Terri Butler (Griffith, Australian Labor Party, Shadow Assistant Minister for Preventing Family Violence) Share this | Hansard source

I rise to make a few short comments on this committee report. I might start by congratulating the chair and deputy chair of the Standing Committee on Social Policy and Legal Affairs in particular and the remaining members of the committee on their work in reaching a consensus position in relation to their report on family violence in family law proceedings.

This is a deeply important issue, as you would be aware, Mr Deputy Speaker Buchholz. The former Chief Justice of the Family Court of Australia said that, in about 41 per cent of contested family law cases, family violence is a feature. That's 41 per cent of cases in which domestic and family violence is an issue in the proceedings. That means that we have to be very cognisant of the impact of family law proceedings on both the perpetrators and the victims and survivors of family violence. Of course, in the latter category I would include children and former spouses.

The report does a good job of going through a range of the issues that arise in respect of the way that family law proceedings are conducted in the Federal Circuit Court and the Family Court of Australia—and the Family Court of Western Australia, for those people who are in the west. It does raise a number of concerns and issues in respect of the way that those proceedings can have an impact on, as I said, victims and survivors on the one hand and perpetrators on the other. But there are a few issues that I particularly want to mention.

Firstly, Labor took to the last election a commitment to introduce a policy, if we were elected, to prevent family violence perpetrators from directly and personally cross-examining their former spouses. Our policy was aimed at allowing judges, at the first mention, to determine whether or not existing options, such as video evidence, would be sufficient to protect victims and alleged victims, and, if not, to determine that family violence perpetrators would be prohibited from personally cross-examining. Our policy recognised that there was an interest in preventing perpetrators from personally cross-examining and, equally, there was an interest in ensuring natural justice by allowing the perpetrator to have, by other means, opportunities to cross-examine. Specifically, we included a policy provision allowing for the appointment of a lawyer for that person and, of course, the appointment of a lawyer for the other party in the proceedings.

This is important because a lawyer's first duty is to the court as an officer of the court. They have ethical responsibilities that they must discharge and they have professional responsibilities that they must discharge, and, in the event they fail to discharge those professional and ethical responsibilities, there are a range of sanctions that can be levied against them. In other words, a lawyer is not to act as a mere mouthpiece for their client; they must conduct themselves ethically and professionally, and, in the event they don't, there can be ramifications for them personally.

We thought this was an important policy and we therefore allocated more than $40 million in additional legal aid funding to allow both parties to be represented legally in that situation. Of course, you wouldn't want a situation where the alleged perpetrator was able to obtain legal assistance but the alleged victim was not; that would be a perverse consequence of this policy.

We took that to the election because the Productivity Commission had called for this back in 2014, because women's legal services had been calling for this measure and because Fair Agenda had been calling for this measure. We were very proud to take it to the election. We called and called and called on the government to introduce cross-examination reform. Unfortunately, the Turnbull government dragged its heels on this very important issue. Ultimately, though, I'm pleased to say that they did announce there would be cross-examination reform to prevent perpetrators from cross-examining victims, But, unfortunately, there was no money attached for additional legal aid, and the discussion paper that the Attorney-General distributed indicated that they weren't sure who would be doing the cross-examining on behalf of the alleged perpetrator. It could be a layperson, it could just be a friend of the perpetrator's asking the exact same questions the perpetrator would be asking and undertaking the same intimidation, revictimisation and retraumatisation that the perpetrator would be doing if they were asking the questions themselves.

We've been very critical of this policy. I'm very pleased that the Standing Committee on Social Policy and Legal Affairs has recognised the importance of ongoing reform of procedures in the Family Court system and the Federal Circuit Court system to seek to prevent the direct personal cross-examination of witnesses by alleged perpetrators of violence against them. I encourage the government, in considering this report, to consider the importance of meaningful protection for victims. That means additional funding for legal aid to make sure that victims and perpetrators can be represented so that everyone can get a fair go, so that no-one is denied natural justice and so that you have someone who is bound by their professional obligations asking the questions in a situation where domestic violence has been alleged.

There are many, many important issues in the report itself, and, as I said, I congratulate the chair and the deputy chair particularly for the bipartisan fashion in which they went about fashioning this report. But there are two other really important issues that I want to flag for the parliament. The first is the importance of reforming the family consultant system. In the family law courts—and I particularly refer here to the Federal Circuit Court of Australia—judges have very heavy workloads. Judges often come in, become a judge and are handed a docket with 300 cases on it. It's also a system where judges don't necessarily have family law experience when they're appointed, but the Federal Circuit Court does the lion's share of the family law litigation in this country. In those circumstances—the intense workload, the different experience of the courts and the fact that the lion's share of the work is done in this particular jurisdiction—it is important to recognise that judges are often under significant pressure. That means that when they have unrepresented litigants in front of them, when they've got a lot of cases on their docket, when they've got a massive directions hearing with people everywhere and when they're trying to get things done in a way that meets targets, they are going to be under a lot of pressure. So what do they tend to turn to? They tend to turn to and reply upon the reports provided by family consultants.

That's why it is absolutely imperative, as a matter of justice and fairness to the parties, that family consultant reports are able to be trusted. At the moment, there is no complaints mechanism if a family consultant conducts themselves in a way that the parties find unsatisfactory. There is a great deal of pressure on family consultants, because the fee schedule for family consultants has not been amended in a very long period of time. At the other end of the scale there are family consultants who charge very high fees privately, which of course gives rise to problems if you are in the position as the wealthier of the two parties in a family law proceeding and you're able to obtain a better quality, more detailed family consultant report.

There are several recommendations in the Social Policy and Legal Affairs Committee's report that go to professionalising the family consultant role, that go to accreditation and that go to ongoing learning and development in relation to understanding the dynamics of family violence specifically.

I want to very clearly welcome any moves that might be made to give effect to the recommendations that go to the issue of ensuring that everyone in our community, especially both parties and especially the court, can have confidence that the family consultant's report has been developed appropriately, that fair amounts of time have been spent with the parties and that the family consultants themselves understand the dynamics of family violence very well and are up to date with emerging understandings of evidence in respect of family violence and the research work that has been done in respect of the causes of family violence in its manifestations. So, as I say, I particularly welcome the provisions of this report that go to family consultants.

The last point I want to make is that this report does contain a recommendation which encourages the government to revisit the presumption of equally shared parental responsibility. What that presumption does, as was acknowledged in the Time for action report on family violence in 2009, is place the burden on the person least powerful and most vulnerable, the abused partner, to prove that the presumption should not apply, to prove that the abusive partner should not have equally shared parental responsibility.

This should just be a case-by-case assessment by the court. The court should look at each situation, particularly if there's family violence involved, and ask: what's in the best interests of the child? The best interests of the child must primarily be about safety for the child. We have all heard the stories. We had Our Watch in here talking about family violence yesterday. We all know how serious a problem family violence is in this country. This is an important recommendation. I congratulate the bravery of the committee, and particularly the chair and the deputy chair, for including it in the report.

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