Terri Butler (Griffith, Australian Labor Party, Shadow Assistant Minister for Preventing Family Violence) Share this | Link to 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.

Julia Banks (Chisholm, Liberal Party) Share this | Link to this | Hansard source

I rise today to speak about this very important committee report, A better family law system to support and protect those affected by family violence: Recommendations for an accessible, equitable andresponsive family law system which better prioritises safety of those affected by family violence. The scourge of domestic and family violence has far-reaching effects on Australian families. I reflect today on the excellent work done in 2017 by the Standing Committee on Social Policy and Legal Affairs, a bipartisan committee, under the leadership of the chair of the committee, the member for Corangamite.

May I take this opportunity to thank all those who made submissions to the inquiry. For victims of family violence, many of whom have had involvement in the family law system, sharing personal traumas and experiences to help others is indeed commendable, and their courage in wanting to contribute to systemic change so that others may be better helped and assisted has had an indelible impact on the inquiry and our subsequent report, so I thank them immensely.

I'm very proud that, in March 2017, the Attorney-General requested that this House of Representatives standing committee inquire into how Australia's family law system can better support and protect those affected by family violence. Many families across Australia access the family law system for assistance and support to resolve the legal issues which arise following a family breakdown, and many of these families have had experience with family violence. It is imperative that adequate support and management is provided to these families to ensure their ongoing safety and wellbeing.

In my early days as a lawyer, I practised family law and saw firsthand that divorces and breakups are inherently serious and complex in any event. But when the element of domestic violence becomes an integral element of that situation—that is, when domestic violence is implicated within the family law proceedings—it often has significant, enduring and devastating consequences for the victims of violence, particularly for young children. Domestic and family violence has a far-reaching effect for those who are experiencing it; it is devastating for the children who are often caught in the situation, as well as for the respective partners.

As the report advocates, it is essential that we have an accessible, equitable and responsive family law system which better prioritises the safety of families and that steps are taken to ameliorate instances where evidence suggests the family law system is not adequately supporting or protecting families which have experienced this violence. In particular, the report raises key concerns identified in evidence provided by the people regarding the current family law system's approach to family violence, including the difficulties posed by an adversarial family law system, the existence of inappropriate responses to reports of family violence, exorbitant legal fees, complex court procedures which reduce the accessibility of the family law system, and the complexity in navigating state, territory and federal jurisdictions. These myriad complexities burden families affected by family violence, and the current design of the system has at times failed to support and protect families affected by family violence. I'm proud that the Social Policy and Legal Affairs Committee has proposed the exploration of reform for the current system in this context.

Our committee's report recommends a nationally developed risk assessment tool for use across the family law system and by all professions working within and adjacent to the family law system. We have also called for a stronger, more uniform approach to identifying and responding to family violence in family dispute resolution, using the new nationally consistent risk assessment tool. Another proposal to redress systemic shortcomings is the greater use of legally assisted family dispute resolution for families affected by family violence, thereby reducing the number of cases which proceed to court and have to wait for court dates, which frequently leads to lengthy delays in resolving disputes, with increasingly prohibitive costs.

As a committee we've recommended significant reforms if and once a matter reaches court, including ensuring that the determination of family violence occurs early in the proceedings, which must be supported by a stronger initial assessment of risk so that the court can make informed decisions regarding parenting and property matters. The committee also makes recommendations for improved case management of family law matters involving family violence, including the adoption of a single point of entry to the federal Family Court so that cases may be appropriately triaged and actively case managed. The committee has also recommended that more uniform rules and procedures are implemented to reduce complexity, as well as stronger referral pathways and penalties for abuse of process—which we know happens far too frequently—perjury and noncompliance with court orders.

Following the submissions, it is clear in the findings that obtaining an equitable property settlement after the breakdown of a relationship which has involved family violence can become very difficult. The initial divorce proceedings can be quite simple, but the property division can increase and extend the difficulties posed. The report presents evidence that property settlements can provide abusive partners with a new and fresh avenue for abuse and leave families impacted by family violence in significant financial hardship, which overlays the hardships they're already experiencing. In response, the report discusses options for safer, fairer and swifter property settlements, including simplifying the process for superannuation-splitting orders.

Some families experiencing family violence, such as families from a number of different backgrounds, can face additional barriers when accessing the family law system. Having English as a second language can be prohibitive. Barriers can be faced by Aboriginal and Torres Strait Islander families, culturally and linguistically diverse families and people with disability. As such, our report recommends that the previous recommendations of the Family Law Council be implemented.

