Cunting the Csts Frum Ntes Tpic 4: Legal issues Family law Participants made a number f bservatins abut the current family law system and the risk it pses t wmen and children affected by dmestic vilence: Sme wmen will agree t custdy arrangements with a vilent partner t avid ging t Family Curt The bligatin t disclse (Frm 4) is nt enfrced s the curt can be ignrant f the vilence in the relatinship Wmen are smetimes tld by lawyers nt t raise issues f vilence Changes t the Family Law Act in 2006 arund exemptins fr dmestic vilence make it difficult t prve in cases beynd physical vilence; there is a cncern abut the need fr physical evidence r the wman has t testify Family Curt guidelines cnflict with state guidelines arund dmestic vilence issues Family Reprt Writers are nt neutral ; dn t get the dmestic vilence issues Children aren t allwed in curt with parents; smetimes this increases risk issues Magistrates d nt track utcmes f shared parenting arrangements and s will nt bserve lng term negative utcmes fr children Keep Them Safe: A shared apprach t child wellbeing, the NSW Gvernment s five year plan child prtectin plan, pses a significant risk f harm t children, as services can t cpe with the level f need. In regards t mediatin, participants cmmented that: Sme wmen wh chse t g t mediatin find infrmatin frm Family Relatinships Centres useful These are cmments and recmmendatins emerging frm a wrkshp held at the Cunting the cst: Building capacity frum held in Sydney n 10 March 2010. The Australian Dmestic & Family Vilence Clearinghuse des nt necessarily endrse these cmments and recmmendatins but the utcmes f this frum will infrm the Clearinghuse s research int wmen s financial security pre and pst vilent relatinships 1
Wmen need legal advice prir t mediatin fr family law disputes. Frum participants made recmmendatins relating t family law legislatin, prcesses and decisins, in rder t increase wmen and children s safety: Gvernment t amend the Family Law Act t: separate financial and parenting determinatins frm each ther s that men dn t take ut parenting time t decrease child supprt bligatins intrduce a presumptin against shared care in the case f dmestic vilence priritise the interests f children implement the recmmendatins f the Chishlm reprt Judges and magistrates t recgnise prtectin rders when making family law decisins Curts t prevent frced mediatin Penalties fr nn cmpliance with parenting rders t be equitable Magistrates t address children s safety in parenting arrangements. Participants als made sme recmmendatins specific t service prvisin: Gvernment t prvide increased availability f quality reslutin/mediatin services Services t train wrkers n family law issues Services t prvide prgrams n parenting after separatin; e.g. as prvided by Interrelate and Relatinships Australia Services t prvide children s cunselling fr family law issues Gvernment t fund wmen s family law supprt services; e.g. NSW Wmen s Family Law Supprt Service prvides nn legal supprt, infrmatin and referrals fr wmen attending the Sydney Family Law Registry in relatin t separatin, with a particular fcus n wmen and children wh are separating frm a partner wh is vilent r abusive. Gvernments t prvide supprt and training fr the implementatin f Practice Guidelines arund family law. Victim cmpensatin The research indicated that victim cmpensatin ffered thse affected by dmestic vilence ne avenue fr justice but was taken up by few wmen. Frum participants ffered recmmendatins t increase the number f wmen seeking cmpensatin fr the abuse they have experienced: 2
Advcates/services t familiarise themselves abut the victim cmpensatin scheme in their state and the entitlements f clients affected by dmestic vilence Services t supprt victim cmpensatin claims and develp systems triggers when wmen are advised f the prcess; e.g. when applying fr the dmestic vilence crisis payment r applying fr a prtectin rder Universities t include infrmatin abut victim cmpensatin in legal degrees; e.g. University f Technlgy Sydney has victim impact assessments as a first year subject. Infrmatin abut legal services Frum participants nted that wmen need infrmatin abut their legal rights, their ptins, likely utcmes f certain legal actins, csts and time frames. They made