The National Women's Justice Coalition consists of over 50 national women's peak organisations, over 200 state groups or services and about 200 individual members. The NWJC aims to promote women's equality before the law.

Terms of reference

We note that the Committee is to consider and report on:

· the range of community views on the factors contributing to marriage and relationship breakdown

· those categories of individuals most likely to benefit from programs aimed at preventing marriage and relationship breakdown

· the most effective strategies to address the needs of identified target groups, and

· the role of governments in the provision of these services.

We understand that there is to be a particular focus on:

· aspects of Family Support Services funded through the federal Attorney-General's portfolio being services provided by the Family Court of Australia and through the Family Services Program, and

· the strategic directions for relationship support and the most effective strategies to prevent marriage and relationship breakdown[1]'

Overview & summary of recommendations

We anticipate that the Committee will receive submissions representative of many of the views in the community about factors which contribute to the breakdown of marriages and relationships.

We expect that the following propositions will become clear:

· that there is widespread agreement that marriage, spouse and other family relationships are important and should be supported,

· that many members of the community have strong personal beliefs that frame their views about marriage, relationships and families,

· that there are many ways of viewing marriage and relationship breakdown and its causes,

· that there are many factors are possible contributors to the breakdown of relationships, and

· that there is general agreement that programs and services should be widely available to promote the quality and sustainability of marriage and other relationships.

This submission deals primarily with the role of government regarding relationship support and strategic directions for policy and service delivery in this area. The submission also makes recommendations about the Family Services Program and conciliation services provided by the Family Court of Australia.

The National Women's Justice Coalition considers that governments have a key role to play in facilitating and promoting quality marriage, spouse and family relationships. We consider that government policy concerning relationships should:

· recognise and cater to the full diversity in relationship and family types,

· be based on comprehensive planning and coordination,

· cater as far as possible to relationship issues and needs at all points in the life span,

· promote equality and non-violence in relationships, and

· be empowering and educative in approach.

Recommendations:

Recommendation 1.

Government policy and programs aimed at supporting marriage and relationships and aimed at preventing marriage and relationship breakdown must:

· recognise the full range of relationships and family types,

· be based on an awareness of the range of issues and pressures which affect relationships and families, and

· cater to the full range of relationships and family forms.

Recommendation 2.

In framing policy regarding marriage and relationships it is imperative that the social, economic and political position of women in society and in relationships is considered and the need for equality and non-violence should be guiding principles.

Recommendation 3.

Government policy and strategic direction concerning marriage and relationships should ensure that the well being of children is treated as a matter of crucial importance.

Recommendation 4.

Government policy should emphasise the various responsibilities relevant to individuals and relationships. Key issues are:

· the responsibility to nurture and protect children,

· the responsibility not to use violence,

· the responsibility of perpetrators for their violence, and

· the responsibility to properly maintain children.

Recommendation 5.

Any measures which make it more difficult for people to move on from intolerable relationships are likely to be damaging in numerous ways to all of those concerned, particularly children. Such measures would be inconsistent with Liberal and National Coalition Policy, would be rejected by the community at large and should not form part of government policy aimed at preventing marriage and relationship breakdown.

Recommendation 6.

The Commonwealth and the States should develop comprehensive policy aimed at reducing structural and other pressures on marriages and relationships.

Recommendation 7.

Particular attention should be given to reducing structural factors which adversely impact on women.

Recommendation 8.

Government policy concerning relationship support and the prevention of marriage and relationship breakdown should:

· aim to ensure the availability of a wide range of high quality, accessible and responsive relationship and family support services.

· promote cooperation and coordination between all levels, sectors and services involved in the provision of relationship and family support services.

· aim to ensure that services and options are available at all stages in the life span and particularly at times of crisis or major change. Programs should include: relationship education in schools; children's services (including counselling); youth and adolescent services; pre-relationship (including pre-marriage) education; relationship enhancement programs; parenting programs; crisis service programs; services for families and relationships in transition; post separation services; supervised parent/child contact services; grief and loss services etc., as well as the full range of related assistance and support services (eg. emergency accommodation; income support; legal assistance; police assistance etc).

