GENDER BIAS & FAMILY LAW
Two New Family Law Bills may have Unintended Effects
The Equality before the law' report confirmed that
gender bias pervades the Australian legal system. Family
law, in particular,
emerges as a problematic area,
with many women complaining that the system has treated
them in a way that is inadequate and unfair.
Dr Rowena Daw is a Senior Lecturer in Law at the University
of Technology, Sydney. She was Project Manager for
the Equality reference from November
1993 until its
conclusion in December 1994. She also previously worked
on the 1992 Choice of law report (ALRC 58).
In this article, Dr Daw examines the gender bias that
occurs when the Family Law Act 1975 attempts to deal
with domestic violence and the division of matrimonial
property. Two Family Law Reform Bills addressing these
issues are discussed.
A major recommendation of the ALRC's report, Equality
before the law was that all future Bills be scrutinised
by a parliamentary committee to assess their impact
on women. As most of the committees,
law reform agencies
and government departments which initiate and develop
legislative policy are dominated by men, it cannot
be
assumed that they will accurately represent the
interests of women, particularly in an area like family
law where gender issues
are so stark.
The Family Law Act 1975 has been under almost constant
re-evaluation since its enactment twenty years ago.
At present, there are two Family Law Reform
Bills before
Parliament. The result of several years work by a Joint
Select Committee and the Attorney General's Department,
they
possibly represent the most fundamental changes
in the history of the Act.
The Family Law Reform Bill 1994 addresses custody,
access and dispute resolution outside the courts. It
aims to end the present win-lose mentality over the
custody
of children and to encourage parents to cooperate
over the responsibility for their children. It also
establishes a system of mediation
and extends counselling
services. The Family Law Reform Bill (No. 2) 1994,
at present an exposure draft, deals with the division
of matrimonial property. Both Bills raise disturbing
issues for women.
Recently the Senate Committee on Legal and Constitutional
Affairs conducted hearings on these Bills in which
the ALRC gave evidence.
The Committee generally supported
the Bills, but made recommendations for change which
ignored some significant ALRC suggestions.
Domestic violence and family law
During 1993 and 1994, hundreds of women clients and
lawyers working with women contacted the ALRC inquiry
to complain about the
legal system's inept and misconceived
treatment of domestic violence. For instance, a survey
conducted by the Illawarra Legal Centre
in New South
Wales, involving 140 women and 43 representatives of
community organisations and government departments,
found that
the inadequacy of the legal system in dealing
with issues of violence was the major concern of those
interviewed.
The ALRC heard many horrifying stories from women across
Australia. A recurring theme was the devastating effects
of domestic violence
on their self-esteem, which, coupled
with a fear of retaliation, deterred women from enforcing
their legal rights.
- In 1992 I dropped the custody application for my eldest
son. It had become obvious to not just me but the solicitors
involved, including
my husband's solicitor, that if
I were to obtain custody of that child, my husband
would very likely kill me. I settled for access
orders
and a property settlement. I settled for less money
than I was entitled to, to avoid losing most of it
in legal fees. My
husband ignored the access orders,
continuing to deny me access to my eldest son ... (Confidential,
Submission 8)
The Family Court, along with magistrates courts, is
more likely than any other court to encounter women
who have been the targets
of violence. Many cases involve
a background of physical or psychological abuse of
women by their partners. Evidence of this abuse
is
often discounted because the courts, wishing to avoid
the previous fault-based approach to divorce, are loathe
to examine the
conduct of partners in marriage. The
Act, however, only requires issues of matrimonial conduct
to be disregarded in relation to
grounds for divorce.
Many women feel that they are not believed by lawyers
and judges, particularly in custody and access proceedings.
Women who raise
allegations of violence have been accused
of doing so only to hurt their partner by frustrating
his access to the children, rather
than out of true
fear for their safety or that of their children. A
common attitude is that if the violence has been as
severe
as alleged, the woman should simply have left
the relationship. This implies that the woman is not
telling the truth and also ignores
simple truths, for
instance, that it may be financially impossible or
very dangerous to leave a violent partner.
- [I]t often seems, and I certainly feel, that a woman's
experience as a victim and survivor of domestic violence
is often trivialised
in Courts - both Family and elsewhere.
