Alternative Law Journal
Serious concerns have been raised that the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) may actually prioritise parents’ rights over the best interests of the child.
The NSW Legislative Council Standing Committee on Law and Justice is currently conducting an inquiry into the impact of the reforms on women and children in NSW, with a specific focus on family violence. Women’s Legal Services NSW (WLS NSW) and the Combined Community Legal Centres Group (NSW) Inc. (CCLCG) provided submissions to the Committee and attended a public hearing to draw attention to the present and potential impacts of these reforms on women and children in NSW.
The reforms place a renewed emphasis on a child’s right to a meaningful relationship with their parents, and encourage co-operative parenting after separation. The best interests of the child considerations — now a two-tier hierarchy, the presumption of equal shared parental responsibility, the emphasis on mediation — to be called family dispute resolution, and parenting plans all highlight this shift in emphasis.
In an ideal world this new emphasis is commendable; however for women and children experiencing family violence the time of separation is when they are most at risk. While the Act states throughout that a child must be protected from harm, a number of provisions also encourage involvement with each parent. Balancing these potentially contradictory provisions is likely to diminish the importance of protecting children from harm.
This shift has also led to a view that courts will interpret the new provisions by more often ordering equal time, or more substantial and significant time in involvement with both parents. Anecdote suggests that some women are being advised to agree to shared time arrangements without adequate reference to ‘best interests of the child’ or ‘reasonable practicality’ considerations.
From 1 July 2007 it will be mandatory to produce a certificate from a family dispute resolution (FDR) practitioner when filing a court application. Exceptions include cases where there has been or there is a risk of family violence or abuse, a party has a disability, or remoteness of location means access to family dispute resolution is not practical.
These requirements are likely to impact more on Aboriginal women and women from culturally and linguistically diverse (CALD) communities. FDR practitioners may not appropriately screen Aboriginal women for incidences of domestic violence and practitioners may lack familiarity with the considerations stipulated in the Act, which include the right of a child to enjoy Aboriginal or Torres Strait Islander culture. It is unclear whether it will be mandatory for FDR practitioners to undertake Aboriginal cultural awareness training.
In relation to family violence orders (Apprehended Violence Orders — AVOs — in NSW) the Family Court is to only recognise a final or contested family violence order, not interim orders by consent. The definition of family violence now includes an objective test, which is likely to have a negative impact on women and children, as it will require objective proof of the existence of violence.
In NSW there is a poor success rate for defended applications for AVOs brought by police. Often, police prosecutors are not well resourced to prepare adequately for a defended hearing, leaving women at risk. If the application fails, the woman complainant is without the protection of an AVO, and is more at risk of being unable to prove the violence in family law proceedings and/or have it taken seriously.
When there are inconsistencies between parenting orders and AVOs, a State court can now only exercise its power to vary, suspend or revoke a parenting order if there is new evidence. This places an extra onus on State courts to have sufficient reasons to vary an order. Referring only to new evidence may skew the court’s view of the violence, and influence its discretion to vary a parenting order.
Overall, serious concerns remain about the risks to women and children who have experienced family violence and who are required to attend family dispute resolution. While the legislation contains some safeguards, its successful implementation will depend on the quality of the screening and risk assessment, the training of professionals, the services available, interpretation of legislation, administrative guidelines, and other practical considerations.
Recommendations by WLS NSW and CCLCG to the NSW Inquiry included ensuring proper screening and risk assessment prior to family dispute resolution; that the success rate of defended applications for AVOs brought by police be improved, and that the NSW Legal Aid Commission family law conferencing program, which provides some safeguards through the provision of legal representation at mediation, be maintained.
The Committee is due to report in early December 2006.
BRIGID O’CONNOR is a Solicitor at Women’s Legal Services NSW.
The NSW Legal Assistance Forum (NLAF) Working Group on Aboriginal Clients has produced a comprehensive directory of legal services that are available to Aboriginal people — Guide to Legal Services for Aboriginal People in NSW and the ACT. It is the first time that such a directory of relevant services has been made available to the community in this format. The Guide was launched by the NSW Attorney-General, the Hon Bob Debus MP in Sydney on Wednesday, 8 November 2006.
The NLAF Working Group comprised representatives from key organisations, including the Coalition of Aboriginal Legal Services of NSW, the Legal Aid Commission of NSW, Wirringa Baiya Aboriginal Women’s Legal Centre, the Public Interest Advocacy Centre, Women’s Legal Service NSW, Indigenous Women’s Program, the Law and Justice Foundation, Arts Law Centre of Australia, Public Interest Law Clearing House, Redfern Legal Centre, and the Combined Community Legal Centres Group.
