Family Law System in Australia Beneficial or Detrimental in Responding to Family Violence - Research Paper Example

Family law system in Australia beneficial or detrimental in responding to family violence? Abstract Family law system in Australia comprises of various courts at the Federal level as well as State levels besides various agencies other than the courts. The interventions of these agencies are insisted before one can approach a court of law for family law disputes. However in case of violence in the family, compulsory dispute resolution is dispensed with. Provisioning is made for issuance of protection orders to the potential victims and for being monitored by the police. Over the years, the federal system has assumed itself powers that it was shying away from, in response to the changing needs of the society. With the latest changes in the legislation in 2008 and the earlier enactment of Family Law Act 1975 recently amended in March 2009 , the Family law system of Australia can be said have become more beneficial than it was in the past.. Family violence refers to real or threatened act of a person directed at the person’s any family member that results or likely to result in affecting her or his safety and personal wellbeing.1 Family violence also includes witnessing of such incidents in the family mainly to safeguard children undergoing the trauma of quarrels between their parents.2 Family law system in Australia is broad enough and fairly well designed to contain family violence among other issues. The inclusive system provides for relief not only from courts but also some more service providers in order to redress legal, financial and emotional problems faced by family members. Thus, Family courts of Australia and Western Australia, Federal Magistrate Courts and State Magistrate Courts that deal with family violence issues, are supplemented by several agencies such as Centrelink, Child Support Agency and government agencies at local, state and national levels besides community based agencies and others.3 Legislations on family law are Family Law Act 1975, Family Law Regulations 1984 and Marriage Act 1961. Matters relating to children are also governed by these Acts and Regulations as agreed by all the states under the family courts jurisdictions except Western Australia which has its own Family Court of Western Australia designed to deal with both federal and state matters. Each state and territory has its own laws and enforcement agencies on matters relating to children.4 While the Family Court of Australia and the Family Court of Western Australia and local courts and Federal magistrate courts deal with divorce, children of a marriage ex-nuptial children and guardianship matters, the Highest Court is the High Court of Australia having final say in all these matters in case of appeals to it from the decisions of the said lesser courts. The intermediary courts are Supreme court between the Magistrate courts and the High court.5 The commonwealth agencies having responsibilities as part of the family law system are the above said Family Assistance office, Centrelink, Child Support Agency, Department of Families, Community Services and Indigenous Affairs and Department of Human Affairs (FaHCSIA). The Family Assistant Office is one-stop point to receive necessary financial assistance for families sponsored by the Australian Government.6 Centrelink is the statutory agency of the Federal Government offering assistance to claim financial support for family and child support through the estimators employed for the purpose.7 The Child Support Agency of the Government of Australia acts as a channel for separated parents to transfer payment meant for their children.8 The FaHCSIA has been set up to help improve living conditions of Australians by making opportunities available for economic and social participation by families and others.9 And “The Department of Human Services (DHS) is committed to enhancing and protecting the health and well being of all Victorians, emphasising vulnerable groups and those most in need.”10 Family Relationship Centres (FRCs) As per the proposal to establish 65 family relationship centres mad in 2005,11 the centres are now in place since 2006 through 2008. In these centres, Australian families can seek advice to strengthen the existing family relationships, to avail services for early intervention and prevention, have child-friendly services if their families are in conflict, and get information on family dispute resolution services. Besides, parenting plans, re-partnering and stepfamily arrangements, child-centred workshops can be availed by them at these centres.12 In particular, these centres are designed to offer assistance to victims of family violence by advising them on the options of services available to them and help them access the services required.13 Compulsory dispute resolution As per the proposal,14 Compulsory dispute resolution has been introduced to facilitate resolution of parenting issues with the exception to attend in cases of family violence or child abuse. This is with a view to avoid delay in the issue of protection orders in such cases by the courts when police will enter the scene. This is one among the several exceptions depending on seriousness and urgency of matters involved. The main purpose of compulsory dispute resolution process is only to