· aim to ensure that there are adequate services and programs for families with particular needs, including sole parent families.

· aim to substantially raise community awareness about the dynamics of relationships, the stages, responsibilities and pressures involved in relationships.

· aim to substantially raise community awareness and condemnation of violence in relationships.

· take a facilitative and supportive approach to improving and promoting durable relationships.

· place more emphasis on education about the effective and constructive management of separation and post separation issues particularly highlighting the well being of children and parental responsibilities.

Recommendation 9.

To the extent that more resources may be required for programs which aim to assist in improving relationships, resources should be specifically appropriated for this purpose. New programs should not be funded by reallocation of resources from programs focused on crisis, separation and post/separation assistance.

Recommendation 10.

The Family Services Program should:

· be located in and form part of an overall and coordinated Commonwealth policy on relationships and families,

· mesh with the range of non-federally funded services provided by the States, Local Government, the private and the non-government sectors,

· place strong emphasis on service quality, access and equity and, particularly, on responsiveness to issues of violence.

Recommendation 11.

Services funded under the Family Services Program should:

· be subject to specific requirements regarding staff training, staff competencies, screening processes, and case management,

· be accessible to all members of the community and be targeted to those in greatest need,

· be strongly encouraged to form community networks for referral and coordination purposes, and

· be subject to regular evaluation with the results available for public scrutiny.

Recommendation 12.

Grant terms applied by the Family Services Program regarding training, monitoring and evaluation should aim to ensure that in cases involving violence, funded services:

· appreciate and play their role in ensuring that the violence stops and ensuring the safety of the victim(s),

· take the fact and ramifications of violence into account in decision making about the appropriateness of particular services and in case management,

· aim to ensure that the perpetrator accepts responsibility for the violence, and

· actively participate in coordinated responses to stop violence in their communities.

Recommendation 13.

Relationship education programs should be more widely available and should be offered in schools, pre-marriage and for relationship enhancement. Programs should explore issues such as equality, non violence in relationships, communications skills and strategies etc.

Recommendation 14.

Government policy should intensify efforts to promote high quality service in mediation. Both training and demonstrated competency in the assessment and screening of cases where there has been violence, should be mandatory. Mediation services should be targeted to exclude cases where there are power imbalances arising from all forms of violence in relationships.

Recommendation 15.

Government policy should encourage and facilitate the Family Court to take a holistic approach to family disputes and difficulties. The Commonwealth government should acknowledge and support the unique role and functions of the Family Court.

Recommendation 16.

The Commonwealth should ensure that the Family Court system is accessible to the community.

Recommendation 17.

The Commonwealth should ensure that legal aid funding is adequate.

Recommendation 18.

Issues relevant to women should be specifically represented on working groups on particular aspects of the ALRC's reference on adversarial proceedings.

Recommendation 19.

The National Women's Justice Coalition should be resourced to provide input on the reference.

Recommendation 20.

The Attorney-General should make a reference to the Family Law Council to advise on whether and how a national code of family law legal ethics should be developed and applied.

Recommendation 21.

The Family Court Counselling Service should continue to be co-located with the Court and undertake education, as well as voluntary and ordered counselling and the preparation of family reports. Steps should be taken to ensure that:

· those who approach for voluntary counselling are aware of the extent of the service which can be provided and are aware of other available options

· in relation to voluntary counselling, priority should be given to requests where there is a likelihood that proceedings will be commenced in the near future or where there are other circumstances indicating that the special expertise of the Family Court Counselling Service may be of assistance, and

· there is appropriate liaison between the Family Court Counselling Service and the full range of other family counselling, relationship and support services to promote effective referrals in both directions.

Recommendation 22.

Family Court mediation services should be expanded. The model should be treated as 'best practice' and non court based services should be strongly encouraged to emulate it.

Submission

1. Key issues regarding the role of government and strategic directions

This section deals with five inter-linking considerations which we regard as central to the development of government policy and strategic directions regarding marriage and relationships. These are:

· diversity,

· the social and economic position of women,

· the well being of children,

· responsibilities, and

· principles regarding the role of government.

