Forced Marriage and Modern Slavery

modern slavery

Image Copyright Monash University

This 11 minute video on modern slavery features the work of Associate Professor Heli Askola, Feminist Legal Studies Group member, on forced marriage in Australia. In the video, Monash academics from a range of disciplines argue that slavery is not just a feature of history but part of contemporary Australian society.

Dr Askola argues that forced marriage, where young women are coerced into marriage is a form of family violence. She notes in the video that because of a barriers to reporting, we have little knowledge of the extent of forced marriage in Australia. She argues, “Legal solutions can only work as part of an overall strategy based on changing behaviour and addressing the structural barriers involved in forced marriage, human trafficking and other forms of modern slavery.”

Dr Askola has also made a written case for the establishment of a modern slavery Act in Australia.  She notes that ‘Modern Slavery Act can be part of that effort, but it must be a part of a broader strategy that recognises states must give effect to all their international commitments relating to the various forms of ‘modern slavery’.’

 

 

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New Monash Law Unit: International Human Rights and Women

If you are Melbourne-based (or can travel to Melbourne) and interested in learning more about human rights and women, we have an exciting new unit being run in October 2018 by Feminist Legal Studies Group member Dr Tania Penovic which can be taken as a professional development unit (with no assessment but for legal CPD points) or with assessment as part of a Monash Law Masters. You can read more about the unit here.

womens march canada

‘Women’s March 2018 Vancouver, Canada’ by Sally T Buck, Creative Commons

International Human Rights and Women

Securing the protection and promotion of the human rights of women remains a challenge in the 21st century. Notwithstanding the significant advances in international human rights norms relating to women, systemic discrimination and inequality are part of everyday life for many women in the world. Many human rights abuses relate solely to, or impact more significantly on, women, such as, violence, human trafficking, and female genital mutilation.

This unit examines the international human rights obligations and standards pertaining to women, including relevant international treaties, customary international law and the domestic means of implementing international norms. It covers the theoretical debates about securing the human rights of women, including debates about discrimination, equality and the publicprivate divide and examines the impact and challenges of cultural practices on the realisation of women’s human rights.

Dual Delivery Mode

This is a dual delivery mode where industry registrants and Monash students share their classroom experience. Industry registrants can choose to complete this unit in one of two ways:

  • Professional Development Only ($2,936)Registrants complete the unit for professional development purposes, but are not required to enrol as students or complete assessment for credit.
  • For Academic Credit ( $3,838)Registrants can enrol as a student and complete the full unit with assessment and gain credit toward a Monash Law Masters

Teaching period:

23 October 2018 9.00am – 4.30pm

24 October 2018 9.00am – 4.30pm

30 October 2018 9.00am – 4.30pm

31 October 2018 9.00am – 4.30pm

Learn from the experts

Dr Tania Penovic is a Senior Lecturer in the Faculty of Law and a Deputy Director of the Castan Centre for Human Rights Law and a member of the Feminist Legal Studies Group.

She teaches civil procedure, torts and a number of areas of international and domestic human rights law, including women’s rights and refugee law. She has published widely on human rights, including the rights of asylum seekers, access to civil justice and women’s and children’s rights.

Tania has been involved in a number of enquiries into federal and Victorian law reform and in professional human rights training programs for judges and Australian and international government officials.

 

 

We can do better than this: Improving our family law system for women and their children who have experienced family violence

luneblu

Photo: Lune Bleue by Luc Borell, Creative Commons

Introduction

I wanted to share a submission I made recently to the Australian Law Reform Commission’s Review of the Family Law System. This is a major and wide-ranging inquiry into the state of Australia’s family law system, more than 40 years since Australia’s no-fault, specialist family court and social service system was first created.

I chose to focus my submission upon provision of supportive, safe family law processes for women and their children who have experienced family violence. I have focused on family violence because I believe it is the area in most urgent need of reform. Family violence in the family law system is an issue in which I have recently conducted academic work (as a consultant to the Victorian Royal Commission into Family Violence in 2015, writing on the intersection of family violence and family law). This submission also draws upon a submission I wrote for the Castan Centre for Human Rights Law for the Parliamentary inquiry into a better family law system to support and protect those affected by family violence, Standing Committee on Social Policy and Legal Affairs, House of Representatives (2017).

I am an Associate Professor of law at Monash University, working across the areas of family law, family violence, non-adversarial justice, dispute resolution, gender, child protection and constitutional law. I have particular expertise in use of informal processes such as mediation, Family Dispute Resolution and Family Group Conferencing in family law, family violence and child protection contexts. I am currently Deputy Director of the Australian Centre for Justice Innovation at Monash and, with Associate Professor Janice Richardson, co-convener of the Monash’s Feminist Legal Studies Group. I am a former director of FMC Mediation and Counselling Victoria, a service provider under the Family Relationship Services Program in Victoria. I’m the co-author of Non-Adversarial Justice (2nd ed, 2014), Bargaining in the Shadow of the Law? The Case of Family Mediation (2011) and the author of many academic articles. I edit the ADR Research Network blog and tweet regularly under the handle @BeckyBatagol. In 2015, I worked as a research consultant to the Royal Commission into Family Violence. I have also consulted to the Victorian Law Reform Commission on child protection processes.

Summary of Recommendations

The question numbers next to each recommendation relates to the questions contained in the Australian Law Reform Commission, Review of the Family Law System: Issues Paper (March 2018).

This submission recommends

  1. That the Commonwealth government do all that is necessary to support State and Territory magistrates and children’s court judges to exercise family law powers in cases on family violence. Measures recommended include
  2. Compensation for state and territory governments for state courts hearing federal cases (Question 32)
  3. Requirements for service providers under the Family Relationships Services Programme to establish durable links with courts and service providers in the state family violence system to create clear referral pathways for families experiencing family violence who have their family law matters heard within the state courts (Question 31).
  4. That the Commonwealth Parliament urgently amend section 46(1) Family Law Act 1975 to increase the $20,000 limit on property disputes able to be heard by State and Territory magistrates’ courts. The jurisdictional limit for hearing family law property disputes should mirror the upper limit on civil dispute able to be heard by State and Territory magistrates’ courts (Question 17).
  5. That the Commonwealth government, through the Council of Australian Government’s Council of Attorneys-General, urgently lead the development of a nationally consistent family violence risk assessment tool which should be used by State, Territory and federal courts, lawyers, government and non-government service providers (Question 31).
  6. That
    1. Service providers under the federal Family Relationships Services Programme including services such as family relationship centres, family dispute resolution (FDR), family counselling, children’s contact services, parenting Orders Programme, the Post Separation Cooperative Parenting Programme and the Supporting Children After Separation Programs, be able to access the national order reference systems in cases of family violence as necessary (Question 33);
    2. The national order reference system should include criminal law, child protection, family violence and family law orders and judgments from all State, Territory and federal courts (Question 33).
  7. That
    1. All family consultants should undergo high-quality family violence training;
    2. All family consultants must use a high-quality family violence risk assessment tool such as the Victorian Common Risk Assessment Framework (CRAF);
    3. A non-court complaints process should be introduced for the review of the conduct of family consultants (Question 41).
  8. That the Commonwealth Parliament urgently amend the Family Law Act 1975 to ensure that perpetrators of family violence do not personally cross-examine victims of family violence in family law proceedings (Question 25).
  9. That the federal Attorney-General provide adequate legal aid funds to allow for the legal representation of victims and perpetrators of family violence for the purpose of cross-examination of victims in family law cases (Question 25).

