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

All of us in this place acknowledge that, tragically, Australia is suffering from an epidemic of family and gendered violence. Indeed, the authors of the Rapid Review of Prevention Approaches report described the situation as 'more than a national crisis'. They labelled it a 'national emergency'. The full title of the report is Unlocking the prevention potential: accelerating action to end domestic, family and sexual violence. It was commissioned by the Albanese Labor government in the context of horrific weekly headlines about gendered violence and highlights 21 substantial recommendations.

The amendments in the Family Law Amendment Bill 2024 are in line with recommendation 16 of the rapid review, which states:

The Commonwealth government should build on work that is already underway and prioritise systems where significant harm is occurring, such as: family law, child support, immigration, and taxation.

This emphasised how the Attorney-General characterised the family law system: it is complex and confusing, and it fails to respond effectively to family violence. I'm sure the person who wrote those words would agree with that.

The Family Law Amendment Bill 2024 is a continuation of the Albanese Labor government's action on critical family law reforms. The overarching goal is to reform the family law system so that it is simpler to use, safer and more accessible and delivers justice and equity for Australian families. The Family Law Amendment Bill 2023 focused on clarifying the needlessly confusing framework in the Family Law Act for making decisions about parenting arrangements, including the presumption of equal shared parental responsibility. The legislation made it clear that the priority in all decision-making must be in the best interests of the children, something for which I fought for a long time while in opposition.

Amongst other reforms, the 2024 bill focuses on recognising the economic impact of family violence on a party, directly addressing concerns made in the rapid review. Currently, family law property settlement is primarily decided based on the contributions of each party to the relationship, as well as the future needs of each party. In most cases up until now, the conduct of the parties is not considered to be relevant to the division of property, but the devil was in the detail, and the devil often sabotaged the details. These reforms underpin the Albanese Labor government's commitment to addressing the economic consequences of family violence on separated families. Statistically, women are the victims of family violence at much higher rates than men, and First Nations women are disproportionately represented in this group.

The 2017 Standing Committee on Social Policy and Legal Affairs inquiry stressed how relationship breakdown is well recognised as a contributing cause of poverty in Australia and how a lack of equitable access to financial assets can be a major barrier to the recovery of families affected by violence. The report, titled A better family law system to support and protect those affected by family violence, also stated that seven in 10 women who left a violent relationship had to leave property or assets behind. Furthermore, the inquiry found that, when assets are divided, those who have experienced family violence are more likely to accept unfair property settlements. Victims of violence are three times more likely to receive less than 40 per cent of the property.

There have been more than two dozen inquiries in the past decade into the family law system, including a parliamentary inquiry that I was on that handed down a report in December 2021 called Improvements in family law proceedings, which was chaired by former MP Kevin Andrews, and an important inquiry and report delivered by the Australian Law Reform Commission in 2019. It has long been recognised that improvements to the family law system are required to better support participants through the process and in informing the end judgement. They also identified overly complex and confusing legislation and long-drawn-out and harmful litigation processes. I recall that there were up to 42 steps in the process that a judge would have to consider.

This bill addresses some of these issues. It clarifies the framework used by the courts and separated couples negotiating their own settlement to make decisions on property and financial disputes. The new legislation codifies the steps to be taken in reaching a property settlement. The law must be clear and understandable for all. A fair property settlement can be a big part of avoiding poverty following family violence. Importantly, this legislation recognises that there may be an economic impact of family violence on a party. It therefore expressly allows the courts to consider this effect on a party's contributions to the property of the relationship and on their future needs. It also enables the effect of family violence to be considered as part of a spousal maintenance application.

The amendments further recognise that the parental requirement to provide appropriate housing for children may be relevant in property and spousal maintenance decisions. Children who have been impacted by family violence may suffer from trauma, and this can be compounded by housing instability and financial insecurity after an unfair property settlement.