This may be particularly [so] if the woman does not
present as the classic victim' - ie,
she is determined
to regain control of her life, she attempts good grooming,
she is clearly articulate and intelligent. None of
this means that she is not frightened by her partner
and has not been subject to violence, intimidation,
threats and harassment
at his hands. It will continue
to be trivialised as long as the judiciary and court
officials - even counsel - are uninformed about
domestic
violence. (Confidential, Submission 50)
Family Law counsellors also came in for some criticism:
- Do other victims of attempted murder have to sit and
speak (with their children) to the offender? How would
you react, could you
be totally normal taking into
account years of total control and terror? We are then
judged on our willingness to discuss what
is best
for the child" (Confidential, Submission 50)
Many women complained to the ALRC that their former
partners attempted to prolong the abusive control they
had exerted during their
relationship by making repeated
applications for variation of existing orders for access
or maintenance. They felt that the legal
system was
not vigilant enough in checking this abuse of process.
- There was and is a great need to protect my daughter.
We went through 11 hearings, false allegations, abuse
and violence occurring
when access took place (when
I was convinced by [the] lawyer to send her and see
what happens'). My ex-husband started the proceedings
... of access/custody. One working day prior to trial
he withdrew. He can start access again at any time,
and has indicated he
is intending to do so in letters.
All I have is my daughter's true wish not to see her
father and information of years of violent
abusive
relationships. I cannot get into court. (S Anchor,
Submission 143)
The Illawarra Legal Centre raised the serious problem
of conflicting orders. For instance a magistrates court
might grant a restraining
order to prohibit the husband
from entering the wife's premises and the Family Court
might grant an access order giving him the
right to
collect the children from the home. The police are
then confronted with contradictory court orders, jeopardising
the
woman's safety. At present there is no system of
cross-checking the orders of state and federal courts.
This problem is not addressed
by the current Bill which
places the onus on the parties the reveal the existence
of a restraining order to the court.
Family Law Reform Bill 1994
The Family Law Reform Bill 1994 removes the concept
of access, instead providing for contact orders. After
much campaigning the Bill directly addresses the issue
of family violence. It includes the following features:
- it attempts to resolve the problem of conflicting orders
by giving more extensive powers to magistrates' courts
(eg by granting
the power to vary, discharge or suspend
a contact order in certain circumstances) and by requiring
the court to take account of
an existing restraining
order before deciding to give contact rights
- it provides that family violence is a factor to take
into account in determining the best interests of
the child
- it provides some protection for the spouse who has
disappeared with the children because of a violent
marriage.
All these features are commendable. However they are
somewhat undermined by other provisions in the Act.
The Bill provides that a child has the right to continuing
contact with each parent. The UN Convention on the
Rights of the Child
qualifies this right with the phrase
except if it is contrary to the child's best interest'.
This Bill contains no such exception,
a fact which
may well discourage the court from treating cases of
family violence as exceptions to the norm. This may
restrict
the use of orders such as denying or suspending
access, and setting minimum terms of access. As the
Women's Legal Service, Brisbane,
recently pointed out
in its comments on the Bill, it is essential that
women leaving violent men be given a real opportunity
to establish a new life.' The Bill's insistence on
cooperative parenting is not appropriate for these
situations.
The second aim of the Bill is to encourage spouses
to settle their disputes outside the court system,
with the help of approved
mediators as well as counsellors.
The mediators must comply with regulations which should
specify circumstances in which mediation
should not
occur, for instance where there has been a history
of violence. There is no such requirement for the counselling
service.
However, many women complained that counsellors
failed to understand or take seriously the predicament
of women who had been subjected
to serious ongoing
violence. In some cases, joint counselling could be
ordered when a woman was afraid to be in the same room
as her husband.
To address this problem, the Equality report recommended
special training for counsellors and a provision suspending
the requirement for counselling or specifying separate
counselling where a spouse fears violence from her
partner. The Bill does not contain such a provision.
Recent incidents of violence
associated with counselling
sessions demonstrate that this is a matter of urgency.
Inequality of resources is another concern. The move
towards mediation is a cost saving measure for the
court and for the participants.
But the woman who has
been in a violent marriage will not be using this service.
She, like other women, is likely to be poorer
than
her husband and, under current restrictions on funding,
she is unlikely to receive legal aid. Unless more funds
are available
for family law, abused women, already
the least well served by our system, will be even worse
off than they are now.
The recent Senate Committee discussed family violence
and contact orders but did not make recommendations
on these issues.
Matrimonial property reform
The Family Law Reform Bill (No. 2) 1994 deals with
the thorniest of problems - the division of matrimonial
property after divorce. The Bill aims to make the law
simpler
and more user friendly for couples who want
to do their own settlements. It does this in three
main ways:
- legal effect is given to any agreement spouses (or
future spouses) draw up themselves - these are called
financial agreements
- legislating the principle of the 50/50 split as a starting
point in property settlements
- setting out an increased role for mediation.
