Violence and the Family Law Act

FAMILY LAW COUNCIL

Violence and the Family Law Act:

financial remedies

Discussion Paper

August 1998

© Commonwealth of Australia

ISBN 0 642 20951 0

This work is copyright. Apart from any use as permitted under the Copyright Act 1968, no part may be reproduced by any process without prior written permission.

PUBLIC CONSULTATION

The Family Law Council is seeking public comment on:
· The particular matters listed at pages 53-56 of this paper;

· The issues raised throughout this paper on which the reader would like to comment; and
· Any other issues related to matters in the paper.

Persons and organisations who wish to make submissions or to submit their comments on all or any part of this paper are invited to do so in writing.

All written submissions made to Council will be publicly available unless there are reasons for confidentiality and those reasons are drawn to Council's notice. Persons making submissions are asked to keep this in mind. It is particularly important that the privacy of personal material, such as information about individual cases, be protected and Council asks that such material be clearly identified as confidential.

Persons who previously made submissions can assume that they have been included in the Committee's consideration of the issues for this discussion paper. Those who previously made submissions need not provide another submission unless they wish to provide new material.

If you do not want your name used, or you want your submission or part of it treated as confidential, please advise Council accordingly and state your reasons for seeking confidentiality. You should be aware that confidential material must sometimes be released if requested under the Freedom of Information Act 1982 (Cth).

The closing date for comment on this discussion paper is 30 November 1998.

Address for submissions

The Director of Research
Family Law Council
Robert Garran Offices
National Circuit
BARTON A.C.T. 2600

Telephone: (02) 6250 6519; (02) 6250 6375 Fax: (02) 6250 5917

THE FAMILY LAW COUNCIL

The Family Law Council is a statutory authority established under section 115 of the Family Law Act 1975. It commenced operation in November 1976.

The functions of the Council, as set out in section 115(3) of the Family Law Act, are to advise and make recommendations to the Attorney-General concerning:

(a) the workings of the Family Law Act and other legislation relating to family law;
(b) the working of legal aid in relation to family law; and
(c) any other matters relating to family law.

It may provide advice and recommendations either on its own motion or at the request of the Attorney-General.

Membership of the Family Law Council

Membership of the Family Law Council at the time of production of this discussion paper was:

Mrs Jennifer Boland Chairperson
Ms Elaine Atkinson
Ms Dale Bagshaw
Ms Susan Blashki
Associate Professor Eleanor Bourke
Mr Stephen Bourke
The Hon Justice Rod Burr
Professor John Dewar
The Hon Justice Michael Hannon
Ms Annemaree Lanteri
Mr Richard Morgan
Mr Des Semple

The Violence and Family Law Committee

Members of the Council's Violence and Family Law Committee are:

Mrs Jennifer Boland Co-Convenor
The Hon Justice Michelle May Co-Convenor
Ms Dale Bagshaw
Professor John Dewar
Dr Juliet Behrens
The Hon Justice John Faulks Former Council Chairperson
Ms Louise Hansen Former Council member
Ms Jennifer Degeling (Secretariat)

Much of the background research and writing on this project was undertaken by Dr Jo Herlihy, formerly of Council's Secretariat.

CONTENTS

Page

Public Consultation 3

Family Law Council 4

Preamble 8

Glossary of terms 9

1. Legal and social developments in attitudes towards violence 10

The early years of the Family Law Act and the `no fault' principle
The 1980s
The 1990s
The Family Law Reform Act 1995

2. Issues raised by and related to submissions 19

Arguments for and againstviolence as a separate factor
Particular groups
Aboriginal and Torres Strait Islander groups
People of non-English speaking backgrounds
Other groups
Men as victims
Damages, property settlements and the Family Law Act
Victims' compensation

3. Other issues 29

Variation or setting aside of property orders under Section 79A
Legal aid
Definitions
Low income cases
Time limits
Improving access to assistance
Restraining orders
Constitutional considerations
Compensation as a punitive or compensatory response
Onus and standard of proof

4. Cross-vested jurisdiction and personal injury cases in the Family Court 39

The cross-vesting scheme
Transfer of proceedings
The relationship between Family Law Act claims and cross-vested claims
Limitations of the present law

5. Possible solutions 47

The inclusion of the effects of violence as a contribution factor under section 79 of the Family Law Act
The inclusion of the effects of violence as a factor relevant to spousal maintenance
A third stage, possibly as a new section 79AA, where the Court may take violence into account after consideration of section 79(4) and section 75(2) and order compensation
The inclusion of the effects of violence as an additional factor under section 79A of the Family Law Act.
Statutory reform of the common law
Reform of victims' compensation schemes
Diagram showing possible solutions to compensate for family violence

6. Particular issues on which comment is sought 53

Reform of the Family Law Act
A new matrimonial tort
Reforming the common law and the cross vesting scheme
Particular groups
Victims compensation
Non-financial remedies
Waiver of time limits
Variation or setting aside of property orders

Selected References 57
Appendix A: Relevant sections of the Family Law Act 72
Appendix B: List of violence studies 76
Appendix C: Submissions and meetings 79

PREAMBLE

In late 1994 Council discussed an examination of the general issue of family violence. Council intended to consider the social, legal and historical impact of violence on families and to examine how decisions of the Family Court should take violence in relationships into account.

