and ain't i a woman: Women main targets of family law amendments

Women main targets of family law amendments

The federal government's Family Law Amendment bill 1999 is being debated
in parliament. One of its main purposes is to amend the Family Law Act
1975 to allow new arrangements for the enforcement of Family Court orders
affecting children. It also deals with financial agreements and a range
of miscellaneous issues relating to child maintenance, international child
abduction, and enforcing orders about property and money.

Critics identify the new powers to enforce family law orders, with mandatory
sanctions that include jail terms for repeated non-compliance, as the most
problematic aspect of the bill. Parents ordered to pay child maintenance
to the residential parent (formerly known as custodial parent) may be jailed
if found to be deliberately concealing or understating their income to
avoid their obligations.

Federal attorney-general Darryl Williams has said that these sanctions
will apply only in very serious cases. The bill is not designed to throw
those who do not pay child support into jail, he said.

In a letter
in the March 16 Australian, Kathleen Swinbourne, president of the
Sole Parent's Union, said the main aim of the bill is to provide more severe
penalties for residential parents — most often women — who break court
orders by refusing to allow to non-residential parents — usually men —
to have contact (previously called access) with their children.

In the second parliamentary reading of the bill, Williams referred to
contact orders as being the main problem because contact order compliance
is, in many cases, “seen as being optional”.

Swinbourne said that Family Court judges are loathe to deny contact
in interim orders, regardless of allegations of violence and/or abuse,
and that parents who try to protect their children by denying contact to
abusive and violent partners would now face jail. “The children can then
be handed over to the abusive parent”, she pointed out.

In a November submission to the Senate Legal and Constitutional Legislation
Committee, the National Network of Women's Legal Service (NNWLS), a network
of community legal centres, also criticised the amendments for focusing
attention on the wrong end of the system. The submission identified the
fundamental problem as inappropriate contact orders being made, and said
the proposed amendments fail to recognise the dynamics of domestic violence.

Because of many women's lack of access to legal assistance, made worse
by the funding cuts to legal aid and community legal centres, the NNWLS
said, mediation is often the only option and many women are pressured into
inappropriate agreements.

The NNWLS pointed out that, according to community legal centre workers,
women do not contravene contact orders lightly. When they do, it is usually
because there has been a history of domestic violence and they are afraid
of the consequences of permitting contact.

“Domestic violence is about power and control, and these amendments
hand violent men further 'weapons of control' to use against women”, the
NNWLS submission continued. “Violent men will use the amendments in a way
to exert further control over women and children and this will result in
more vexatious and malicious applications being brought against women.”

The NNWLS cited research showing that this happens already. The NNWLS
also pointed out that the Family Court should retain its discretion to
decide whether to impose punitive penalties for a breach of a court order.
Automatic penalties for multiple breaches may be unjust because some breaches
are of a purely “technical” nature.

In her letter, Swinbourne condemned the use of incarceration in family
law matters. “Family law is not criminal law ... Children do no benefit
from seeing either of their parents dragged off by the police and put into
jail. They are far more likely to blame themselves and suffer guilt and
self-recrimination, leading to increased disadvantage later in life.”

Not every denial of contact between the non-residential parent and the
children is due to fear of violence or abuse, but a large proportion are.
Anglicare Australia's State of the Family report, released on March
26, found that over a 12-month period 110,000 women over 18 years old and
in a married or de facto relationship were subjected to physical and sexual
violence. Around 40% of these women confirmed that their children witnessed
the violence.

Research conducted in 1999 by the Family Court and the University of
Sydney revealed that the “right to contact” principle has been given greater
emphasis by most legal practitioners and judges than the domestic violence
aspect of family law reforms. While it is important for children to maintain
contact with both parents after a family separation, the welfare and safety
of women and children involved in a situation of domestic violence is far
more important.

On March 6, Williams said that the bill would “make enforcement more
effective” and would “better protect the interests of children”. On the
contrary, this legislation, if passed, will protect the interests of neither
children nor the majority of women. It will further punish those who already
lose the most in divorce and separation.

By Margaret Allum