Another aspect of this bill that will substantially help Australian families going through property settlements is the inclusion of pets in the legislation. Currently, pets are treated like any other property, which can lead to confusion and anxiety for separating couples and their children. In cases of family violence and separation it is, sadly, not unusual for the beloved family pet to become a pawn used in the continuation of abuse. This bill seeks to alleviate this distress by enabling courts to apply particular consideration to pets to help ensure that they are not used as ongoing weapons in family violence. The courts will be able to decide the ownership of the pet as part of the property settlement. Matters to be taken into consideration will include the extent to which each party has cared for the pet, any history of cruelty to the pet by a particular party and, if applicable, a child's or children's relationship with the pet. These measures reflect the nature of the special relationships that people can have with their pets.

Some perpetrators of family violence use the family law system to continue exerting control or abusing their ex- partners. This bill gives the courts greater powers to protect parties and innocent children from the effect of long and antagonistic legal proceedings. It also provides for confidentiality of parties' counselling and medical records. This will stop records being viewed by the other party or used as evidence where the harm in doing so outweighs the need for evidence. This is a significant step to reduce harm to survivors and victims of family violence. Simultaneously, the legislation requires that some disclosure obligations are elevated from court rules into the Family Law Act. This prompts parties to share all relevant financial information—particularly supporting separated couples who are negotiating their own settlement.

A further amendment to the act is to provide a regulatory framework for children's contact services. This will ensure additional safety, reassurance and predictability for families post-separation. It will help children whose families are having difficulty managing their parental contact arrangements—a source of much conflict.

This bill also includes a raft of amendments that further clarify and simplify the Family Law Act. The first of these is the clarification of the arbitration framework, consolidating issues that can be arbitrated and giving arbitrators the power to apply to the family law courts for procedural directions. There will also be increased certainty about the costs in family law matters and how these apply to independent children's lawyers. The bill will also permit the court to decide sole applications for divorce where there are children under the age of 18 without having both parties attend. This will significantly reduce legal cost and stress for families.

It promotes the timely resolution of parenting disputes through a range of administrative improvements and also clarifies Commonwealth information order provisions regarding timely and accurate information about the location of a child. Importantly, it widens the safety net around children by expanding the category of family member and persons about which information of actual or threatened violence must be provided.

As you can see, this bill responds to the calls from advocates working in the gendered and family violence space for the system to be more responsive to the victims of family violence. The amendments in this bill are positive; they'll provide greater consistency in the court's approach. They acknowledge the impact of family violence on the wealth and welfare of Australian families. Crucially, they indicate how a property settlement between a separated couple should be adjusted to reflect the hardship of family violence, thereby providing economic equality. The bill includes a provision for the statutory review of the reforms three years after these amendments start. This reflects the prioritisation of family violence matters and the willingness to adopt different approaches in increasing the safety of families and the fair resolution of family law matters.

Finally, these reforms send a message to the victims and survivors of family and domestic violence: that the law advocates for them and wants fairer outcomes from legal processes. I wholeheartedly commend the bill to the House.

Zoe Daniel (Goldstein, Independent) Share this | Link to 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.

Shayne Neumann (Blair, Australian Labor Party) Share this | Link to this | Hansard source

I'm pleased to speak on the Family Law Amendment Bill 2024. It builds on the Albanese government's landmark reforms in the Australian family law system, which were passed in 2023. Together, these important reforms demonstrate the government's ongoing commitment to ensuring that the Australian family law system is safer, more accessible and simpler to use and that it delivers justice and equity for Australian families.