1.1 Diversity in relationships

There is great diversity in relationships and family forms in Australia, all change and go through numerous transitions over time.

Relationships and family forms include: marriage, defacto, customary and same sex relationships ('marriage and spouse relationships'); nuclear, extended, sole parent and blended families; kinship relationships; relationships between siblings; relationships between family members, and between family members and the extended family etc [2].

There are differences, between and within marriage and spouse relationships regarding reasons for commencing the relationship. There are also variations in factors such as: age, ethnicity, education, health, cultural and religious beliefs, financial position, maturity, personal values, personal skills, expectations (of the relationship, of themselves, of their partner and others), and, in the nature and extent of commitment to 'the relationship' and/or to the other person.

External factors and influences relevant to the relationship and matters personal to each of the participants in the relationship may change over time. For example there may be changes in feelings and perceptions about the relationship, in the stresses on particular relationships, and, in the stresses upon each of the participants.

Recommendation 1.

Government policy and programs aimed at supporting marriage and relationships and aimed at preventing the breakdown of marriage and relationship must:

· recognise the full range of relationships and family types,

· be based on an awareness of the range of issues and pressures which affect relationships and families, and

· cater to the full range of relationships and family forms.

1.2 The social and economic position of women

Liberal and National Coalition Policy recognises that there are still many women who face limited options due to economic, educational or family circumstances and that women still carry the primary responsibility for family and community care

We note and support Liberal and National Coalition Policy [3] which:

· makes an 'absolute commitment to provide greater opportunities for women and men to share both the rewards and the responsibilities of work and family life',

· makes a commitment to promote equality of opportunity and choice for all Australian women,

· acknowledges that 'all women have a right to seek paid employment',

· recognises that violence against women and family violence remains prevalent and declares that violence should be abhorrent to all Australians and will not be tolerated, and

· supports the implementation of programs to increase the economic and social development of women.

In this regard Liberal and National Coalition Policy is consistent with the International Bill of Rights [4] which affirms the principle that all human beings are equal and that everyone is entitled to all the rights and freedoms set forth without distinction of any kind, including distinction based on gender. Australia is a party to the instruments which make up the Bill of Rights. These instruments provide that States parties have the obligation to ensure the equal access of men and women to enjoy all economic, social, cultural, civil and political rights.

The International Covenant on Civil and Political Rights provides that:

"States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution [5]"

.Australia is also a party to the Convention on the Elimination of All Forms of Discrimination Against Women ('CEDAW'). The recitals to CEDAW explain the context and circumstances which gave rise to the Convention. These are expressed to include:

"… the great contribution of women to the welfare of the family and to the development of society, so far not fully recognized, the social significance of maternity and the role of both parents in the family and in the upbringing of children, and aware that the role of women in procreation should not be a basis for discrimination but that the upbringing of children requires a sharing of responsibility between men and women and society as a whole, "

"….that a change in the traditional role of men as well as the role of women in society and in the family is needed to achieve full equality between men and women"

CEDAW provides, among other things, that States Parties must take all appropriate measures to:

· ensure the practical realization of the principle of equality of men and women [6]

· modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women[7],

· ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children, it being understood that the interest of the children is the primordial consideration in all cases [8].

Additionally, in 1993 the General Assembly of the United Nations adopted the Declaration on the Elimination of Violence Against Women. This Declaration calls on all States to condemn and work to eliminate violence against women. The Declaration notes, among other things, that:

· violence against women is a manifestation of historically unequal power relationships between men and women, which have led to domination over and discrimination against women by men and to the prevention of [women's] full advancement, and that violence against women is one of the crucial social mechanisms by which women are forced into a subordinate position compared with men,

· it is recognised that violence against women in the family and society is pervasive and cuts across lines of income, class and culture.

Recommendation 2.

In framing policy concerning marriage and relationships it is imperative that the social, economic and political position of women in society and relationships is considered and the need for equality and non-violence should be guiding principles.