recmmendatins fr: Slicitrs t raise cmmunity awareness f legal rights and ptins arund dmestic vilence, as part f their pr bn wrk Services t make available legal infrmatin t the cmmunity;.e.g. legal clinics; NSW Immigrant Wmen s Speakut Assciatin will launch radi plays and infrmatin pamphlets in September; Refugee and Immigrant Legal Service in Queensland wrks n crss cultural cmmunicatin Dmestic vilence, wmen s and legal services t prvide targeted infrmatin abut ging t curt t clients affected by dmestic vilence Legal services and/r gvernment t prvide web sites with legal infrmatin fr victims f dmestic vilence and make use f mck curt experiences t familiarise wmen with curt prcesses Infrmatin t be in plain English Agencies and services t prvide an infrmatin pack n legal rights fr migrants and refugees in their wn language upn arrival. Access t legal assistance Participants bserved that while Legal Aid is available t clients n a lw incme it is nt available t everyne r fr all matters: It is particularly difficult t get Legal Aid fr family law matters It is difficult t access appeal prcesses fr Legal Aid refusals Legal Aid wn t prvide assistance in case f jint debts (needs t include prperty r superannuatin) Legal Aid will nly represent ne persn in a cuple (because f cnflict f interest issues); meaning that the first persn t cntact Legal Aid gets the service Legal Aid prvide a lw standard f legal representatin in rural areas 3
Interpreters are nt prvided in curt r by private slicitrs r preferred suppliers; this can lead t pr legal utcmes fr wmen frm nn English speaking backgrunds T imprve access t legal services fr wmen affected by dmestic vilence (particularly lw incme wmen), participants recmmended that Legal Aid expand its eligibility criteria fr clients and be available fr family law matters. Participants did nte that NSW Legal Aid has just appinted a family vilence specialist fr each regin (10 12 appintments acrss the state). In cnsidering wmen s access t legal assistance mre bradly, participants called fr: Legal services t prvide mre legal helplines Family Relatinship Centres t prvide legal advice Legal services t prvide utreach; i.e. prviding legal advice at set times at cmmunity lcatins Legal services t prvide hme visiting services Gvernment t expand hmeless persns legal clinics (ffering free advice), as run in Queensland Gvernment t increase funding fr wmen s legal services t prvide representatin, as well as advice Cmmunity legal services t ffer training fr wmen n writing their wn legal letters Services t have access t a netwrk/list f gd dmestic vilence lawyers Legal firms t ffer legal assistance t lw incme clients affected by dmestic vilence as pr bn wrk; increasing pr bn legal supprt with crprates; e.g. cmmunity legal centres have sme f these relatinships); establish a natinal Pr Bn Register Lawyers and curts t make greater use f interpreters; Department f Attrney General and Justice t prvide prfessinal interpreters fr slicitrs (curt funded) Services t emply migratin agents t prvide migratin legal advice; e.g. as des NSW Immigrant Wmen s Speakut Gvernment t establish a raming legal Ombudsman. Legal csts Participants cncurred with the research findings that wmen affected by dmestic vilence were ften expsed t significant legal csts t pursue justice and safety. Fr example, participants bserved that n average clients spend $40 000 n family curt matters. Recmmendatins were made fr: Legal Aid t review the means test fr eligibility t nt disadvantage wmen wh have saved mney r wrked hard t keep their assets 4
Curts t recgnise vexatius claims by perpetratrs and nt allw them t prceed. This is the respnsibility f judges and magistrates; e.g. in Victria, curts recgnise family vilence and disallw vexatius cases Special hardships prvisins: Legal Aid t prvide grants in circumstances where access t funds is impssible (e.g. prperty) Quality f legal assistance and criminal justice respnse Participants made a number f cmments abut the quality f legal assistance and criminal justice respnses when pursing matters related t dmestic vilence: There can be a significant variatin between plice statins in respnse t dmestic vilence Perpetratrs use plice welfare checks t harass wmen; e.g. get them wken up at 11pm t check Crss