Recent inquiries, including the 2019 Australian Law Reform Commission inquiry and the 2019 to 2021 Joint Select Committee on Australia's Family Law System inquiry, have highlighted ongoing challenges in the family law system, which is complex and confusing and fails to respond effectively to family violence. This bill makes a range of amendments to the Family Law Act 1975 to address recommendations from these recent family law inquiries, and it builds on the family law reforms which came into effect on 6 May this year. The Family Law Amendment Act 2023 and Family Law Amendment (Information Sharing) Act 2023 established new information-sharing arrangements to protect against family safety risks and put the best interests of children at the centre of all parenting decisions and family law matters. Where these reforms from last year focus principally on safety and clarity in parenting orders—children's issues—the key amendments in this bill are resolving property and financial aspects of relationship breakdowns. Importantly, the bill before the chamber today implements improvements in the legal frameworks underpinning property settlement and spousal maintenance matters, including specifically recognising the economic impact of family violence on the wealth and welfare of Australian families.

The bill makes this family law system safer and simpler. It talks about enhancing the operation of the children's contact services; clarifying important aspects of family law; safeguarding sensitive information in family law proceedings; including specific factors for decisions about family pets; and supporting the effective operation of the Federal Circuit and Family Court of Australia. Shockingly, yet unsurprisingly, family violence is present in 80 per cent of parenting matters before the family courts. This new legislation will ensure family and domestic violence can be taken into consideration in property settlements for separating families. It seeks to make division of property and finances safer, simpler and fairer.

The law builds on the government's previous reforms. The bill before the chamber will implement significant reforms. The family law system has been the subject of more than two dozen inquiries in the last decade. They have raised consistent issues, including the lack of responsiveness to family violence and overly complex and confusing legislation which is a barrier to vulnerable users attempting to access or apply the law. The research indicates that those affected by family violence struggle to achieve a fair division of property and finances after relationship breakdown and suffer long-term financial disadvantage, and certainly that has been my experience. I practised in this jurisdiction for close to 25 years and was an accredited specialist in family law from 1996, and it's been my observation that people without resources and people who don't understand the way the law applies are at significant financial disadvantage, particularly as violence can not only persist in the course of a relationship but be ongoing through the course of the negotiations, the systems and the trial itself.

The bill seeks to make division of property and finances safer and simpler. Currently, the courts have the power to make just and equitable orders in relation to marital relationships under section 79(4) and section 75(2). Section 79(4) talks about financial and non-financial contributions to property, and the subsection after that talks about contributions to the welfare of the family, including contribution as a homemaker and parent. That is mirrored, by the way, in relation to de facto relationships. We can find that in section 90SM and 90SF of the Family Law Act.

Negative contributions have always been taken into consideration in a whole range of case law in this matter. To give you a couple of illustrations of where it can be taken into consideration: if, for example, one party deliberately destroyed properly or one party deliberately gambled away assets or deliberately engaged in intentional or reckless behaviour, courts have always been a position where they can take that into consideration in terms of a dissipation or a negative contribution to the size of the matrimonial pool of assets. But we have never been able to take into consideration the economic impact or consequence to that pool of assets from domestic and family violence perpetrated by one party to the relationship on the other. That has never been the law. And so this particular legislation is landmark reform. It's absolutely crucial.

It's important that we pass legislation like this, because we want to ensure that there is justice and equity in relation to people's property settlement. You've got to take into consideration the real-life impact. The perpetrator of domestic and family violence, if they also are financially better off and have greater resource and qualifications, are often much better off in terms of the outcome of the property settlement. The victim-survivor of domestic and family violence is often a position where they are out of the workforce. They sometimes—tragically, too often—have actually been physically injured as a result of what's gone on and they cannot work or their ability to work is inhibited. These factors should be taken into consideration when it comes to property settlement. For the very first time, we are going to be doing that in terms of property settlement and spousal maintenance proceedings.

These are very important impacts in terms of property. Considering that up to 80 per cent of child related issues involve domestic and family violence. Just imagine the impact on the outcome of alterations of property settlements that are going to be made by this legislation or will be available to victim-survivors in bringing that information on affidavit before a final hearing or, indeed, an interim hearing when it comes to spousal maintenance or if it's important to protect property before the final hearing.

