Graham Perrett (Moreton, Australian Labor Party) Share this | Hansard source

I rise to speak on the Family Law Amendment (Family Violence and Other Measures) Bill 2018. I welcome the intent of this bill to strengthen the power of the courts to protect victims of family violence and facilitate the resolution of family law matters by state and territory courts in certain situations. Obviously this is important work of any parliament and any government. I acknowledge the importance of acting to prevent family violence and to assist victims to safely leave such households. Tragically, one Australian woman a week is murdered by a current or former partner. We must do all we can as lawmakers to make our laws stronger and access to our laws and their protections easier. So I welcome this bill and the intent of the measures in it.

The measures include providing that a court can give short-form judgements for a decision in relation to an interim parenting order; strengthening the court's powers to dismiss proceedings; allowing a judge to dispense with the requirements to explain an order that is inconsistent with an existing family violence order where it would not be in the child's best interests; and removing the 21-day time limit for variations to family law orders by state courts. These are sensible measures. The bill also provides that specialist children's courts have power to make parenting orders pursuant to the Family Law Act and extends the jurisdiction of state and territory courts to make orders in family law property matters to include disputes above the current monetary limit of $20,000.

The intent of these measures is good. Families who are already in the state courts should be able to finalise their less complex family law matters without having to go to another court. It will make their experience of the family law system easier and less confusing. State and territory courts already have a limited family law jurisdiction, but the measures in this bill will enlarge their family law jurisdiction. For instance, currently family law property matters in the state courts are limited to a monetary limit of $20,000. This bill allows a higher monetary amount to be prescribed by regulation.

I'm pleased to see that the explanatory memorandum to this bill explains:

State and territory courts are not intended to become the primary fora for resolving family law disputes …

This measure is:

… intended to provide state and territory judicial officers with additional tools to resolve matters involving family violence holistically, and prevent further violence by reducing the sometimes complicated legal processes.

However, I am concerned. If state and territory courts are given additional jurisdiction by regulation then it must be accompanied by additional funding. This is crucial. State and territory courts are at a breaking point now dealing with their own jurisdictions, including family violence orders. Their resources are already overstretched, and many judicial officers in state and territory courts are not trained or experienced in family law and would be reluctant to exercise their powers in family law matters. Without adequate additional funding and training, this measure will be futile.

I will talk for a moment about what is no longer in this bill. The original bill contained a measure that would see breaches of personal protection orders made in the Family Court or Federal Circuit Court become criminal offences. On the face of it, this seems like a good idea. It would provide victims of family violence with a more effective way to enforce breaches of those orders. Currently, as the orders are purely civil, that is a private legal action—a person is required to make an application to the court to enforce a breach of a personal protection order. I should point out that, even as the law now stands, state and territory police have the power to arrest a person who has breached a personal protection order made in the Family Court or Federal Circuit Court. This very rarely occurs for reasons I will come to in a minute. As the states enforce criminal law, making the breach of a personal protection order a criminal offence would mean the state would bring such prosecutions. It would take the onus of bringing an application off the victim, acknowledging that family violence is more of a public concern—that is, not a private affair between two people.

There were, however, several problems with this measure. Firstly, the bill provided that this measure would apply to future breaches of existing personal protection orders, thus imposing some measure of retrospectivity to this provision. Let me explain how this might happen in practice. Many family law disputes are settled without a judge ever making a decision. When love sadly turns to hate, people can still be rational. Most people are rational and sort it out, normally by thinking about their children. This can occur before going to trial. At the doors of the court, as the trial commences or even during the trial, people work out a way forward. Once the parties come to an agreement to settle, the agreement is drawn up as a consent order which is then presented to the judge, who formally makes the order that the parties have agreed to. Many considerations are taken into account by each party before they agree to settle. For instance, there may be a bit of concern from one party that the other party will harass or abuse them in the future. Those allegations have not been tested or proven in court, but the alleged perpetrator may agree to an order that provides some comfort to the alleged victim just so that their affairs can be finalised. This happens every day. If the allegations have no substance then the alleged perpetrator would not be concerned about agreeing to not do something that they never intended to do. Some of these orders have been in place for many years.

As time goes on, the children get older, emotions settle down and the nerve endings are not raw, but the orders remain in place. It is easy to see how a protection order, such as an order restraining a person from entering the residence of the other person, could inadvertently be breached many years later. That person would then be committing a criminal offence. It would be unfair to both parties for a consent order that was freely entered into some time ago to become subject to criminality upon the breach of one of its terms. That is not what was contemplated by the parties at the time they made the consent order.

The other serious concern with this proposed measure lies in the practical enforcement of a criminal breach. As the provisions are contained in a federal act, the Family Law Act, a breach of that provision would therefore be a Commonwealth criminal offence. State and territory police generally enforce state and territory criminal offences. Although they are empowered to enforce Commonwealth criminal offences, the procedure involved to enforce Commonwealth offences is very different from the procedure for state and territory offences. Many state and territory police would actually be unfamiliar with the procedures necessary to enforce a Commonwealth offence. Modern police services are excellent, and the Queensland Police Service do great work, but they are under pressure and under the pump enforcing their own laws.