The ALRC, along with other critics of the Bill, have
insisted that the Bill is destined to be disastrous
for women, particularly
given the emphasis on mediation.
Family Law reform must always take account of the socio-economic
position of women in our society.
The ALRC report Equality
before the law made some basic findings about this.
It confirmed that women are, on average, poorer then
men, have less access to financial resources,
make
a larger contribution to the unpaid work of the community
and have different work patterns than men. It found
that almost
all single parents are women, that women's
contribution in the form of unpaid work is undervalued
in the law, and that their work
skills are undervalued
in the paid work force. The study also reported on
the lack of credibility and alienation felt by many
women operating in a system staffed predominantly by
men. These factors limit womens' access to the courts,
their bargaining power
in property matters, and their
financial position after a divorce.
Research for the earlier ALRC Matrimonial Property
report (ALRC 39), Settling Up, clearly showed that
separation and divorce often have widely different
effects on men and women and that womens' earning capacity,
unlike men's, is diminished by marriage, especially
a long marriage. As a consequence children, who usually
stay with their mothers
after divorce, are suffering
the effects of poverty.
More recent studies, such as Settling Down (1993),
found that the disparity in standard of living between
husbands and wives was modified, but not eradicated,
after a time.
- By three to five years after the separation, 54 per
cent of men and 38 per cent of women had repartnered;
three years after that
proportion had risen to 70 and
52 per cent respectively. ... Almost four in five mothers
were initially dependent on social security;
they gradually
returned to paid employment but, regardless of their
source of income, if they stayed single they remained
at risk
of poverty and had household incomes well below
those of their former spouses. This is evidence that
children are omitted from
the equation when financial
settlements are arranged between divorced parents.
Their chance of regaining the pre-separation socio-economic
status of their parents lies very largely in their
mother's repartnering. (Settling Down p 236)
It stated that although women with children were more
likely to stay living in the matrimonial home in the
longer term, most homes
were eventually sold. Housing
costs comprised a very high proportion of the sole-mother/family's
budget. Being an owner/mortgage
holder was more likely
among repartnered mothers and among men. Fathers retained
earning capacity, shared little or none of it
with
children and their ex spouse, and usually came out
of the divorce able to obtain credit for housing and
to service loans.
The study concluded that:
- Gender has several very important effects on the economic
consequences of divorce. First, in Australian society
as in all Western
societies, gender determines the
major responsibility for children's care, both during
marriage and after. Second, gender is associated
in
many and complex ways with access to education, to
paid employment and to wage rates, security, fringe
benefits and lifetime
earnings. These two factors are
inextricably entwined and their operation extends from
earliest socialisation, through marriage,
child rearing
and divorce. Third, the responsibility for income to
support children, the major part of which falls to
the father
in marriage, does not continue after separation.
Fourth, the unearned contributions to the marriage
economy are inadequately and
only notionally considered
in divorce settlements, in assessing the true costs
of children, in considering the costs to the care
given
in terms of lost earnings, and in reduced access to
employment. (Settling Down p 237)
In the course of the Equality reference the Commission
received many submissions from women supporting those
conclusions. Women
called for legal principles to ensure
equality of results for men and women.
- A homemaker after giving most of her life to caring
for a family, raising children, cleaning the home etc,
should not be the one
to end up losing her home with
no chance of buying another ... Both parties should
end up in a more equal position. (J Hanell, Submission
91)
The Family Court does not regard caring for children
after divorce as a contribution to the other spouse's
superannuation fund.
Submissions argued that this is
unjust.
- Both within and without of the marriage I was performing
the role of caregiver to the children while my ex-husband
was free of all
responsibility ... so although I was
not acting as a wife in the years after the divorce
I was still very much part of his life
providing the
care his children required. I feel that ... I should
be eligible to share in a percentage of that retirement
income
acquired both during the marriage and after
it ended. (M Flynn, Submission 631)
Many submissions complained that because their husbands
controlled the family assets they had managed to conceal
their true financial
position from the court and had
ended up much better off than their wives.
- It was shown that my husband was not disclosing his
true financial position since a large amount of money
from his work and later
from his X business (in which
I was a partner) was taken by him overseas. His lifestyle
could not have been maintained on the level
of income
he declared to the Court. He failed to show where his
extra income came from, yet this was not taken into
account by
the Court in arriving at the property settlement.