During 1995, Council received a considerable amount of information in submissions, much of which addressed matters relating to children as well as property. In addition, public meetings were held at Brisbane, Melbourne, Perth, Sydney, Newcastle and Parramatta. Various members of the community, some representing organisations, attended.

The major changes brought about by the Family Law Reform Act1995, as well as developments in the case law led Council to refine the terms of its original investigation.

In 1996, Council agreed that a discussion paper should be prepared on the impact of violence on decision-making about property and financial matters in family law disputes. The focus of the current paper is therefore on the nature of financial remedies, as part of a property or spousal maintenance settlement or order. Council decided upon this special focus in view of the fact that other extensive studies have been, and are currently being, conducted into other aspects of domestic and family violence1.

GLOSSARY OF TERMS

Domestic violence: The Office of Status of Women uses the following definition: "Domestic violence occurs when one partner attempts, by physical or psychological means, to dominate or control the other. Violence causes damage, fear and hurt. There are various forms of domestic violence such as physical assault, sexual assault, verbal abuse, emotional and psychological abuse, social abuse, economic abuse and spiritual abuse."2

Family violence: In the Family Law Act, this means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family to fear for, or to be apprehensive about, his or her personal well being or safety3.

Forum shopping: In some circumstances, a person may commence certain proceedings in more than one jurisdiction or forum. The choice of the forum which would give the most advantageous outcome in the proceedings is called `forum shopping'.

Garnishee: Where Person A has a court order or judgment for payment of money by Person B, the income or salary of Person B may be seized or garnisheed to make payment of the debt to Person A.

Tort: A tort is a breach of a duty which has been imposed by law and which gives rise to a civil right of action for damages. A right of action in tort only arises when injury has been sustained as a result of a breach of a duty recognised by law4.

1. LEGAL AND SOCIAL DEVELOPMENTS IN ATTITUDES TO VIOLENCE

The early years of the Family Law Act and the 'no fault' principle

1.1 When the Family Law Act 1975 commenced operation in 1976, perhaps the best-known aspect was its 'no fault' approach to divorce (or dissolution of a marriage). Under the Act, couples wishing to dissolve their marriage no longer needed to identify a blameworthy ground such as adultery, cruelty or desertion, or prove five years' separation. Dissolution of the marriage is granted solely on the basis of the irretrievable breakdown of marriage evidenced by 12 months' separation of the parties.

1.2 Over the years the concept of 'no fault' was seen by some as central to the Family Law Act, reaching beyond the simple issue of dissolution of a marriage, and permeating decision-making in all areas of family law5. Certainly in the late 1970s there was reluctance to allow evidence of family violence to be brought into proceedings or to be a relevant factor in decision making, except in the case of physical and/or sexual abuse of children. Though violence had occasionally been mentioned by the courts prior to the establishment of the Family Court, until relatively recently, both in the Family Court and in society at large, consideration of violence as a family law issue was limited to a few specific aspects of the legislation - in particular, obtaining injunctions for personal protection. Many of the basic principles applied in the early years remained operative until well into the 1990s6. For example, in the course of assessing the child's welfare, the courts consistently refused to take account of family violence unless it directly affected the child7.

1.3 The early cases also confirmed that decision-making under the financial provisions of the Family Law Act was essentially 'no fault' based, despite one isolated case where conduct of the wife which was 'obvious and gross' was said to be relevant8. The particular issue of violence, then, was only relevant if it could be shown to relate to financial matters. Even then, it was not the conduct itself, but the financial consequences of it, which were relevant.

1.4 The criteria for property adjustment between married parties are specified in the Family Law Act in section 79. Section 75(2) of the Act includes a long list of matters which must also be taken into account in decisions about financial matters, including a clause (section 75(2)(o)) allowing any fact or circumstance which, in the opinion of the Court, the justice of the case requires to be taken into account. Early decisions of the Family Court, however, tended to take a fairly limited interpretation of section 75(2)(o). For example, the Full Court of the Family Court made it clear in Ferguson9 that section 75(2)(o) should not be applied to punish a person in financial terms for conduct which brought about the breakdown of the marriage, where the conduct had no financial connotation in relation to the matter the Court was called upon to decide10.

1.5 A very fine line sometimes separated interpretations which favoured taking account of the effect of violence on the earning capacity of an abused partner, from other interpretations such as that in Sheedy11 and Hack12. The Family Court in Sheedy rejected the argument that because a husband's maltreatment of his wife made her job as homemaker and parent more difficult, this should be grounds for admitting evidence of `matrimonial misconduct'. In Hack the trial judge took the view that the wife's quadriplegia, the consequence of serious spousal violence, was relevant under section 75(2) with regard to maintenance because she was permanently incapacitated, but how she became a quadriplegic was not.

