Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

I present the second interim report of the Joint Select Committee on Australia's Family Law System and move:

That the Senate take note of the report.

When Labor leader Gough Whitlam introduced the Family Law Bill in 1974, its purpose was to eliminate, as best as possible, the high costs, delays and indignities experienced by so many divorced couples under the existing Matrimonial Causes Act. The bill was passed by parliament and became known as the Family Law Act 1975. For anyone who has been through the divorce court since, the Family Law Act is regarded as a failed piece of legislation that has destroyed too many lives, separated children from their parents and allowed lawyers to feed off the bones of families like vultures. The countless inquiries that have previously been conducted all agree the system does not meet the needs and expectations of many of those who go through it.

Over a period of 46 years, the Family Law Act has been amended more than 110 times, yet, rather than make it better each time, the changes have only made it more complicated. The current family law system has created a lottery of winners and losers. When someone loses their family, their children and everything they have worked so hard for, it brings about enormous suffering and an increase in suicide numbers among those people who are victims of the family law gamble. For the past 25 years, I have advocated for change to this unjust system.

The Joint Select Committee on Australia's Family Law System received over 1,450 confidential submissions. The evidence received was nothing short of heartbreaking. Many participants knew there was nothing the committee could do to help their past cases, but I want to thank those people, because their focus was to ensure that no other family or child would feel the same pain.

There was also a wealth of evidence given regarding domestic violence. Let me make it very clear: domestic violence is unacceptable and won't ever be tolerated. But this inquiry has convinced me domestic violence must be broken down into three categories. I have suggested that those categories include domestic harassment, domestic threat and domestic violence. As the definition of domestic violence stands, it carries unintended consequences for separated parents, blue card holders, police, military and the livelihoods of anyone requiring a gun licence. The current definition differs between states and territories, and simply stating that you are 'in fear' can constitute domestic or family violence. Such allegations are increasing adversarial hostilities in our courtrooms and fuelling a greater divide between non-custodial parents and their children. The committee is of the view the Council of Attorneys General should review the definitions of 'domestic violence' at Commonwealth, state and territory levels to bring about a uniform definition.

That brings me to another point made evident by inquiry participants: domestic violence allegations are increasingly used as a means to avoid the legal requirement for mediation. I'm very strong in my belief children have a right to see both parents unless a parent has demonstrated violent or abusive behaviour towards the child. Children must not be the collateral damage of marriage breakdowns. Parents must look past self-interest, pain and vindictiveness. I am fed up with feminists and organisations pushing their agenda that paints men as the only ones capable of domestic violence. I accept that men account for 75 per cent of this behaviour, but we cannot ignore the 25 per cent of domestic violence committed by women. The truth is domestic violence should not be tolerated by either sex.

The same applies to filicide. For those unaware of the term, it is the name given to the killing of a child by their parents. Again, there can be no excuse for heartless action taken by parents who murder their own innocent kids. The government's website relating to filicide statistics shows that, between 2001 and 2012, 76 per cent of the 284 children were killed by a parent. Forty-six per cent were by the custodial mother, 29 per cent by the custodial father, 14 per cent by a step-parent and 10 per cent by a non-custodian. We need to stop demonising men, because perpetrators come in the form of women and men.

The plight of grandparents mustn't be overlooked. The rights of the child must also be considered when addressing regular contact with extended families. I've recommended that grandparents be granted a mandatory five hours a month in personal contact, or at least contact via Skype or phone, with their grandchildren.

On the subject of legal cost, submissions throughout the whole inquiry were scathing of lawyers' fees. One case reported 5½ years in the court and a legal bill above $700,000. Another was $635,000. Another was $950,000. This is ridiculous. Many legal costs were around $50,000 to $100,000. The evidence stated a belief that lawyers are dragging cases out and stinging clients with exorbitant fees. When the New South Wales Bar Association was questioned they stated legal costs vary between $8,000 and $20,000 a day. My reply to them was, 'I'm on pretty good money, but I couldn't afford you.'

Disappointment fees were another contentious issue raised many times throughout the inquiry. This is the fee charged by some lawyers if they put the day or the time aside for the client and the case doesn't proceed. The committee recommends the prohibition of the use of disappointment fees in all family law matters. Also, the committee believes the courts should better case-manage and encourage the resolution of matters to avoid excessive legal costs. This includes a provision setting the maximum costs and disbursements at $50,000 or 10 per cent of the combined value of the parties' property and superannuation, whichever is the higher.