In addition, the report recommends improving the capacity of family law professionals to respond to family violence so that inconsistencies in capacity do not place families at risk of further harm. So, too, must resources to the family law system be increased to redress a backlog of cases in the federal Family Court system, which is yet another element which elongates the time for the hearing of cases. The committee believes that ongoing support services can provide families with security and safety after a family law matter has been resolved. We have expressed support for specialist domestic violence courts to employ wraparound models of court based support. The committee also recognised the importance of evidence based, evaluated and best-practice behaviour-change programs in the ongoing safety of families which have experienced family violence and has made recommendations for the incorporation and expansion of programs in existing services.

In conclusion, I thank the former Attorney-General, Mr George Brandis, for requesting that the Social Policy and Legal Affairs Committee inquire into how Australia's family law system can better support and protect those affected by family violence. As the inquiry has determined, the family law system can be incredibly difficult and prohibitive for victims of family violence to navigate. I'm pleased that our report recommends tangible and, indeed, measurable improvements so that the scourge of family violence may be dealt with through the family law system in a person-focused, timely and efficient manner. I commend the committee's report.

Emma Husar (Lindsay, Australian Labor Party) Share this | Link to this | Hansard source

I wish I could be as convinced as the member for Chisholm was in her speech just now about the committee's work and the report. There is something that the government can do immediately about the inconsistencies and the incongruences occurring in the Family Court, which includes up to four years delay for somebody seeking justice through that system. They could appoint the judges that have left that system through retirement or assist those judges who have over 300 cases on their dockets.

The Standing Committee on Social Policy and Legal Affairs throughout last year had the opportunity to inquire into a better family law system to support and protect those affected by family law. Unfortunately, this is a subject I have an expert lived experience in. Recommendations have been made for an accessible, equitable and responsive family law system which better prioritises the safety for those involved. Many families across Australia access the federal family law for assistance and support to resolve the legal issues which arise following family breakdown, including those impacted by family violence. Family break-up happens all the time. Not all of them land in Family Court. The ones who do are there because they cannot resolve it outside using the usual mechanisms. These are special families who are incredibly vulnerable and need this parliament's and the legislation's full support.

I am well aware and all too familiar with the shortcomings of the family law system. The shortcomings for families who are impacted by this system are far greater than for those who are not. I would go further and say they are not shortcomings; they are absolute, abject failures, and the people they are failing most, and the most grievously, are children. The struggles families face following breakdown are difficult, and the legal system is complex to navigate, but it is even harder when you are marginalised by having family violence as a feature of that breakdown.

The inquiry was about the specific way in which family violence and family law interact with each other. The 6,000 or so pieces of evidence we took throughout this inquiry told the story of how desperately inadequate the system is at serving families affected by family violence. When the chair of this committee, the member for Corangamite, denied the judges of the Family Court and the Federal Circuit Court the opportunity to attend a hearing, I was most grievously offended. The people who have the oversight, whose life's work it is, and who spend every single day presiding over this, were not invited. They were invited; then they were uninvited. That is an insult. When family violence is a component of family break-up, separation and divorce, the complexities and difficulties are compounded exponentially. For the committee to be unable to hear from those judges and the two voices who were the most expert on this, you must ask yourself how serious this chair was about actually getting on with looking into the job we were tasked with on behalf of the Attorney-General.

Our current system absolutely needs to change, and addressing the shortcomings with real solutions instead of tinkering and teetering with the versions would be an absolutely great start. The addendum made in this report by Labor members provides a good insight into our feelings on those, and our reservations in supporting this without a caveat.

Families that experience family violence need adequate support and management to be provided to ensure their ongoing safety and their wellbeing is a priority. This doesn't end when they hit the family law courts. And it is not just that they deserve it; we absolutely owe it to them. In this place, we talk about and we say we are aware of the impacts of domestic and family violence, but are we really? At least one woman a week is killed by a current or former partner. It is week seven of 2018, and we've already had to count nine women. When a woman leaves an abusive relationship, the very, very least we can do is to provide a legal system through the family law courts that does not exacerbate the abuse. This is exactly what we are seeing now. The committee have made 33 recommendations; seven of them are needed absolutely right now.

Recommendation 12 focuses on the imbalance created when an unrepresented perpetrator of family violence is legally allowed to stand up in a courtroom and query their victim. I'm aware the government has made an announcement to support ceasing this. The member for Griffith talked ad nauseam about this and we have spoken at length about it on this side. But it's only an announcement and you cannot hang your hat on it or feel warm and fuzzy on the inside over an announcement. An announcement must be followed with action. Victims need help now and I call on this government to move past the announcing and get onto the delivery.

