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Chapter 1

FAMILIES

The Justice Statement reinforces the Government's ongoing commitment to families with a range of initiatives that will assist families to avoid legal problems and deal with any difficulties or disputes that may arise.

The Government will increase funding to existing family support services and will provide resources for new court and community-based initiatives to assist families. The Government will:

These measures will considerably boost the Government's already substantial support for Australian families.

Families are a fundamental national resource. They are the lifeblood and the future of our nation.

The Government's commitment to families was reiterated by the Prime Minister when he launched the International Year of the Family in Australia.

The diversity of Australian society is reflected in its families. They are diverse in culture, location, structure, composition and socio-economic circumstances. Over time, as society develops and changes, families also diversify and change. Relationships within a family can alter, as can a family's socio-economic circumstances. When formulating policies, governments must always be mindful of the diverse nature and circumstances of families. The support structures available to them must be responsive to their changing needs.

Family support services provided by the Government contribute to the well-being of families. This, in turn, leads to a more just and harmonious community, and improves the quality of life for all Australians. Initiatives in this Statement build on existing family support programs.

As detailed in the recent Agenda for Families, the Government already provides extensive support for families in a wide range of programs. The Government currently commits over $22 million every year to more than 90 community-based family support and financial counselling organisations. These funds provide a range of services directed towards improving relationships between couples and within families. The family support services include marriage/relationship counselling and education, skills training for parenting, and mediation within families facing difficulties, particularly assisting with separation, divorce and adolescent crises.

These family support services help people to enter relationships with a better understanding of the significance and meaning of that commitment and to deal with the difficulties that can arise over the years in their relationships with each other and with their children.

The Government provides over $14.5 million each year to community based agencies for relationship counselling. Such counselling assists couples to resolve relationship problems in the most helpful and appropriate way.

Over $1 million each year is provided for marriage/relationship education and enrichment courses. These courses give information on issues likely to cause difficulties in relationships and develop conflict resolution and negotiation skills.

The Government provides nearly $2 million per year for family mediation. Family mediation aims to achieve the resolution of specific disputes in family relationships. A neutral third party assists parties to resolve disputes that otherwise may result in litigation in the Family Court.

Adolescent mediation and family therapy receives over $1.5 million in Government funding each year. The primary aim of adolescent mediation and family therapy is to prevent the homelessness of young people by resolving disputes between young people and their parents.

The family skills training program receives over $1.5 million each year in Government funding. This preventive program aims to promote successful parenting by providing disadvantaged families with problem solving skills and positive information on how families can function.

In addition to funding these support services, the Government has also been working to make the legal system more responsive to family needs. The Family Law Act and the mediation and counselling services of the Family Court have been established to help families to work as constructively and cooperatively as possible through relationship breakdown. Improved access to these family law services and particularly to mediation in family matters is a key commitment of the Government's justice strategy.

Of course, our strategy in this statement is not directed only to the formal avenues of dispute resolution that are the end-points of the justice system. Based on the principle that prevention is better than cure, the Government's strategy emphasises the prevention and resolution of problems in families before there is a need for contact with the legal system. At the outset, it is better for people to be equipped with information and skills that can help them to avoid family disputes and legal problems.

PREVENTING PROBLEMS IN FAMILIES

The Government is committed to the continued development of measures that will minimise people's need to use formal means of resolving disputes. People who are aware of their legal and social responsibilities and rights are better equipped to deal with family crises and able to make appropriate decisions in situations of change. They are less likely to slip unknowingly into a legal difficulty. Information and community support can empower people to resolve family situations that could otherwise turn into legal problems.

SUPPORT FOR FAMILIES

The initiatives in this Statement will not only improve access to justice for families but also provide support for families to assist them in difficult times. An important emphasis will be on developing skills to deal with problems, with the outcome that there will be less need for resort to legal solutions when families are in distress. By providing assistance or support for families to deal with problems in family relationships, with violence and with support for children, there will be fewer matters ending up in the Family Court and the criminal system.
The Government demonstrates its continuing commitment to families with increased funding of $12.3 million to enable more marriage and relationship preparation courses and measures to extend access to a range of family relationship support services, particularly for people in regional and rural areas and for people of non-English-speaking backgrounds.