1.3 The well being of children

A further principle of crucial importance is that government policy should promote the well being of children. The Convention on the Rights of the Child ('CROC') recognises that ideally children should grow up in a family environment with an atmosphere of happiness, love and understanding. CROC notes that:

· 'the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community' [9]and that,

· 'the child should be fully prepared to live an individual life in society, and brought up in the spirit of the ideals proclaimed in the Charter of the United Nations, and in particular in the spirit of peace, dignity, tolerance, freedom, equality and solidarity' [10].

As indicated earlier, there are a variety of family forms in Australia and all require support and assistance.

Recommendation 3.

Government policy and strategic directions concerning marriage and relationships should ensure that the well being of children is treated as a matter of crucial importance.

1.4 Responsibilities

There are, in some cases, substantial inadequacies in the fulfillment of responsibilities associated with relationships and families. This applies particularly to responsibilities relating to children which continue post-separation.

Recommendation 4.

Government policy should emphasise the various responsibilities relevant to individuals and relationships. Key issues are:

· the responsibility to nurture and protect children

· the responsibility not to use violence,

· the responsibility of perpetrators for their violence, and

· the responsibility to properly maintain children.

1.5 Principles regarding the role of government

Additionally, in framing the role of government the following should be taken into account:

· everyone has the right to freedom of thought, conscience and religion [11] and self determination [12]. Another way of saying this is that that 'it is not for government to dictate how people should live their lives [13]'

· significant differences in personal beliefs contribute to the diversity of marriage and spouse relationships in Australia and to variations in family forms.

· it is not for government to attempt to 'convince' the community that one particular relationship model or a particular set of beliefs is 'good', 'optimal' or 'right.'

· government's role in contributing to the prevention of marriage and relationship breakdown should not extend to attempting to force people to stay in a marriage or relationship.

Recommendation 5.

2. Factors contributing to marriage and relationship breakdown

2.1 Contributors

As indicated above, there is great diversity in the composition and dynamics of marriage, spouse and other relationships. There are also numerous pressures on relationships and these may operate differentially between and within relationships.

Given the varying characteristics of relationships, the range of relationship forms, differences in beliefs, perceptions and expectations etc. it is not surprising that there will also be differing views in the community about what constitutes the 'breakdown' of a relationship.

The clearest 'public' sign that a marriage or spouse relationship has 'broken down' is generally the cessation of cohabitation. However, one or both of the participants may consider that the relationship has 'broken down' long before.

Factors contributing to the breakdown of marriages and relationships include 'external' or 'structural' factors and factors personal to the particular relationship.

2.2 External or structural contributors

'External' and 'structural' factors can and do affect the quality and sustainability of relationships and this is well recognised by Liberal and National Coalition Policy. It is also recognised that external pressures include those which arise from areas in which the Commonwealth or State governments have some responsibility. Numerous areas, such as the following are relevant[14]:

Economic issues

Economic factors are frequently critical to the sustainability of relationships [15]. Numerous issues may be relevant in a particular case but examples are: the availability of work/access to an income stream, wage levels, terms and conditions of employment, financial security including access to superannuation, access to affordable and flexible child care, adequacy and accessibility of income support, and, access to training, education and skills development resources and programs, etc

Economically disadvantaged groups include: women, those in rural and remote areas, those from a non-English speaking background, indigenous Australians, younger Australians, older Australians, those with a disability etc. and particularly, those who fall into two or more of these groupings.

Workplace issues

Workplace practices and working conditions can place stresses on relationships. Issues include: lack of flexibility in working hours, workplace expectations of workers with child care and family responsibilities, the recognition of overtime, harassment, and discrimination etc.

Workplace issues have effects on role distribution within relationships and particularly affect the viability of work outside the home and work and career options for those with child care responsibilities. Women as a group are disadvantaged by workplace practices and additionally disadvantaged by patterns concerning the distribution of unpaid tasks in the home.

"Adult men typically spend about 18 hours a week on unpaid work of all types (that is, housework indoors and out, child care, shopping, home and car maintenance). This is about half the average for women….