 

Family Violence in the Australian Family Law System

Family violence, including intimate partner violence, is a common problem with serious health, social and economic consequences for women, their families and communities.[1] Family violence is not merely an isolated phenomenon – in 2012, an estimated 17 per cent of Australian women had experienced violence committed by their partner against them.[2] The incidence of family violence is certainly higher within the family law system with a major Australian Institute of Family Studies (AIFS) evaluation finding that two thirds of separated mothers and half of separated fathers reported family violence by their partner.[3] In that study, 72% of mothers and 63% of fathers reported that their children had witnessed the violence. Because of known difficulties reporting and sustaining allegations of family violence in court, the incidence of allegations of family violence made before the family courts are lower, with allegations of family violence and/or child abuse present in around 50% of Family Court of Australia cases, 70% of Federal Circuit Court cases and 65% of Family Court of Western Australia cases since 2006.[4]

The Productivity Commission has noted that obtaining access to justice in the family law system is most difficult for complex cases involving family violence.[5] The constitutionally entrenched fragmentation of the Australian legal system for families is a key source of difficulty in family law disputes which involve allegations of family violence. Such disputes can’t usually be neatly divided into public and private aspects.[6] Parties who have experienced family violence must use multiple federal and state systems to obtain legal orders necessary for safety and dispute resolution (including the state family violence, criminal and child protection systems and the federal family law system).[7] The Productivity Commission noted in 2014 that

The interaction and overlap between jurisdictions can result in multiple proceedings and inconsistent orders, which can cause unsafe and traumatic situations for parents and children. The current court structure means that parties often will have to institute or be engaged in proceedings in various legal forums in order to have all of their issues determined.[8]

Parties in cases where there are allegations of family violence are more likely to use courts and legal services for family law matters.[9] Separated parents who have experienced family violence may be more likely to choose to attend Family Dispute Resolution (FDR) services (including Family Relationship Centres) than other less formal services. The AIFS Evaluation of the 2012 Family Violence Reforms found that the use of FDR was “strongly associated” with the experience of family violence, and that parents, especially mothers, who also reported experiencing the conditions of fear, coercion and control as a result, were more likely to be using FDR services as their main pathway to sort out parenting arrangements.[10] Significantly higher proportions of mothers (71% using FDR) than fathers (48% using FDR) reported having experienced fear, coercion and control before/during separation.[11]

The AIFS Evaluation of the 2012 Family Violence Reforms found that parents who reported safety concerns did not necessarily feel that their concerns were managed effectively during FDR.[12] Similarly, in Carson, Fehlberg and Millward’s 3-year longitudinal study of separated parents, the parents who were most likely to be dissatisfied with the process and outcomes of FDR as well as with the quality of the services they had received, were those parents who reported an uncooperative, controlling and/or violent partner/ex-partner, a hostile post-separation relationship or an absence of the ability to negotiate and compromise.[13]

 

Supporting Access to Justice for Families with Complex Disputes

This issue relates to question 32 in the Commission’s Issues Paper on changes to reduce the need for families to engage with more than one court to address safety concerns and question 31, regarding an integrated services approach to assist families with complex needs.

The fragmentation of jurisdiction over family life in the Australian federation is most acute in cases of family violence which involve relationship breakdown. Over the years, a range of solutions have been proposed to overcome the constitutional limitations in a federal system including;

  • State referral of powers to the federal family courts (eg over children whose parents are not married or property of unmarried partners)
  • Establishing a single family law court (‘unified family court’) to deal with all matters relating to family law and violence
  • Joint appointment of judges by the federal and state parliaments
  • Expanding the jurisdiction of the federal family courts so that they have the power to make child protection orders and more effective family violence orders
  • Giving state and federal courts corresponding jurisdictions so that they can decide cases under both systems.[14]

My view is that solutions which support the flexible application of both Commonwealth and State/Territory jurisdiction in a single court (whether federal or state) should be encouraged. The diverse and complex nature of family matters means that family members should be encouraged to resolve the breadth of their matters in whichever forum they arrive at, whether that be the two federal family courts (Family Court of Australia and the Federal Circuit Court), a State/ Territory Magistrates’ Court or a Children’s Court. Such an approach means improving the powers and capacity of the federal family courts to deal with matters under State/Territory law and of State/Territory judges in lower courts to deal with federal family law disputes.

Increasing the Powers of Federal Judges through Accrued Jurisdiction (Question 32)

There is potential for the Family Court of Australia and the Federal Circuit Court themselves to increase the powers of the judges in those courts to exercise powers under state law though the doctrine of accrued jurisdiction. Accrued Jurisdiction allows a federal court to hear and determine disputes that arise under non-federal law. The Family Court of Australia has narrowly interpreted its own powers to exercise state jurisdiction under this doctrine.[15] With the Honourable Nahum Mushin, I am currently supervising a higher degree by research student, Mr Daniel Matta. Mr Matta’s Monash University SJD thesis, The Intersection of Private Family Law and Non-Federal Claims: An Examination the Family Court of Australia’s Accrued Jurisdiction will be submitted later in 2018. With his permission, I have quoted the abstract of Mr Matta’s thesis below.

This thesis undertakes an examination of accrued jurisdiction as it has been applied in the Family Court of Australia (‘Family Court’). Accrued Jurisdiction allows, in appropriate cases, a federal court to hear and determine disputes that arise under non-federal law, for example, state law or the common law. The Family Court is often although not always, required to consider matters that impact its decisions which are not specifically addressed in the Family Law Act 1975 (Cth) (‘FLA’). Through an examination of the history, interpretation and application of accrued jurisdiction, this thesis will explore how the Family Court, as a specialist court, has grappled with cases that go beyond the traditional limits of family law disputes governed by the FLA.

The cases considered in this thesis illustrate that the Family Court has taken a narrow approach to interpreting the jurisprudence surrounding its accrued jurisdiction in a majority of cases. An example where this arises is the intersection of private, or federal, family law which is governed by the FLA and public family law such as child protection and welfare that is legislated by the various states and territories.

A further, although more limited, area of fragmentation in public and private family law arises within the parens patriae jurisdiction. The parens patriae jurisdiction provides state Supreme Courts with very broad powers to make orders for the welfare of children. This thesis will further examine this far-reaching, yet rarely exercised, jurisdiction including its historical roots and how it can be applied by the Family Court to make orders for the care and protection of children.

This thesis argues, based upon the jurisprudence of the High Court, that accrued jurisdiction, in its application by the Family Court is no different to that of the Federal Court. This thesis further argues that where accrued jurisdiction properly arises in a matter, there is no discretion to exercise it. This thesis concludes that, in appropriate cases, the Family Court must apply its accrued jurisdiction to hear an entire matter with both federal and non-federal claims.

The potential application of the findings in this thesis are far reaching and may apply to any proceeding arising out of Part VII and Part VIII of the FLA including claims for damages, negligence, surrogacy and child protection or welfare orders.[16]

I believe that the implication of Mr Matta’s work is that there is potential for both federal family courts in areas such as child protection to determine the entirety of a matter under both federal and state law. The power to do so rests solely in the hands of the judges of Family Court of Australia and the Federal Circuit Court, and in those judges being bolder in how they interpret their own powers. Using accrued jurisdiction to deal with the whole of a dispute under state and federal law would be more congruent with existing High Court authority[17] and with the approach of the other Chapter III court, the Federal Court of Australia. In my view based upon the work of Mr Matta, it would be not only possible but desirable for judges of the federal family courts to use the doctrine of accrued jurisdiction to determine the entirety of matters before them, under both federal and state law. Such an approach would reduce the need for family law litigants to also attend state courts for connected disputes.