Marriage/Relationship Preparation

Preparation for relationships, access to information and help with ongoing relationship difficulties equips couples and families to deal effectively with problems that can arise in their lives together. The Government currently provides over $1 million each year to a broad range of community organisations that conduct courses for couples to prepare for marriage and to develop skills during the course of their relationships. These include communication and conflict resolution skills. Sound preparation for relationships and a realistic attitude to their trials as well as their joys can help enhance family relationships over time and prevent many relationship breakdowns.

Existing marriage and relationship education services are concentrated in metropolitan regions. The Government believes that new marriage and relationship education services are needed in larger regional locations. In addition a distance model is needed to address the needs of smaller rural communities.

The Government will provide $4 million over four years to expand the availability of relationship preparation courses. The greater availability of relationship preparation courses will enable couples to address the cause of problems before they become legal matters. Additional relationship education services will be established in major regional centres in most States and Territories.
These courses will be designed specifically to provide information and skills relevant to all of today's couples. They will address the needs of couples before marriage and at important stages in the life of their relationships.

Access for People of Non-English-Speaking Backgrounds

The Government is committed to making its services accessible to the whole community. Society as a whole benefits from policies that facilitate access and enable all citizens to contribute fully. In the area of relationships, we need to ensure that our services are relevant to people from the diverse backgrounds that make up our society.
Additional funding of $2.7 million will assist relationship and family services agencies to make their services more appropriate and accessible to families from non-English-speaking backgrounds.
We will place a community development and education officer in established services in six of the highest need areas in Australia. They will assist people from non-English-speaking backgrounds to make best use of the relationship support services available for families. In particular they will focus on increasing use of marriage/relationship counselling services, relationship counselling, and courses in parenting skills. These community development officers will also ensure that other workers in the field - family counsellors, marriage/relationship educators, family skills trainers, and youth workers - become familiar with the needs of their non-English-speaking background communities, work in close liaison with providers of services to these communities and have access to training in cross-cultural awareness.

Access for People in Rural and Regional Areas

Many Australians live far from our major cities. Including the large regional centres, there are 4.8 million Australians living in rural and remote areas. Lack of services has been identified as a significant rural problem that has become more acute in the current drought-induced rural crisis. The Government has responded with short term crisis counselling assistance to these families.

As to recurrent services, these are concentrated in capital cities. The extension of family skills training, adolescent mediation and family therapy programs to areas not already receiving services will assist families in crisis to receive support and resolve their difficulties.

The Government will extend its family services programs to regional and rural areas.
New materials on marriage/relationship services will be developed to provide education materials and outreach services for people in remote areas. Extension of family skills training, adolescent mediation and family therapy beyond metropolitan areas will also allow greater access for all Australians to information on parenting skills and to a means of resolving disputes between adolescents and their families.
The Government will provide funding of $2.8 million over four years to expand family skills training services, particularly to meet the needs of large populations in regional areas. This will produce a 50% increase in family skills training and will assist 12,000 additional clients. The preventive family skills training program will particularly assist disadvantaged families in major regional areas.
Adolescent mediation and family therapy services are proven and effective in resolving problems arising between adolescents and parents or other caregivers. They help keep families together and prevent youth homelessness. Adolescent mediation and family therapy programs address communication patterns in families, problem solving abilities and the structure of relationships that can contribute to problems between adolescents and parents.
The Government will provide further funding of $2.9 million over four years to expand adolescent mediation and family therapy services in rural and regional areas. This will assist more young people to resolve their problems with their families rather than leaving home prematurely. This increase will bring the total number of clients assisted through the program to almost 15,000 per year.
The Family Court also provides important services that assist families to deal with and resolve relationship problems. People in country areas need access to these services without having to travel long distances.