The Guide is a comprehensive directory of civil and criminal legal services that are available to Aboriginal people in NSW and the ACT. Produced in a format designed to be easily accessible to community workers and clients, the Guide clearly and simply sets out the contact details for relevant agencies, together with the services that they provide. In addition, it contains an extensive index of legal problems (ranging from Apprehended Violence Orders to Wills), referring workers and clients to the relevant services in their area. Agencies that provide an Aboriginal specific service are also identified.
The NLAF Working Group and the Aboriginal Legal Service anticipate that the Guide will be well utilised by services and agencies working with Aboriginal clients in NSW and the ACT. By providing this information in an easy-to-use single resource, the Guide will make significant inroads into addressing the immediate and unmet need for information about legal services available for Aboriginal people.
Further information can be found in the Mentions column in this edition of the Alternative Law Journal, see page 197.
RAYMOND BRAZIL is Law Reform and Policy Legal Officer, Aboriginal Legal Service (NSW/ACT) Limited.
In the September 2006 issue of this column, the author reported that a single judge of the Northern Territory Supreme Court had reaffirmed the broad power of the media to ‘name and shame’ juvenile offenders who appear in Territory courts. A refreshing development has been the Court of Appeal’s judgment in this case delivered on 20 October 2006.
In MCT v McKinney & Ors  NTCA 10 (Unreported), Martin CJ, Mildren and Thomas JJ overturned the decision of Angel J. They ruled that Angel J had misconstrued s 23(1) of the Juvenile Justice Act (NT), which has now been replaced by the almost identical s 50(1) of the Youth Justice Act (NT).
Justice Angel’s judgment contained no reference to expert opinion, the United Nations Convention on the Rights of the Child 1989 (CROC) or the United Nations Standard Minimum Rules for the Administration of Juvenile Justice 1985 (‘the Beijing Rules’). His Honour had instead referred to the ‘cathartic glare of publicity’.
The Court of Appeal referred to Article 40 of CROC and clause 8 of the Beijing Rules, (the terms of which were set out in the September 2006 issue). Their Honours decided:
The Legislature has chosen not to suppress automatically the identity of children who appear before the court and, recognising ‘the legitimate interest of the public’ in knowing the identities of offenders, good reason must be demonstrated to justify suppressing the identity of a child offender. However, when a court is asked to exercise its discretion, it is important to weigh in the balance the fact now almost universally acknowledged by international conventions, State legislatures and experts in child psychiatry, psychology and criminology, that the publication of a child offender’s identity often serves no legitimate criminal justice objective, is usually psychologically harmful to the adolescents involved and acts negatively towards their rehabilitation.
On the very day that judgment was delivered by the Court of Appeal, the editor of the Northern Territory News published a desperate plea for the government to preserve the local media’s power to name juvenile offenders, claiming that the News had always ‘taken advantage of the law in a responsible way’.
MARK HUNTER is a Darwin barrister.
The Beattie Labor Government was re-elected on 9 September, maintaining a commanding majority. This result came despite an avalanche of negative press, including the so-called ‘Dr Death’ scandal in Bundaberg (part of a wider crisis in the health system), and a decision to build a new dam, with associated resumption of homes (as part of a response to the wider water crisis). The Opposition ran a poor campaign, perhaps inevitable with the leadership of the Liberal Party changing just a week before the election was called.
Post-election, the same issues continue to plague the government. It emerged that shortly before the election, the Attorney-General, Linda Lavarch, rejected a recommendation from the DPP to accept a deal which would have allowed for the return of Dr Jayent Patel from the US to face charges of manslaughter in Queensland. Lavarch was under intense pressure to resign. In the end she did, but for health rather than political reasons.
Speaking at a press conference on 18 October, Lavarch revealed that she was suffering depression and would be stepping down from the ministry to pursue treatment. She was the first female Attorney-General appointed in Queensland. Mr Kerry Shine has been sworn in as the new Attorney-General. Shine practised as a solicitor before being elected to Parliament, establishing Shine Lawyers, which has grown from a small general practice in Toowoomba to be a large plaintiff law firm.
Over the past few years, Peter Beattie has assiduously cultivated the old National Party constituency, even courting the disgraced former premier Joh Bjelke-Petersen before his death in April 2005. It’s hard to know whether this need to appeal to the broad electorate explains his opposition to daylight saving, or whether his opposition is more sincere. Regardless, his justifications are no more rational than those, only half-jokingly, proffered in times past.