Supporting State and Territory Magistrates to Determine Family Law Disputes (Question 32)

The Australian and NSW Law Reform Commissions concluded in 2010 that the best option for dealing with jurisdictional fragmentation was to work within existing constitutional limits without creating new courts.[18] The approach of the Victorian Royal Commission into Family Violence was to work within constitutional limits by encouraging and supporting local judges in the Victorian Magistrates’ and Children’s Courts to exercise latent family law powers so that family violence, child protection and family law matters could be dealt with by a single judge.[19] The Royal Commission argued that the exercise of family law powers by Magistrates would enable families who have experienced family violence to resolve their legal issues in the state system more safely without having to navigate multiple court systems.[20] Five specialist family violence courts are currently being created in Victoria which will exercise wide family law and family violence powers. Children’s Courts will also be able to exercise family law powers when making child protection decisions.

State and Territory Magistrates have limited powers under the Family Law Act 1975 to make orders in relation to family law parenting and property disputes. Currently, these powers are rarely used. Local level magistrates are often reluctant to exercise their powers under the Family Law Act for a range of reasons, including the complexity of family law parenting provisions following the 2006 reforms, a lack of time in busy local courts, a lack of competency in family law amongst the local magistracy and Family Law Act provisions which make state orders ineffectual.[21]

There is much the Commonwealth needs to do to enable State and Territories to fully use the potential for local magistrates and children’s courts to exercise comprehensive jurisdiction in cases of family violence. I believe that enhancing the ability of State and Territory judges to make family law orders will better support and make safe the many families who have experienced both family violence and relationships breakdown. It will improve access to justice for those who have experienced family violence.

One issue faced by and State and Territory governments who wish to consolidate family law and family violence or child protection jurisdiction within their own courts is that they are effectively taking on case load from the federal family courts without compensation. With busy lists and tight funding for family violence and child protection matters, the additional cost requirements imposed by increased family law load on the local courts will be prohibitive for many jurisdictions. Given that increased exercise of family law powers by the State and Territory courts is expected to reduce the caseload burden on the federal family courts, some form of payment by the Commonwealth is appropriate. The Royal Commission into Family Violence suggested that the Victorian government should negotiate with the Commonwealth to explore how the Commonwealth could compensate that State for hearing federal family law cases.[22]

1 a.      I recommend that the Commonwealth government do all that is necessary to support State and Territory magistrates and children’s court judges to exercise family law powers in cases on family violence. Measures recommended include compensation for State and Territory governments for State courts hearing federal cases (Question 32).

Federal-State Support Service Connections (Question 31)

Most family dispute are resolve outside the courts. Federal-state connections must extend to the support service level so that the jurisdictional cracks in the Australian constitutional framework can be papered over by seamless and integrated service delivery. This relates to question 31 in the Australian Law Reform Commission, Review of the Family Law System: Issues Paper (March 2018) relating to integrated services approaches.

As State and Territory magistrates in jurisdictions such as Victoria increasingly exercise federal family law powers, existing family law support services provided under the Family Relationships Services Programme administered by the federal Department of Social Services must be accessible for litigants with family law matters heard in the state system. Services under the Family Relationships Services Programme include family relationship centres, family dispute resolution (FDR), family counselling, children’s contact services, parenting Orders Programme, the Post Separation Cooperative Parenting Programme and the Supporting Children After Separation Programme. These federally-funded services are currently oriented to the federal family court system and durable links have not generally been established between local service providers under the Family Relationships Services Programme and local courts who exercise family law powers.

For families experiencing both relationship breakdown and family violence, the lack of clear referral pathways between FDR providers and state courts means raises the danger that litigants will get lost between systems and will not be able to navigate the gaps between the federal jurisdictions. Consequently, there is an imperative on programs under the Family Relationships Services Programme to establish links with both state courts which exercise federal family law powers and family violence services for victims and perpetrators which operate under the state family violence systems.

1 b.     I recommend that the Commonwealth government do all that is necessary to support state and territory magistrates and children’s court judges to exercise family law powers in cases on family violence. Measures recommended include requirements for service providers under the Family Relationships Services Programme to establish durable links with courts and service providers in the state family violence system to create clear referral pathways for families experiencing family violence who have their family law matters heard within the state courts (Question 31).

Property Orders in State and Territory Magistrates’ Courts (Question 17)

This recommendation relates to question 17 of the Australian Law Reform Commission in the Review of the Family Law System: Issues Paper (March 2018), changes to the provision of the Family Law Act on property division. In this section I focus on the ability of families who have experienced family violence to obtain an order relating to property division for low-value disputes from State and Territory Magistrates’ Courts during their family violence intervention order proceedings. This is way to help provide legal remedies for people who have been subjected to family violence and to help them recover financially.

The Royal Commission into Family Violence noted the importance of obtaining a fair property split in assisting victims of family violence to regain stability following separation, yet victims of family violence are often put at disadvantage is family law property settlements.[23] Women’s Legal Service Victoria’s Small Claims, Large Battles 2018 report noted that in cases of family violence, “Economic abuse left the women with limited financial resources to take action to seek a property settlement, while power imbalances and ongoing violence or intimidation made them fearful of seeking their share of property through the family law system.”[24]

Obtaining legal advice and resolution of family law property disputes at a cost that is affordable and proportionate to the value of assets in dispute is a problem, particularly for low value (including net debt) property disputes.[25] Research by the Productivity Commission has shown that parties with asset pools under $40,000 (low asset pool range) and between $40,000 and $139,000 (low-medium range) were less likely to use lawyers to help them to resolve their family law financial dispute than those with more assets, because of the high cost of legal representation.[26] Parties in the low and low to medium asset pool range are much less likely to use Family Dispute Resolution or court services to resolve their dispute than those with more assets.[27] This means it is much less likely that an agreement will be made to divide property and raises questions about the appropriateness of agreements or outcomes arrived at in these cases.[28]

To help victims of family violence more easily obtain resolution of their family law financial disputes, the Royal Commission into Family Violence recommended that Victorian Magistrates’ Courts use their existing powers under the Family Law Act to resolve family law property disputes in that court, at the same time as family violence intervention orders and parenting orders are made.

Section 46(1) Family Law Act 1975 limits State and Territory magistrates’ courts to determining contested family law property disputes where the total value of property is under $20,000. This amount has been increased only once, from $1,000 to $20,000 in 1988.[29]

Royal Commission into Family Violence and the Family Law Council recommended that the Commonwealth Parliament increase the jurisdictional limit on state and territory magistrates’ level courts hearing family law property disputes.[30]

The proposed amendment to section 46(1) Family Law Act 1975 contained in item 10 of the Exposure Draft of the Family Law Amendment (Family Violence and Other Measures) Bill 2017 is acceptable, providing that the amount set in the regulations mirrors the upper financial jurisdictional limit on civil disputes able to be heard by State and Territory magistrates’ courts. The Bill, however, remains to be introduced into Parliament, despite clear imperatives for a range of provisions in the Bill.

  1. I recommend that the Commonwealth Parliament urgently amend section 46(1) Family Law Act 1975 to increase the $20,000 limit on property disputes able to be heard by State and Territory magistrates’ courts. The jurisdictional limit for hearing family law property disputes should mirror the upper limit on civil dispute able to be heard by State and Territory magistrates’ courts.[31]

 

Nationally Consistent Risk Assessment Tool (Question 31)

The issue of the development of a risk assessment tool is central to the safety of family law processes in cases of family violence. It could relate to a number of questions but probably best relates to question 31 of the Australian Law Reform Commission, Review of the Family Law System: Issues Paper (March 2018) on integrated services approaches for families with complex needs. A nationally consistent risk assessment tool and process would enable the family law system to more quickly and effectively ensure the safety of people who are or may be affected by family violence, including by facilitating the early identification of and response to family violence.