We also heard evidence of perjury, false allegations and a lack of avenues to fight it. The law states perjury is an offence, but only one case has been brought against a person who perjured themselves in family law. Former Chief Justice Diana Bryant believes people don't commit perjury. Instead, she is convinced witnesses believe what they are saying. On the other hand, retired judge of 14 years in the Parramatta family court David Collier said: 'Allegations of child sexual abuse are becoming increasingly invented by mothers to stop fathers from seeing their children. The worst are those mothers who direct false allegations of abuse against former partners.' Proven false allegations and statements must be dealt with. Allowing false allegations to go unchecked destroys our justice system. People must have faith in the courts.

Hence my recommendation and belief that the government should set up an independent judicial tribunal where people can take complaints of perjury and not wait and hope that the courts will report it to police. The panel could also take complaints about judges. In my office, I have had eight individual complaints and allegations about one judge. They have fallen on deaf ears, from the Chief Justice to the Attorney-General. Under the Australian Constitution, judges in the Federal Court are appointed until 70 years of age. No other profession is guaranteed a job for life. A judge can only be sacked by both houses of parliament. If the authorities won't deal with rogue judges then let the people have their say through the review tribunal.

Due to COVID-19, the committee was set back in its efforts to bring down recommendations on the child support system. We are hopeful to address this by 30 June. It is my opinion that the system is failing many parents. We must develop a fairer system. I believe it should be based on a standard 38-hour working week, not including overtime or a second job, and based on a person's net wage. People should have incentives to move forward in life and, in some cases, build new lives for themselves and their families. If the cost of raising children was better shared we would see fewer people withholding children from the other partner for financial gain through child support. I also believe more parents would work instead of opting for the dole to avoid paying child support.

I encourage all Australians to work out their differences without the heartache of family law proceedings. No-one wins, especially the children. Many have said they would not wish their experience on their worst enemy. Others have lost their lives by way of murder or their own hand, only to leave confused and grieving families and children behind. I am grateful for the opportunity to spearhead this inquiry. The committee's recommendations are far more than what I have mentioned here today, but in truth the Family Law Act has been band-aided too much and in my opinion it needs to be thrown out and replaced by a simpler act.

Helen Polley (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak on the Joint Select Committee on Australia's Family Law System second interim report, Improvements in family law proceedings. I do so after we received 1,700 submissions to this inquiry. We had, I think, 12 public hearings and 13 in-camera hearings. This report makes 29 recommendations to the government to improve the family law system in Australia, 29 recommendations which I urge them to take seriously. The Family Law Act 1975, since its inception, and the family law system have been the subject of ongoing review and reform. In fact, almost 70 reviews of the family law system have been undertaken since 1974. These reviews reflect the growing diversity of family structures and changing views in contemporary Australia.

The work of this committee has followed two recent and extensive inquiries into the family law system: the House of Representatives Standing Committee on Social Policy and Legal Affairs inquiry into how the Australian family law system can better support and protect those affected by family violence, which tabled its report in 2017, and the inquiry of the Australian Law Reform Commission, which delivered 60 recommendations and was tabled in 2019. Two years on and the government has not responded to the Australian Law Reform Commission's 2019 report, despite it being one of the most comprehensive reviews of Australia's family law system since the commencement of the Family Law Act. Instead of responding to the report, they established this review with a political agenda and as a cynical pay-off for support of a legislative program. This government has a complete lack of regard for expert opinion and, despite the immense efforts of the current inquiry—where we received over 1,700 submissions—I question their propensity to respond to this report.

As was clearly demonstrated just weeks earlier, they rushed through legislation, before the release of this report, to merge the Family Court of Australia and the Federal Circuit Court of Australia, ignoring expert opinion, in pursuit of their own agenda. The Attorney-General continues to cite the findings of a six-week desktop review of data from two PricewaterhouseCoopers accountants as ample evidence for progressing the merger. This Liberal government has made the most radical change to the family law system in over 40 years based on a short desktop review by two accountants—a review that has been widely panned and thoroughly discredited.

What is clear from this inquiry and the plethora of information from previous reviews is that the family law system does not meet the needs and expectations of many who use it. What we uncovered, not exclusive to this review, is that the costs are too high, the extensive delays in the court system cause undue harm and stress, and the adversarial nature of the family law courts is not suitable. The role of family consultants, expert witnesses and independent children's lawyers also need to be evaluated.

Another important issue that needs to be further evaluated is the impact that family violence is having on proceedings and also the interaction of the family law and family violence jurisdictions. It is clear that this system needs overhaul and that the very appropriateness of the legal framework must be assessed. The Morrison government's standard response is to set up inquiry after inquiry—when they've had the family law commission's reports—and do nothing in relation to those matters and the recommendations.

The issue of delays in the Family Court is not new. As highlighted in the Australian Law Reform Commission's first interim report, one of the key themes emerging from its inquiry into the family law system was that it was too slow. Access to courts and services were so delayed that people told us they had to wait excessive amounts of time to receive assistance or take steps towards resolving their dispute. Many felt frustrated by this and some said that their dispute escalated and/or they were left in situations that were unsafe for themselves and their children while awaiting access to courts.

