Chapter 4
Family law
4.1
As discussed in chapter 2, at present there is no reference to dowry
abuse in the Family Law Act 1975 (Family Law Act). Further, Victoria is
the only jurisdiction that specifically includes dowry abuse in legislation as
an example of family violence.
4.2
This chapter examines the adequacy of the family law framework in
protecting victims of dowry abuse, including in respect of property settlement.
Should dowry be explicitly referenced in the Family Law Act?
4.3
This section discusses the effectiveness of the existing domestic and
family violence provisions of Family Law Act in responding to dowry abuse.
Is dowry abuse currently considered
a form of family violence?
4.4
The Attorney-General's Department (the AGD), which 'is responsible for
matters relating to human rights, marriage and family law',[1] considers the existing framework adequate to protect victims of dowry abuse:
The definition of family violence in the Family Law Act is
broad and would include family violence that is dowry-related...Section 4AB of
the Family Law Act defines family violence as including violent, threatening or
other behaviour by a person that coerces or controls a member of the person's
family (the family member), or causes the family member to be fearful.[2]
4.5
The AGD also referred to the National Domestic and Family Violence Bench
Book (Bench Book), which 'is available to all judicial officers across
Australia'.[3] Indeed, all Family Court and Family Circuit Court judges have 'been trained in
the contents of that bench book through judicial training which has been
sponsored by the department'.[4]
4.6
Part 3.1.5 of the Bench Book refers expressly to dowry abuse as an example
of cultural and spiritual abuse which comes within the meaning of family
violence. Dowry abuse will be taken to have occurred where the perpetrator has asserted
'his entitlement to a dowry from the victim’s family, or punishing the victim
or her family for what he claims to be an insufficient dowry'.[5]
4.7
Despite the AGD's stated position and the education of the judiciary on the
existence of dowry abuse, many submitters considered that the law as it
currently stands is inadequate. For example, Ms Stella Avramopoulos of Good
Shepherd Australia New Zealand (Good Shepherd) asserted that this broad
definition 'often results in situations of dowry related violence not being
appropriately identified and addressed'.[6]
4.8
Such submitters argued that dowry abuse should therefore be explicitly included
in the Family Law Act as an example of family violence.
Dowry abuse as an example of family
violence
4.9
As noted in chapter 2, recent changes to the Family Violence
Protection Act 2008 (Vic), expand the list of relevant behaviours that
appear in that Act as examples of family violence, where family violence
includes being economically abusive.[7]
4.10
A number of submitters expressed concern with this change, referring to
the misuse of similar laws in India.[8] It is noted that there appears to be a misunderstanding amongst some submitters
that the inquiry was established to consider a specific proposal to introduce
India’s laws in Australia; and that Victoria’s laws seek to ban or criminalise
dowry, neither of which are correct.
4.11
However, other submitters expressed support for this legislative reform,
arguing that dowry-related violence continues to be insufficiently understood
and acknowledged within the family law system as a form of family violence.[9] For example, White Ribbon Australia submitted that:
...the Commonwealth of Australia should review the consistency
and relationship of these laws to existing Commonwealth legislation, as well as
the potential benefits to supporting the pursuit of these offences at the
Commonwealth level.[10]
4.12
Anti-Slavery Australia (ASA) drew the committee's attention to the
comments made by the Victorian Royal Commission into Family Violence (Royal
Commission):
In addition to forms of family violence experienced in all
communities, there are some specific forms of family violence experienced by
women in some [culturally and linguistically diverse (CALD)] communities—for
example, forced marriage, female genital mutilation, and dowry-related
violence. These forms of abuse are not readily recognised as constituting
family violence.
...