Recommendation 19 talks about the assumption of shared parental responsibility. This is a hangover from the reforms made by former Prime Minister Howard. It's not surprising he didn't seek a woman's opinion on this, because I'm sure, if he had and he'd done some investigation, he would have understood this is absolutely the wrong way of moving forward. These reforms were hastily delivered and create a situation where the perpetrator of domestic violence can use the courts to continue to perpetrate the violence, continue the imbalance of power and use the courts to try and obtain custody from the person they committed domestic violence against.

Who are these people? When you commit domestic violence against the other parent in your relationship, you do harm to the child. In New South Wales, our jurisdiction says that a secondary victim of domestic violence is the child that is in that household. So what right, I ask, does a perpetrator of domestic violence have to rock up to a court and use the legal processes to try and seek a shared equal parental responsibility? They have a right, absolutely, to a relationship with that child, but they also had a responsibility and a duty of care when they were living under that roof and were a perpetrator of domestic violence. We have a law that currently says, 'That's fine; you're entitled to ask for it and to go through that system'—a system which takes up to four years from beginning to end, at exorbitant cost of up to about $30,000 or, in some instances, even more than that.

We also heard about the extraordinary circumstance where, when the child ages another two years, the perpetrator can then ask for the file to be reopened and go back to court, dragging the victim and that child back through the process all over again. I cannot begin to imagine the impact on those children or that victim in being re-traumatised over and over again. So, when we call for shared care not to be presumptive, it needs to be understood what that actually means. It's not some law where we just want to marginalise all these poor perpetrators of domestic violence; it's actually taking into consideration the long-lasting impacts that trauma has on developing brains and young children.

The penalties need to be greater. If you were to commit DV, would you continue to do it if you knew when you were doing it that it actually meant access to your children would be dissolved as well? I don't see it as a penalty; I actually see it as a responsibility and something that we could do to help move to end the cycle of domestic violence. We know violence creates long-term harm and the consequences do not cease once people have exited the family law system or once that perpetrator is removed from the home.

Of the women who fall victim to violence, more than half have children in their care. I say 'women' because we do know that there are more women than men affected by this. It's imperative that these women who land in the family courts are supported. With this in mind, I note recommendation 31, which talks about the disgraceful delays in the Family Court system—delays that, out of all of this, notwithstanding our judicial officers working incredibly hard, are the most important thing to be addressed right now. It is something where, with a very easy pen stroke to put more judges into those positions, we could start addressing some of the backlogs. It is unacceptable that a woman and a four-year-old child could enter a family law system and not exit until that child is in middle primary school. When you are facing these things, you face the prospect of not being able to make decisions about where your child is going to attend school or about who's caring for them medically. That is four years out of a developing child's life. You learn everything that you're going to learn between the ages of nought and seven. If we are subjecting children to this life of instability because Family Court's going to drag on for four years, we are not doing our jobs as parliamentarians and legislators, or good jobs.

Recommendations 27 and 28 talk about better training for judicial officers. Recommendation 8 talks about the abuse of power, which I touched on briefly, and how perpetrators continue to use the system to gain access to their victims and continue the abuse long after the victim has left the family home.

We will await the commission's review and recommendations to allow any reform proposals to be thoroughly considered before they're implemented. I would caution against the use of parent management hearings. During our inquiry, we heard it was on, and then it was off—it was on and it was off. The people who are supposed to be charged with the responsibility of delivering these parent management hearings cannot be sure about who's going to be served by the parent management hearings or who will preside over those parent management hearings.

Before I finish, I'd like to acknowledge the tremendous effort of the committee secretariat, who did an extraordinary amount of work and took on incredibly heavy evidence on behalf of the committee.

Tim Wilson (Goldstein, Liberal Party) Share this | Link to this | Hansard source

It's a great privilege to speak on this report by the Standing Committee on Social Policy and Legal Affairs. It would be fair to say that the inquiry process, for many members, was a challenging one. For me as somebody who hasn't had direct experience of the subject matter of the inquiry—family violence and the family law system—parts of it were eye opening, and I think we need to acknowledge that. Some other members, including the previous speaker, the member for Lindsay, have perhaps had closer experience of the subject matter than I have. Nonetheless, it was a good opportunity to cover many of these issues as part of a package of issues that the government is dealing with in the space of family law.

I'd like to start by commending the chair for her leadership and all the other committee members for their participation in the inquiry, and I was privileged to be able to be part of this process of trying to bring the human stories and lived experience of many Australians in the family law system to the fore, to be codified for the record and to be part of a pathway of positive change to improve the system for Australians needing to deal with family law—for victims of domestic and family violence and, in particular, for children. The committee is trying to ensure their best interests are put at the heart of any system. That is the basis on which the report has been put forward. It is also the basis on which the report has been written and the recommendations have been designed.