There are other issues that I think are really important. Disclosure is a big factor in family law matters, as is the case in a lot of civil and criminal litigation. It's important that we have disclosure obligation. One of the things that I found as a practising lawyer was that people often didn't take it seriously enough. When you've got a situation where up to 40 per cent of people in this jurisdiction are self-represented, they don't take it seriously enough more often than not. I've been in situations where people disclose massive amounts of information on the eve of final hearing. So it's important to have disclosure information not simply as a practice direction but elevated to the point of the Family Law Act so they realise they're actually breaching the act when they fail to disclose information that's critical to the outcome of property settlements. It's a fundamental issue of justice. The fundamental importance of disclosure of relevant financial information is about fair and timely resolution of property settlement. The more information that's available to people earlier, the more likely it is they'll settle the case and the less likely it is they'll go to a final hearing. It costs less money and it's better for their family, better for their children and better for the outcome and the future, so this amendment is really important. It recognises that nondisclosure can have an impact from economic or financial abuse and misuse of systems and processes. So this is a critical change that we are making. It's a sensible move. The bill will expand the court's ability to also use less adversarial approaches in all types of proceedings not just for children's matters but supporting parties to safely raise family violence risk to ensure safe conduct of proceedings.

The other thing is this. We know this too well. I've experienced it. It's quite astonishing. It used to really frustrate me from time to time. You'd get a situation where the matter was almost resolved out of court. Then I'd be in court, usually in Brisbane, negotiating a property settlement back and forth. Sometimes it took days to do it. You'd get to a point right at the end and often it was some chattels that were being argued about. You would not believe the number of times that a dog or a cat or another pet came up as part of the overall negotiation of property settlement. The love and affection Australians have for their animals, their domestic pets, and the way in which perpetrators of domestic and family violence can use the process to continue the impact of domestic and family violence on the victim-survivor I saw again and again. So the reform here allows changes that will assist to reduce that impact. The bill allows the court to consider a range of factors, including family violence, when determining the ownership of pets in settlements. This recognises recent research by the Australian Institute of Family Studies highlighting how pets are being used in coercive and controlling relationships. It's astonishing the number of people post relationships that want to continue that coercive and controlling relationship by use of not just children but pets as well.

So, in addition, the bill will provide support for safe supervision and changeover of children by establishing a framework for the future regulation of children's contact services. How important that is. Changeover is a flashpoint between parties that argue with each other over children. It's an opportunity for domestic and family violence to take place. And it's an opportunity for children to witness the ongoing domestic and family violence of their parents. So this is a critical change that we are making here. These services must operate to a very high standard by professionals and not just someone who says, 'I can do the job,' and provide essential support to vulnerable and high-risk families to safely manage contact arrangements when they can't do it on their own. Too often they will say they will change over at McDonald's or something like that and think that, somehow, being in public will prevent harsh words being used or threats being made or intimidation, harassment and the like occurring again. That sort of coercive control, harassment and threats can continue.

Importantly, the bill will provide the court with greater powers to ensure family law proceedings progress efficiently and allow divorce proceedings to be heard in the absence of parties and allow the court to not accept a parenting matter if a party has not met the required pre-filing of a family dispute resolution. I think that's important. I think that's a significant reform. I haven't got time to go through it, but I think it's a very important reform. I think that will have a significant impact on how people think about their relationships with their children and their relationships with each other.

The bill clarifies and strengthens the Commonwealth information order provisions and will allow the court to have more information available to assist in the location of a child, including by expanding categories of family members about which family violence information can be sought by a Commonwealth department or agency. So there are new powers to prevent the failure to disclose information. The changes we are making in this space are so critical.

I want to finish on this note. If you practise in this jurisdiction—and there are many lawyers who do and many people who come in contact with the system—you know how frustrating it can be. You know how difficult it is to understand practice directions in the Family Law Act in various sections. Just think about how that impacts on people's thinking and their understanding of where they are going to go and how they are going to resolve their children's issues and how they are going to resolve their property settlement. If we can make it safer, if we can make it easier to understand, if we can make sure their children are safe, if they can understand that they can survive, get the help they need, get access to professionals and get a property settlement that understands the impact of domestic and family violence on them as a victim-survivor, that will result in a better country and a better community in which those people can live.