As I mentioned earlier, the Family Law Act currently provides state and territory police with the power to arrest a person for a breach of the Commonwealth personal protection order, but this rarely happens. In Queensland, the Operational Procedures Manual for the Queensland Police Service outlines the procedure to be followed when a complaint is received about a breach of a personal protection order. The manual states:

Officers receiving complaints of breaches of injunctions made under the Family Law Act (Cwlth), should take appropriate action under any relevant Queensland law, e.g. prosecution for assault, wilful damage or stalking (s. 112AM of the Family Law Act (Cwlth) refers).

If the application of Queensland law is not appropriate or the complainant seeks the enforcement of rights conferred by an injunction, officers should advise the complainant to seek legal advice with a view to enforcing the injunction through the Family Law Court.

This is the actual manual. So Queensland police currently have the power to arrest someone under the Family Law Act when a personal protection order has been breached, but their own manual tells them not to. As a member of Tasmania Police said, when he gave evidence to the Senate inquiry into this bill:

… responding to incidents of family violence or complaints that people's safety might be in jeopardy is done by general duties police. In this state at least, they would be the police members with the least understanding of the Commonwealth criminal procedure …

It is not very comforting that state police do not use the powers they already have been given under the Commonwealth Family Law Act.

Before we criminalise personal protection orders under the Commonwealth Family Law Act, we need to be sure that state and territory police will enforce breaches of those orders. The intent of the proposed measure is to make victims of family violence safer. It would be horrendous if new provisions were enacted that gave victims of family violence a false sense of security and, inadvertently, actually made them less safe. The Attorney-General's Department acknowledged at the Senate hearing:

… that the practical implementation issues with the enforcement of criminalisation of personal protection injunctions need to be worked through.

How can parliament be asked to pass a law when the government does not know how it will be enforced? That is not good government. It is irresponsible government.

That is why, negotiating with the Labor Party, this measure was excised from the bill. Labor suggested that the intent of this measure be brought forward after the Australian Law Reform Commission has reported on its review of the family law system, which is due in March next year. That will also give the department time to work through the practical implementation issues. There will be no real delay in taking this course of action, as the measure that has been excised was only due to come into effect 12 months after royal assent. In fact, the measure may be operational sooner than was intended, by the government, originally. Labor will always welcome sensible family law reform. There is no doubt that the family law system is in crisis. Every MP and every senator would have had someone come to their office with concerns. Families are waiting years to have their disputes resolved, and this could be half a lifetime for a child at risk or under pressure.

This situation has been going on for far too long and it is, sadly, worsened under the Turnbull government's watch. Judges have not been replaced in a timely manner, even though these positions are funded in budgets. It took 560 days for a judge in the Sydney registry of the Family Court to be replaced. It took 12 months for Justice Bell to be replaced in the Brisbane registry, even though the Attorney-General knew he was going to retire—40 years out. These delays cause backlogs of work in industries, backlogs that are never caught up. The new judge starts behind the starting line on their first day.

The bulk of the blame for the crisis in the family law courts falls squarely at the feet of this Turnbull government. In 15 days, the coalition start their sixth year of government. They have had ample time to fix this system, which is in dire straits and is their mess. A former Chief Justice of the Family Court called for more resources for the family law system in March 2016, 2½ years ago. She asked for an extra $20 million for family consultants and registrars to help judges manage cases. Sadly, this measured call for resources from the chief justice fell on deaf ears. Nothing was done. No extra resources were given to the courts. There were just further delays in replacing the judges of an already overburdened court.

The mismanagement by this government has caused the current crisis in the family law system. Nevertheless, the measures remaining in this bill are sensible and supported by Labor. The government has announced other reform proposals for the family law system. They have a proposal to protect victims of family violence from direct cross-examination.

Labor took a policy to protect victims of family violence from direct cross-examination to the last election, more than two years ago. It was my policy proposal; I remember announcing it with the member for Griffith at the Women's Legal Service in Annerley. Our policy was accompanied by funding of $43 million to provide representation for unrepresented parties so that direct cross-examination could be avoided. The government's proposal contains no funding.

The Leader of the Opposition has written to the Prime Minister, imploring him to provide funding for this proposal so that it will actually do what it promises. Without funding, the legislation will be impotent. The bipartisan Senate committee that reported on this bill recommended that the bill not be debated until funding of the measures were made public. That is a Senate committee that is full of Liberals. This is a measure that is overdue for implementation. I hope the government does the right thing and provides the necessary funding to make this measure effective in protecting victims of family violence from being re-traumatised in the court system. I see that it will be debated this week or in September, but I'm yet to hear that funding announcement.

The government has also proposed, effectively, to abolish the Family Court of Australia. The government has done no stakeholder consultation on this radical proposal at all. Legal practitioners, family violence groups, community legal centres and even judges have been ignored. And how have they responded? With strong criticism and concerns. Labor has not yet seen the proposed legislation, but such a radical change to the family law system needs to be undertaken only with proper and thorough consultation—especially by talking to judges and practitioners. This has not yet happened.

A strong family law system is important for all Australians. More than any of our courts, the courts that deal with family breakdown need to be well resourced. They need to be structured so that families can have their disputes resolved in a timely manner and they need to have specialised judicial officers who are experienced in the complex issues that accompany family law, such as family violence, mental health issues and drug and alcohol dependency and abuse. Australian families deserve a government that will properly manage the family law system.

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