Kelvin Thomson (Wills, Australian Labor Party, Deputy Manager of Opposition Business in the House) Share this | Link to this | Hansard source

The opposition will not be opposing the Family Law (Divorce Fees Validation) Bill 2007. The purpose of the bill is to amend the Family Law Act 1975 to validate retrospectively the charging of an unauthorised filing fee for divorce applications in the Family Court of Western Australia. In July 2005 the filing fee in the Federal Magistrates Court for divorce applications under the Family Law Act was increased. The equivalent fee in the Family Court of Western Australia, which has its own Family Court, would normally have been increased to match the Federal Magistrates Court fee to ensure consistency across Australia through an amendment to subregulation 11(1A) of the Family Law Regulations 1984. However, due to an administrative oversight this did not occur. The Family Court of Western Australia assumed the necessary amendment to the Family Law Regulations had been made and began to charge the increased fee.

An amendment to that subregulation 11(1A) of the Family Law Regulations, effective from 9 October last year, authorised the Family Court of Western Australia to charge a fee equivalent to the fee applicable at that time for a divorce application in the Federal Magistrates Court. The bill before the House will validate retrospectively the charging of the fees that were in fact charged for divorce applications in the Family Court of Western Australia for the period 1 July 2005 to 9 October 2006. The fees that we are talking about apply to divorce proceedings which were instituted in a court constituted by a stipendiary magistrate who is the principal registrar or a registrar of the Family Court of Western Australia as well as to divorce proceedings instituted in another court for transfer to such a court. The fees which have been specified in clause 3 of the bill were the fees that had been in fact charged for filing a divorce application in the Family Court of Western Australia during the two periods that I have referred to. So the opposition will not be opposing this legislation.

David Fawcett (Wakefield, Liberal Party) Share this | Link to this | Hansard source

I also rise to address the Family Law (Divorce Fees Validation) Bill 2007. As the member for Wills has outlined, this bill is fairly simple in its purpose and intent, which is to validate the actions of the Family Court of Western Australia and to amend subregulation 11(1A) of the Family Law Regulations to retrospectively authorise the increase in fees made in the Western Australian Family Court to make sure that we have consistency across Australia. So I support the bill.

I would like to look at some of the history as to why Western Australia has a separate family law court and some of the unintended consequences that have come out of the Family Law Act 1975. Some of those unintended consequences were things that the Western Australians had hoped to overcome. In the Family Law Act 1975 there was an agreement that state courts could be set up if states so wished to do that. The establishment of a state family court is not required. Subsection 41(1) only requires, that as soon as practicable after the commencement of the Family Law Act, a state could establish a court. Western Australia is the only state that elected to establish its own state court for family law.

There was some debate in October 1975 in the Western Australian parliament. The Western Australian Minister of Works, Mr O’Neil, at that time stated a number of reasons why the Western Australian government chose to establish their own court. Largely, it comes down to a unity of jurisdiction. Under his first reason he finishes with the statement:

When jurisdiction is divided, unfortunately there is often a problem of demarcation and this could have serious consequences for parties who choose the wrong forum.

He goes on in his next paragraph, however, to a second reason where he talks about the fact that there needs to be:

... an exercise of jurisdiction in family law matters ... to retain complementary action with other responsibilities ... This would allow jurisdiction on or related matters to be carried out under one jurisdiction.

From what I am told by colleagues in Western Australia this has not necessarily had the complete result he was hoping for. It is an issue that, I believe, is worth highlighting in this place as we address this bill today.

One of the serious impacts that this division of jurisdiction between state and federal authorities has had is on people who are contesting custody of children following a divorce. This is predominantly because of the justifiable and correct principle that we need to protect children and make sure that their best interests are served. One of the areas that consistently comes up is the impact on children of violence where that occurs in the family.

Unfortunately, there is a disconnect between the state and federal systems in that anything to do with violence tends to be dealt with by the state system. It is the state police who will actually attend the situation. It is the state police that people go to with an application for a DVO. And it is the state courts that will then process that and, if somebody contests that, clear the person of that accusation of violence. Under the federal system, however, there are a number of requirements for magistrates and judges to take into account accusations and, under the new law, to have reasonable grounds to believe that there is violence. Over a number of years, what this has translated to in reality is a growth in the tendency of the person who has custody of the children to make accusations of violence, often encouraged by people who are advising them, although the grounds for those accusations sometimes appear to be very weak. It is certainly a widely held view in the community that those accusations are often made purely with the object of stalling the non-custodial parent’s ability to have a fair hearing in court in terms of continuing a relationship with their children and having access to them.

