House debates

Wednesday, 22 August 2018


Family Law Amendment (Family Violence and Other Measures) Bill 2018; Second Reading

11:02 am

Photo of Mark DreyfusMark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | | Hansard source

Family violence is an issue that, thankfully, no longer hides in the shadows. In the last five years or so, thanks to the tireless advocacy of campaigners like Rosie Batty, it has become an issue that can no longer be ignored. There has been welcome bipartisanship on this issue, both at state and federal levels. It is good that both Labor and the coalition have agreed that such an issue is beyond politics, that this is a national crisis that we cannot waste time bickering about. I am proud that Labor has played a role in making a difference on the issue of family violence. At the 2016 election, for example, Labor pledged to end the cross-examination of family violence survivors by perpetrators and committed $43 million in additional funding to legal aid to facilitate that change. I note that a government bill to impose this same ban will be debated in this place at a later time this week—although without the pledge of any additional funding, which is of course a grave concern that Labor will highlight.

One of the most significant steps forward has been in my home state of Victoria, with the landmark Royal Commission into Family Violence. The 13-month inquiry, led by Marcia Neave, made landmark recommendations that were all adopted by the Victorian government. Last year's Victorian state budget contained $1.9 billion in funding dedicated to the prevention of family violence and, in March this year, the government announced the creation of a standalone agency, Respect Victoria, dedicated to the cause.

We have also had a television advertising campaign from the federal government, which had as its aim the early prevention of negative attitudes towards women, and funding of a domestic violence package at the federal level.

All such measures are welcome. We have made a lot of progress in a short time. However, on an issue like this, of the most grave importance and which affects so many families, we must constantly be checking on ourselves as to whether we are doing enough. Recently there have been indications that the answer to that question is no. Last month, readers of The Age woke up to a confronting front page. There were the faces of four smiling women, one on a beach in sunglasses, others dressed up for a party. All had been or are alleged to have been killed by domestic partners. One of them, 26-year-old Snezana Stojanovska, was three months pregnant when she died. There are, of course, hundreds of other women whose faces and names we will never know who are affected every day by domestic violence.

Every domestic violence case that ends in a death is another reminder that we as a political collective have failed. A report issued by the Australian Institute of Health and Welfare in February 2018 sent the strong message that not enough progress is being made. That report found that, on average, one woman a week and one man a month were killed by a current or former partner. It found intimate partner violence was the single greatest health risk factor for women aged 25 to 44. It found Indigenous women are more than 32 times as likely to be hospitalised due to family violence than their non-Indigenous sisters. With all of this in mind, Labor welcomes the intent of this bill, which makes a number of changes to how the family law system operates in this country in relation to family violence.

This bill contains measures that are designed to simplify the jurisdictions in which family matters are dealt with. It expands the powers of some state and territory courts, such as children's courts, so that those courts gain some family law parenting jurisdiction. It will also increase the property value threshold under which state and territory courts can hear contested family law property matters without both parties' consent. In practice, this should mean that related matters, such as child protection and custody matters, can be decided at the same time and in the same place, with both parties present.

The government has informed Labor that it intends to trial these matters in selected locations with cooperation from state and territory governments. The terms of each pilot will be put to parliament at a later date through regulation. In principle, Labor supports this measure, at least in its pilot form. It is vital, of course, that if state and territory courts are asked to do additional work they are delivered commensurate additional funding by the federal government. Again, the government has said that additional funding will be part of the negotiations with the states and territories.

There are several factors for the government to take into account as it progresses with these pilot schemes. The first, as I highlighted just now, is the funding gap that currently exists in our court system, which has contributed to extensive delays in many matters coming to trial. This is closely related to inadequate funding for legal services, including legal aid and community legal centres, and a consequent increase in unrepresented litigants. This can be particularly difficult and damaging in family law cases. All of this must be taken into account as the government considers how much funding to deliver to the state and territory courts as part of this trial. Funding cannot be an afterthought in these pilots; it has to be a first-order consideration.

The second factor is evidence given by the Law Council during the committee process that many courts are not currently exercising the family law jurisdiction that they have already. The Law Council said that the problem was due to lack of training, competence and expertise. I quote from the Law Council's submission:

Many judicial officers in state and territory local courts do not have experience or knowledge of the family law jurisdiction, or have only limited knowledge and experience, and are reluctant to exercise their powers as a result.

Proper training for state and territory magistrates is vital if these pilots are to work. It certainly seems that there has not been enough training to date. The evidence shows there is a lot more to be done. If improvements for families are achieved through this trial—and it seems like this may be the case, if done properly—then that can only be a welcome thing. Labor will closely monitor the pilot schemes as they progress.

The bill also makes a number of sensible changes, including: allowing for short-form judgements in interim matters before state and territory courts; removing the 21-day time limit which applies to a family law order that is revived, varied or suspended by a state or territory court when making an interim family violence order; and removing the requirement that a court must explain certain matters to a child when such an explanation would not be in the child's best interests.