As elsewhere in this Statement,[1] the Government will provide funding to enable the expansion of Family Court counselling services by establishing and upgrading counselling registries in regional areas.

Family Services Council

In late 1994, the Government appointed a Family Services Council to advise it on family services issues. The Council includes representatives of the three peak bodies that are funded to provide family services - Relationships Australia, Centacare Australia, and Family Services Australia. It also includes people chosen for their specialist expertise and broad knowledge of family services issues.

The Council will advise on research and policy directions for the delivery of services to families, including marriage/relationship counselling, family mediation, marriage/relationship education, adolescent mediation and family therapy, and family skills training through community agencies. The Council will also act as a conduit between Government and agencies providing services to families. In this way, the Government is ensuring that it has direct advice on family issues from those who have day-to-day exposure to the challenges facing families and access to expert knowledge on current developments and research initiatives in the field.

FAMILIES AND FINANCE

Financial Counselling

Families can experience financial trouble for a range of reasons, including unemployment, business difficulties, sickness, credit problems or simply a lack of knowledge of effective budget management skills. As the marketplace becomes increasingly complex, many people are finding it harder to manage, particularly those on a low income.

In response to overwhelming demand from individuals and families for assistance, the Commonwealth Financial Counselling Program was established in 1990 to provide financial counselling services for low to middle income groups in the community. Throughout Australia, 30 Government-funded financial counselling services assist people facing financial difficulties.

These services help people with a wide range of problems. Specialist financial counsellors employed by these services provide expert advice and education to people who come to them in crisis or who are referred to them for help.

A family business facing bankruptcy, for example, often will be referred to a financial counselling service for assistance in developing a plan to manage its way out of crisis and repay its debts. In this way, time-consuming legal action between the family and its creditors through bankruptcy proceedings often can be avoided. Timely assistance to the family, by relieving worries about apparently insurmountable financial problems, may prevent marital breakdown. This reduces the social and economic costs of family problems.

Increased demand for services, particularly in country areas, has placed pressure on existing resources. In response, the Government will increase services to meet the demand, particularly in rural and remote communities and in communities with special cultural and linguistic needs.

The Government will provide $1.3 million for financial counselling services this year and $1.7 million in the following years. This will give more people access to advice from financial counselling services to help them with their financial difficulties.
This increase in funding for financial counselling services will: This increased funding will provide for a substantial increase in the number of counsellors. At least 15 new services will be established in areas of demonstrated need and some existing services will be expanded. Around 8,000 new clients or families will be assisted this year and around 10,000 in each subsequent year.

In deciding exactly where new services will be funded, the Commonwealth will look closely at a number of criteria that indicate need. For example, levels of bankruptcy, numbers of pensioners and beneficiaries, unemployment levels and debt levels will be taken into consideration. Many communities face cultural, language, and access difficulties. Services that assist them have to be particularly sensitive to special circumstances and have to be culturally appropriate.

Particular emphasis will be given to establishing services to assist Aboriginal and Torres Strait Islander people, people from non-English-speaking backgrounds and rural and remote communities.

The Commonwealth will also consult with peak bodies such as the Australian Financial Counselling and Credit Reform Association and key community groups in deciding exactly where new services are to be placed. As a broad indication, the Government's current analysis shows that likely regions to benefit are far north Queensland, the north-west slopes and plains of New South Wales, the far west New South Wales/Queensland border regions, central Western Australia, country South Australia, south-west Brisbane, northern Tasmania and east of Melbourne.

It will also be important for the Commonwealth to consult with State/Territory Governments as they also fund financial counselling services. The Commonwealth is keen to ensure that States and Territories maintain their current levels of effort and do not reduce their valuable support in this area. This will mean that the new funding announced in this Statement will lead to a real increase in the number of services across Australia and vastly improved financial and social circumstances for thousands of people.

This increased funding for the Commonwealth Financial Counselling Program is a timely and extremely effective way to help implement the Government's Social Justice Policy. It will help reduce the burden on individuals, families and communities and is a clear statement of support for a grassroots program for people with little access to other legal and financial support.

