Written By: Ben Clark - Date published: 10:20 am, February 11th, 2013 - 7 comments
Categories: child welfare, democratic participation, families, human rights, law - Tags: domestic violence, family court
The Government’s Family Court Proceedings Reform Bill is receiving submissions until this Wednesday, 13 February. For a number of reasons this Bill needs drastic alteration. The women at the Women’s Health Action Trust and the Auckland Women’s Health Centre have put together an excellent document as to why the Bill is headed in the wrong direction (pdf), and shorter (pdf) and longer templated submissions (pdf) against it. I presume they’ll be happy with me bringing it to a different audience, in a bid to get more submissions against the Government’s Bill.
Rather than me re-hashing the flaws in the government’s bill, let me quote a large section of the document: (bolding mine)
The stated aims of the Bill are to reduce the costs of the Family Court and speed up its processes. The Bill does this by introducing a variety of measures that limit access to the Family Court and simplify the Court processes. Family Dispute Resolution (FDR) Providers will be established to create a formal (privatised) approach to out-of-Court dispute resolution, principally for care of children and guardianship proceedings. Counselling sessions will be slashed from six hours to one. Parties will work with an approved FDR provider such as a mediator, to reach agreements. This will be compulsory. The use of Court professionals (psychologists and lawyers) will be restricted and lawyers for children will only be appointed where safety issues are identified. There are, however, no processes identified in the Bill to identify domestic violence or other problems such as poor or neglectful parenting practices, or mental health or drug and alcohol problems.
The Family Court will be subsidised for those few who meet the legal aid threshold, but will cost approximately $897 per half day for the rest. The costs of these processes will be prohibitive for many women. It will also mean that if a mother wants to progress the safety of her children, and the matter is not considered to meet the criteria for access to the Family Court, she will have to pay to keep her child safe. Furthermore, parents cannot file proceedings until they have been through mediation, so those on legal aid will have no access to legal advice until after the FDR stage.
The removal of the right to legal representation from FDR and the prehearing processes is a breach of human rights. Many people will not be able to complete Court documents or represent themselves without legal assistance for a variety of reasons, including stress, intimidation, language barriers, health, and confidence issues. Access to lawyers will be denied for most disputes over children, even where there is domestic violence, sexual abuse, and drug/alcohol issues. [..]
The Bill provides a separate pathway where abuse is identified, but this pathway is only available where there is “proof” of physical abuse. [..] Restricting mother’s access to the Court and forcing them into mediation will put women at risk and could force mothers to accept decisions that are not safe and/or in the children’ s interests.
The Bill holds the interests of the child as paramount [..] However, it does not state that the safety and enhancement of resilience in children who have been exposed to and/or may be the targets of violence is the most important aspect of children’s well-being. One of the five aspects is the child’s right to be brought up by both parents. Specifically, the principle also states that both parents are to be involved in decision-making about the child. If the parents cannot agree, then it’s off to mediation or counselling, or, rarely, a Court hearing.
Interestingly, Australia introduced shared parenting legislation in 2006. However, it was found that there was not enough judicial attention to the violence of the perpetrator and to the safety of the child. The Australian Parliament amended their law in 2011, strengthening the focus on child safety and domestic violence. The Australians realised that too many children were being exposed to violence; the last straw was an incident involving a five year-old girl who was thrown off a Melbourne bridge by her father, whose previous violence had been minimised and ignored by the Court.
So the legislation seems to copy unsuccessful Australian legislation that has been re-written. It reduces the costs of the Family Court by putting out of the financial reach of many of those who most need it, and it forces those who’ve been experiencing violence into inappropriate mediation as it’s cheaper.
The templated submissions can give you a start on what to say: the long submission goes through the research evidence and history of why this Bill is a bad idea, the short submission has a beautiful punchiness.
Go ahead – submit and participate in democracy…