The Commission makes recommendations to strengthen the
capacity of mainstream and specialist services to identify and respond to the
needs of family violence victims from CALD communities, to improve practices
and policies relating to the use of interpreters in family violence-related
cases, and to include forced marriage and dowry-related abuse as statutory
examples of family violence in the Family Violence Protection Act.[11]
4.13
Many other submitters expressed support for the inclusion of dowry abuse
in the Family Law Act as an example of family violence.[12] For example, Harmony Alliance recommended expanding the definition of family
violence in the Family Law Act to include dowry abuse, on the basis that:
Dowry abuse is a complex form of gender-based violence, and
should be recognised as such in laws that criminalise family and domestic violence
in relevant state, territory and federal legislation. This abuse does not need
to manifest itself in physical or sexual violence – it may play out in other
ways such as economic, isolating and emotional abuse. Including dowry abuse as
an example of family violence in Section 4(1) of the Family Law Act would help
to set norms and expectations.[13]
4.14
The Legal Services Commission of South Australia (Legal Services
Commission) submitted 'that the current legal frameworks established to tackle
domestic violence do not adequately address issues relating to coercive dowry
abuse', and suggested that:
...the definition of 'family violence' in legislation such as
the Migration Act (Cth) 1958 and the Family Law Act (Cth) 1975 needs to factor in dowry-related abuse and similarly harmful cultural
practices.[14]
4.15
Professor JaneMaree Maher of Monash University spoke in favour of
including dowry abuse as an example of family violence rather than a
stand-alone offence:
...I think giving examples to flesh it out is an option that
creates a space for this to be talked about, whereas specific offences that
name particular types of practices or specific legislation may have the
opposite effect, which is making people feel more fearful. We already know,
from our research, that women are extremely reluctant to come forward and that
very often their partners directly misadvise them about practices in Australia
and about their own visa conditions in order to maintain control.[15]
Dowry abuse as an example of
economic abuse
4.16
In its submission, the Monash Family Violence Prevention Centre (MFVPC),
the Monash Migration and Inclusion Centre (MMIC) and Monash Gender, Peace and
Security (GPS) (Monash University) noted that economic abuse had been
recognised as a key form of family violence for more than a decade, including
in Victoria, and urged:
...that dowry abuse be recognised more broadly within the suite
of economic abuses...including those who may face more intense or greater risks
in terms of economic abuse such as women with disability or women from
immigrant and refugee communities.[16]
4.17
However, as noted in chapter 2, and contrary to the position of many
submitters to the inquiry, 'economic abuse' does not appear as an example of
behaviour that constitutes family violence in the Family Law Act.
4.18
Some submitters therefore recommended that dowry abuse be included as a
specific example of economic abuse within the broader definition of family
violence. For example, Good Shepherd informed the committee that it considers
dowry abuse 'through the lens of domestic
and family violence, specifically economic abuse', and recommended:
...the inclusion of an explicit reference to dowry abuse in the
definition of domestic and family violence nationwide, with a clear
acknowledgement that domestic and family violence can include multiple
perpetrators, such as family members, not just intimate partners.[17]
4.19
In contrast to submitters who advocated for the explicit reference to dowry
abuse in legislation, Professor Supriya Singh warned against highlighting dowry
and dowry abuse as a specific form of family violence on the basis that it
ignores other forms of economic abuse including that which may occur in Anglo‑Celtic
culture.[18] Professor Singh did not object to giving examples of economic abuse in
legislation, but ultimately favoured raising awareness of economic abuse and
increasing cross‑cultural understanding 'about the non-physical aspects
of family violence'.[19]
Harmonising domestic and family
violence legislation
4.20
As noted in chapter 3, and as the following example provided by ASA illustrates,
there are varying levels of protection available to victims of dowry abuse,
human trafficking, slavery and forced marriage under state and territory
frameworks:
...in New South Wales, adult victims or potential victims of
human trafficking and forced marriage, who may be experiencing family violence,
can seek an apprehended domestic violence order (ADVO)...for an ADVO to be
made, the court must be satisfied that on the balance of probabilities, the
victim has reasonable grounds to fear, and does in fact fear, the commission of
a personal violence crime by the other person, or the engagement of the other
person in conduct where the victim will be intimated or stalked. The Crimes
(Domestic and Personal Violence) Act 2007 defines 'personal violence
offence' as specific offences under the Crimes Act 1900 (NSW) (Crimes
Act). Dowry abuse and the Federal crimes of human trafficking, slavery and
forced marriage are not included in this definition. While some cases of extreme
exploitation may involve personal violence offences, such as sexual assault
pursuant to the Crimes Act, these elements are certainly not present in
all circumstances of dowry abuse, human trafficking, slavery and forced
marriage.[20]
4.21
Owing to this inconsistency between jurisdictions, ASA therefore
recommended that:
...the Commonwealth Government establish dialogue with the
Australian States and Territories to harmonise existing legislation providing
for intervention/violence orders to recognise dowry abuse as an act of family
violence or economic abuse.[21]
4.22
This recommendation to harmonise the legislation in respect of dowry
abuse, and more broadly economic abuse as a form of family violence, was also
made by a number of other submitters.[22]
4.23
For example, in their submission, Good Shepherd Australia New Zealand
and inTouch Multicultural Centre against Family Violence (GSANZ and inTouch) suggested
to the committee that the lack of a nationally consistent approach to defining
and addressing domestic and family violence across Australia 'renders
ineffective and inefficient responses to women at risk of abuse and violence
and also creates inequality across the country'.[23]
4.24
GSANZ and inTouch therefore recommended the adoption of 'a nationally
consistent and holistic definition of economic abuse', which, at a minimum,
should include the following examples:
- Withholding financial support that is considered reasonably necessary to
maintain a partner
- Unreasonably preventing a person from taking part in decisions over
household expenditure or the disposition of joint property
- Controlling behaviour that denies personal financial autonomy
-
Force, fraud or coercion in obtaining social security payments
- Force, fraud or coercion in obtaining bank loans, credit cards or other
forms of financial debt
- Force, fraud or coercion in relinquishing control over assets
- Preventing a person from seeking, gaining or maintaining employment.[24]
Committee view
4.25
The committee shares the concerns of submitters and witnesses that the
law as it currently stands is not sufficiently clear to identify dowry abuse as
a form of economic abuse within the definition of family violence.
4.26
The committee acknowledges that Victoria has led the way in Australia
with new laws to implement the recommendations of the Royal Commission that
specifically recognise dowry abuse as a form of economic family violence. The
committee considers that the Victorian approach should be adopted nationally
and agrees that dowry abuse should be explicitly included in the definition of
family violence in the Family Law Act. This change would help to set norms and
expectations about what constitutes family violence, and acknowledge this type
of family violence which is experienced by women in CALD communities in particular.
The committee considers there would be significant educative value for both
service providers and the wider community as a result of this change.
4.27
The committee is mindful that its recommendations are made in the
context of the current Australian Law Reform Commission (ALRC) review of family
law. The committee considers that the detail and timing of the implementation
of its recommendations will occur in the context of the outcomes of the ALRC
review.
Recommendation 1
4.28
The committee recommends that the term 'economic abuse' is included as a
form of family violence in subsection 4AB(2) of the Family Law Act
1975, and the subsection provide a non-exhaustive list of examples of economic
abuse, including dowry abuse.
Property settlement
4.29
This section discusses the difficulties faced by parties to divorce
proceedings in recovering dowry payments, including those payments exchanged in
other jurisdictions.
Property settlement and the law
4.30
The AGD provided an overview of the law pertaining to divorce and
property settlement.