The Court should endeavour to trace funds transferred
overseas by a partner in
marriage for the purposes
of avoiding the inclusion of these funds in a property
settlement. This should be supported by the Government
by way of treaties with other countries. (Confidential,
Submission 501)
It is disappointing, then, that the idea to create
a separate offence of intentionally failing to disclose
assets has been dropped
from the reform Bill.
A rethinking of what equality means is needed. The
Equality report, drawing on Canadian cases, concluded
that substantive rather than formal equality is necessary
to provide justice for women.
That is to say that to
treat men and women the same in all cases may be to
ignore social differences, further entrenching disadvantage
rather than leading to equality. This was also largely
the approach of the 1987 ALRC Matrimonial Property
report (ALRC 39).
The Matrimonial Property Report
This Report stated the aims of a good matrimonial property
law as follows:
- the law should be clearly stated
- the law should reinforce the equal status of men and
women in marriage
- the law must be capable to applying to all kinds of
marriages
- the law should provide guidelines and procedures to
help spouses to resolve property matters informally,
without oppressive bargaining
and without resort to
litigation
- the law of matrimonial property must harmonise with
other areas of the law. (ALRC 39 para 295)
The law must strike an acceptable balance between flexibility
and predictability, and encourage spouses to settle
their property
disputes with a minimum of cost and
distress. These principles are clearly basic to a reform
of family law.
The Report concluded that a strict rule of equal division
of property is not a just basis for the law. The proper
test is whether
the economic hardship arising from
the breakdown of the marriage has been distributed
as fairly as possible between the family
members. The
Report decided that it is not the role of matrimonial
law to take care of the future needs of those separating,
but
that it should make adjustments that take account
of the financial disparities resulting from the breakdown.
- The only relevant disparities are those caused by the
allocation between the parties of their responsibility
for the future welfare
of their children and by the
effect of the marriage on the earning capacity of either
party. Both matters are directly referable
to the marriage.
As to the children, the parties continue after separation
to share responsibility for their welfare. If the arrangements
for the children place one party at a financial disadvantage
relative to the other, it is appropriate to make up
for this by an
adjustment of shares of property. If
the allocation during the marriage of the spouses'
shared responsibility for child care, household
management
and financial matters affects the earning capacity
of either of them so as to cause a disparity in their
living standards
after separation, it is appropriate
to make up for this in the property adjustment. Such
adjustments are not and should not be
seen as some
form of spousal or child maintenance. They are, rather,
an essential part of the property adjustment in that
they
recognise disparities flowing directly and solely
from the marriage relationship. (ALRC 39 para 378)
The Report included a draft Bill. It required there
to be substantial difference' in contribution to displace
the starting point
of equal contribution and it specified
precisely the factors to take into account:
- the economic history of a marriage
- disparities between standards of living reasonably
attainable after separation, if that disparity is attributable
to the earning
capacity having been affected by the
responsibility for childcare and household management
- the financial resources of each of the parties to the
extent that they have been acquired, maintained or
increased during the marriage
or cohabitation.
Superannuation, usually belonging to the man, is often
the main asset in a marriage but is not at present
considered as property.
The ALRC Bill states that current
superannuation entitlements should be included as property
and valued in accordance with a stated
formula. It
would then be subject to the rule of equal division.
It can also be considered as a financial resource.
Many practitioners
already use this formula for the
division of superannuation.
Family Law Reform Bill (No. 2) 1994
Some features of the ALRC Matrimonial Property report
draft Bill were adopted by the Joint Select Committee
but have been lost in the subsequent drafting process.
The current Bill does not achieve that level of certainty
combined with a degree of flexibility which is the
major achievement of
ALRC Bill, nor does it do proper
justice to the role of women in marriage. The current
Bill enacts the starting point of the 50/50
split which
is existing Family Court practice, but allows that
to be displaced by proof that the contributions were
not equal.
It only permits the future needs' of the
parties to be considered if it is necessary to achieve
justice when these needs should
be an integral part
of the whole process.
As it does not provide a list of clearly defined factors
by which to depart from the equal division, nor require
there to be a
substantial difference' in contribution
to displace it, the Bill retains essentially the same
degree of discretion as under the
current law. Given
the increased role envisaged for mediation, this is
particularly important. Critics of the Bill argue that
parties will agree to a 50/50 split, usually to the
detriment of women, because the law does not give them
clear directions as
to how a court would depart from
it. The government has responded to this criticism
by calling for a campaign to educate the public
but
it is hard to know what, short of a study of existing
Family Court cases, they can be educated about.
The future needs' component of the property settlement
is crucial for many women. Section 79 requires the
court to embark on a
dual exercise, assessing past
contributions and future needs as equal in importance.