Bankruptcy - One Stop Service

In addition to providing increased funding to community-based agencies for family and financial counselling services to assist families, the Government is committed to the improvement of its own service delivery.

An example of this commitment to improved service delivery is the Government's decision to establish a consolidated `One Stop Service' and bankruptcy administration, within the Insolvency and Trustee Service, Australia.

The One Stop Service will form an important part of the Government's proposals for major bankruptcy law reforms to improve access to justice in personal bankruptcy. The One Stop Service will make it simpler for people in financial difficulty to be advised about their options before going into voluntary bankruptcy. One of the main features of the One Stop Service is that advice and information to persons in financial difficulty will be available at the one site. People will only need to visit the Insolvency and Trustee Service Australia instead of also having to attend the Federal Court. In rationalising the delivery of essentially one service in the one agency, overall costs to the taxpayer will also be reduced. This service will be another way that families, among others, may be assisted when they experience financial difficulties.

Some features of the One Stop Service and related bankruptcy reforms are dependent on amendments to the Bankruptcy Act, which are currently before the Parliament. The initiatives are scheduled to come into operation in December 1995, subject to passage of the legislation by Parliament.

RESOLVING PROBLEMS IN FAMILIES

It is 20 years since the Whitlam Government enacted the Family Law Act. Undoubtedly it was one of the great social and legislative reforms of that era. When introducing the 1973 Family Law Bill into the Parliament, Attorney-General Lionel Murphy acknowledged the significance of the Bill.

He said that the Bill:

... was a most important social reform. It will affect the lives of many people. By introducing a sane, balanced law to deal with family disputes, it is hoped that where marriages do break down - as they undoubtedly will continue to do so under the stresses and strains of modern life - persons will be encouraged to adjust their transition from married life with the minimum of bitterness and animosity. At least under this legislation, persons will not become financially as well as emotionally bankrupt as a result of divorce proceedings.
Since that time the Family Law Act has generally served us well. But society has changed in a number of ways, not least of which has been the changing role of women in our society and our views on the status of children. The law must keep up with those changes.

FAMILY LAW ACT REFORM

The Government introduced the Family Law Reform Bill into the Parliament in October 1994. The reforms in that Bill are partly in response to the findings of the Parliamentary Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act. They also implement the recommendations of the Family Law Council Report on the Operation of the (UK) Children Act 1989.

The Bill greatly expands the options for dispute resolution by making mediation and counselling the primary ways to resolve disputes and litigation only the final recourse for those cases where the primary mechanisms fail to achieve agreement between the parties. The shift to mediation is a major change in the approach to resolving family law disputes.[2] The Government is committing significant additional resources to family mediation both in the community and attached to the Family Court. These measures are detailed elsewhere in this Statement.[3]

The Family Law Reform Bill also makes major changes to the way in which property is divided when people divorce, in the interests of greater fairness and certainty. Under the current system, property division is decided under a broad judicial discretion. Because the principles on which a Court divides property are not stated with any precision, it is difficult for the parties to see and understand the process that has been followed and to accept that the outcome is just. Furthermore, the current law has often presented problems for women who have not been in paid employment during the marriage, who find that they have to justify the acceptance of their unpaid work as a fair contribution to the joint property.

What is clearly needed is a property regime that recognises the equal status of the parties to a marriage, redresses any power imbalance, excludes the notion of fault and provides a just, equitable and predictable matrimonial property and resources division between the parties, based not only on contribution but also on other factors, including their shared child-caring responsibilities.

The new approach will provide a less discretionary and more predictable outcome to matrimonial property. It is designed to encourage and assist parties whose marriages have broken down to negotiate a settlement of their property matters rather than resort to a more expensive and time-consuming court-based solution. It will give people more control over their own property arrangements by allowing the Family Court to recognise and take account of agreements that the parties themselves made before marriage. The reforms are designed to make the division of property fairer and particularly to ensure that women's non-financial contributions to the joint property of a marriage are properly taken into account.