avoid delay and litigation costs to parties and to have their differences resolved informally. However, in cases of compulsory dispute resolution, a parenting order will be issued by the court only if a certificate from an accredited family dispute resolution practitioner is submitted.15 However the mediation through compulsory dispute resolution process was received with lot of criticisms as it would endanger the lives of women and children further. Incidence of Family Violence A survey says that 43 percent of women responders did not experience any type of family violence during their adult life time. Nine percent of them suffered sexual violence while 23 percent suffered physical violence. And 25 percent experienced both sexual and physical violence. For the time of previous 12 months of the survey, incidence is far less. That is, 90 percent did not have any type of violence, two percent had sexual violence, six percent, physical violence and one percent, both. The same survey says that 34 percent of women in intimate relationship with their partners had suffered violence from them; These surveys were held in 2002/03 by the Australian Institute of Criminology as part of the international survey with the Australian component.16 What was the status of family violence before coming of the Family Law 1975 and after the above family law reforms are to be ascertained. However, the legal system had not taken family violence as a serious issue in the past. In a way common law approved of certain forms of violence in the name of disciplining of wives by their husbands using force within certain limits that did not exceed “reasonable chastisement” up to the end of 19th century. Even during 20th century, until 1980s, husbands were immune from prosecution for raping their wives as held in R v L (1991) It was because of the recommendations of law reforms commission in 1986, the protection orders were introduced as an immediate and preventive remedy for persons at risk of domestic violence which could result in breaches of ordinary criminal law. Though protection orders differed from one jurisdiction to another, the basic function of the order was to restrict behaviour of one person in order to give protection to another person. The protection orders restricted potential inflictors from assaulting, harassing, threatening, stalking or intimidating the protected persons. Contacting them and going within a certain distance of the protected persons’ work places or homes were also restricted. The order will include protection for the victims’ children also. If need be order would be issued over telephone as an interim measure to the police to facilitate on the spot remedy to the victim.17 Protection orders could be issued by civil magistrates based on evidence provided giving evidentiary standard of balance of probabilities. The grounds for protection order can vary from place to place. In NSW, Apprehended Domestic Violence Order (ADVO) is issued for likely victims fearing harassment or some other forms of behaviour.18 In NSW, police is required to apply for the order in certain circumstances.19 Once the protection order obtained in a civil proceeding is breached, it becomes a criminal offence enabling police to arrest the person and prosecute him/her. The penalties vary from $ 5,500 as fine and or up to two years imprisonment. Though protection orders appear good, they have limits for want of commitment and resources with the police, prosecutors and courts. Some times, doubts are raised whether protection orders are counter productive since enforcement of criminal law by police for obtaining civil protection order in cases of assault, making threats of violence, and stalking which are already criminal offences. But at the same time, conviction for family violence under the Family Law 1975 is a moral message to the perpetrators and for the society as a whole.20. Australian police report on family violence for 2003-04 says that there were 2793 incidents of family violence during the period as against 3188 in 2002-03 and 3618 in 2001-02. Tuggeranong and Woden were the places of highest percentage of incidence. Eighty six percent of incidents took place within homes mostly on Saturdays and Sundays with a tendency to peak between 6 pm and 10 pm. In the incidents of 2003-04 numbering 2793, persons involved were 5891 of whom 33 percent were victims and 30 per cent were offenders. 90 percent of offenders were adults 79 percent of whom were males and ten percent were under 18. And 88 percent of the victims were adults of whom 25 per cent were male and 12 percent were under 18. Twenty five percent of the offenders were alcoholics and five percent of the victims were alcoholics. Similarly, drug users formed seven percent of the offenders and one percent of the victims. Again, seven percent of the offenders and one percent of the victims used weapons. Knives were used by 50 of them as weapons. Criminal action was taken on 16 percent of the incidents. And persons in 82 percent of them were arrested. 1624 children aged 17 or less were present in 44 percent of the family violence incidents. Majority of them were biological children of the offenders or victims. 