The key reasons for delays are the lack of resources for the courts; matters simply cannot be transitioned through the court process in a timely manner. This has occurred due to chronic underfunding of the family law system by consecutive Liberal governments and failure to make timely appointments of judicial officers and registrars. This has created a backlog of cases, produced delays and frustrated the proper management of the resources that the courts have.

The government has given itself a big pat on the back by announcing four newly budgeted jurisdictional positions on the Family Circuit Court, but they haven't filled these positions. Disgracefully, the Morrison government won't even invest the resources that it has committed. Right now in my home state of Tasmania there is only one judge to preside over family law matters—one judge! The Morrison government has failed to appoint another judge to hear family law cases. This is causing delays across the whole state and exacerbating the anguish and frustration of families, who are already in very difficult circumstances. Now we have the situation where that one judge is doing the work of three, and this just should not be accepted—it's unacceptable. The acting Attorney-General, Michaelia Cash, would not even say when the replacement of both judges would be appointed, or if the government will do anything at all to alleviate the pressure on the sole remaining judge.

These courts are dealing with parents, parental arrangements and financial settlements, and the delays are putting more and more stress on people's lives. And at the centre of this are always the children who are involved. We have heard gut-wrenching evidence about the impact that going through family breakdown has on children and on those individuals. But when there's delay after delay through Family Court circumstances then there's an absolutely devastating effect on the mental health of these young children. We know that, nationally, there are five vacancies in the Federal Circuit Court—five empty chairs that the Morrison government is either too lazy or too callous to fill.

Allegations of family violence are present in most matters that reach the Family Court. This inquiry was set up because there were grumblings from some members and senators—they said that claims of violence were not always true. Although there are problems with family violence orders, their value in providing protection should not be underestimated. We found that there is no empirical evidence to support notions that false allegations are widespread in the family law system. That has to be emphasised: there is no evidence to say that women go to court and lie about family violence. If anything at all, women are hesitant to raise domestic violence and family violence. Research shows that false allegations are much, much rarer than the issue of victims and survivors not reporting abuse—minimising and denying abuse by men who use violence. That's the reality of the circumstances, as addressed in this final report. It's about the delays in the Family Court proceedings. If these are not addressed, we'll see drawn-out procedures and more devastated families—children who will continue to self-harm because of these outrageous delays and the lack of funding there to support these families going through these breakdowns.

We've had enough reports and we've had enough recommendations; it's actually time this government acted. This is no longer about photo opportunities and a Prime Minister who is full of spin. We want to see a properly funded court system that can deal with these family circumstances as quickly as possible, and for that system to be resourced to have the registrars and the expert judges who can sit in deliberation about these important issues. To provide that is a responsibility of the federal government. We're calling on them to act on this report. Don't allow it to gather dust like the other reports. The family law deserves so much more. (Time expired)

Larissa Waters (Queensland, Australian Greens) Share this | Link to this | Hansard source

I too rise to speak on the second interim report from the Joint Select Committee on Australia's Family Law System.

The Greens opposed this inquiry from the outset, not because we don't acknowledge that there are problems in the family law system but because these problems have been the subject of numerous comprehensive inquiries in the past and no action has yet been taken to act on or implement any of those reforms. This politically motivated inquiry sought to relitigate those issues. It sought to delay implementation of previous recommendations. It emboldened—in my view—domestic violence offenders. And it retraumatised victims-survivors and their children. Experts and service providers opposed this inquiry. They noted that survivors would not feel safe, given the predetermined views expressed by the deputy chair and tacitly supported by the government. The Law Council withdrew its initial support for the inquiry, following early hearings. The then president, Pauline Wright, said:

We are now concerned the inquiry is being used for political purposes to undermine domestic violence claims made by women and thereby putting vulnerable families at further risk by inciting hatred and excusing domestic violence.

The government should have prioritised evidence based strategies to make family law safer for victims and survivors of family violence rather than allowing this compromised inquiry to proceed.

I want to place on record our strong disagreement with recommendation 12 of the committee report, regarding perjury. The idea that women routinely weaponise the family law system against their ex-partners and concoct or exaggerate domestic and family violence was the explicit basis on which this inquiry was formed. The tacit acceptance of this idea by the government is incredibly dangerous. It sends a message to victims-survivors that they won't be believed. It emboldens abusers and it can lead women to agree to inappropriate parenting arrangements to avoid the risk and the trauma of a court hearing. Many submissions, and the bulk of relevant expert evidence to this committee, contradicted the prevalence of false allegations in family law proceedings and noted that women often under-report violence because of concerns that disclosures of violence will disadvantage their case and jeopardise the safety of their children. No to Violence, an organisation focused on men's behaviour change, said to the committee:

There is an often-broadcast belief that mothers in the family law court fabricate allegations of family violence to help their family law cases. However, the evidence shows that this is not the case and that women are disinclined to raise family violence allegations due to a fear of not being believed. The research shows that false allegations are much rarer than the issue of victim survivors not reporting abuse and the minimisation and denial of abuse by men who use violence.