The Third Action Plan under the National Plan to Reduce Violence against Women and their Children 2010-2022 commits the Commonwealth to developing and implementing National Risk Assessment and Safety Management Principles for victims and perpetrators of violence, based on evidence, including the risks that are present for children and other family members who experience or are exposed to violence.[32] At present ANROWS, Australian’s national family violence research organisation, is developing national risk assessment principles and the project is expected to be delivered shortly. The principles are meant to be conceptual in nature rather than a specific tool to be used directly by professionals for risk assessment. ANROWS states:

The National Risk Assessment Principles that ANROWS are developing are expected to: be relevant to, and appropriate for, front line workers/first responders assisting victims of family and domestic violence (FDV) who operate at different levels in multiple sectors and from multiple disciplines; reflect best-practice and be informed by the latest national and international practitioner and academic research; complement and build on the work undertaken in other jurisdictions and/or by ANROWS; and be developed in consultation with key stakeholders.[33]

However, principles are not the same as a risk assessment tool. A key way of ensuring safety in family violence cases is a validated, comprehensive and consistent risk assessment tool to accurately identify the existence of family violence and determine the appropriate response. Such a tool could be immediately used by professionals from all disciplines to accurately and consistently identify the presence of family violence in any case. In 2017, the House of Representatives Standing Committee on Social Policy and Legal Affairs recommended that “a nationally consistent, multi-method, multi-informant, culturally sensitive risk assessment tool” to be used “across sectors, between jurisdictions and among all professionals working within the family law system.”[34] The Committee emphasised the important of a national risk assessment tool rather than just national principles on managing family violence risk.

At present there are multiple risk assessment tools used across the various state and federal legal and social service systems. This creates the dangerous potential for family violence cases to go unidentified or for a lack of responsiveness to family violence in some systems, creating safety risks for victims and their families. The Coroner in the Luke Batty Inquest in Victoria noted the problem of risk assessment tools for family violence that were not validated, that were uncoordinated, not uniform in approach and which were not routinely shared between service providers and agencies.[35] The evidence in that case was that no single agency in the state family violence or federal family law system held or assessed all of the information for the purposes of conducting risk assessments and managing the risk posed by Greg Anderson, who ultimately killed his son.[36]

Risk assessment practices used across the family law system are inconsistent and require improvement.[37] The ANROWS developed risk assessment principles will go some way towards coordination of a new approach but it is not the same as a specific risk assessment tool. There is no consistently used family violence risk assessment tool used across the federal family law system. The Detection of Overall Risk Screen (DOORS) was developed for the federal family law system but is not used by all family law professionals, especially family lawyers.[38] The DOORS tool is very different to that used in state family violence systems such as the Common Risk Assessment Framework (CRAF) used in Victoria.

The Royal Commission into Family Violence noted that the problem of inconsistent risk assessment tools at federal and State/ Territory level should be addressed by the Commonwealth.[39] The Royal Commission recommended that the Victorian government, through the Council of Australian Government’s Law, Crime and Community Safety Committee, pursue the development of a national family violence risk assessment framework with consistent use of this tool by State, Territory and federal courts, lawyers, government and non-government service providers.[40] Since the disbanding of the Law, Crime and Community Safety Committee in 2017, responsibility for a nationally consistent risk assessment process should rest with the Council of Attorneys-General (CAG). CAG assists the Council of Australian Governments by developing a national and Trans-Tasman focus on maintaining and promoting best practice in law reform. To date, the Communiques of CAG do not indicate any attention to this matter.[41]

The development of a nationally consistent family violence risk assessment tool is a matter for urgent priority. This national reform should be led by the Commonwealth government through the Council of Australian Government’s Council of Attorneys-General. Such a tool should be based upon the ANROWS developed national risk assessment principles.[42] As the Luke Batty case shows, poor risk assessment practices can mean that crucial information received by one agency is not shared, which can have devastating consequences for the safety of women and children affected by violence. The development of a revised CRAF tool in Victoria, which is currently underway has the potential to provide a best-practice model for a validated risk assessment tool which could be used nationally.[43] Importantly, the tool should be used in all social support service services that work with families, not just federal and state courts.

  1. I recommend that the Commonwealth government, through the Council of Australian Government’s Council of Attorneys-General, urgently lead the development of a nationally consistent family violence risk assessment tool which should be used by State, Territory and federal courts, lawyers, government and non-government service providers (Question 31).

 

Information Sharing between State/Territory and Federal service providers (Question 33)

This matter relates to question 33 of the Australian Law Reform Commission, Review of the Family Law System: Issues Paper (March 2018) on how collaboration and information sharing between the federal family law and state child protection and family violence systems can be improved.

Information sharing is necessary for adequate risk assessment in family violence cases. Access to orders made by other courts is not routinely provided to all State/Territory and federal courts or other service providers. Information sharing is crucial to allowing state and federal courts and service providers to accurately identify and safely manage risks for victims of family violence and their children.[44] Lack of information sharing is often a cause for delay in both state/territory courts and federal family violence courts as courts stand down matters to determine what orders have been made by other courts.

The Royal Commission into Family Violence recommended that the Victorian government, through the Council of Australian Government’s Law, Crime and Community Safety Committee, pursue the creation of a national database for family violence, child protection and family law orders, judgments, transcripts, and other court documents that is accessible to each of the relevant State, Territory and federal courts and other agencies as necessary.[45] The Royal Commission noted that information exchange should extend beyond provision of court orders and should be accessible to state child protection authorities and police forces.[46]

The Council of Australian Government’s Law, Crime and Community Safety Committee (now Council of Attorneys-General) agreed in 2016 to work towards a national starting date for the national domestic violence order scheme.[47] The Committee had earlier stated that an objective of the National Domestic Violence Order Information Sharing System is to prototype the technical solution to improve the lack of national coordination and information sharing of domestic violence orders and related court orders across systems and between jurisdictions.[48] In November 2017 the National Domestic Violence Order Scheme was launched which will mean that family violence intervention orders issued in any Australian State or Territory will be automatically recognised and enforceable nationwide.[49] This scheme is supported by the Interim Order Reference Solution which is a secure web portal which allows local courts across Australia to access intervention order information held in the National Police Reference System, run by the Australian Criminal Intelligence Commission.[50] It is intended that this system will be in place “until a dedicated and comprehensive national information sharing system, the National Order Reference System (NORS) is delivered at the end of 2019.”[51] It is commendable that an information sharing system is being implemented. The need for this scheme is urgent.

Access to Information by federal family support service providers

Access to intervention order information held by agencies and courts will be necessary to ensure the safety of victims of family violence and their families, not just for the courts, but for other service providers who work in and around the justice system. Family law service providers who will need access to intervention order information include service providers under the federal Family Relationships Services Programme including services such as family relationship centres, family dispute resolution (FDR), family counselling, children’s contact services, parenting Orders Programme, the Post Separation Cooperative Parenting Programme and the Supporting Children After Separation Program. The need for safety in family support service provision in the federal family law system trumps the potential privacy needs of perpetrators of family violence. The Royal Commission noted that information exchange should extend beyond provision of court orders and should be accessible to state child protection authorities and police forces also.

The necessity for family support services in the federal family law system under the Family Relationships Services Programme to access the national intervention order scheme is immediate and strong. The AIFS Evaluation of the 2012 Family Violence Reforms found that the use of FDR was “strongly associated” with the experience of family violence, and that parents, especially mothers, who also reported experiencing the conditions of fear, coercion and control as a result, were more likely to be using FDR services as their main pathway to sort out parenting arrangements.[52] Significantly higher proportions of mothers (71% using FDR) than fathers (48% using FDR) reported having experienced fear, coercion and control before/during separation.[53] Without access to the Interim Order Reference Solution, or after 2019, the National Order Reference System, Family Relationships Services will need to depend on on unreliable self-reporting of the presence of intervention and other orders by parties, which creates a safety risk for participants.