The breakdown in that relationship is one issue. But, more importantly, a pattern of custody is established while the Federal Court is processing the access orders and the custodial issues, because there is quite often a delay in the state system in dealing with the domestic violence order and the accusations there. If somebody cannot clear those state based issues before their case is heard in a Federal Court, it means that they are unfairly disadvantaged in their ability to put forward their case as to why they should be able to continue their relationship with and have access to their children. Because, on the basis of that contested but yet unproven domestic violence order, they are not able to have access to their children, you then start getting an established pattern of who cares for the children and that often appears to be taken into account in terms of future custody orders.

Lastly—and this has a significant impact on people—if orders are actually decided in the Federal Court and subsequently the person manages to clear their name in the state system and verify that taking out a violence order was not justified, they then have to pay to come back. It is a large financial impost on people and eventually it wears them down, to the point where they run out of either money or the emotional energy to keep going back into that system.

So I believe it is very important that we look at that sort of situation—when we consider that Western Australia has a separate court—and try to get rid of this duplication and misalignment of jurisdictions. We need to ask how we can overcome this, because it is unfairly disadvantaging some people who are caught up in this dreadful process that occurs after a divorce.

We have a number of options, and one that I am very heartened by is the Children’s Cases Program, which has come out of this government’s family law reforms. Based on the experience in Western Sydney, where it was piloted, under the principles of this system the whole proceedings are very much directed by the court. These principles include decreasing delay and decreasing formality to make sure we get outcomes. The judge or magistrate has a fair degree of freedom to take the evidence he wants, to engage parties as he wishes, to bring forward what is in the best interests of the child. I am hopeful that, as this system becomes more widespread, we will see far quicker and far more meaningful resolutions that will encourage people not to go down this path of falsely applying for DVOs as a way of frustrating the process and getting their way. It will not necessarily fix all the problems, though. Whilst I am hopeful about and heartened by the success of that program, I believe we can and should be doing more.

I have spoken with the federal Attorney-General and I am encouraging him and his state colleagues to address this issue and try to get an increased alignment of the systems so that, where a domestic violence case in a state court will have an impact on a case in the Family Court—in any state other than Western Australia—of the federal system, that is given a priority such that the person who is defending his or her name and reputation against the accusation of violence will be able to go into the Federal Court free of that very strong impediment to a fair chance of getting orders that enable them to have a meaningful relationship with their child.

I am not pretending that it is going to be easy or quick, but I do implore the attorneys-general of the states and territories as well as the federal Attorney to bring that forward as an agenda item, to find a way forward, because it is well proven that the impact on families, particularly on children through not having a meaningful relationship with both parents, is a significant contributor to dysfunction and less than optimal outcomes in terms of education, employment, mental health, involvement in crime et cetera. There is not a 100 per cent correlation; not every child in that situation will fall into that, but there is a strong weight of evidence to say that the breakdown of family, the breakdown of relationships with both parents and the conflict that often goes with that have a serious impact on a child. So I think it behoves us as legislators to work with the state system to try to find a way forward to maximise these children’s chances, post the decision of their parents to give up on their own relationship, of a good future.

One last point I wish to make before I cease addressing this bill is that, yet again, this is an area where we are looking at the consequences of a situation—we are looking at the consequences of a separation, the consequences of domestic violence—but so infrequently do we go back and try to address the cause. There is a great deal of research, both international and domestic, that looks at why good marriages and good relationships last as well as why they break up. Robyn Parker wrote a very good paper looking at why marriages last. She has done a meta-analysis of a number of studies around the world—some by Karney and Bradbury, some by Gottman and others—that have various theories as to why some marriages and relationships last and why they work.

They have different words and different names for their theories—but their conclusions are common in that every relationship will face stresses, strains and triggers that will cause conflict. That is common to pretty much every relationship. The ones that last are those in a position to establish a framework whereby they can cope with those triggers, pressures and stresses that come upon them. That framework comes from two things. One part is the motivation of knowing that it is worth working at, not only for the benefit and for the best interests of the child but by highlighting the impact on financial, mental and physical health and a whole range of other things. We can and should be doing more as a government to emphasise those motivating factors.