In couples and families, the wife's hours of paid employment has apparently no effect on the husband's and children's contributions to domestic labour. Men whose wives work more than 40 hours a week (in paid employment) do less around the house than those whose wives are not in the labour force. Children are equally unresponsive[16]" .

Health issues

The health problems of spouses, partners and/or other family members can affect the economic productivity of the sick person and a family member who is a carer. Health issues also affect family well being and the quality of relationships.

The availability and accessibility of health services for family members and in relation to the specific health needs of men, women, children and older people impact on relationships. Particular issues include the adequacy and accessibility of: caring support arrangements (including child care, aged care, substitute care for family members with special needs), mental health care and treatment; substance abuse programs; counselling, support, and other services relevant to health related stress and crisis.

Women are the primary carers in our community and health issues affecting relationships and families tend to disproportionately impact on women.

Legal issues

The legal system may be particularly relevant when relationships and families are in crisis or undergoing major transitions. Relevant issues include:

· the adequacy and effectiveness of the civil and criminal justice responses to domestic violence,

· adequacy of child support and child maintenance and the effectiveness of enforcement arrangements,

· the adequacy of spouse maintenance,

· the nature and outcomes of the regimes for division of property following the breakdown of marriage and spouse relationships,

· law and procedures relating to parental responsibility following separation,

· access to legal services, and particularly legal aid, and

· access to adjudication etc..

In 1994 the Australian Law Reform Commission released three important reports on Equality Before the Law [17]. In summary these reports found that the Australian legal system is largely failing women. Deficiencies all of the issues listed above and particularly in relation to violence against women arising from marital and spouse relationships.

The failings of the legal system impact on the well being of parent/child and family relationships, particularly following separation. There is much more to be done to ensure that the legal system plays a full role in promoting the well being of relationships and families.

2.3 Contributors personal to the participants

Additionally, there are numerous factors personal to the participants in a relationship which influence and affect:

· the impact and relevance of particular stresses,

· expectations and attitudes and how these change over time, and

· how each behaves and responds.

Marriage and relationship breakdown is frequently very complex. For example:

· although one or both may consider that a relationship has 'broken down' it may be difficult for them to pinpoint when the relationship broke down. In some cases the disengagement from the relationship occurs, for one or both, over a lengthy period.

· there may be no agreement between the participants about the existence, relevance or importance of factors cited as contributing to the deterioration of the relationship.

· in some cases one or both may deny that particular things have occurred and/or actively challenge the other's feelings and perceptions.

· in some cases one participant considers that they have repeatedly raised issues about the relationship while the other believes that there has been no warning that the relationship is in jeopardy.

· in many cases there is no agreement about 'what has gone wrong' and in some cases there is no agreement 'that there is something wrong'.

· often there is no 'correct' or 'objective' version of the problems.

In some cases, the breakdown of the relationship results from intolerable behavior by one of the parties. Issues include:

· emotional and psychological abuse of the partner and/or the children,

· intensely manipulative or controlling behavior directed to the partner and/or the children,

· threats, abuse, beatings, rape etc involving the partner and/or the children.

In a proportion of cases, psychological or psychiatric problems, alcohol or drug abuse etc. cause or contribute to relationship breakdown.

Frequently the person who behaves intolerably denies responsibility and does not recognise or accept their role in the breakdown of the relationship.

3. Strategic directions for relationship support

Drawing on the preceding points, we see a number of strategic directions for government policy concerning relationship support and the prevention of marriage and relationship breakdown.

3.1 Comprehensive policy

There is an enormous array of structural and other pressures which impact on the quality and durability of marriage, spouse and familial relationships (including relationships post-separation), and there is a raft of relevant policy and service areas. As noted earlier, particular structural and external contributors impact differently on women and men and many contribute to diminish the earning capacity, options and well being of women.

Recommendation 6.

The Commonwealth and the States should develop comprehensive policy aimed at reducing structural and other pressures on marriages and relationships.

Recommendation 7.

Particular attention should be given to reducing structural factors which adversely impact on women.

Recommendation 8.

