate saying that the parents have attended a dispute resolution process. The court would be able to take into account the refusal or failure to attend in considering a possible cost order against the other parent. (i.e. the parent would be required to pay the legal costs of the other parent).
Exceptions to this would be where there is violence or child abuse involved. So that in these cases a person would be able to take the matter direct to the courts. However, the courts would be able to impose cost orders against a parent who it finds has falsely alleged violence or child abuse to avoid the dispute resolution process.
It is unclear what the standard of proof that will be required where there are allegations of abuse and violence. Also unclear is what is meant by the term “falsely” – does this mean deliberately lying about violence and abuse (something that research has shown happens rarely in family law proceedings) or is it where a parent (usually the mother) is unable to provide sufficient evidence of violence and abuse? This is an important distinction. As we are aware it is often difficult for women to provide evidence of domestic violence. Research(Family Law Council (2002) has also shown us that because of the problems in the interface between state child protection systems and the family law system often child abuse allegations are not investigated and so a parent is unable to provide evidence of child abuse to the court.
Other recommendations include:
- the establishment of family relationship services, and the development of screening processes for family violence etc
So let us take a closer look at the Family Relationships Centres
Family Relationship Centres
The Government has already announced in the budget that 65 Family Relationship Centres will be established throughout Australia.
What will these centres do?
The centres will provide dispute resolution at an early stage in the separation.
They will be run by community based organisations.
What is likely to happen in the mediation process?
The paper states clearly that the “centres will encourage fathers to maintain a substantial role in their children’s lives immediately following a relationship breakdown.”
It is proposed that parenting plans will be developed during these mediation sessions with checklists and templates on what parents should consider when making a parenting plan.
Once a parenting plan has been developed if the matter does end up in the Court system the court will be required to take into account the most recent agreement the parties reached.
Lawyers will not be able to be part of the mediation process although support persons could be present if the parenting adviser agrees.
So what does this mean for women and children escaping domestic violence and child abuse?
Firstly there will be a significant onus on women to be able to prove the existence of domestic violence and/or child abuse. A significant problem for the majority of women and children.
Women will face the dilemma – she can choose not to raise the violence and abuse issues and opt for mediationand be faced with having to negotiate with her ex-abuser– or she can refuse to attend mediation because of fears about her own safety and concerns about being intimidated in the mediation process and face possible punitive outcomes if she is unable to satisfactorily prove abuse.
So it is likely that a woman will feel compelled to attend mediation facilities. There will be both immediate and long term issues of safety and security for women.
Immediate safety concerns will be dependent on:
- The effectiveness of screening processes within Family Relationship Centres
- The quality of training in identifying, understanding and recognising power differentials and the dynamics of domestic violence and child abuse provided to staff within the centres.
- Security facilities within the centres – safety issues for women going to and leaving such centres, the provision of secure waiting areas within centres, whether security staff will be available.
We still have the opportunity to address these issues by ensuring that domestic violence services are consulted prior to and during the establishment of the centres.
There will also be long term consequences for safety of women and children.
There will be considerable pressure placed on women to agree to:
- Equal shared parenting
- Equal shared parenting responsibility
And the emphasis will be on the importance of fathers maintaining a relationship with their children.
So not only will be women victims of domestic violence be hampered by the unequal power differential in negotiations with their abuser, but will additionally face the stated requirement of mediators to push for equal shared parenting time, or at least considerable contact between children and their fathers.
Under these conditions it is highly likely that women will feel pressured to reach an agreement, with the potential for women and children to be exposed to ongoing violence and abuse.
So we are likely to have situations where women have been pressured to develop a parenting plan. If she and her children continue to be subjected to violence and abuse because of the arrangement it will be very difficult for women to do something about this. Once this agreement or parenting plan is put into practice it will be very difficult for women to later argue for a change in this arrangement in Court. Because the court will be required to take into account the most recent agreement the parties reached.
I would like to suggest that it would be useful to advise women firstly that their requirement to attend mediation does not mean that they have to reach agreement. It should be sufficient that they have attended and attempted mediation but were unable to reach an agreement.
For a number of obvious reasons many women will want to avoid having to go to Court. If a woman is considering reaching an agreement it is advisable that she takes some time to consult with others, preferably a lawyer and to think through the full implications of her agreement. She should not feel pressured to agree immediately.
What happens if a woman ends up in the court system?
The most significant of the proposed changes relates to breach of orders.
It is proposed that the Family Law Act be amended to ensure that, where there has been more than one deliberate and intentional breach of orders, the court must consider changing the parenting order in relation to which parent the child lives with and with whom the child spends time.