60 percent of child victims were females. This survey was part of The Family Violence Intervention Program (FVIP). The present report is the third of its kind.21 Family Homicide In Australia, 129 family homicides take place every year 60 percent of which represented intimate partners. Three quarters of these involved male killing female partners. And children are also victims in that 25 children are killed by their parent every year. Most of the child-victims are under age one. This is based on occurrences over a thirteen year period from July 1989 to June 2002.22 Nicholson (2000)23 says that Family law system is as complex, fluid and confusing as family life itself. For example, the Family court which is the specialist court does not have powers in several areas potentially falling under family law. The fragmentation between the states and commonwealth courts, forces the clients to court-shopping to get the most favourable outcomes. There are allegations of systems abuse because of the divided jurisdiction. Section 51, placita xx and xxi of the Australian constitution does not give powers to the commonwealth other than for making laws in respect of marriage, divorce and matrimonial causes, parental rights and custody and guardianship of children. Hence the residual powers involving public disputes such as child protection, juvenile justice, adoption within the States’ purview are excluded for the commonwealth legislation. In any case, matters not specifically mentioned by the constitution as within the power of the commonwealth are the States’ responsibility. At the same time, section 122 of the constitution gives full powers to the commonwealth over Territories. All states and territories have divergent laws on child welfare, adoption, juvenile justice, rights of juvenile couples when their relationships break down. This scenario is because of constitution framers envisaged United States’ type of constitution, thus failing to grant powers of granting divorce to Federal Government resulting in multitude of state laws. Even though Federal government has since been given powers on marriage and divorce, Federal Government hesitated to enact except during post world war I and II periods in order to protect deserted wives, when Commonwealth Matrimonial Causes Act was passed in relation to divorce and Marriage Act in 1961. Today, Western Australia alone provides for ‘no fault divorce’ In most of states, while women have to prove two grounds for divorce, men have just only one ground for claiming separation. Wheeler (2006)24 also echoes the same views of Nicholson. She questions whether it is conducive to social changes taking place at a fast pace. Marriage and Divorce were reserved for commonwealth legislation because framers of the constitution felt there should be a common law applicable for marriage and divorce throughout the country. As held by Jacobs J in Russell v Russell, divergent laws between states would become socially divisive among the new community being created.25.The common wealth which did not legislate on marriage and divorce until 1960 has now enacted Marriage Act 1961 and Family Law Act 1975 covering marriage and divorce including ‘no fault system of divorce”. Now the Family Court of Australia as well as Federal Magistrates Courts can decide on these matters of disputes. Yet there are some gaps in that High Court has held constitution gives no power to the commonwealth for legislating on ex-nuptial children, even if they do live with the married couple one of whom is their biological parent. Defacto couples’ marriages are not within the powers of the commonwealth. Thus, Defacto couples and ex-nuptial children are the responsibility of the State. This division of authority poses problems in Family Law of Australia. Thus where relationship break down between married couples, their children’s custody will differ according to common wealth law for those born to them and state law for those born to one of them or not born to any of them (ex-nuptial children) even though both sets of children had lived together before the braking down of the marriage. This gives rise to socially divisive tendencies. However this has been to some extent mitigated by reference by states to the commonwealth under section 51 (xxxvii) of the constitution for referring their powers over the maintenance, custody and guardianship of children. As such, these matters are now dealt with by the Family Law Act 1975 for all children. Marriage also has not been clearly defined in the present day context. If commonwealth recognises only heterosexual marriage, whether it can invalidate any sate law allowing same sex marriage has not been addressed by the High Court so far. 26 And now in 2008 commonwealth parliament enacted The Family Law Amendment (De Facto Financial Matters and Other measures) Act bringing into its fold separating Defacto couples and same sex couples. As a result, the act will apply uniformly in commonwealth except in South and Western Australia who could not agree on arrangements for their children and /or the division of property to have the same recourse as married couples. Otherwise Defacto couples elsewhere are subject to same law of marriage as married couples in relation to children. Only in matters of financial matters, different state laws will come into play. Main significance of the Act is Defacto couples and same sex couples will have access to Family Court of Australia and Federal Magistrate Court thus removing inconsistencies in the application of substantive law on marital status. 