Sometimes we debate legislation in this chamber and in the main chamber that doesn't have much impact on people's lives, but legislation like this completes the family law changes that we've been introducing, and it will make a massive impact on the lives of tens of thousands, if not hundreds of thousands, of Australians in the future. The ability of the court system to render justice and equity is critical to people's respect for the law, but it's also important for people's understanding about how they will get on with their lives, and their expectation of justice can be met by this legislation.

Zali Steggall (Warringah, Independent) Share this | Link to this | Hansard source

I rise to speak on the Family Law Amendment Bill 2024. It's always incredibly difficult to deal with family breakdown and separation, and it's sadly a fact of life that currently about 40 per cent of marriages and relationships end in divorce and separation. Many of these separations are amicable and are done without conflict; they're the ones we don't hear about. Unfortunately, where there is breakdown and it's adversarial, there are those who need to rely on the family law system to settle their divorce or separation, divide up property and assets and decide custody of children. Sadly, all too often, domestic and family violence is a part of that process and a part of those marriage and relationship breakdowns.

Before I entered parliament, I was a family law barrister. I sadly had the opportunity to observe, all too often, how much domestic and family violence was a part of those situations. I know how distressing this area of law can be for those who have to engage with it. It's frustrating. It's incredibly confronting, because the family unit—your personal situation—goes to the core of people's lives: how and where we live and how we raise our children. Often, the family law system is one of the first points of contact that people have with the justice system. Many people won't have had any engagement with court processes until that breakdown of the family unit and not being able to resolve the dispute. The process of engaging with family law can be adversarial, confrontational, emotionally unsettling, financially crippling, life changing and abusive. It can be a continuation of the abuse that's all too often experienced, maybe in relationships as well.

Now, as a member for Warringah representing my community, unfortunately I still deal with many families—and unfortunately, too often, women—who still find this system not working in an equitable way and incredibly frustrating. I commend the government and the Attorney-General for this legislation. It is a step in the right direction in starting to assist. I will take the opportunity to raise that there are still many who raise with me their concerns that the Hague convention proceedings don't always mirror or reflect the kind of progress we're making in the family law system. That is an area in which I'd urge the government and the Attorney-General to make representations on behalf of Australia, to ensure domestic violence and safety are better reflected in the Hague convention proceedings as well.

On the family law front, after many inquiries and reports from this place, as well as the Australian Law Reform Commission, we have started to make real headway in reforming the system, and I absolutely welcome that. This legislation builds on recommendations made by the Joint Select Committee on Australia's Family Law System, of which I was a member. It is obvious to so many of us who have dealt with the family law system that consideration of family and domestic violence needs to be and is finally going to be a consideration when it comes to property settlements and other areas. It really should have been a consideration much before now.

We know we have a domestic and family violence epidemic in this country; it's a crisis. I have spoken about it on many opportunities. I think this opportunity, like others, is a good time to remind us that 64 women were killed by domestic violence in Australia in 2023. We note that the number for 2024 is horrendous. According to Destroy The Joint, 47 women have already allegedly been killed by domestic and family violence so far in 2024. We know that the time at which women are most at risk is in the breakdown of a relationship—the leaving of a relationship. That's why the right kind of protection and access to services is so incredibly important, as is making sure that the system works so they don't return to dangerous relationships. So we need to make more changes to ensure that those who suffer from violence don't see living safely and separately as insurmountable. That's why changes to the family law system are so incredibly important so that they feel there is a system that will better recognise, reflect and deal with their circumstances and situation.