Information on a broad range of court orders

It will also be necessary for the full range of family violence, family law and child protection orders issued by state magistrates courts, children’s courts the two federal family courts to be stored in the National Order Reference System from 2019. The Australian Criminal Intelligence Commission has stated that, “The new system is being designed so it can be used as a base platform for sharing information about other types of orders, including bail, parole and warrants.”[54] It is desirable that a broad range of orders and judgments from the many state and federal courts whose jurisdiction touches upon family violence should be included in the National Order Reference System, including intervention orders, criminal law matters, child protection and family law orders to ensure that all courts and service providers have up-to-date and accurate information on the outcomes of legal proceedings. In the family law system, this will better ensure the safety of victims of family violence who are also separating and who must use family law processes.

  1. I recommend that
  2. Service providers under the federal Family Relationships Services Programme including services such as family relationship centres, family dispute resolution (FDR), family counselling, children’s contact services, parenting Orders Programme, the Post Separation Cooperative Parenting Programme and the Supporting Children After Separation Programs, be able to access the national order reference systems in cases of family violence as necessary (Question 33);
  3. The national order reference system should include criminal law, child protection, family violence and family law orders and judgments from all State, Territory and federal courts (Question 33).

Family Consultants (Question 41)

This section responds to question 41 on core competencies of professionals in the family law system. It focuses especially on the practices of family consultants (either private report writers or employed by the Family Court of Australia and the Federal Circuit Court).

Family Consultants are psychologists and/or social workers who specialise in child and family issues after separation and divorce. Family consultants may be ‘in-house‘, employed by the courts, or private practitioners engaged by the family courts pursuant to Regulation 7 of the Family Law Regulations 1984. Under the Family Law Act 1975, family consultants have numerous roles in child-related proceedings, including the provision of advice to the family courts on ‘such matters relevant to the proceedings as the court thinks desirable.’[55] Family consultants interview children and their parents/carers and provide reports to the court on what orders will be in the best interests of the children. Information provided to the consultant is not privileged and can be reported to the courts.[56] The family courts use the evidence given by family consultants on a wide range of matters to assist with determining what orders should be made.[57]

The preparation of family reports is governed by the 2015 Australian Standards of Practice for Family Assessment and Reporting. These provide minimum standards and best practice guidelines for family assessments in family law matters that are applicable to both court-based family consultants and family report writers engaged under Regulation 7.[58] At present, family consultants are not required to undergo family violence training.[59]

Poor identification, understanding and responsiveness to family violence by family consultants raises the real potential for the commission of further family violence during the report-writing process or following inappropriate parenting orders made in reliance upon the family report. Multiple submissions made to the Victorian Royal Commission into Family Violence alleged that family consultants did not understand the nature and dynamics of family violence and minimised the violence in their case.[60] The Royal Commission heard stories of both parents being asked to attend for an assessment by family consultants at the same time (despite the existence of a family violence intervention order preventing such contact) and victims of family violence being viewed suspiciously by family consultants for raising allegations of family violence.[61]

The only way to challenge the evidence of a family consultant is to cross-examine the consultant when they are called as a witness to the case.[62] This action is beyond the financial and legal capability of many victims of family violence who may feel that the consultant did not adequately take into account the nature and existence of violence in their case.

  1. I recommend that
  2. All family consultants should undergo regular, mandatory, high-quality family violence training
  3. All family consultants must use a high-quality family violence risk assessment tool such as the Victorian Common Risk Assessment Framework (CRAF)
  4. A non-court complaints process should be introduced for the review of the conduct of family consultants (Question 41)

 

Cross-Examination of Victims of Family Violence by Perpetrators (Question 25)

This matter relates to question 25 on how to avoid misuse of family law processes as a form of abuse.

At present, unrepresented perpetrators of family violence are still able to cross-examine their victim of family violence in federal family law proceedings. Direct cross-examinations of victims can be used by perpetrators to further commit family violence and most certainly result in significant trauma for victims.[63] The family courts have acknowledged that a lack of legal aid funding means that such cross examinations do occur.[64]

The Productivity Commission recommended in 2014 that the Family Law Act should be amended to include provisions restricting personal cross-examination by those alleged to have used violence along the lines of provisions that exist in State and Territory family violence legislation.[65] Draft legislation has been prepared which would protect vulnerable witnesses from direct cross examination by perpetrators of violence against them.[66]  However the Bill has not yet been introduced into Parliament, despite recommendation in 2017 from the Standing Committee on Social Policy and Legal Affairs, House of Representatives that this be done urgently.

Personal cross-examination of victims of family violence by perpetrators is totally unacceptable. The occurrence of such an event is tantamount to the courts and the family law system collaborating in further acts of family violence against the victim.

In Victoria’s family violence system, there are provisions which regulate the cross-examination of protected witnesses in state courts.[67] Essentially, these provisions mean that where a respondent is self-represented, the court must order legal aid representation for the purpose of cross-examination. These provisions provide a good model of practice for how the federal family law system could operate.

I recommend that

  1. The Commonwealth Parliament urgently amend the Family Law Act 1975 to ensure that perpetrators of family violence do not personally cross-examine victims of family violence in family law proceedings (Question 25);
  2. That the federal Attorney-General provide adequate legal aid funds to allow for the legal representation of victims and perpetrators of family violence for the purpose of cross-examination of victims in family law cases (Question 25).

 

[1] VicHealth, The health costs of violence: Measuring the burden of disease caused by intimate partner violence: A summary of findings (2004, Melbourne) 10.

[2] Australian Bureau of Statistics, 2012, Personal Safety, Australia 2012,  Cat no 4906.0, Canberra.

[3] Kaspiew, R, Gray, M, Weston, R, Moloney, L, Hand, K and Qu, L, 2009, Evaluation of the 2006 Family Law Reforms, Australian Institute of Family Studies, Melbourne, 26.

[4] Kaspiew, R, Gray, M, Weston, R, Moloney, L, Hand, K and Qu, L, 2009, Evaluation of the 2006 Family Law Reforms, Australian Institute of Family Studies, Melbourne, 314.

[5] Productivity Commission, Access to Justice Arrangements Inquiry Report (Commonwealth of Australia, No 72, 2014) Volume 2, 855.

[6] Royal Commission into Family Violence, Report and Recommendations (State of Victoria, 2016) Volume IV, 190.

[7] Productivity Commission, Access to Justice Arrangements Inquiry Report (Commonwealth of Australia, No 72, 2014) Volume 2, 865.

[8] Productivity Commission, Access to Justice Arrangements Inquiry Report (Commonwealth of Australia, No 72, 2014) Volume 2, 866.

[9] Rae Kaspiew, et al, Evaluation of the 2012 Family Violence Amendments: Synthesis Report (2015, Australian Institute of Family Studies, Commonwealth of Australia) 24.

[10] Rae Kaspiew, et al, Evaluation of the 2012 Family Violence Amendments: Synthesis Report (2015, Australian Institute of Family Studies, Commonwealth of Australia) xi.

[11] Rae Kaspiew, et al, Evaluation of the 2012 Family Violence Amendments: Synthesis Report (2015, Australian Institute of Family Studies, Commonwealth of Australia) 24.

[12] Rae Kaspiew, et al, Evaluation of the 2012 Family Violence Amendments: Synthesis Report (2015, Australian Institute of Family Studies, Commonwealth of Australia) 240-45.

[13] Carson, Rachel, Fehlberg, Belinda and Millward, Christine (2013), ‘Parents’ experiences of Family Dispute Resolution and family law services in Australia following shared parenting reform: recent qualitative findings’ 25 Child and Family Law Quarterly 406, 420.

