WLSA Law Reform Activities 2011-2012
What's WLSA working on?
Monitoring impact of Recent Family Law Changes
The Family Law Legislation Amendment (Family Violence and Other Measures) Act came into effect on 7th June 2012, substantially amending the Family Law Act by prioritising issues of children's safety in decision-making over an ongoing meaningful relationship. This is a significant amendment and one that hopefully will go some way to improving outcomes for women and children in the family law system who have experienced domestic violence and/or have concerns about child abuse. WLSA congratulates the Gillard Government for listening to community concerns and making these changes.
Changes to legislation do not always have the effect intended when they are practically applied by decision-makers and professionals in the system, so WLSA has a role in monitoring the 'real' impact these changes have on the legal outcomes for women in the family law system.
Additionally, although the changes were a 'step in the right direction', WLSA believes they did not go far enough because the presumption of equal shared parental responsibility and its links to equal time and substantial and significant time were not altered. The overall emphasis in the Act on outcomes involving 'shared parenting and shared parental decision-making' will continue to expose women and children to violence because these kinds of orders and arrangements -:
- Often require constant communication between the parents about a range of issues concerning the day to day activities of children and this allows ample opportunities for ongoing violence, manipulation and intimidation from the perpetrator;
- Often allow a variety of opportunities for violent men to exert ongoing control and decision-making in the family under the guise of concern for the children;
- Can result in an increase in time that the children spend with the perpetrator of violence, resulting in more opportunities for children to be directly subject to violence or indirectly caught up in or witnessing violent and manipulative acts; and
- Have the potential to provide opportunities for the mother's parental authority with the children to be continually undermined.
Concerns About the Extension of Criminality in International Child Abduction Matters
Australia is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (the Convention) which governs the wrongful removal and return of children across international borders. The Government announced its intention to extend criminality in these matters to where a party attends or has been invited to attend family dispute resolution (family law mediations).
WLSA is strongly opposed to such an extension on the basis that adequate consultation has not occurred and the likely consequence of criminalising vulnerable women, especially women from culturally and linguistically diverse backgrounds, has not been considered.
Research has highlighted a concern about the gradual increase over time of the number of taking parents who are primary carer mothers and the lack of formal recognition of this 'changed dynamic' in the Convention . In our experience, women take children because of issues of domestic violence, child abuse and because of a desire to return to their homeland for economic and emotional support, in the aftermath of a separation.
WLSA has called for the legislation to be delayed for further consultation and for a gender analysis of the social impact to be undertaken, before any changes are made.
Implementation of the National Plan to Reduce Violence Against Women and Children
WLSA welcomes the announcement in April 2012 of the National Plan Implementation Panel which will provide advice to government about ways to reduce violence against women and children. Panel members include representatives from Australian government, state and territory governments and non-government organisations.
WLSA looks forward to hearing how this Panel will be reporting on its work and how other members of civil society can contribute to the process.
WLSA continues to call for the implementation of 2010 CEDAW Concluding Comments and Universal Periodic Review recommendation 86.80 which recommends an independent monitoring mechanism to review the implementation of a National Plan to reduce violence against women and children. We warmly welcome the acceptance of an independent monitoring mechanism as we believe such a mechanism promotes transparency and accountability which are important elements of good governance. We strongly recommend community organisations be resourced to participate in such monitoring.
WLSA also remains concerned about the timeliness of implementing the Plan as there has been no public confirmation regarding the development of the Federal and Jurisdictional Implementation Plans (2010-2013) which are integral to achieving accountability and transparency of the Plan.
The Need for "Vulnerable Witness Protection" in the Family Law System
Did you know that victims of family violence, including sexual violence, can be cross-examined by their perpetrator in the Family Law Courts?
This can have emotionally devastating consequences on traumatised victims and can impact on their future mental health outcomes. This outcome has largely been avoided in criminal jurisdictions with legislation in every Australian State, except Tasmania placing restrictions on the cross- examination of complainants in sexual offence proceedings by unrepresented defendants.
The recognition of the potentially devastating impact on vulnerable witnesses of cross-examination by their abuser has extended in recent years beyond the criminal courts. Section 70 of the Family Violence Protection Act 2008 in Victoria establishes special protection for victims of family violence in intervention proceedings to be protected from personal cross-examination by the respondent. It enables the court to direct Legal Aid to appoint a lawyer for the purpose of the cross-examination. In Queensland, Sections 150 and 151 of the Domestic and Family Violence Protection Act 2011 (commencing on 17th September 2012) also provides guidance to the court about restricting cross-examination by self-represented litigants in certain circumstances.
WLSA has written to the Attorney-General requesting similar legislative reform in regard to family law.
Legal Aid Funding – Is it working for women victims of domestic violence?
WLSA acts for and advises many women who are victims of violence and/or have concerns about their children's safety. Often these women are also experiencing financial hardship and are unable to obtain legal aid or adequate legal aid to properly conduct their family law matters.
With the recent family violence amendments to the Family Law Act, there should be corresponding changes to Legal Aid policies, procedures and guidelines with respect to the funding of family law matters to ensure victims of domestic violence are no longer disadvantaged.
WLSA will be monitoring these changes and their impacts on women.