The 1980s

1.6 The 1980s saw increasing public awareness of the social and individual damage caused by violence in the home, and significant changes to the policy and practice of organisations such as police and welfare authorities which dealt with domestic violence on a regular basis. The work of women's organisations and refuges in particular raised the visibility of the issue of spousal violence in the home.

1.7 On the specific issue of violence and fault-finding, several cases in the 1980s followed the perspective enunciated in Chandler13. The Family Court in that case took the view that, where it was clear from the evidence that the relationship between the children and each of the parents was going to continue, the Court should refrain, unless absolutely necessary, from making any finding which adversely reflects upon the integrity of either of the parties. The other strongly articulated principle was that matrimonial conduct or fault was relevant to residence or contact only if it affected the party's fitness as a parent and thus could be said to relate to the welfare of the child. These principles underpinned many judgments, such as Smythe14in 1983 and McLean15 in 1991, with the result that consideration of the difficult issues associated with violence against spouses could often be effectively avoided by regarding them as not relevant to the welfare of the child.

The 1990s

1.8 The work of the National Council on Violence Against Women, of academic commentators and women's groups gradually began to have some impact16 in promoting a change of attitude about family violence both in society at large and in the Family Court. Increasing public sensitivity to violence-related issues was demonstrated in apparent changes in the willingness of the Family Court to address violence in certain circumstances, notably in relation to actual or prospective violence against children17. The Family Court issued a policy and guidelines for staff to take account of violence in dealing with clients of the Court.

1.9 By the mid 1990s these changes led to a greater appreciation in the Family Court of the dynamics of family violence, and to increased sensitivity to the fact that violence often escalates at times of separation and legal action and, further, that where violence has occurred prior to separation, perpetrators tended to continue to use violence in subsequent relationships18. Consequently, the possible response from a violent or potentially violent partner, faced with the possibility of losing everything, may be serious at the time of a break-up19. One important realisation was that a family law application of itself could pose an increased risk, regardless of how sensitively a case was handled.

1.10 In 1992, the Standing Committee of Attorneys-General (SCAG) began consideration of the problems raised by section 109 of the Commonwealth Constitution in relation to inconsistencies between State and Territory restraining orders (domestic violence orders) and contact orders made under the Family Law Act, where the latter had to prevail. The agreement reached in SCAG to deal with family violence was given effect to in the Family Law Reform Act 1995 (see paragraphs 1.21 - 1.24 below).

1.11 It is perhaps worth noting that this shift in attitudes was brought about largely by changes in the political and social climate and in judicial thinking. It was not preceded by any substantive change to the legislation or to government policy. Those parts of the 1995 legislation dealing with domestic violence have recognised the value shift.

1.12 At the same time, some writers strongly criticised the hypothesis that action to address allegations of violence within the context of family law litigation was inconsistent with the 'no fault' philosophy of the Family Law Act20. Subsequent debate centred on whether violence could be 'taken into account' in family law matters, such as the welfare or best interests of a child and the disposition of property, thus preserving the integrity of 'no fault' divorce while recognising the impact of violence on children and allowing victims to be compensated through property settlement or by awards of damages.

1.13 Nevertheless, as recently as 1990, the Full Court in Fisher and Fisher21 ruled the trial judge in error for refusing to strike out allegations of assault by the husband on the wife, maintaining the view that violence was only relevant in section 79 proceedings where it had effects of a financial nature, and concluding that it was the existence of the respective contributions and needs, not the causes, which was the primary subject of investigation.

1.14 But by 1996 in the case of Doherty22, the Full Court was willing to uphold the relevance of violence in determining the extent of contributions of the parties to the marriage. In this case, the parties had been married for about 10 years. They had made significant but disparate contributions to the marriage which overall, the Court assessed as equal. Although the violence occurred during a relatively short period at the end of the marriage, the trial judge found that because of the husband's conduct, the wife's contribution as homemaker was increased and the husband's contribution diminished. The Full Court supported this view, thereby taking a new direction from that in Fisher and other previous Full Court decisions. In 1997, in one case, the judge commented that: `It is difficult to see how any rule of law to the effect that matters of conduct should not be taken into account can be reconciled with the language of the Act, which requires assessments to be made of the parties' contributions (s79(4)), prevents orders being made unless they are just and equitable (s79(2)), and requires the court to take into account matters relevant to the justice of the case (s75(2)(o))'23.

1.15 Another development of considerable importance in the ability of the Family Court to provide effective solutions to problems of violence was the use of the cross-vesting legislation in personal injury cases to address damages, children and property matters within the one court. The Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) only overcame barriers to claims for damages for civil assault being brought in the Family Court. The law being applied in the Court remained the State and Territory tort law. In Marsh v Marsh24, a landmark case, the judge awarded $7,000 damages for a woman in a case involving property proceedings. In W v W; R and G (next friend P) (Intervener)25, nine months later, the judge ordered damages totalling $170,000 for two girls against their stepfather, who was serving a prison term for sexual assaults on them. The proceedings also involved a property application by their mother under the Family Law Act.