I know the government has consulted with stakeholders in drafting the legislation, including allowing comment on an exposure draft, but I should say it's disappointing that many of us in the parliament, particularly on the crossbench, have had fairly limited time to review this legislation, which makes it difficult to fully interrogate the bill and get full feedback from interested parties such as law societies and others. I suspect that the bill may well go to inquiry in the other place, which I would welcome because there hasn't been that opportunity to interrogate it and potentially look to amendments in certain areas. But I absolutely acknowledge the Attorney-General has been focused on implementing long-overdue reform in this area, particularly the myriad of recommendations that we have had sitting on the shelf for much, much too long.

It's a complex area of law. It's very technical. But there has been a wide range of support for these changes. Women's Legal Services Australia rightly noted in their submission on the exposure draft:

Reform to the Family Law Act can significantly enhance women's economic wellbeing by ensuring that family violence is a factor taken into consideration in property settlements, both the impact on contributions to the asset pool and the current and future needs of victim-survivors.

I strongly agree with this.

At the core of this bill, it will allow magistrates and judges to consider the risk of violence and the economic impact of violence when it comes to dividing up property and finances. It was always such an incredibly frustrating situation, for me as a barrister working in this area, that a client might come to me with a tale that involved incidents of domestic violence or coercive control that clearly impacted their capacity to work, to pursue further education or to better their situation and that impacted their liberty, their access and their freedoms, but, under the Kennon principle, you simply couldn't establish that as a means to show how much that impacted a party's financial contribution to the marriage, which ultimately was what the court would take into account in dividing up the assets. For so many clients, it was incredibly heartbreaking. They still requested that I run the arguments in relation to the domestic and family violence, because for them it was very important to have it on the record and acknowledged, and it was often very important to have the judges actually acknowledge and accept the evidence in respect of domestic violence. But, unfortunately, you had to acknowledge that the threshold from Kennon wasn't met to show that it had a substantial impact on capacity to contribute financially. You essentially had to show someone was in hospital and couldn't attend their job to show that there was an impact on property proceedings. So I very much welcome the fact that we will now have, in legislation, a clear requirement for the court to consider the impact of domestic violence when it comes to dividing up property and finances, because it has a real impact on a victim's financial circumstances.

I also really welcome the consideration in the legislation to make allowance for housing needs, particularly in terms of which party has the care of a child. All too often, especially when domestic violence is involved, we see the victims and the children have to leave the family home, and they then find themselves in a housing crisis. We know we will never have enough crisis accommodation to assist victims of domestic violence, so we need to tilt the onus and change the situation so that there is more pressure on the courts, when divvying up assets, to consider the housing needs of those with the care of children more fully, especially if domestic violence has been there. I've talked with the Attorney-General about even reversing the presumption in relation to a right to occupy the family home, especially pending the resolution of proceedings, which, sadly, all too often takes several years and often leads to systems-induced poverty for victims.

This legislation also brings in changes when it comes to protecting sensitive information, and I think this bill strikes a fair balance. I'm satisfied that what's been proposed will give an additional ground of objection to a participant, the maker of a protected confidence or the judge. It's important that when a party to proceedings, for example, issues a subpoena in relation to documents—for example, counselling records—a party will always have the grounds to object to the documents being sought for discovery, and now the changes in the legislation mean there's an additional ground on which to object to that production. I think that's really important. It is also open to a judge and/or the person making the protected confidence or a person with a case guardian, for example, to exercise that.

So I think these are all positives, and I'm satisfied that they're good changes. Of course we can always go further, and I urge the Attorney-General to consider continuing to reform this sector, because it really does go to the core of so many families.