4.31
The AGD informed the committee that section 79(4) of the Family Law Act
sets out the factors the courts must take into account in property settlement
proceedings. The factors that the courts consider include:
...the financial and non‑financial contributions made
directly or indirectly by or on behalf of a party to the marriage to the
acquisition, conservation or improvement of any of the property of the parties
to the marriage.[25]
4.32
The Family Law Act requires a 'just and equitable' split of property
between the parties to the dispute.[26]
4.33
The courts will consider instances of family violence, including
dowry-related abuse, when assessing the contributions made by parties to the
marriage.[27] Further, under the common law, courts may consider the effect of family
violence in certain circumstances, namely:
...where there is a course of violent conduct by one party
towards another during the marriage which is demonstrated to have had a
significant adverse impact on that party's contribution to the marriage, or to
have made the party's contributions significantly more arduous than they ought
to have been.[28]
4.34
In its submission, ASA noted that as dowry may be considered to be a
'gift'[29]—rather
than the property that makes up the matrimonial pool of assets, less the
liabilities—this payment may not be captured by these provisions of the Family
Law Act 'because a dowry could be paid indirectly, not from wife to husband,
but from the wife’s family to the husband’s family'.[30]
4.35
The ASA informed the committee that 'whether the dowry is repayable or
returnable to the wife’s family upon marriage breakdown' is contingent on
whether this payment is 'regarded at law' as either:
- an absolute
gift, with the result that the groom and/or the groom’s family has no
obligation to repay the dowry; or
- a conditional
gift, whereby the dowry has been provided by the wife’s family at the request
of the groom’s family with the intention that the payment be a precondition of
the marriage.[31]
The adequacy of the existing legal
framework
4.36
A number of witnesses expressed concern that the Australian legal system
does not recognise the marriage payments by victims party to divorce
proceedings, including those payments made overseas.[32]
4.37
For example, the Australian Women Against Violence Alliance (AWAVA)
argued that '[w]omen are currently disadvantaged in three key ways in obtaining
a fair property settlement', namely because:
- 'the family law system is lengthy and legalistic for women with
low income or assets';
-
'the impacts of family violence are not adequately taken into
account in property settlements'; and
-
'abusive men are frequently reported as engaging in protracted
litigation and in some cases vexatious or abusive behaviour'.[33]
4.38
The Australian Centre for Human Rights and Health (ACHRH) provided the
following illustration of the financial difficulty faced by women in particular
as a result of divorce proceedings:
Where the groom gives dowry as in the case of some African
communities the woman is unable to leave the marriage as she has been 'paid
for'. The Commonwealth Family Law provision when dividing the property needs to
take into account the powerless position of the women where bride-price has
been paid by the groom.[34]
4.39
GSANZ and InTouch also discussed the lack of support for women who leave
a dowry marriage, informing the committee that a woman who leaves a marriage:
...is often blamed for the breakdown of the marriage. Women who
leave their marriages or who are abandoned..."are left with no choice but to
try and return to their own families, although not all are accepted back
because they are perceived to be a financial drain on their families' wealth".
...
Without being able to access their dowry, if a marriage
dissolves, women are likely to find themselves without access to their dowry
and to find themselves in poverty. Their status as a 'divorced woman' means
that they cannot access the same types of social or community supports
typically available to other women. They also experience barriers to employment
due [to an] absence of skill or language development.[35]
4.40
GSANZ and InTouch observed that, at present, there are no mechanisms
under Australian law 'for dowry to be a) recognised as property (typically
belonging to the woman) and b) that it is factored into property settlements
during separation and divorce'.[36]
4.41
Many submitters who criticised the current system therefore considered
that gifts should be included as contributions to the marriage,[37] such that 'dowry should be treated as a woman's property and not as part of the
pool of assets'.[38]
4.42
For example, ACHRH suggested that '[i]t would be helpful to include
dowry as a financial contribution made by the woman' to be considered in the
division of the marital property, such that the woman recovers this
contribution.[39]
4.43
In order to realise this outcome, GSANZ and inTouch suggested that section 90B
of the Family Law Act be amended to include a list of gifts that have been
exchanged between both parties to a marriage, so as to:
...ensure that in the case of a marriage dissolution, this
would form evidentiary grounds for the return of property, including dowry. In