[14] Royal Commission into Family Violence, Report and Recommendations (State of Victoria, 2016) Volume IV, 190.

[15] Ray v Males [2009] FamCA; Secretary for Department of Health and Human Services & Ray and Ors (2010) FLC 93-457.

[16] Daniel Matta, The Intersection of Private Family Law and Non-Federal Claims: An Examination the Family Court of Australia’s Accrued Jurisdiction, SJD Thesis, Monash University (to be submitted 2018) abstract.

[17] Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; Fencott v Muller (1983) 152 CLR 570; Stack v Coast Securities (No.9) Pty Ltd (1983) 154 CLR 261.

[18] Sarah Peel and Rosalind Croucher, ‘Mind(ing) the Gap: Reform Recommendations Responding to Child Protection in a Federal System’ (2011) 89 Family Matters 21, 28.

[19] Royal Commission into Family Violence, Report and Recommendations (State of Victoria, 2016) Volume IV, 211.

[20] Royal Commission into Family Violence, Report and Recommendations (State of Victoria, 2016) Volume IV, 211.

[21] Royal Commission into Family Violence, Report and Recommendations (State of Victoria, 2016) Volume IV, 191.

[22] Royal Commission into Family Violence, Report and Recommendations (State of Victoria, 2016) Volume IV, 211.

[23] Royal Commission into Family Violence, Report and Recommendations (State of Victoria, 2016) Volume IV, 211.

[24] Women’s Legal Service Victoria, Small Claims, Large Battles: Achieving economic equality in the family law system (March 2018) 6.

[25] Productivity Commission, Access to Justice Arrangements Inquiry Report (Commonwealth of Australia, No 72, 2014) Volume 2, 870.

[26] Productivity Commission, Access to Justice Arrangements Inquiry Report (Commonwealth of Australia, No 72, 2014) Volume 2, 871-2.

[27] Productivity Commission, Access to Justice Arrangements Inquiry Report (Commonwealth of Australia, No 72, 2014) Volume 2, 872.

[28] Productivity Commission, Access to Justice Arrangements Inquiry Report (Commonwealth of Australia, No 72, 2014) Volume 2, 872.

[29] Royal Commission into Family Violence, Report and Recommendations (State of Victoria, 2016) Volume IV, 212.

[30] Family Law Council, Final Report on Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems (2016) 146 (recommendation 15-2); Royal Commission into Family Violence, Report and Recommendations (State of Victoria, 2016) Volume IV, 212, 217 (recommendation 131).

[31] Currently $100,000 in the State of Victoria: Magistrates Court Act 1989 s 3(1).

[32] Commonwealth of Australia, Third Action Plan, National Plan to Reduce Violence against Women and their Children 2010-2022 (2016) 18 (National Priority Area 3, Action Item 3.1).

[33] ANROWS, National Risk Assessment Principles for Family and Domestic Violence, Project Information Sheet (2017) https://d2c0ikyv46o3b1.cloudfront.net/anrows.org.au/NRAP%20Project%20Fact%20Sheet%20FINAL.pdf.

[34] Parliament of the Commonwealth of Australia, House of Representatives Standing Committee on Social Policy and Legal Affairs, A better family law system to support and protect those affected by family violence Recommendations for an accessible, equitable and responsive family law system which better prioritises safety of those affected by family violence (December 2017) 150.

[35] Coroner’s Court of Victoria, Inquest into the Death of Luke Batty, 28 September 2015, 4.

[36] Coroner’s Court of Victoria, Inquest into the Death of Luke Batty, 28 September 2015, 82.

[37] Rae Kaspiew, et al, Evaluation of the 2012 Family Violence Amendments: Synthesis Report (2015, Australian Institute of Family Studies, Commonwealth of Australia) 45.

[38] Royal Commission into Family Violence, Report and Recommendations (State of Victoria, 2016) Volume IV, 209.

[39] Royal Commission into Family Violence, Report and Recommendations (State of Victoria, 2016) Volume IV, 216.

[40] Royal Commission into Family Violence, Report and Recommendations (State of Victoria, 2016) Volume IV, 218 (recommendation 134).

[41]https://www.ag.gov.au/About/CommitteesandCouncils/Council-of-Attorneys-General/Pages/default.aspx.

[42] ANROWS, National Risk Assessment Principles for Family and Domestic Violence, Project Information Sheet (2017) https://d2c0ikyv46o3b1.cloudfront.net/anrows.org.au/NRAP%20Project%20Fact%20Sheet%20FINAL.pdf.

[43] http://www.dhs.vic.gov.au/__data/assets/pdf_file/0004/974551/Review-of-the-Family-Violence-Risk-Assessment-and-Risk-Management-Framework-CRAF-Final-Report.pdf

[44] Royal Commission into Family Violence, Report and Recommendations (State of Victoria, 2016) Volume IV, 215.

[45] Royal Commission into Family Violence, Report and Recommendations (State of Victoria, 2016) Volume IV, 218 (recommendation 134).

[46] Royal Commission into Family Violence, Report and Recommendations (State of Victoria, 2016) Volume IV, 215.

[47] Council of Australian Government’s Law, Crime and Community Safety Committee, Communique, October 2016: https://www.ag.gov.au/About/CommitteesandCouncils/Law-Crime-and-Community-Safety-Council/Pages/default.aspx.

[48] Council of Australian Government’s Law, Crime and Community Safety Committee, Communique, May 2015: https://www.ag.gov.au/About/CommitteesandCouncils/Law-Crime-and-Community-safety-Council/Pages/default.aspx.

[49] Senator the Hon Michaelia Cash – Minister for Women & The Hon Michael Keenan MP – Minister for Justice, ‘National enforcement of Domestic Violence Orders to better protect victims’ (Pres Release, 25 November 2017).

[50] https://www.acic.gov.au/our-services/domestic-violence

[51] Senator the Hon Michaelia Cash – Minister for Women & The Hon Michael Keenan MP – Minister for Justice, ‘National enforcement of Domestic Violence Orders to better protect victims’ (Pres Release, 25 November 2017).

[52] Rae Kaspiew, et al, Evaluation of the 2012 Family Violence Amendments: Synthesis Report (2015, Australian Institute of Family Studies, Commonwealth of Australia)

[53] Rae Kaspiew, et al, Evaluation of the 2012 Family Violence Amendments: Synthesis Report (2015, Australian Institute of Family Studies, Commonwealth of Australia) 24.

[54] https://www.acic.gov.au/our-services/domestic-violence.

[55] Family Law Act 1975 (Cth) s 62G(2).

[56] Family Law Act 1975 (Cth) s 62G.

[57] Liam Meagher, ‘Assessing The Role of Family Consultants When Providing Evidence in Parenting Disputes’ (2012) 10 Macquarie Law Journal 59, 60.

[58] Family Law Council, Final Report on Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems (2016) 31.

[59] Family Law Council, Final Report on Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems (2016) 31.

[60] Royal Commission into Family Violence, Report and Recommendations (State of Victoria, 2016) Volume IV, 199.

[61] Royal Commission into Family Violence, Report and Recommendations (State of Victoria, 2016) Volume IV, 199.

[62] http://www.federalcircuitcourt.gov.au/wps/wcm/connect/b5ee989f-3134-44e0-afa6-dc846e8c4f2a/FS_Seeing+a+family+consultant+FAQ_FCC_0714V1a.docx?MOD=AJPERES&CONVERT_TO=url&CACHEID=ROOTWORKSPACE-b5ee989f-3134-44e0-afa6-dc846e8c4f2a-lx1trx4.

[63] Royal Commission into Family Violence, Report and Recommendations (State of Victoria, 2016) Volume IV, 197.