27 Conclusion The last major survey on family violence held in 2003-2004 points to the fact the functioning of family law system though compounded by laws of the States and the Commonwealth is some what reassuring. The incidence within the three year period itself shows declining trend as per the police report. Thus 50 percent of women reported violence at least once in their entire life time and eight percent reported violence in the last 12 months. Victims have reported that sexual violence as the most serious one inflicted by a parent or spouse from former relationships. However the survey has found that young women experienced violence from her intimate partner or any other male. Besides, it has also found that childhood violence experienced by girls is replicated in the adulthood also. This is ascribed to intergenerational transmission of violence. The survey suggests early interventions that prevent family violence in the first instance. It recommends some message strategies and mass media campaigns. They are giving out legal threats and sending messages that family violence is a crime that will attract criminal sanctions. Community intervention by encouraging neighbours and friends to report domestic violence or intervene with the perpetrator. Propagating a theme of social disapproval of family violence such as “real men don’t hit women’. Informing the consequences of violence. And the last, to let the victim and the perpetrator know that help is available. The question here is how far the family law system in Australia has been able to contain family violence i.e whether the system has been beneficial or detrimental. The prevalence of different courts of Common wealth and the States may appear to be contradictory. But it only gives a wider choice for the litigants to choose courts of their choice. Some states like Western Australia are choosy to have their own systems in matters of Family law. While Commonwealth legislation of Family Law Act 1975 has been single largest enactment on family law, its implementation at the state laws and use of the act by the Federal as well as magistrate court would give uniformity in dispensation of justice throughout the country. With the glaring omissions of Defacto couple’s separation and same sex couples have now been removed by the amendment act of 2008, it can be said the family law system in Australia is now full-fledged and it is only beneficial in averting family violence and giving relief to its consequences to the maximum and not detrimental to the mitigation of family violence. Further the above survey does not point out any deficiencies in the family law system which fact adds credence to the above conclusion. In addition, the agencies other than the court are playing complementary roles in addressing the family violence. Bibliography Journals Caruana Catherine (2008) Form and substance, An evolving family law system, Family Law Update, Family Matters, No 81 Mouzos Jenny and Rushforth Catherine, (2003) Family Homicide in Australia, Trends and Issues in Crimes and Criminal Justice Series, June Nicholson Alastair (2000) Family Law in Australia, Bargaining in the shadow of constitution, Family Matters No 55 Opperman Marianna and Bronit Simon, Protection Orders and Family Violence Taylor Natalie (2 June 2006) Final Report, Analysis of Family Violence Incidents July 2003-June 2004 Wheeler Fiona (2006) Family Law and the Constitution, Legal date, vol 18(3) July Websites About FaHCSIA, Retrieved April 24, 2009 http://www.facs.gov.au/about/overview/Pages/default.aspx A new approach to the family law system, Discussion Paper, 10 November 2004 Retrieved April 24, 2009 http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/ (CFD7369FCAE9B8F32F341DBE097801FF)~A+New+Approach+to+the+Family+Law+System.pdf/$file/A+New+Approach+to+the+Family+Law+System.pdf A new family law system, Government Response to Every picture tells a story, June 2005, Retrieved April 24, 2009 http://www.aph.gov.au/HOUSE/committee/fca/childcustody/govtresponse.pdfs Centrelink, Retrieved April 24, 2009 http://www.centrelink.gov.au/internet/internet.nsf/online_services/index.htm Child Support Agency, http://www.csa.gov.au/ Compulsory dispute resolution, fact sheet nine, http://www.ag.gov.au/agd/WWW/rwpattach.nsf/VAP/ (93C446DBC14FB8146219B06F1D49FA6B)~FactSheet_9.pdf/$file/FactSheet_9.pdf Department of Human Services, Govt of Victoria, Retrieved April 24, 2009 http://www.dhs.vic.gov.au/home Family Law System, Retrieved April 24, 2009 http://www.ag.gov.au/www/agd/agd.nsf/Page/Families_Familylawsystem Family Assistance Office Retrieved April 24, 2009 http://www.familyassist.gov.au/ Family Relationship Centres, Retrieved April 24, 2009 http://www.relationships.com.au/who-we-are/affiliated-services Family Relationships online, Retrieved April 24, 2009 http://www.familyrelationships.gov.au/www/agd/rwpattach.nsf/VAP/ (F6A8546F15C09260ED4A166FB5832F54)~FROfactssheet_violenceandfamilylaw.pdf/$file/FROfactssheet_violenceandfamilylaw.pdf Cases R v L (1991) 174 CLR 379 cited in Opperman Marianna and Bronit Simon, Protection Orders and Family Violence Russell v Russell (1976) 134 CLR 495, 546 Others Chapter 2: Prevalence and severity of violence Section 562 C Crimes Act 1900 (NSW) Section 562 I Crimes Act 1900 (NSW) Section 4 Interpretation Family Law Act 1975 (Act No 53 of 1975 as amended up to March 2009 Read More