Under future needs', the lawyer can add a percentage
for the fact that the woman will be living with the
children, with all that means in terms of costs and
restrictions on earning
capacity. If her role in the
marriage has decreased her earning capacity, that can
be taken into account in increasing her future
needs.
In downgrading future needs, the Bill downgrades women's
contribution to marriage.
Unlike the ALRC's draft Bill, the current Bill does
not define what property is included in the 50/50 split.
It does not deal with
the issue of superannuation.
It has also omitted to take up the arguments raised
by the ALRC and others that a history of violence
in
a marriage is likely to have an impact on contribution
to property and on future earning capacity.
Financial agreements
The proposed rules on financial agreements in this
Bill involve radical surgery to the current Act and
represent a significant philosophical
shift in the
law.
Under the current Act a couple may make a property
agreement at the end of their marriage. As long as
this is placed before
the court for approval
it can then be binding on both parties and the Court.
In practice, provided each party has been independently
advised and the agreement is not patently unfair, the
Court will approve it.
Under the proposed Bill, financial agreements could
be made at any time before during or after the marriage.
The Court would not
be required to vet them. They will
be binding once signed and witnessed. The witness could
be any person including someone related
to either party,
for example, a member of the husband's family such
as a brother or son, or a business partner. Unlike
similar
agreements under De Facto Legislation, there
is no cooling off period and no requirement for each
to have received independent
legal advice.
Without such safeguards, the distressed, over-hasty,
guilt-ridden, terrified or downtrodden spouse can bargain
away the future security
for themselves and their families
under the stress of what is often the major crisis
of their adult lives. Alternatively, they
could make
the agreement in the first flush of romance with only
the haziest view of what lies in store for them.
The Bill allows the Court to set aside such an agreement
if a serious injustice is shown to have occurred. This
is measured not
by looking at the justice of the terms
of the agreement but by reference to the age, physical
capacities and educational backgrounds
of the parties
at the time of the agreement.
While the Bill makes it easier to escape an unjust
agreement, there are still problems. It might be hard
to prove much about your
physical incapacity in 1995
when your marriage breaks up in 2015. In addition,
most agreements concluded under emotional strain
or
in fear of one's safety could not be set aside on the
grounds provided. While in some cases - one is tempted
to say in the
cases of the relatively egalitarian marriages
of highly educated baby boomers - the financial agreement
may provide an inexpensive
resolution of their financial
affairs, in other cases it may be a disaster.
This Bill treats marriage as a cool commercial agreement
between two parties who are both aware of their commercial
self-interest
and their legal rights - a view which
might generally be considered to be unrealistic. Even
though the maintenance component of
an agreement can
be varied, given the low level of spousal maintenance
(and often child maintenance), the property settlement
is the most important guarantee of future economic
security for families, and particularly for women.
Matrimonial law surely has
a responsibility to ensure
a fair social outcome for families. However, this Bill
lacks even the safeguards of a commercial contract.
Families' economic security should not be able to be
bargained away without greater safeguards.
The Senate Committee has referred to these objections
to the Bill but did not recommend any amendments nor
express any views.
Prenuptial agreements
The Bill also makes prenuptial agreements subject to
variation or being set aside by a court in very restricted
circumstances which
include serious injustice'. The
Bill implies that serious injustice' means more than
not being able to achieve a just and equitable
result.
As before, the Bill reflects a narrow view of reality.
Prenuptial agreements may be desirable for the propertied
wife entering her
second marriage and wanting to quarantine
her property for her children, but not necessarily
so for the young Muslim woman whose
cultural background
might require her to sign away her rights to property
if she, though not her husband, commits adultery or
abandons the home.
Has the Committee considered the cultural context in
which prenuptial agreements are made? The ALRC report
Multiculturalism and the Law favoured prenuptial agreements
but not that they should be binding on the Family Court.
The Senate Committee has also recommended
that they
not be binding.
There are several ways in which the financial agreements
section of the Bill could be improved. They could require
stronger formalities
before an agreement can be valid.
In particular, independent legal advice for both parties
should be mandatory, and there should
be restrictions
on who can be the witness to an agreement. They could
permit unfair or unreasonable agreements to be set
aside.
They could include a change in circumstances
of the parties since the agreement was made as a trigger
for a court examination of
the appropriateness of the
agreement (the present ground of the impracticalities
of implementing the agreement being insufficient).
Conclusion
Some significant ALRC criticisms of the Bills have
not been heeded by the Senate Committee. While legislation
such as the 