Beattie apparently is prepared to commission research into whether another referendum should be held on the introduction of daylight saving in Queensland (a referendum on this issue in 1992 was lost 54.6 to 45.4%), but he remains sceptical about the need for change. He suggested that daylight saving should be rejected because it increases the risk of skin cancer, a matter of concern in a State with one of the highest rates of skin cancer in the world.
The Queensland Cancer Fund, with the non-partisan and public-spirited intention of ensuring the daylight saving debate is at least an informed one, had the temerity to point out that there is no research which supports such a claim. Perhaps (surely) only half-seriously, Beattie suggested the debate was ‘for politicians’ only, and that the Fund should ‘stay out of politics’!
STEVEN WHITE teaches law at Griffith University.
Pro bono work in Adelaide has had a higher profile in recent times, especially in the housing and homelessness areas. July 1 saw the official launch of the South Australian Housing Law Clinic. This service, based on successful models in Melbourne, Brisbane and Sydney, works through collaborations between participating law firms and welfare agencies. Lawyers attend to provide free legal services to people experiencing homelessness, or at risk of homelessness, at the premises of their ‘partner’ agency. Over 40 volunteer lawyers signed up to join the initial pool of advisers. State government and grant funding has been used to establish the service.
The Clinic complements the inspiring work of Adelaide Legal Outreach Service (ALOS) established by Adelaide University Law School in February last year. At ALOS the advisers are final year law students, supervised by legal practitioners from the Law School. The students gain academic credit from their work through the Clinical Legal Education Program, an elective subject in their degree. ALOS provides preliminary advice andreferral on a broad range of issues, recognising the complexity of homeless and precarious experiences.
The newest kid on this block is the recently announced Tenants Advice and Information Service, due to begin operation in January 2007. The service is designed to provide a broad-spectrum of information, advocacy and community education initiatives for low-income tenants in private rental as well as in public and community housing. This has been the subject of much lobbying over many years by the State’s housing and welfare sectors. Its arrival will be the fulfillment by the Rann government of an election promise from the 2002 election: South Australia will no longer be the only Australian State lacking an advocacy service for private tenants. There is government funding for the service, but it’s likely that pro bono options will be examined here as well.
While no-one would suggest that working with pro bono/volunteer input is ‘cost free’, it is a means of cost sharing and, when successful, a refutation of the adage that ‘you get what you pay for’. Pro bono strategies can develop capacity, introduce new perspectives and extend service provision. Now that there is so much more legal energy being directed to housing and homelessness issues in South Australia, and in metro Adelaide in particular, the new challenges may be to manage expectations and ensure sustainability: sometimes you have to be careful what you wish for!
MICHELE SLATTER teaches law in the Law School at Flinders University.
The Tasmanian Law Reform Institute launched arguably its most ambitious project to date with the release of its Issues Paper (No 11) in September entitled ‘A Charter of Rights for Tasmania?’. The exploration of the issue by the Institute was commissioned by the state Labor government which, perhaps spurred on by the Tasmanian Greens’ introduction of a Tasmanian Bill of Rights Bill 2005 in October 2005, requested the Institute to ‘investigate how human rights are currently protected in Tasmania and whether the protection of human rights can be enhanced or extended’.
According to Terese Henning, a Senior Lecturer in Law at the University of Tasmania and the chair of the Human Rights Community Consultation Committee that will oversee the consultation process: ‘This is an exciting project with huge potential to make a difference to the ways in which our rights are safeguarded’.
Submissions will be accepted until 15 December 2006 and the Final Report is due to be released around June 2007.
In other law reform related news the Tasmanian Law Reform Institute recently released its Final Report (No 8) entitled ‘Warnings in Sexual Offences Cases Relating to Delay in Complaint’. The Report made three recommendations that, if adopted by the State government will change the warnings and directions that trial judges are permitted to give to juries in sexual offence cases. The Institute recommended amendment of the Evidence Act 2001 (Tas) to narrow the circumstances in which a ‘Longman warning’ can be given (a warning to the jury by the trial judge of the danger of convicting solely on the complainant’s evidence in cases of substantial delay of complaint), and abolition of a ‘Crofts direction’ (a direction by the trial judge that ‘balances’ the statutory provision that a delayed complaint does not indicate that the complainant had fabricated the allegations).
The Final Report can be accessed from the Tasmanian Law Reform Institute’s website <http://www.law.utas.edu.au/reform/> .
BENEDICT BARTL is Solicitor at Hobart Community Legal Service.
Earlier this year, the Victorian government passed the Charter of Human Rights and Responsibilities, becoming the first State to enact comprehensive legislative protection of civil and political human rights.
