08 December 2017

Speech: Inquiry report into a better family law system

I rise today to present the Standing Committee on Social Policy and Legal Affairs’ report of its inquiry into a better family law system to support and protect those affected by family violence. I thank the Attorney-General for this reference.

The committee adopted this inquiry in March this year and spent a number of months gathering evidence. We received 126 submissions and held 10 hearings across Canberra, Melbourne, Sydney and Alice Springs. We have heard from multiple organisations, advocacy groups, governmental departments and thousands of individuals—many harrowing personal accounts of experiences with family violence and the family law system.

In every suburb, in every town and in every city, family violence is a scourge across Australia. It affects families and individuals in horrendous and insidious ways. Leaving a violent relationship is an overwhelmingly difficult process which may involve significant risk to those affected including children, financial pressures, relocation and emotional turmoil. Some people, of course, are unable to leave a violent relationship and that can lead to tragic consequences.

Whether it be in relation to parenting orders, property division or the protection and safety of children, many people affected by family violence turn to or are required to enter the family law system. However, rather than providing safety and resolution to these families, the journey through the family law system can be a very difficult one and result in increased risk, trauma, prohibitive costs, a lack of justice and unacceptable delays in resolving the issues in dispute. Abuse of the legal system, itself, can also be used to inflict family violence.

Our report builds on much good work of other inquiries and calls for swift and, in some cases, urgent improvements to the family law system.

The system is failing people. Our report reflects our particular concerns about the safety of children. The family law system must ensure that urgent cases and families at greatest risk are case managed appropriately. To do this, it is critical that the existence of family violence is determined as early as possible in proceedings, before key decisions affecting family members are made. There must be a single point of entry into the federal family courts so that applications can be triaged and appropriately case managed to their timely resolution.

The committee received much evidence that the presumption of equal shared parental responsibility is being improperly applied, leading to unjust outcomes and compromising the safety of children. We have recommended its removal. This must be considered in tandem with the need to determine family violence allegations early in the best interests of the child. Not only is this critical to delivering justice and safety to those impacted by family violence, it is also vital for those against whom false or spurious allegations of family violence are made.

Access to justice must be improved. We have also recommended:

  • legally assisted mediation for families impacted by family violence rather than allowing them to fall through the cracks;
  • a trial in one or more state courts so that all family violence matters including under federal law can be heard in the one court;
  • additional resources to tackle the backlog of cases;
  • a proper voice for children; and
  • as endorsed by Bravehearts, expert panels to hear from and support children who’ve been abused.

The committee is greatly encouraged by the Attorney-General’s reference to the Australian Law Reform Commission to review the family law system. Broader reform is absolutely necessary.

Our recommendations endorse a number of reforms already announced by our government—prohibiting cross-examination by perpetrators of family violence, and better support for self-represented litigants are just some examples.

Reform is also required in property matters—family violence should be expressly recognised as a factor, and small claims should be resolved quickly and fairly.

This inquiry has provided the committee with raw insight into the distress, grief and extreme difficulties faced by families affected by family violence who, unwittingly or otherwise, become embroiled in the family law system.

Thank you—a sincere thankyou—to the many witnesses and more than 5,000 people who completed our questionnaire, telling their story, often an immensely difficult task. Your stories have been powerful, your voices have made a difference and they have been heard.

I commend the report to the House.

7 December 2017