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

In my discussions with stakeholders as shadow parliamentary secretary to the shadow Attorney-General, the Hon. Mark Dreyfus QC, I have sadly found that family law and domestic violence, unfortunately, go hand in hand. Amidst the evolving debate in Australia about domestic violence we must include ways to improve the family-law system so that it does not inadvertently escalate domestic violence.

The facts are alarming. One woman a week loses her life because of domestic violence; this year, so far—tragically—it has been two women a week. One in three women will experience violence, with one in six experiencing domestic violence. One in four children will witness or experience domestic violence. Every three hours a woman is hospitalised due to domestic violence.

These figures are obviously a national disgrace. Politicians, our community and our legal system all have more work to do to improve on these figures. Obviously there needs to be an attitudinal change and we need to work on gender equality. But also we need to make sure that the very system we have in place to deal with families and separation is not contributing to these figures about violence.

The Productivity Commission inquiry report, Access to justice arrangements, released in December last year, makes some recommendations about family law reform. The approach currently taken by courts in property applications is commonly referred to as the four-step process: (1) identify the assets, liabilities and financial resources of the parties, (2) assess the contributions made by the parties, (3) evaluate each party's future needs so far as they are relevant and (4) the court must be satisfied that in all the circumstances of the case it is just and equitable to make the orders.

Recommendation 24.4 of the Productivity Commission's Access to justice arrangements report is that the government should review the property provisions in the Family Law Act 1975 with a view to clarifying how property should be distributed on separation. In particular, it suggested that any review should consider introducing presumptions about the splitting of property, as currently applies in New Zealand. In fact, the New Zealand system provides for a rebuttable presumption of equality of division of assets upon separation—so a fifty-fifty arrangement. The New Zealand legislation also describes with great particularity what 'marital property' includes.

It is an interesting idea that deserves some serious consideration. Of course, not all family law property disputes will end with a fifty-fifty split of property. It is a rebuttable presumption and would probably be useful when the property is a small pool. Obviously, there will always be cases that need a full trial of the issues and a judge to make a determination as to whether it should be fifty-fifty or otherwise.

Speaking with family lawyers and community legal services all up and down the east coast of Australia and in South Australia about this recommendation, so far I have received a mainly positive response, from people who work both in community legal services and at the bar. Community legal services are particularly favourable to the idea, with one very experienced practitioner giving me an example of where she thought this might be an advantage. She said:

A woman leaving a relationship where there is violence and intimidation and where the marital home is in the husband's name would have difficulty getting the former partner to engage in a property division. Although she certainly would be legally entitled to her share of the property the law is complicated and an aggressive, overbearing partner may just say the house is mine. If there was a presumption of equality she could at least get him to the table.

It is these situations where simplicity and certainty in the law would make all the difference. This is very much food for thought. It is an ongoing conversation and I look forward to receiving more input from practitioners and other stakeholders. I commend the Productivity Commission for their lateral thinking.

The Productivity Commission also recommended at 24.3 of the report that, although some improvements have been made in the collaboration between agencies, reform of current constitutional arrangements relating to the silos of family law, family violence and child protection would lead to better outcomes. It said that the council should be informed by any evaluation of the Western Australian joint partial concurrency model.

The difficulties exist because we have a mix of agencies providing for families which fall under both Commonwealth and state jurisdiction. Western Australia has a much better collaboration between agencies, but their family law system is all state based, with the state courts being vested with jurisdiction in family law. It is more difficult in other states and territories. It is not impossible, though. There is already some cross-agency and cross-jurisdictional cooperation. (Time expired)