The right to freedom and protection from discrimination, an integral component of the international human rights framework, is enshrined in s 8 of the Charter. Regrettably, however, the right is limited to protection from those forms of discrimination that are already prohibited by Victoria’s Equal Opportunity Act. This calls for urgent reform, because Victoria’s current anti-discrimination laws fail to protect some of our most vulnerable and disadvantaged communities, including people who are homeless, unemployed or who have an irrelevant criminal record. Discrimination against these groups contributes to poverty, has adverse health consequences, and can lead to social isolation.
In Victoria, it is still lawful to discriminate against someone merely because they are unemployed, poor or homeless. This is in spite of the fact that research shows that people who are homeless — and in Victoria over 23 000 people experience homelessness on any given night — are frequently treated unjustly and unfairly by police, employers, and providers of goods, services and accommodation. Discrimination in these areas is a major impediment to homeless people obtaining or maintaining secure accommodation or employment. Victoria’s Equal Opportunity Act must be amended to give people who are poor, homeless or unemployed a ‘fair go’.
Similarly, there is no prohibition in Victoria against discrimination on the basis of an irrelevant criminal record. Victorian Department of Justice research in 2004 confirmed that a criminal record has enduring consequences for an offender, and creates a range of obstacles to rehabilitation and reintegration, including securing lawful employment and accommodation, acquiring certain licences, obtaining credit or insurance, participating in public life, and admittance to particular professions. The next government must take the initiative, and responsibility, to protect rights of Victorians that are discriminated against on the basis of an irrelevant criminal record. A government should be judged not only on the health of its budget or the size of its police force. It should also be measured by the laws and policies it has in place to protect and promote the rights of its most vulnerable and its real endeavors to create, in the words of the current government, ‘a fairer Victoria’.
KRISTEN HILTON is the Coordinator and Principal Solicitor of the PILCH Homeless Persons’ Legal Clinic.
PETER NOBLE is the Principal Solicitor of the Loddon Campaspe Community Legal Centre.
In December 2004, this column reported on the amendments to the Restraining Orders Act 1997 (WA). The Western Australian Attorney-General, Jim McGinty, recently announced that these amendments will be reviewed.
One critical aspect of the 2004 amendments was the introduction of certain restrictions on the use of children as witnesses in hearings under the Act. Section 53A provides that a child is not to give oral evidence in any proceedings under the Act unless the court makes an order. The court is not to make such an order unless it has weighed up the availability of other evidence and the interests of the child, and is satisfied that there are exceptional circumstances which, in the interests of justice, justify the making of an order. However, it appears there is still limited guidance for legal practitioners in relation to children’s evidence in this arena.
Hopefully, the review will consider how effectively these provisions actually protect children. Ideally, the way children give evidence in court should be informed by current research and best practice guidelines. Ultimately, however, individual magistrates will interpret the legislation differently. The giving of evidence by children, and in what manner, depends on a number of factors including the child’s age; level of maturity; their willingness to give evidence; whether the evidence is corroborated; whether the parties are legally represented and the length of the hearing itself. A determining factor may also be whether there are facilities available such as CCTV or video-link.
These child-focused provisions ensure that the treatment of children is consistent with procedures in the Family Court and care and protection proceedings in the Children‘s Court. Ultimately, one can only hope that those charged with judicial responsibility will work in the best interests of the child, and with their protection in much sharper focus.
The review is open to community comment. Submissions are due by 15 December 2006.
In August 2005, this column reported on the introduction of the Commissioner for Children and Young People Bill 2005 (WA). While there was bipartisan support for the establishment of the office of Commissioner, there was significant debate about the Commissioner’s function and role and the Legislative Council substantially amended the Bill. The final push came in response to the recent uproar over the Department for Community Development’s handling of child welfare cases. The Commissioner for Children and Young People Act 2006 (WA) was assented to on 4 October 2006.
Community Development Minister David Templeman stated that, through the process of debate and amendment, the independence of the Commissioner has been strengthened ‘to the point where it is comparable with that of the Ombudsman and the Auditor-General’. Given that several other entities already perform investigative roles, the Commissioner‘s role will largely be that of advocate. In this way, the position is comparable to that of the Children‘s Commissioners in New South Wales and the United Kingdom. The Queensland office has more extensive powers that allow the Commission to receive and investigate complaints. However, there is capacity for the Western Australian Commissioner to conduct special inquiries into issues affecting children and to ensure that investigative entities undertake their roles in a way that protects and advances the interests of children and young people. The Commissioner will report directly to Parliament and reports will not be subject to amendment or approval of the minister or government.
CATIE PARSONS is a Perth lawyer.
SUE ANDERSON is an Articled Clerk in Perth.