We also want to thank, very strongly, those who made submissions, both written and oral, throughout the inquiry. They have been critical in making sure that this report and the recommendations have integrity and making sure those voices are heard, because human stories sit at the heart of the problems that are faced by people in the Family Court. Human stories anchor this report as examples of the experiences we are seeking to address so we can improve the system for the better.

I don't want to labour in too much detail the different recommendations but simply acknowledge that there have been a number of key themes which have resonated with me throughout the inquiry. These include the section outlined in the committee's report that relates to parenting orders being heavily influenced by evidence provided in family reports and prepared by family consultants. It is extremely concerning, as the chair noted, that families are often paying thousands of dollars for these reports which may be written by practitioners who have no formal training in or understanding of family violence or its impact on children. It's critical that the quality and reliability of family reports improve. Something as simple as codification of people's stories to improve the system is clearly at the heart of fixing the system. It shows you how much opportunity there is, through simple procedural improvements, to dramatically improve the current situation faced by many people who experience the family law system.

Recommendation 5 follows on from that. It's about the need for the greater use of mediation or alternative dispute resolution by the Family Court during proceedings to encourage earlier resolution of matters. It came from concerns directly as a consequence of issues around family violence, to make sure that there are alternative avenues to deal with problems so that people do not get caught up in the legalese of the family law system. That means they can focus much more on human outcomes, particularly in removing environments which lead to conflict and focusing on how we can get to a point of resolution in the best interests of families and children. I'm particularly taken by recommendation 11, which says:

The Committee recommends that the Attorney-General works with state and territory counterparts through the Council of Australian Governments to establish a trial in one or more specialist state or territory family violence courts (including reaching agreement in relation to resources, education and court infrastructure) enabling family law issues in family violence cases to be determined by the one court, including expedited pathways for breach and enforcement proceedings. One of the trial courts should ideally be located in an area of high Indigenous population.

Central to a lot of the things we heard throughout this inquiry were the issues that people from culturally and linguistically diverse backgrounds face. In fact, the system does not properly accommodate or recognise diversity and the lived experiences of many people from culturally and linguistically diverse backgrounds. That needs to be better recognised and accommodated within the court system if it's to achieve the best interests of the parties involved, and, again, particularly children. That is especially so in the case of the Indigenous population, who, we heard time and time again, have not been fully recognised in respect of how the family law system works. That is something we can do and that we can lead successfully to improve outcomes for every Australian.

Another recommendation that I thought was particularly prescient follow on directly from that, particularly recommendation 24, which also deals with Aboriginal and Torres Strait Islander issues. Looking at past reports, it said:

The Committee recommends that, as a matter of urgency, the Australian Government implements the Family Law Council recommendations from both the 2012 Improving the family law system for Aboriginal and Torres Strait Islander clients report, and the 2016 Families with complex needs and the intersection of the family law and child protection systems – Final Report, as they relate to Aboriginal and Torres Strait Islander families, including those recommendations addressing—

exactly going to those issues—

In the same context, many similar issues come as a direct consequence of CALD families and the situations that they face.

That particularly leads to a subject that perhaps wasn't given the full attention of this inquiry, not because it wasn't important but because it could have its own inquiry. I think it is very important to address and I would recommend that the committee considers for future discussion the issue of dowry demands. It was covered in section 7 of the report, dealing particularly with the issue of dowries and how they can be used as a form of bride pricing and how they are used as a form of psychological, financial and emotional violence which can undermine the independence of women. They are common in some subcultures of people, particularly from new migrant families. This subject was covered by the inquiry, but it probably justifies further extrapolation. I know there's some work being done by the Victorian government in this space. The use of bride prices or dowries as a way of controlling women is completely unacceptable in our country, and I'm sure you share that sentiment, Deputy Speaker Buchholz. Manjula O'Connor, a constituent of the great electorate of Goldstein, regularly raises with me some of the issues around dowry extortion in migrant communities. She is concerned particularly, that some new arrivals to this country haven't had the opportunity to understand, or haven't had the lived experience to understand, that this practice is not acceptable in our country. There needs to be further work done to make sure that women are not finding a situation where they experience this type of emotional violence and physical violence as a consequence of it but are able to live full and independent lives. Part of the family law system has to recognise where this may be a factor in relationship breakdowns, and that's part of making sure that people can live that full independence.

I recommend the report to the parliament. I congratulate the chair and everybody who participated in it, and I will take the opportunity to acknowledge and congratulate the new chair of the Social Policy and Legal Affairs Committee, Julia Banks, on her illustrious elevation after the departure of our previous chair, and wish the committee its best work and deliberations into the future.

Debate adjourned.