Zoe Daniel (Goldstein, Independent) Share this | Hansard source

Family violence isn't something that happens to other families in other suburbs. In my electorate of Goldstein, more than half of the daily police case load is responding to family and domestic violence. This kind of abuse, whether it's physical, psychological or financial, doesn't discriminate by postcode; it is everywhere. We know that women are most likely to experience physical and sexual violence at home at the hands of a current male partner or ex-partner. The offender is much more likely to be in the home than to be some mythical monster lurking in the shadows. We also know that family violence often doesn't end when the relationship ends, and there is a documented heightened risk that a perpetrator will increase or escalate abusive behaviour against victims-survivors during and after separation.

In the 2022-23 financial year, 83 per cent of initiating applications for parenting and property related orders filed in the Federal Circuit and Family Court of Australia contained allegations of family violence in the mandatory notice of risk form. We also know that those affected by family violence may struggle to achieve a fair division of property under the Family Law Act and can suffer long-term financial disadvantage. This was in the 2019 Australian Law Reform Commission inquiry report that sat on the shelf and gathered dust during the previous government's term. Family violence can also act as a barrier to women seeking access to justice, providing a disincentive to many women to pursue financial settlement after a relationship breakdown, causing further financial disadvantage for women.

So what does this actually mean in practice? It means women stay in violent relationships due to fear of poverty. It means many that do leave struggle financially for the rest of their lives. It means that children suffer. It means that the legal system, rather than being a way out, is often weaponised against those trying to escape a life of home based terror—because that is what it can be, day in and day out. The family violence prevention sector has known for a long time just how prevalent and destructive family violence is in Australian society. It's told us how the tentacles of this threatening, coercive and abusive behaviour can stretch into the legal system after separation.

Finally, lawmakers here in this place are catching up. The Family Law Amendment Bill 2024 goes a long way towards bringing the Family Law Act up to speed with the reality of Australian society and women's lives. Women who access women's legal service often say they are fearful of seeking the property they are entitled to post separation due to possible repercussions, including escalating violence. This means they don't have the financial resources to appropriately care for themselves or their children or to recover from the violence. Women and children should be able to live free of violence always. The safety of women and children should be at the centre of all legal practice and decision-making. Currently, it's not, because the Family Law Act doesn't identify family violence as a relevant matter for the court to consider in a property settlement. The Family Law Amendment Bill addresses this omission. It makes amendments to explicitly allow the court to consider the effect of family violence on the victims-survivors' ability to contribute to the property pool of a relationship and to consider the effect of family violence on their future needs. These are important changes because we know that family violence often has a significant impact on the economic wellbeing, housing security and health of victims-survivors which is exacerbated by the unjust distribution of property.

Under these new changes, the effect of family violence can also be considered by the court in determining an application for spousal maintenance. The bill will also introduce a duty of disclosure for property and financial matters into the Family Law Act. The Australian Law Reform Commission recommended that the duty to disclose be codified into the act to support the transparent disclosure of separating couples' financial circumstances to help the early resolution of dispute. Court proceedings can be weaponised by perpetrators to prolong the dispute and continue the abuse.

It's only recently that legal system abuse has come to our attention as a form of domestic and family violence. Research studies undertaken across Australia, New Zealand and the UK all demonstrate how family law proceedings are deliberately used by perpetrators to assert continued control and intimidation over their children, their child's other parent, and anyone else who cares for that child. The duty to disclose will go some way to preventing legal system abuse. The bill also makes the family law system safer by including amendments to enhance the operation of children's contact services. We should never lose sight of the fact that children are victims in their own right, and every effort should be made to make the changeover of children as safe and as trauma-free as possible.

There are a range of positive changes to the Family Law Act that will lead to better outcomes for victims-survivors, as I've described. However, the provisions in relation to protected confidences, I would argue, don't go far enough to ensure safer outcomes for victims-survivors. In the new legislation, the courts will have the ability to prevent private records from health and specialist domestic, family and sexual assault violence services from being viewed by the other party or used as evidence where the harm in doing so outweighs the need for the evidence. It will be up to the court to give the direction on its own initiative or on application by the protected confider, who is the woman most of the time.

Putting this framework in place is an improvement on the current situation where it's open slather and subpoenas are being overused and misused to present confidential records. It puts the onus on the protected confider to make an application to prevent disclosure of their records. My view after extensive expert advice from the women's legal sector is that the onus should be on the person seeking to admit the evidence and not the protected confider seeking leave to have a record of this type admitted in evidence. And if the evidence is admitted, victims-survivors should be able to consent to the release of their protected confidences, including access to legal advice prior to giving consent, and that consent should be provided in writing.

This decision to place the onus on the protected confider was made in response to concerns from some in the legal fraternity that seeking leave before issuing a subpoena would delay matters, increase costs for parties and take up court resources. I have concerns that this approach taken to mitigate cost and delay will mean that victims-survivors will continue to be harmed. I am not convinced that it's an appropriate trade-off, and neither are women's legal services who work with women in these situations every single day. It's likely that in many situations women will simply be unaware of their responsibility to make an application to prevent disclosure of confidential information or won't have the ability to make an application due to limited access to free legal advice and representation. There should be a presumption that protected confidences are harmful if used in evidence, and the onus should be on the person seeking to admit the evidence to show otherwise in each instance. In other words, the burden should be flipped.

Family, domestic and sexual violence is a deeply entrenched societal problem. We know that women often can't leave violent relationships because of the economic impacts. We know that women are often forced to choose between violence and poverty. Making family violence a specific consideration in property disputes is an important step towards creating a family law system that better supports victims-survivors of family violence to leave violent relationships and to recover safely with their children. It is critical that, alongside any legislative changes, the family law system is properly resourced, including legal assistance services.

The federal government must urgently commit to increased stable, long-term funding for women's legal services to assist women engaged in the family law system, particularly victims-survivors of family violence. Women's legal services are on the front line, helping women engage in the family law system. They have unique insights into the impact of the family law system on women experiencing family violence. Indeed, working in such a service carries its own trauma, not only bearing witness to the traumatic experiences of women and children daily but so frequently being unable to help them due to lack of capacity.

In 2023, Women's Legal Services Australia collected national turnaway data over a five-day period across all 13 women's legal services. It found that 1,018 women who attempted to seek help missed out on getting assistance. From this, we can estimate that more than 1,000 women per week, and more than 52,000 women per year, will have to be turned away from these services across Australia, and this is representative only of the women who seek assistance. The true extent of unmet legal need related to gender based violence has yet to be measured. Without additional long-term funding, women's legal services will continue to turn away tens of thousands of women and children at risk of violence every year.

A strong and sustainable women's legal sector is vital if we are to end violence against women and children in a generation, as the National Plan to end Violence against Women and Children sets out to do. I'm aware of a recent government injection of funding in this area, but in addition I'm calling for investment into women's legal services to fully meet domestic and family violence demand. This must accompany the changes to the Family Law Act to give them full effect. I commend this bill to the House.

See this speech in context