Under this new approach, each spouse will be assumed to have contributed equally to the property, removing a major source of contention from divorce proceedings and saving women from having to prove the undoubted worth of non-financial contributions to marriage. This approach is based on a recommendation by the Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act.

The new approach will clearly recognise the equality of contribution of women and men in the relationship and in the acquisition and preservation of matrimonial property. The Court will assess a range of factors in deciding on the division of property. For example, both parties' earning capacity, health, childcare requirements and future needs will be taken into account. The overriding concern of the Court will be to see that the division of property achieves justice and equity.

The Government will reform the Family Law Act to produce greater certainty and fairness in the division of matrimonial property.
The Family Law Act is also being amended to improve the way that arrangements are made for parent-child relationships. These reforms are detailed below.

VIOLENCE AGAINST WOMEN 4

The National Women's Justice Strategy is one of the key initiatives of this Statement. The elimination of violence against women is a major part of the strategy. The Government is committed to improving the status of women through a range of family law and criminal law reforms to eliminate violence against women. Details of these reforms are outlined elsewhere in the Statement.

The Government is concerned to prevent violence against women and children in families. New initiatives in this Statement to achieve this aim include:

Other initiatives that the Government has taken in recent times have strengthened the protection that women gain from court orders against violence. Magistrates' courts can now alter orders of the Family Court that provide for contact between separated spouses, for example, in handing over children for access visits, where the contact orders would be inconsistent with a violence protection order issued by the magistrates' court.

FAMILY COURT ABORIGINAL AND TORRES STRAIT ISLANDER LIAISON

The Family Court has been aware of the need to improve its ability to provide appropriate assistance to Aboriginal and Torres Strait Islander communities and to increase its understanding of customary law. The Court has conducted more than 18 months research and consultation with Aboriginal and Torres Strait Islander communities throughout the country, and agencies that serve those communities, to identify their needs and to develop best practice services to meet them.
The Government will provide nearly $2 million over four years to enable the establishment of Family Consultant liaison officers, initially in the Northern Territory and Queensland, to provide a bridge between Aboriginal communities and the Family Court.
The family consultant officers will liaise with Aboriginal communities and provide support on Family Court matters. They will also advise Court staff on tribal customs and law. Family consultant officers will be located at Alice Springs and Darwin and in two Queensland regions.

CHILDREN AND YOUTH

FAMILY LAW

The Family Law Reform Bill will significantly alter the way in which the Family Court deals with parent-child relationships after divorce. The concepts of `access', `custody' and `guardianship', which have led to the belief that parents have rights in relation to children, will be removed. Instead, the legislation will focus on the parental responsibility that parents have towards children. Children need proper parenting, regardless of whether their parents decide to dissolve their relationship with each other. They remain parents of the child and their responsibilities as parents continue. Refocusing on parental responsibilities is directed to ensuring the best care, welfare and development of the children.

Importantly, the reforms will provide as many opportunities as possible for parents to work out their own solutions rather than asking the Court to make a decision. The Court should only be asked to decide these matters where the parents cannot agree.

The reforms provide for separating parents to agree on parenting plans that address the future arrangements about the children. A plan can deal with all matters relating to parenting including residence, contact, day-to-day or long-term care, welfare and development of children. Plans can be as brief or as elaborate as the parties desire and can cover issues of special interest to the individuals involved.

These reforms, of course, are qualified by the specific provisions of the legislation that ensure decisions are made in the best interests of the child. If it is not in the best interests of the child to have contact with a parent, the Court will make appropriate orders to that effect.

The Court will have at its disposal a wide range of orders to deal with the complete spectrum of child-parent relationships. It can decide with whom the child is to reside, with whom the child is to have contact and who will be responsible for the day-to-day and long term care, welfare and development of the child.

New factors that the Family Court must take into account, in determining the best interest of the child, will be any family violence or any family violence order and also the need to protect a child from either physical or psychological harm that might flow from abuse, ill-treatment, violence or other harmful behaviour towards another person.