The bill would also strengthen the power of the family law courts to summarily dismiss unmeritorious cases and vexatious claims. There was some concern raised during the committee process that this could disadvantage victims who perhaps made procedural errors leading to their claims being labelled as 'vexatious'. The Attorney-General's Department has attempted to assure those critical of this measure in the bill that there are appropriate safeguards. But Labor calls on the government to commit to a two-year review of this measure to ensure that it is indeed the case in practice.

This bill also removes shockingly outdated wording in the act that suggests that conjugal rights and an obligation to perform marital services still exist in Australian law—something that many in this place will be surprised to hear has been in the law until now. It's anomalies like this which remind us just how far we have come in gender relations in a relatively short time.

The original bill, introduced by the government into the Senate, also contained a measure that would criminalise the breach of personal protection injunctions, or PPIs, which was cut from the bill following negotiations with Labor. I want to explain why this decision has been made. Make no mistake: Labor support taking a tough approach to the prevention of domestic violence. We want injunctions and intervention orders to be properly enforced. However, the proposal for criminalisation contained in the government's original bill contained some serious flaws which we believed could have made the measure counterproductive. In particular, criminal penalties would have applied to breaches of PPIs that were already in place. This added a retrospective element to the bill which was unacceptable to Labor. The terms of existing PPIs, which are often reached by agreement and negotiation between the two parties, would have changed after they were made. This is unacceptable. Labor believe it would be an abrogation of the rights of both parties to PPIs arrived at by consent if criminal liability were to all of a sudden apply to a breach without any opportunity to renegotiate that PPI.

However, this was not the only problem with this particular measure. The new criminal offence for the breach of a PPI would be a Commonwealth criminal offence, but the whole idea behind the provision is to enable state and territory police to enforce the orders. This is a serious problem. As the Tasmanian police said during the Senate committee hearings:

For your information, state and territory police—this may not be something of which the committee is aware—do not routinely enforce the Commonwealth criminal law.

So the very problem which this measure is trying to fix—the lack of enforcement of breaches—may be made worse due to the difficulties inherent in asking state and territory police to enforce Commonwealth law. The Attorney-General's Department acknowledged this was a problem to which it had not yet found a solution, telling the Senate committee that:

… the practical implementation issues with the enforcement of criminalisation of personal protection injunctions need to be worked through.

The other consideration is the major Australian Law Reform Commission report into the Family Law Act and the family law system, which is due in March next year. This report will inevitably address how family violence matters are dealt with through the family law system, including measures like personal protection injunctions. Labor has called for the government to wait until that report is published to consider how best to make the significant change of criminalising the breaching of PPIs and to take action to legislate immediately thereafter. This would not impose a time delay on this change being made. Under the original bill, the criminalisation of PPI breaches would not have come into force until 12 months after royal assent—that is, after the publication of the Australian Law Reform Commission report at the end of March next year. So the only difference that excising this measure from the bill will make is that it will be done better and in a more informed way, immediately after the publication of the ALRC review. In fact, it could happen even earlier.

Labor supports in principle the criminalisation of breaches of PPIs. The system at present, where victims must bring a civil action in the family law courts to enforce the civil penalty for a breach, puts too much onus on victims to be the ones upholding the integrity of the system. That's not a fair responsibility for traumatised and often fearful people to have. It's something that we want to fix. But let's make sure that, if this change is made, it is done properly. The areas of family law and family violence are too important to tinker with unthinkingly, and, in general, criminalising an act that previously had only civil penalties is always a significant change that should be carefully examined.

I urge the government to use the time between now and the publication of the ALRC report on 31 March next year to work through the implementation issues that have been highlighted through this process. There are currently a number of significant changes planned for the family law system which, if all successful, would remake the current system as we know it. Undoubtedly, family law is an area of our legal system that needs scrutiny and needs change. It is failing many families, often at their most vulnerable points. But, in the rush to get changes made, we have to ensure that we are doing these changes well and doing them properly. The family law system, more than any other part of the legal system, touches people's everyday lives. The consequences for getting things wrong are very grave. In particular, we must make sure that any changes that are made have a strong evidence base and that they are the outcome of extensive consultation with the sector. Making change any other way would be poor practice indeed.

This bill is a good example of the benefits of proper process, with a significant change being made as an outcome of consultation and public hearings, which is to the benefit of all. I commend the bill to the House.

11:17 am

Photo of Graham PerrettGraham Perrett (Moreton, Australian Labor Party) Share this | | Hansard source

I rise to speak on the Family Law Amendment (Family Violence and Other Measures) Bill 2018. I welcome the intent of this bill to strengthen the power of the courts to protect victims of family violence and facilitate the resolution of family law matters by state and territory courts in certain situations. Obviously this is important work of any parliament and any government. I acknowledge the importance of acting to prevent family violence and to assist victims to safely leave such households. Tragically, one Australian woman a week is murdered by a current or former partner. We must do all we can as lawmakers to make our laws stronger and access to our laws and their protections easier. So I welcome this bill and the intent of the measures in it.