The second part, which people like Gottman and Karney and Bradbury highlight, is the provision and the encouragement of skills for a couple to know how to communicate effectively to resolve conflict, to help build that framework and to help buffer them from these things that come through life. These skills are a critical component. And so I would encourage governments at both levels to continue significant and focused investment in providing opportunities for skills development for couples and, in fact, individuals before they get into a relationship. I am talking about children in high school; I am talking about people before they get married and people after they are married. We should provide opportunities for them to access information and educational resources about how to communicate and how to resolve conflict. If we can help people to do that, we will not fix everyone’s problems but we will decrease the chance of violence because violence often comes out of frustration. Frustration comes because somebody feels misunderstood, misrepresented and is not able to communicate.

So I implore governments to look at ways to work with people and to invest resources as required to provide these educational resources so that people can access them. A group session in a classroom suits some people but not many. When you look at the success of Supernanny you realise that there are certain media which people are comfortable to use and access and from which they get good information. You can help to change their expectations, particularly as we are looking at a generation now where many come from a family of origin in which they have never seen modelled constructive and healthy ways to relate, to resolve conflict and to communicate. If all they are watching is things on TV that exacerbate the negative ways to do that, it is no wonder that so many relationships are breaking down and there is violence in some relationships. So we need to go on the front foot to provide those resources and that help for people to break some of those moulds.

In conclusion, I support the bill. I think we need to take out of the history of the bill the fact that Western Australia established its own Family Court for a very good reason. I am not convinced that has necessarily worked but it highlights some of the unintended consequences of the disconnect between state processes and the federal process. I believe we do need to move forward and address that and also look at putting more resources and effort into normalising the concept of helping people learn how to communicate and resolve conflict.

Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

in reply—I first thank the member for Wills and the member for Wakefield for their contributions to the Family Law (Divorce Fees Validation) Bill 2007. I thank the member for Wills for signifying the opposition’s support for this measure. That is a sensible approach. Errors of this sort described as administrative oversight involve several parties. Obviously, some in my department failed to ensure appropriate regulations were passed. Those who were collecting the fee failed to identify that they had a lawful obligation to check that the measures to ensure that they acted lawfully were put in place. I am not assigning blame but I am concerned to ensure that an irregularity of this sort does not occur again, and I have raised that with the department. I hope administrative arrangements will be put in place to ensure that such oversight does not occur on another occasion. In this bill we are retrospectively validating charges that have already been made. They were no greater than people had to pay elsewhere but there is an equivalence and it is appropriate that the validation should occur.

The member for Wakefield raised some interesting matters as to why we have a family court in Western Australia. It was unique and it reflected the desire of Western Australia to maintain an involvement, not to give up matters to the federal authority and to have a state family court. All states were entitled to have a state family court but only Western Australia took it up. One should not assume that that has given them a unitary system without other difficulties—if I can say that to the member for Wakefield. It is certainly the case that the same judges and magistrates will hear matters relevant to the issues relating to children, for instance, and, if there are family disputes, issues relating to family law. That means of course that, at that first instance stage, there may be less opportunity for the sorts of issues that the member for Wakefield adverted to that occur in other states where apprehended violence orders are obtained in a state court and issues in relation to ongoing care and management of children are dealt with in the family law system.

Of course the fact that there is a single jurisdiction at first instance does not mean that there is a single jurisdiction on appeals. At the moment you still have the situation in relation to an appeal in family law matters where they go off to the full court of the Family Court and if the issues involve a matter of state law they go off to the state Supreme Court. So there is a potential for there to be quite different appeal outcomes because of the appellate jurisdiction being in separate directions. We are trying to work through some of those issues at the moment. We have some difficulty with the Western Australians from time to time on getting a referral of power to cover the field where, I think, covering the field might mean that you avoid different decisions from a state appellate court and the full court of the Family Court.

I do not think there is any easy way forward, but I think the member for Wakefield has correctly identified the need for ministers, through the SCAG process, to look at some of these issues to ensure that the time delays and the potential costs, which he has identified, that can be imposed are worked through. I want to see a little more work done—and I might say that to my staff and officials—on the impact of the AVO system in the state courts and the extent to which they are able to be relied upon in the family courts, whether they are obtained in a timely way or not and whether there are issues we can raise with the state attorneys, perhaps in April when we meet here in Canberra.

I appreciate the opposition’s support for the measure. As always, I appreciate the thoughtful contributions from the member for Wakefield. I commend the bill to the chamber.

Question agreed to.

Bill read a second time.