[64] Royal Commission into Family Violence, Report and Recommendations (State of Victoria, 2016) Volume IV, 197.

[65] Productivity Commission, Access to Justice Arrangements Inquiry Report (Commonwealth of Australia, No 72, 2014) Volume 2, 865.

[66] Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2017 (Cth).

[67] Family Violence Protection Act 2008 (Vic) s 70-71.

The part-time illusion for lawyers with caring responsibilities when applying for work in the Australian Public Service: My View

By Rachel Morrison-Dayan

mother and kids

Photo Credit: How Will They Make it in the Big City by Russ Siedel, Creative Commons

My pet hate is the claim made by the Australian Public Service (APS) to provide fair recruitment procedures and flexible working arrangements. It’s easy to be misled by this claim. I wonder whether this is the case for female lawyers, and indeed other professionals, with care responsibilities seeking to be recruited on a part-time basis.

When applying for a new legal position, one may turn to the APS as a sympathiser that understands how carers struggle to commit to a 37.5 hour work week because they are providing the unpaid social good of care to another person. Some APS advertisements for part-time and full-time legal workers may appear to promise such flexibility:

  • ‘Candidates interested in full time and part time opportunities are encouraged to apply.’
  • ‘We are a flexible employer and are open to discussing employment arrangements that might suit you best at this time.’
  • ‘As an employer, we aim to be a diverse and inclusive workforce, and help our employees achieve a sense of balance between work life and personal life.’

Let’s not jump for joy too soon. For the question is, shiny advertisements aside, how many APS employers actually go on to grant part-time work arrangements to newly recruited lawyers who are mothers of a young child, carers of a disabled adult or an aged parent? My inner conspiracy theorist may be lurching forward as I say this but I hazard a guess whether many applicants are shafted from the recruitment process upon uttering the fatal words ‘part-time requested’.

I must confess, my thoughts linger as to why my own application with a public statutory authority (which noted my availability for part-time hours only) did not proceed to interview stage.

I was disappointed to discover that the Fair Work Act 2009 (Cth) (s 65) makes it clear that the legal right to request flexible working arrangements is only granted to current employees who have accumulated 12 months of service. What is more surprising is that this 12 months requisite does not seem to be quite in tune with the Sex Discrimination Act 1984 (Cth) (SDA).

The SDA (s 14) forbids discrimination on the basis of family (caring) responsibilities in determining who should be offered employment and the terms and conditions of employment that the employer affords the employee. Unfortunately, it is impossible to determine whether the SDA has been complied with because recruitment files are confidential.

The Australian Public Service Commission (APSC) does not allow non-employee applicants to challenge the recruitment process. Where is the ethical conduct and transparency in the area of APS recruitment, or is it a case of discrimination behind closed doors?

In my view, while tougher legislation is needed, at a minimum to ensure its compliance with the SDA, the APSC needs to create (and enforce) policies and procedures to ensure that female lawyers with caring responsibilities are recruited into the APS on a part-time basis. Procedures must also be developed which allow job applicants to raise allegations of discrimination and be met with an adequate response.

Perhaps the issue of discrimination of female lawyers and other professional women and also male carers with family responsibilities in the APS is a matter which the Australian Human Rights Commission would like to take an interest in investigating—sooner rather than later I hope.

Rachel is currently studying for a MPhil in Law (Migration) with Monash University. In 2016 she was awarded the Fragomen Prize for first in her year in the Masters of Law in Migration Law with ANU. She previously worked for a federal government department in Canberra, in its various forms, after legal experience abroad and acquiring a foreign legal qualification. Rachel likes to write creatively in her spare time and has been published in a number of magazines. Originally from Sydney and Newcastle in NSW, Rachel now lives in Melbourne with her two young children and kitten.

Why there should be no room in the law for celebrants to discriminate on same-sex marriage

This article was first published on 16 November 2017 in The Conversation. You can hear an interview with Becky on this issue here and here.

celebrnat

Celebrants should not be free to discriminate against couples who ask them to perform a marriage ceremony.  Source: CityofStPete, Creative Commons

The process of legislating for marriage equality is underway. Marriage celebrants are looking forward to Australia’s busiest-ever wedding season. However, with the proposed laws now on the table, not all marriages will be equal.

The private member’s bill sponsored by Liberal Dean Smith is being debated today in the Senate. Attorney-General George Brandis has said he wants to amend the bill to extend religious protections to civil celebrants.

If it goes through, the amendment would permit civil celebrants to refuse to conduct a marriage ceremony because of their conscientious or religious beliefs (as another marriage amendment bill did earlier this year).

Permitting non-religious, civil marriage celebrants to discriminate is a bad idea. This goes far beyond protecting religious freedom.

My research into Australia’s marriage laws and civil marriage celebrants leads me to believe that Brandis’ proposed changes will undermine Australia’s flourishing civil marriage system by sanctioning discrimination against LGTBIQ clients. They will weaken marriage equality and will permit humiliating, unnecessary discrimination.

Providing the right to refuse to solemnise marriages to civil marriage celebrants undermines the aims and nature of Australia’s world-leading civil marriage celebrant program. It also compromises Australia’s long-established pluralistic system of marriage, as inherited from England.

Unique weddings and quirky celebrants: Australia’s contribution to the world

To understand the marriage equality law, it is helpful to know a little about the history of marriage in Australia.

Until 1973, when Australia’s world-first civil celebrant program was created, most civil wedding ceremonies were dry, brief and formal procedures conducted by state officials in registry offices.


Read more: As Australians say ‘yes’ to marriage equality, the legal stoush over human rights takes centre stage


The civil celebrancy program was initially set up by the Whitlam-era attorney-general, Lionel Murphy. It went under the publicity radar, unlike the no-fault divorce reforms debated and passed by the federal parliament at the same time.

According to one of Australia’s first civil celebrants, Dally Messenger, the civil celebrant program allowed for a civil alternative to religious marriage ceremonies that was dignified. Marrying couples could choose a ceremony at a place with symbols, dress and a celebrant consistent with their beliefs.

Murphy initially appointed just a small group of civil marriage celebrants in 1973 and 1974. Today, there are around 9,000 civil marriage celebrants registered in Australia. The civil celebrancy program, alongside the secularisation of Australian society, has made civil marriage ceremonies attractive and accessible to brides and grooms.

In other words, before Elvis’ Little Wedding Chapel in Vegas, we had Australia.

It is easy to find celebrants across Australia advertising services for garden weddings, weddings at family homes, beach weddings, skydiving weddings, underwater weddings, helicopter weddings and almost nude weddings (the celebrant said their nudity showed “there was nothing you wouldn’t do to be together”).

Allowing civil marriage celebrants to refuse to conduct a marriage ceremony because of their conscientious or religious beliefs against the marriage of partners of the same sex would undermine a key aim of the civil celebrancy program – to allow for a non-humiliating alternative to religious marriage ceremonies.

It is degrading for anyone to be told that they will not be able to be married by a celebrant because of the celebrant’s personal beliefs about them. The law should not authorise this humiliation.

Religious or civil wedding? The value of choice

The proposed exemption for civil marriage celebrants also undermines the long tradition of a pluralistic system of marriage law in Australia.

Since colonial times, Australians have been able to choose a religious ceremony or a non-religious civil ceremony. Both will be validly recognised as a marriage under law.

This system was inherited from England, where both religious (Church of England, Jewish and Quaker marriages) and civil marriages have been recognised since 1836.

Today in Australia, religious marriages must be conducted by law in accordance with the rites and practices of a broad range of religions. Civil marriages must be performed in accordance with the Marriage Act, and are far more heavily regulated by law than religious marriages.