Government policy concerning relationship support and the prevention of marriage and relationship break down should:

· aim to ensure the availability of a wide range of high quality, accessible and responsive relationship and family support services

· promote cooperation and coordination between all levels, sectors and services involved in the provision of relationship and family support services

· aim to ensure that there are adequate services and programs for families with particular needs including sole parent families

· aim to substantially raise community awareness about the dynamics of relationships, the stages, responsibilities and pressures involved in relationships

· aim to substantially raise community awareness and condemnation of violence in relationships

· take a facilitative and supportive approach to improving and promoting durable relationships, and

· place more emphasis on education about the effective and constructive management of separation and post separation issues with particularly highlighting the well being of children and parental responsibilities.

Recommendation 9.

3.2 Regulation of service providers

The Commonwealth should take an active role to ensure high quality in services for family and relationship support and the prevention of marriage and relationship breakdown.

Mechanisms should be tailored to the particular sector but should normally aim to ensure that:

· there is a strong emphasis on quality assurance and expertise,

· there are clearly articulated and transparent service delivery principles,

· ethical and professional standards of practice are maintained, and

· services are accountable.

3.3 Family Services funded under the Family Services Program

There are a range of policy and program areas at the Commonwealth, State and other levels which are relevant to promoting quality relationships. The recommendations in this section draw on matters raised earlier and deal with positioning of the Family Services Program in a broad policy framework, funding requirements and violence.

Recommendation 10.

The Family Services Program should:

· be located in and form part of an overall and coordinated Commonwealth policy on relationships and families,

· mesh with the range of non-federally funded services provided by the States, Local Government, the private and the non-government sectors,

· place strong emphasis on service quality, access and equity and, particularly, on responsiveness to issues of violence.

Recommendation 11.

Services funded under the Program should:

· be subject to specific requirements regarding staff training, staff competencies, screening processes, and case management,

· be accessible to all members of the community and be targeted to those in greatest need,

· be strongly encouraged to form community networks for referral and coordination purposes, and

· be subject to regular evaluation with the results available for public scrutiny.

Recommendation 12.

Grant terms applied by the Family Services Program regarding training, monitoring and evaluation should aim to ensure that funded services:

· appreciate and play their role in ensuring that the violence stops and ensuring the safety of the victim(s),

· take the fact and ramifications of violence into account in decision making about the appropriateness of particular services and in case management,

· aim to ensure that the perpetrator accepts responsibility for the violence, and

· actively participate in coordinated responses to stop violence in their communities.

3.3.1 Range of services

As noted earlier, [recommendation 8.] we consider that services for the support and improvement of relationships should be available at all stages in the life span, that there should be a wide range of services and that there should also be options where ever possible.

3.3.2 Relationship education

Relationship education programs should be more widely accessible and should be offered in schools, pre-marriage and for relationship enhancement. Programs should explore:

· equality in relationships,

· the stages in relationships,

· pressures on relationships,

· roles and expectations of relationships,

· values and assumptions,

· communication,

· self esteem,

· the unacceptability of violence,

· conflict management techniques etc.

Recommendation 13.

3.3.3 Mediation

Mediation offers some people a mechanism for resolving disputes such as arrangements for children and property distribution etc.

Government policy should intensify efforts to promote high service quality in mediation. All family and relationship mediators should be required to receive training about domestic violence and demonstrate competency regarding the assessment and screening of cases where there has been violence.

Mediation services should be targeted more narrowly to exclude cases where there are power imbalances arising from violence in relationships.

Recommendation 14.

Government policy should intensify efforts to promote high quality service in mediation. Training and demonstrated competency in the assessment and screening of cases where there has been violence, should be mandatory. Mediation services should be targeted to exclude cases where there are power imbalances arising from violence in relationships.

3.4 Family Services provided by the Family Court of Australia

3.4.1 Preliminary

The Family Court is and must be different from all other Courts in Australia. The Family Court must deal with family disputes in a holistic way and it must be encouraged and assisted in this regard.

Recommendation 15.

The thrust of the recent amendments to the Family Law Act is towards conciliation, by various means. Conciliation is not necessarily a stand alone option and in many cases concurrent legal assistance is required. In some cases adjudication is necessary and in these cases legal representation must be available and the court must be accessible to the parties.