the absence of compliance with creating a register of gifts exchanged, flexible
evidentiary provisions to prove the exchange of dowry should also be
introduced. Including, but not limited to, photos, videos, and statements from
family members, receipts from gifts purchased, written negotiations over text
message, email or social media.[40]
4.44
However, Monash University referred the committee to the case of Singh
v Dala,[41] which suggests that 'the existing legislative framework is capable of
adequately dealing with dowry'.[42] Monash University considered the case noteworthy for the following reasons:
...(1) a substantial dowry (AUD$100,000.00 equivalent) was paid
by the wife's parents to the husband and his parents; (2) it was an arranged
marriage whereby both parties were unknown to each other prior to marriage; (3)
it was a relatively short marriage characterised by violence from the outset;
and (4) both parties were unrepresented by legal counsel, even at trial. While
there was no suggestion of dowry abuse in this case, the wife alleged very
serious family violence, including: coercive control, emotional, verbal and
psychological abuse, and physical and sexual violence.[43]
4.45
In that case, the Judge stated that the wife's dowry was 'a very
significant direct financial contribution to the marriage'[44] and that the wife's contributions '[o]verwhelmingly...exceeded those of the
husband's prior to marriage'.[45] The payment was not treated by the presiding Judge as a gift, 'but rather a
joint asset of the property pool, resulting in a more equitable settlement in
which financial justice was achieved'.[46]
Property located overseas
4.46
The committee was also informed that victims of dowry abuse face difficulty
in recovering property exchanged overseas, as the following example from the
Legal Services Commission illustrates:
The Commission's client was 23 year old dentist from India.
The woman's mother provided AUD$60,000.00 as a dowry [exchanged in India] to
ensure that her daughter would be well looked after...After two years of
marriage the husband served the woman with divorce papers. Our client sought
the return of the dowry...when she sought the return of her dowry we advised
that given the transaction occurred in India it would not form part of the
property settlement and it was a separate matter from the divorce application.[47]
4.47
As Monash University noted, pursuant to the principles of private
international law—which have been unchallenged for over a century—'the Federal
Circuit Court of Australia does not have jurisdiction to make enforceable
orders in relation to real property under the jurisdiction of a foreign
sovereign'.[48]
4.48
However, the AGD informed the committee that the courts have discretion
with respect to assets located overseas:
Where there is a family law property matter on foot before a
court in Australia, the court has a range of powers which enables it to
consider assets located overseas, and it has discretion to deal with those
assets and enforce orders in relation to those assets as part of a split of the
property. The definition of 'property' in section 4 of the Family Law Act includes
property which is held overseas to which either or both of the parties to the
relationship are entitled. The Family Law Act also requires parties to provide
full and frank disclosure of all financial circumstances, which includes and
extends to assets located overseas.[49]
Committee view
4.49
The committee shares the concerns of submitters and witnesses about the
inconsistency between jurisdictions with respect to identifying economic abuse,
such as dowry abuse, as a form of family violence.
4.50
The committee sees merit in harmonising existing domestic and family
violence legislation, so as to ensure all victims of domestic and family
violence are afforded the same protection, regardless of where that violence has
taken place.
Recommendation 2
4.51
The committee recommends that the Australian government work with the states
and territories to harmonise existing legislation providing for
intervention/violence orders to explicitly recognise dowry abuse as an example of
family violence or economic abuse.
4.52
The committee also shares the concern of submitters and witnesses that
the Family Law Act does not adequately or consistently enable victims of dowry
abuse to recover dowry provided by the victim or their family in the event of divorce
proceedings, including those gifts exchanged in other jurisdictions.
4.53
The committee acknowledges the breadth of the Family Law Act and the
developments within common law that can work in favour of those people who seek
to recover dowry, but considers further reflection on decision making
frameworks, as well as work with advocates and decision makers, is needed to
ensure that victims of dowry abuse are not disadvantaged in the context of
making orders about property.
Recommendation 3
4.54
The committee recommends that the Australian government give further
consideration to legal and decision making frameworks to ensure that victims of
dowry abuse are not disadvantaged in family law property settlements, given the
community concerns about inconsistent approaches under the current family law
framework.
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