Read more: The marriage equality survey is won, but the battle against discrimination continues


Most Australians choose to have a non-religious wedding. For nearly two decades, civil marriage has been overwhelmingly the most popular way to be married in Australia. In 2015, almost 75% of all marriages were performed by a civil celebrant rather than a minister of religion.

Over the last half of the 20th century, there was a major shift towards civil weddings. In 1959, just 11.4% of marriages were civil marriages. Civil marriages have outnumbered religious marriages in Australia since 1999.

Providing civil marriage celebrants with the right to refuse to marry a couple based upon their sexuality or the religious beliefs of the celebrant brings an element of religiosity to civil marriage. It reverses the historical separation of civil and religious marriage in England and Australia that has been in place since 1836.

The exemption will limit the ability of Australians to opt into a wedding that is not governed by religious values, defying the trend towards civil marriage.

Discrimination on the basis of sexuality or gender has no place in contemporary Australian law and society. If we are to achieve true marriage equality, then prejudice cannot be permitted in the delivery of secular wedding services. Our anti-discrimination laws exist to ensure equal treatment of all Australians, regardless of personal attributes.

How heterosexual couples are protesting marriage inequality

This article was originally published in The Conversation on 24 September 2016. Dr Becky Batagol is a Convener of the Monash Feminist Legal Studies Group.

Image 20160829 17884 vaj03h

Heterosexual couples who believe in marriage equality, and the civil celebrants who marry them, are using wedding ceremonies to protest marriage law in Australia. shutterstock

Becky Batagol, Monash University

As the spring wedding season warms up, increasing numbers of heterosexual couples are using their wedding ceremonies to call for a change to Australia’s marriage law.

Australian support for marriage equality has steadily increased over the years; it has risen from just 38% in 2004. A July 2014 poll showed 72% of Australians supported the legalisation of same-sex marriage.

A clear majority of married heterosexual couples favour marriage equality. And a 2016 poll suggests that support for marriage equality is high among second-generation Australians.

Despite this support for marriage equality, marriage itself is in decline in Australia. There were just 5.2 marriages per 1000 people in 2014, down from 6.2 in 2004 and 9.2 in 1950. These figures are much lower than in the US. And 74.1% of Australians who do get married now choose a civil rather than religious wedding.

Institutionalised discrimination

At every civil wedding ceremony in Australia, the discriminatory nature of marriage must be announced by law. The Marriage Act obliges civil celebrants to say:

Before you are joined in marriage in my presence and in the presence of these witnesses, I am to remind you of the solemn and binding nature of the relationship into which you are now about to enter.

Marriage, according to law in Australia, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.

This requirement, known colloquially as the “monitum” (Latin for “warning”), has existed since the Marriage Act was enacted as Australia’s first national marriage law in 1961.

The provision reflects common law and religious views prevalent at the time. Garfield Barwick, the key architect of Australia’s marriage laws, explained in 1960 that the legislation was:

… a contribution towards the stability of marriage.

These ideas persist today. Arguments for protecting the institution of marriage were mustered again by the parliament in 2004, this time to justify explicitly excluding same-sex couples from the Marriage Act. Philip Ruddock, then the attorney-general, said:

The government has consistently reiterated the fundamental importance of the place of marriage in our society … [and will] take steps to reinforce the basis of this fundamental institution.

Heterosexual solidarity

Given the ubiquity of civil marriage and support for marriage equality, how do heterosexual brides and grooms who support marriage equality manage the legal requirement of the monitum at their weddings?

My ongoing research reveals heterosexual couples who believe in marriage equality, and the civil celebrants who marry them, use their wedding ceremonies to protest marriage law in Australia in a number of ways.

Most common were “statements of protest” read by the civil celebrant, bride, groom or another guest before or after the monitum. These express dissatisfaction with the current state of the law and a desire for reform.

Other methods included:

  • the celebrant reading the monitum quietly or turning the PA system down;
  • holding private, legal wedding ceremonies with the monitum, and then a separate, public ceremony without it;
  • holding a commitment ceremony instead of a wedding;
  • having guests wear ribbons in solidarity; and
  • from one celebrant, the omission of the monitum during small weddings where they were confident they would not be reported.

My sample is too small to reliably state the extent to which there is a commitment to marriage equality in civil wedding ceremonies nationwide. Estimates from the celebrants I spoke to ranged, at the low end, from a commitment to marriage equality in 2-3% of weddings conducted by that celebrant to 80-90% at the high end.

I will be surveying all registered Australian civil celebrants to reliably understand the magnitude of the protest phenomenon.

Multiple recent opinion polls suggest the majority of Australians back same-sex marriage. Charles Platiau, CC BY-NC

Reconciling protests with personal opportunity

What my research does show is getting married while disagreeing with marriage law is a pretty narrow space to inhabit.

One bride, Edith (not her real name), arranged for her celebrant to make a heartfelt statement of protest after the monitum at her wedding. Edith acknowledged the difficulties:

I do have friends that say they wouldn’t get married until the law changes. And I felt like I didn’t want to wait for that. We have reasons for wanting to get married now and do it. There are probably some people who would feel that that’s selling out, and I totally get that, but I just felt like I really wanted to make that clear and not partake in something exclusionary.

Some couples aren’t prepared to sign up. Suzanne and her partner, Kieran, had a wedding ceremony surrounded by family and friends in 2015, but this was not a legal marriage. Suzanne explained why:

Now, women aren’t so much discriminated in the Marriage Act, but same-sex couples absolutely are. And, to me, signing that document is equivalent to saying, ‘I don’t like Hitler, I’m going to join the Nazi Party’ … [people that] get married are inadvertently endorsing the legislation.

If everybody turned around and said, ‘Well, I’m just not going to get married under this legislation anymore,’ the government would be forced to look at it … I cannot sign that document, because as soon as I say I’m legally married … I am consenting to the very issues that I stand against.

Suzanne’s views might suggest something important about Australia’s discriminatory marriage laws: rather than protecting the institution of marriage, they may be directly damaging it. Not only are LGTBI couples unable to access marriage, but straight couples may be unwilling to join an institution seen as exclusionary and outdated.

Positive post-separation parenting: What works for Australian parents? Research Participants Wanted

This post is authored by Dr Kris Natalier and Dr Priscilla Dunk West, Flinders University. Priscilla and Kris study how people make sense of intimate and family relationships. This is research that we believe is important, well-conceived and worth participating in. 

 

Do you have a good relationship with your former partner?

We would like to hear about your experiences, to find out what works in building good relationships between separated parents.

flower heart

Photo: Nick Kenrick Creative Commons

We are interested in surveying and interviewing parents – men and women – who are 18 years or older and who have good relationships with their former partners.  We are interested in hearing about how you define ‘good relationships’ and how you build and maintain a good relationship with your former partner and other important people in your life: what works, what’s easy, what’s hard?

The study involves a survey and, if you wish two confidential, one-on-one, in-depth interviews: one where you tell us about your relationship with your former partner and one, around four months later, where you tell us if anything has changed.  We expect the interviews will last approximately one hour. We can interview you on the phone, by Skype, or if you live in Adelaide, in a place that suits you.

If you are interested in completing the survey, you can find it here.

If you are interested in being interviewed, or hearing more about the study please contact Priscilla [Priscilla.dunkwest@flinders.edu.au         08 8 8201 5288] or Kris kris.natalier@flinders.edu.au              08 8201 3391]

The study is conducted by Dr Priscilla Dunk West and Dr Kristin Natalier, researchers at Flinders University. Priscilla and Kris study how people make sense of intimate and family relationships. We are not employed by any service to conduct this study.

Taking part in this study is voluntary. Your decision to participate or not will not impact upon your access to any services or organisations.