Recommendation 16.

The Commonwealth should ensure that the Family Court system is accessible to the community.

Recommendation 17.

The Commonwealth should ensure that legal aid funding is adequate.

The adversarial model frequently appears to jar against the purposes in the Family Law Act and despite recent legislative and procedural reforms, the system is still too expensive. It is too slow and too antagonistic. We note and welcome the reference to the Australian Law Reform Commission on adversarial proceedings. The ALRC has released an issues paper and announced that it will be forming expert advisory groups on particular aspects of the reference. This reference has major ramifications for the community, including women. Historically the law has been developed by and primarily for men. Men have been the most of the legislators, judges, lawyers and litigants. It is imperative that women's experience and the economic, social and political position of women be taken into account in the development of proposals for reform.

Recommendation 18.

Issues relevant to women should be specifically represented on advisory groups on particular aspects of the ALRC's reference on adversarial proceedings.

Recommendation 19.

The National Women's Justice Coalition should be resourced to provide input on the reference.

Further, despite the fact that family law is a unique area of legal practice with many dilemmas and complexities, there is very little ethical guidance to lawyers, acting in family law matters. Two States have developed specific advisory ethical codes in relation to family law. In our view a national code of family law legal ethics is required.

Recommendation 20.

The Attorney-General should make a reference to the Family Law Council to advise on whether and how a national code of family law legal ethics should be developed and applied.

3.4.2 Family Court Counselling Service

The Family Court Counselling Service has been an integral part of the Family Court since the Court commenced operation in 1976. The establishment of the Family Court Counselling Service and the co-location of the Service with the Court, substantially increased the visibility of non-litigious dispute resolution and awareness of the complimentary and highly constructive ways in which non-litigious dispute resolution can continue to operate once legal proceedings are on foot.

The Family Court Counselling Service has undoubtedly had a positive effect on the way that judges and the legal profession view family disputes and contributed strongly to the management of many of highly conflictual, and sometimes highly dangerous, cases.

A substantial reduction in the Family Court Counselling Service or separation of the Service from the precincts of the Court is likely to reduce the responsiveness of the Family Court to the needs of the community.

We understand that an issue has been raised about whether, and to what extent, counselling services should be offered by the Family Court and that the primary issue concerns the appropriateness of voluntary counselling services being offered by the Court.

We strongly support the continuation of a substantial Family Court Counselling Service located at Family Court registries.

Court ordered counselling Once proceedings are filed, the Family Court Counselling Service is ideally positioned in terms of the counsellors' knowledge of the court system and the processes to undertake court ordered counselling. Additionally, once proceedings have been filed, it is likely that the attendance of the parties at Court Counselling for ordered counselling does assist in focusing their minds on the issues at hand.

At present, where counselling is ordered by the Court but the parties are not reasonably able to attend, the Counselling Service generally arranges counselling by telephone. In these circumstances there is scope for consideration of additional arrangements whereby counselling can be undertaken by an approved counsellor at the request and under the direction of the Director of Family Court Counselling, subject to appropriate training and regulatory arrangements. Family reports In relation to family reports, although there is already some contracting out to people approved under the Regulations, we consider that the preparation of Family Reports, in the main by counsellors employed by and located at the Family Court, has many strengths. These include:

· substantial familiarity with court and legal processes,

· high level of staff training and competency,

· comparatively transparent policies and procedures, and

· changes in practice where necessary can be implemented relatively rapidly, nationally and uniformly.

Voluntary counselling

In relation to voluntary counselling we recommend that the Family Court Counselling Service continue to provide services on the basis of its strengths listed above. We also note that in the case of voluntary counselling, the fact that an appointment has been made at Family Court Counselling sometimes appears to lend sufficient authority to the invitation for the other party, who may previously not been prepared to attend counselling, to agree to attend.

