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

March 29, 2000
Issue 

and ain't i a woman?

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.

Picture 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

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