Family lawyer? family violence workers? financial counsellor? The following information may help you work with clients experiencing family violence.
The following is a brief outline of some reforms that may assist your clients. It is not legal advice.
Note, DFV = domestic and family violence (sometimes referred to as FV in Victoria).
The Insurance Council of Australia (ICA) is aware of a range of insurance related family violence issues, and its new Code of Practice requires insurers to respond appropriately to family violence circumstances. The ICA has also published an industry Guide to Helping Customers Affected by Family Violence.
Some issues may be resolved in your client’s favour if the insurer’s internal dispute resolution department is aware of family violence circumstances. Our experience suggests that an insurer might, in some cases, pay the ‘innocent’ insured, even if the co-insured has caused the loss. Suncorp owned companies (such as AAMI) are adding a clause to their policies (starting late 2020) saying they will consider paying claim in these circumstances)
Raise any concerns or disputes with Internal Dispute Resolution (IDR) Department at the insurer, and if unsuccessful consider lodging a dispute with the Australian Financial Complaints Authority (AFCA) previously the Financial Ombudsman Service).
Under the General Insurance Code of Practice, insurers must take into account the financial circumstances (hardship) of the insured (for example if demanding payment of excess) or third parties they are pursuing for payment (Section 8). While a third party can’t raise a dispute with AFCA, a complaint to the Code Governance Committee of a Code breach may be effective in achieving an outcome for a non-insured.
The Australian Bankers Association(ABA) and Australian Financial Complaints Authority (AFCA) have developed guidelines on family violence issues, including joint debt.
Banks will communicate with one borrower about a joint debt without involvement of the other borrower if necessary due to family violence,
Our experience is that some banks may consider reducing, or waiving, debts which arise due to family violence where significant financial hardship is caused.
Where one co-borrower has received little, or no, benefit from a joint loan, AFCA is likely to determine that that borrower is not liable for the debt (for example see FOS Case 412040). Here are a few other relevant AFCA cases involving a joint loan to repay one partner’s debt, removal of a credit default which was incurred as a result of domestic and family violence,
Contact IDR at the bank (or other financial institution) and if unsuccessful consider lodging a dispute with AFCA.
EARG is currently working with industry on this issue, however the AFCA guidelines (see link above) provide information about AFCA’s expectations regarding reporting credit defaults in Domestic & Family Violence circumstances.
Credit Disputes and Family Law Property Settlements
Where there has been a Family Law property order or settlement, AFCA may decide to exclude a complaint against a financial service which involves alleged coercion or fraud by the former partner on the basis that the property settlement/order took those matters into account. Even if AFCA accept the complaint, the settlement/order could have an impact on any compensation awarded. There may also be risks if a dispute is resolved through AFCA prior to a Family Law property settlement/order, so legal advice should be obtained.
The industry has produced a guideline for telcos helping customers experiencing family violence. This guideline may assist if you have a dispute regarding the way a telco has responded to a customer. The Telecommunications Industry Ombudsman (TIO) published some tips for providers and consumers regarding DFV issues. While none of these is legally binding, the TIO may take these guides into account when determining a dispute.
Family Violence Financial Counsellors
Community-based financial counsellors can advise clients on the issues above. They provide independent advice and advocacy for people experiencing financial difficulty, can help access a range of industry hardship programs and may be able to access financial assistance. The Victorian Government funds 21 specialist family violence financial counselling services, while other states also have these specialists.
For telephone advice, or referral to a financial counsellor, call the National Debt Helpline on 1800 007 007. See ndh.org.au
Victorian energy and water businesses have legal obligations (in enforceable industry codes) to have family violence policies to assist customers. If these businesses don’t respond appropriately, it is worth lodging a dispute with Energy and Water Ombudsman Victoria which can review the businesses’ response and has the power to make a binding decision if necessary. While the regulator’s Better Practice Guide is not law, it provides some indication of expectations of businesses.
If fines are incurred due to family violence, Victorian law contains specific provisions allowing the victim/survivor to seek a review, without admitting the offence or nominating another person as the driver (Fines Reform Act 2014 Part 2B).
While family violence is now a special circumstance for the purposes of internal and enforcement reviews, the family violence scheme is usually a better option for clients.
Fines Victoria have employed family violence specialists, and while it appears clients can get good outcomes, the process can take a long time. Find out more.
Victorian residential tenancy laws have been changed to better protect tenants experiencing family violence. Find out more.
RentAssist Bond Loan guidelines are changed to address DFV issues (Victoria)
DFV victim survivors are exempt from repayment of a RentAssist bond loan where the bond debt arises due to circumstances beyond their control (such as family violence). Having an existing bond debt is no longer a barrier to qualifying for another bond loan.
See new guidelines here.
Transferring Vehicle Registration (Victoria)
VicRoads have family violence processes, for example for transfers in family violence circumstances, or for priority licence testing. There is a special number l 03 8391 3232 for customers impacted by family violence only.
Checklist to help you identify your client’s financial issues (developed by Westjustice).
Financial counsellors’ checklist – for use by financial counsellors (developed by Westjustice).