However:

· approaches for voluntary counselling should be screened to ensure that those seeking counselling at the Family Court are aware of the extent of the service which can be provided and are aware of other options,

· the Family Court Counselling Service should give priority to voluntary counselling requests where there is a likelihood that proceedings will be commenced in the near future or where there are other circumstances indicating that the special expertise of the Family Court Counselling Service may be of assistance, and

· steps should be taken to ensure that there is appropriate liaison between the Family Court Counselling Service and the full range of other family counselling, relationship and support services to promote effective referrals in both directions.

Recommendation 21.

· those who approach for voluntary counselling are aware of the extent of the service which can be provided and are aware of other available options

3.4.3 Mediation

We support the availability of mediation provided by the Family Court. Mediation provided by the Family Court has a number of advantages. That is:

· the model involves gender balanced, social science/legal co-mediation

· there is a very strong emphasis on professionalism including a critical approach to the mediation model, emphasis on training and screening,

· the process is transparent in that the rationale for the model and the process itself is open to scrutiny, and

· there has been particular concern to address issues of domestic violence and power imbalance.

The mediation model used and offered by the Family Court is regarded as best practice. The expansion of the service within the Family Court is supported and we endorse close emulation of the model by non court based services.

Recommendation 22.

Family Court mediation services should be expanded. The model should be treated as a best practice and non court based services should be strongly encouraged to emulate it.

_______________________________

Footnotes

1. Committee's press release 30 August 1996

2. See generally, Creating the Links: Families and Social Responsibility, National Council for the International Year of the Family, Commonwealth of Australia, AGPS, 1994

3. Liberal National Coalition Policy: Opportunities and Choice for Women, Feb. '96.

4. The International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural rights and the Universal Declaration of Human Rights.

5. Article 23(4)

6. CEDAW Article 2

7. CEDAW Article 5(a)

8. CEDAW Article 5(b)

9. CROC recitals

10. CROC recitals

11. ICCPR Article 18(1)

12. International Covenant on Economic, Social and Cultural Rights, Article 1.

13. Liberal and National Coalition Policy: Oppurtunities and Choices for Women, Feb. '96.

14. Other examples are government policy and programs relating to: children - child care; child support; child abuse and neglect; consumer protection; crime control and policing; discrimination; domestic violence; education; family law; health care - including maternal and child health, women's and men's health, nursing/substitute/geriatric care etc.; housing and supported assistance accommodation, including crisis accommodation; immigration; income support; Indigenous Australians; legal aid; media; mental health; non-English speaking background; planning and the environment; policy and services relating to older Australians and the aged; policy and services relating to youth; privacy; retirement incomes policy; rural policies and services; taxation - including treatment of dependants and homemakers; women; workplace practices, etc.

15. It is noted that this is recognised in the Coalition's Law and Justice Policy which states that "… appropriate economic policies have a role to play in reducing the pressure on families" and the media statement issued by the Minister for Family Services, Strengthening Family Strategies, 20 August 1996 "..difficulties faced by families [are] often exacerbated by tensions due to unemployment, financial hardship and family responsibility". Also see: McLelland, A & McDonald, F (1995), ‘Poverty in Australia: causes indicators and impact’, Paper presented at Family Court Conference, Coolum, Queensland, September; Dornbush, S. (1990) ‘Study of homeless families’, Seminar presented at The Centre of Children, Families and Youth, Standford Univeristy, Palo Alto, Nov.? year

16. 'Unpaid work - which way forward', M. Bittman, Social Policy Research Centre, Uni.of NSW, workshop contribution at the Making it work - A National Summit on the Future of Work, Wesley Conference Centre, Sydney 23-24 May 1996. The author also cites the ILO's Convention on Workers with Family Responsibilities to which Australia is a signatory. Also see Women and the World of Work: The Social Costs of Progress, International Labour Organisation, 1995 at http:www.ilo.org/english/235/press/pkits/women1.htm

17. Equality Before the Law: Women's Access to the Legal System, Interim, ALRC 67, 1994; Equality Before the Law: Justice for Women, Part 1, ALRC 69, 1994; Equality Before the Law: Women's Equality, Part II, ALRC 69, 1994.

HOME MENU TOP

National Women's Justice Coalition

email: nwjc@ozemail.com.au