The Queensland Law Society held a similar view. So rather than supporting the need for tougher responses to perjury, as we see from the deputy chair and from the committee report, these observations demonstrate the importance of ensuring that family law matters are actually heard by experienced, specialised judicial officers with actual understanding and training in the dynamics of family violence.

Of course, this specialisation is what's at risk with the now-passed-through-this-chamber merger of the Family Court and the Federal Circuit Court. We strongly opposed that merger, which is essentially just an abolition of the specialist Family Court. We heard evidence during the inquiry that increased efficiencies between the Federal Circuit Court and the Family Court were already being achieved through administrative processes and practices, such as harmonising the rules, without the need for a full merger. In fact, the formal merger of the courts would simply divert resources from the implementation of those efficiency practices and other reforms recommended by previous inquiries. But, crucially, the merger will also reduce specialisation in a court that relies on specialist expertise to navigate complex matters and to ensure the safety of children. While a number of the judges on the Federal Circuit Court have some family law experience, they don't have the detailed expertise, the jurisprudential experience or family violence training to preside over complex family law matters. That's why the first recommendation in our additional comments to this report is that the merger be unwound. We will continue to oppose that merger.

Funding and resources were the next crucial issue, which I think we all knew about before this inquiry was even begun—and government still seems to wilfully not listen. The significant delays experienced in the Family Court system are due to the complexity and prevalence of family violence matters in the Family Court, and the under-resourcing and understaffing of those courts. Review after review has confirmed that the entire family law ecosystem is overstretched and under-resourced. This was echoed in so many submissions and evidence to this inquiry.

I want to note that we are broadly supportive of the committee report's recommendation for more registrars, but it is crucial that those registrars have the necessary family violence training and practical experience to identify risks and that the resources for additional registrars not come at the expense of specialist judicial appointments. Many family law matters simply can't be resolved in a way that ensures the safety of children without a judicial hearing. There are limits to what a registrar can achieve.

We strongly support the appointment of more Family Court judges and a clear process to quickly fill future vacancies with appropriately qualified judges, to maintain the specialist expertise needed for these complex family law matters. Judicial resources should be directed to registries based on need, not based on special deals with the crossbench to pass a law that will result in reduced access to justice for many women and children. We acknowledge that there are currently nine vacancies and more than 10 additional upcoming retirements, so the government needs to get its skates on.

On the question of funding, we need to ensure that legal aid and community legal centres are properly funded. We welcome a small amount of increased funding through the National Legal Assistance Partnership, but more and secure funding is essential to meet existing demand, let alone predicted demand. We need adequate resources for family consultants, report writers and independent children's lawyers to support the court's work in finalising matters, and we need significant capital investment in the courts so that they have the appropriate infrastructure—hearing rooms, meeting rooms, staff spaces—to not only meet demand but also ensure there is sufficient space for safety.

We made a number of recommendations calling for the urgent appointment of specialist family law judges to fill current vacancies, and to add five more. We need extra judicial capacity. We want those future vacancies to be filled in a timely matter. We recommended that there be additional resources for the appointment and retention of experienced registrars, family consultants and other staff to provide culturally safe, wraparound, responsive support to parties in the court. We called for at least $310 million a year in funding for legal assistance; that is what the Law Council has said we need in order to make up for the cuts that have been brought down on Aboriginal and Torres Strait Islander legal services and other community legal centres. We're calling for $12 billion over 12 years—that is $1 billion a year—under the upcoming national action plan to reduce violence against women and their children, to fund proper prevention programs and to fully fund frontline response services.

We particularly support the recommendations in the committee report about accreditation and ongoing professional development for family law professionals, for judges, for registrars, for family consultants and for report writers, particularly in regard to family law report writers; there needs to be decent accreditation and oversight and ongoing training, given the influential role they play in the system, the delivery of justice and keeping children safe.

Just one final point: we support the committee recommendation for a harmonised definition of 'domestic and family violence', and that must have regard to the growing understanding that coercive control and coercive behaviour—we should have that harmonised approach nationally. But we strongly oppose the proposal not by the committee, thankfully, but by Senator Hanson that domestic violence somehow be categorised into levels of seriousness. The evidence shows that coercive control which is nonphysical violence leads most likely to lethal outcomes more so than physical violence. We strongly reject that assertion. Thank goodness this thing is finished. I seek leave to continue my remarks later.

Leave granted; debate adjourned.