cultural issues may present barriers t effective cmmunicatins between clients and lawyers Legal issues are nt cnfined t state jurisdictins r even single cuntries, yet legal institutins will nly deal with issues relating t their jurisdictin Are plice identifying ecnmic abuse when it is happening? In Victria s family vilence law, ecnmic abuse is defined as ne type f family vilence. Where are plice within this dynamic? In Victria and Tasmania, better evidence cllectin by plice has increased prsecutins; the plice dmestic vilence kit in NSW has the ptential t assist in evidence cllectin, but nt all plice have them and nt all use them. In rder t prvide better quality legal assistance and criminal justice respnses, participants made recmmendatins fr: NSW dmestic vilence liaisn plice fficers be made senir fficers; e.g. as in Tasmania (reward and recgnitin f fficers t supprt cultural change); Victria has Family Vilence Liaisn Officers which has imprved respnses t dmestic vilence; sme exist in NSW but their effectiveness relies n being well trained and being lcated in well resurced areas Plice t review practice f charging wmen fr perverting the curse f justice in aiding and abetting breaches f prtectin rders Plice t emply fax back frms with victim authrisatin t be referred t supprt services Plice statins t all have dmestic vilence wrkers/cunsellrs NSW plice t recruit wmen ver the age f fifty with life experience t be able t deal with dmestic vilence All curts t prvide safety measures fr victims f abuse; e.g. separate entrances, safe rms, use f security persnnel, use f screens and CCTV t give evidence 5
Legal Aid t fund the prvisin f curt supprt fr all legal prceedings; e.g. YWCA curt supprt Curt supprt t prvide infrmatin n financial issues Curts t have dmestic vilence liaisn fficers: identified psitins that culd extend and enhance aid, including cntinuity Curts r services t prvide ccasinal care fr children while parents are in curt Plice, judges and magistrates t apply apprpriate sanctins t vilence; e.g. strng cnsequences when a prtectin rder is breached. Training/infrming the legal sectr abut dmestic vilence issues As with research participants, frum participants saw the training f legal fficers arund dmestic vilence issues as critical t imprving legal respnses t victims. It was nted that in NSW, the Educatin Centre Against Vilence delivered training arund dmestic vilence fr the family curt arund five years ag but it has nt been repeated. Recmmendatins were made fr: Plice t receive training arund dmestic vilence issues, and arund identifying the primary aggressr in making arrests Legal firms t emply r cntract scial wrkers t advise slicitrs abut dmestic vilence issues Legal Aid, cmmunity legal centres and law firms t ensure lawyers have training arund dmestic vilence, particularly if wrking in family law Law Sciety t make dmestic vilence and impacts n wmen and children a mandatry CLE curse Cmmunity legal services t train specialist family law lawyers Universities t educate legal prfessinals n dmestic vilence and issues affecting wmen Wmen s dmestic vilence curt advcates t have a rle in training slicitrs arund dmestic vilence issues Training fr judiciary and curt staff arund dmestic vilence issues is currently under develpment by the Cmmnwealth Attrney General as part f the Natinal Plan. Frum participants recmmended that part f this training include relatinship building with lcal wmen s services. Specialisatin Participants welcmed specialisatin arund dmestic vilence, therwise prtectin rders and family law are seen as separate wrlds. Participants bserved that there are limits n the capacity t supprt specialist curts in rural areas. Recmmendatins were made fr: Dmestic vilence t be identified n frms s that a specialist lawyer is appinted. At the mment dmestic vilence is nt screened 6
Gvernments t supprt the establishment f specialised curts services fr family related issues: dmestic vilence, sexual assault, child prtectin; e.g. Victrian pilts at Ballarat and Heidelberg deal with all legal matters fr a particular family Gvernment t establish dmestic vilence circuit curts, where specialised magistrates travel t different regins Crdinatin f supprt and legal services t victims f vilence engaged in legal matters. 7