In terms of the changes to the children's contact services and how they operate, again this bill introduces much-needed regulation of the sector, and I strongly support it. The reality in parenting cases is that, when there are any risks of harm to the child, you have to have involvement of supervision and children's contact services. It means that often, for a period of up to two years, contact with a child for one or both parents will be really limited, particularly if there isn't access to children's contact services. So an area I would urge the Attorney-General to focus on is making sure there's equitable access to contact services, because I know regional communities do not have sufficient contact services and, if you can't get in or there's a long waitlist, the reality is that contact ceases between a parent and child, and that has a huge impact on that relationship. That's often before you've had a full working out of the allegations by a court, so it's really important that there is equitable access pending determination of proceedings so that you don't have irreparable damage made to relationships between parents and children and that relationship can continue in a safe and supervised environment. That is absolutely vital. Of course, the standards vary a lot, so I think it's really important to have that regulated.

Obviously, apart from the time limit, I feel that a key area for improvement outside of this bill is funding the community legal sector. I've spoken many times about the need for changes to sentencing and for having a much greater deterrent when it comes to the consequences of domestic and family violence, to protect women and children. But pending changes to our laws—and I acknowledge that, with our federated system, it means changes to state laws in terms of sentencing—we need to make sure people can access the law and can access advice. That is where it's so vital that we have funding for frontline legal services, including Indigenous services, especially in regional communities. At the moment, we know they are so pressed for resources they have to pick and choose which courts they may or may not be able to offer services at, which means a huge cohort go unassisted. I went through my law degree. I passed my bar exams. It is complex and it is hard. To expect people, unassisted, unaided and unadvised, to deal with the system leads to really bad outcomes. People misunderstand the law, they don't understand the requirements or the presumptions, and you end up with really bad outcomes and, I think, dangerous outcomes. So I very much urge the Attorney-General to continue focusing on that aspect.

I know stakeholders like the Law Council of Australia have noted that the exposure draft and the current draft of the bill may create unintended consequences of further litigation, so there is some concern there. Clarifying and simplifying areas of law in this bill may in fact complicate it, so that's where that inquiry process in the other place, I think, would be beneficial.

The community legal sector is facing chronic underfunding, as I said. If we want them to be able to assist participants in the family law system, they need to be funded. It's a basic aspect for this to work. So I urge the government to step up its funding through the National Access to Justice Partnership. We need accountability and transparency for how those funds are being spent and disbursed. I know there's been a recent announcement—I think last week—of $800 million. It's a start, but I argue that it's really only a down payment. Funding and detail need to be increased. The concern is also the delay in accessing it so that the lawyers in this sector can actually have some ongoing contracts and certainty of staying in the system.

This is an area that, obviously, will always require a lot of ongoing work. I urge the Attorney-General to stay focused on this and make sure our regional areas have access to the help, because we know that domestic and family violence and, unfortunately, fatalities overwhelmingly occur in the more remote and regional areas, so we have to make sure they have access to assistance as well.

Mark Dreyfus (Isaacs, Australian Labor Party, Cabinet Secretary) Share this | Link to this | Hansard source

The Family Law Amendment Bill 2024 contains important reforms to the Family Law Act 1975 which build on landmark reforms for parenting matters that commenced on 6 May 2024. The Albanese government is committed to ensuring the family law system is safer, more accessible and simpler to use and delivers justice and equity for all Australian families.

This bill will make resolving property and financial aspects of relationship breakdowns safer, simpler and fairer for separating families, especially where family violence is present. We know that those affected by family violence struggle to achieve a fair division of property after a relationship breakdown and suffer long-term financial disadvantage. Family violence may also be a barrier to women seeking a property settlement at all. This bill is an opportunity to send a strong message to the community that property settlement outcomes should recognise the effect of family violence on individuals and on the wealth and welfare of the family where this is relevant. It is an opportunity to provide additional safety, reassurance and predictability for families by providing for the establishment of a regulatory framework for children's contact services to ensure safe and child focused services for families who cannot safely manage contact arrangements themselves.

The bill also seeks to introduce a power for the courts to safeguard protected confidences in family law proceedings and other measures that clarify the operation of aspects of the law and support the efficient administration of the family courts. This bill will better assist Australians using the family law system by creating a safer and clearer process for separating families. I commend the bill to the House.

Question agreed to.

Bill read a second time.