FAMILY SERVICES

The Government recognises that in the event of irretrievable family breakdown, and particularly when children are involved, there must be adequate and well-structured support services. Access to justice cannot be denied to children - some of the most vulnerable members of our community.

Regardless of divorce or separation, children have a right to maintain contact with parents where that is in the children's best interests. However, the practicalities of maintaining contact are often difficult. In a significant number of cases, handover of children and the necessary contact between parents takes place against a background of conflict and tension. It can sometimes only occur satisfactorily on a neutral meeting ground.

The Government is committed to addressing relationship problems that may affect the children and in particular to facilitating safe visiting arrangements.

Parents using the handover centres also will be given the opportunity to become involved in family skills training, which assists parents to develop parenting skills, particularly for dealing with situations creating difficulty and conflict. In situations where parenting skills are inadequate, parenting skills education will encourage quality family relationships with the interests of children being paramount.

The Government will allocate $5.3 million over 4 years for a national pilot program of access handover and visiting centres, for safe and appropriate transfer of children between separated parents where families are experiencing conflict or there is a background or risk of violence, other abuse or abduction. The program will fund one pilot centre in each capital city possibly co-located with existing community services, such as neighbourhood centres.
As detailed earlier, additional funding will also be allocated to enable the establishment of new adolescent mediation and family services. Such services aim to resolve problems between adolescents and parents and help to keep families together and prevent youth homelessness.

Other measures detailed in this Statement that will be of special interest to children and youth are:

REFORM OF THE LAW RELATING TO DE FACTO RELATIONSHIPS

People in de facto relationships now form a significant proportion of Australian families. Yet, on the breakdown of their relationships, they do not generally have the benefit of the property distribution principles that the Family Law Act would provide.

The law governing the settlement of de facto property disputes varies between States and Territories. In some States, such as New South Wales, there is specific legislation to deal with this problem. In others, it is left to cumbersome and outdated general law principles. Procedures are slower and more expensive than corresponding Family Court procedures. Moreover, the courts dealing with these matters do not have the specialised expertise and resources of the Family Court, including counselling and mediation, to deal with these matters.

Under the Constitution, the Commonwealth has power to legislate in respect of marriage and matters relating to divorce but this does not extend to power to legislate in respect of de facto relationships. The States have jurisdiction in those matters. The Commonwealth cannot, therefore, extend the specialised procedures and facilities of the Family Court to these couples unless it obtains a referral of constitutional powers from the States to do so.

The Commonwealth has sought a referral of power from the States in relation to de facto property disputes to enable it to legislate separately in relation to such disputes, so that the Family Court could have the role of adjudicating in these matters.

The Queensland Government has indicated that it will refer power to the Commonwealth in order that all property settlements arising from the breakdown of relationships can be dealt with by the Family Court. Once this reference is made, the Commonwealth will legislate to implement it.

The move by Queensland to refer power to the Commonwealth is a significant one. However, until other States and Territories respond in a like manner, there will not be a uniform, predictable and equal process for the settlement of property disputes between de facto couples.

The Government's initiatives for families are aimed at preventing legal problems on the one hand and improving the options for resolving disputes where recourse to the law is necessary.

The provision of extra funding to family services, such as family and relationship education and counselling, will assist a greater number of families to resolve problems that arise in the usual course of relationships and avoid legal disputes where possible. The Government will ensure that family services are available to the entire community, including people of non-English-speaking backgrounds and people in rural and regional areas.

All family problems cannot be resolved by family counselling and relationship education services. The Government's proposed reforms to the Family Law Act, such as the refocusing on parental responsibilities rather than rights over children and reforms relating to matrimonial property, aim to improve the resolution of family law disputes for the parties involved.

By encouraging stable and fulfilling family lives, the Justice Statement will benefit our entire community.


Endnotes

[1] See `Resolving Disputes'

[2] See `Resolving Disputes'

[3] See `Resolving Disputes'

[4] See `National Women's Justice Strategy'


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