The measures include providing that a court can give short-form judgements for a decision in relation to an interim parenting order; strengthening the court's powers to dismiss proceedings; allowing a judge to dispense with the requirements to explain an order that is inconsistent with an existing family violence order where it would not be in the child's best interests; and removing the 21-day time limit for variations to family law orders by state courts. These are sensible measures. The bill also provides that specialist children's courts have power to make parenting orders pursuant to the Family Law Act and extends the jurisdiction of state and territory courts to make orders in family law property matters to include disputes above the current monetary limit of $20,000.

The intent of these measures is good. Families who are already in the state courts should be able to finalise their less complex family law matters without having to go to another court. It will make their experience of the family law system easier and less confusing. State and territory courts already have a limited family law jurisdiction, but the measures in this bill will enlarge their family law jurisdiction. For instance, currently family law property matters in the state courts are limited to a monetary limit of $20,000. This bill allows a higher monetary amount to be prescribed by regulation.

I'm pleased to see that the explanatory memorandum to this bill explains:

State and territory courts are not intended to become the primary fora for resolving family law disputes …

This measure is:

… intended to provide state and territory judicial officers with additional tools to resolve matters involving family violence holistically, and prevent further violence by reducing the sometimes complicated legal processes.

However, I am concerned. If state and territory courts are given additional jurisdiction by regulation then it must be accompanied by additional funding. This is crucial. State and territory courts are at a breaking point now dealing with their own jurisdictions, including family violence orders. Their resources are already overstretched, and many judicial officers in state and territory courts are not trained or experienced in family law and would be reluctant to exercise their powers in family law matters. Without adequate additional funding and training, this measure will be futile.

I will talk for a moment about what is no longer in this bill. The original bill contained a measure that would see breaches of personal protection orders made in the Family Court or Federal Circuit Court become criminal offences. On the face of it, this seems like a good idea. It would provide victims of family violence with a more effective way to enforce breaches of those orders. Currently, as the orders are purely civil, that is a private legal action—a person is required to make an application to the court to enforce a breach of a personal protection order. I should point out that, even as the law now stands, state and territory police have the power to arrest a person who has breached a personal protection order made in the Family Court or Federal Circuit Court. This very rarely occurs for reasons I will come to in a minute. As the states enforce criminal law, making the breach of a personal protection order a criminal offence would mean the state would bring such prosecutions. It would take the onus of bringing an application off the victim, acknowledging that family violence is more of a public concern—that is, not a private affair between two people.

There were, however, several problems with this measure. Firstly, the bill provided that this measure would apply to future breaches of existing personal protection orders, thus imposing some measure of retrospectivity to this provision. Let me explain how this might happen in practice. Many family law disputes are settled without a judge ever making a decision. When love sadly turns to hate, people can still be rational. Most people are rational and sort it out, normally by thinking about their children. This can occur before going to trial. At the doors of the court, as the trial commences or even during the trial, people work out a way forward. Once the parties come to an agreement to settle, the agreement is drawn up as a consent order which is then presented to the judge, who formally makes the order that the parties have agreed to. Many considerations are taken into account by each party before they agree to settle. For instance, there may be a bit of concern from one party that the other party will harass or abuse them in the future. Those allegations have not been tested or proven in court, but the alleged perpetrator may agree to an order that provides some comfort to the alleged victim just so that their affairs can be finalised. This happens every day. If the allegations have no substance then the alleged perpetrator would not be concerned about agreeing to not do something that they never intended to do. Some of these orders have been in place for many years.

As time goes on, the children get older, emotions settle down and the nerve endings are not raw, but the orders remain in place. It is easy to see how a protection order, such as an order restraining a person from entering the residence of the other person, could inadvertently be breached many years later. That person would then be committing a criminal offence. It would be unfair to both parties for a consent order that was freely entered into some time ago to become subject to criminality upon the breach of one of its terms. That is not what was contemplated by the parties at the time they made the consent order.

The other serious concern with this proposed measure lies in the practical enforcement of a criminal breach. As the provisions are contained in a federal act, the Family Law Act, a breach of that provision would therefore be a Commonwealth criminal offence. State and territory police generally enforce state and territory criminal offences. Although they are empowered to enforce Commonwealth criminal offences, the procedure involved to enforce Commonwealth offences is very different from the procedure for state and territory offences. Many state and territory police would actually be unfamiliar with the procedures necessary to enforce a Commonwealth offence. Modern police services are excellent, and the Queensland Police Service do great work, but they are under pressure and under the pump enforcing their own laws.

As I mentioned earlier, the Family Law Act currently provides state and territory police with the power to arrest a person for a breach of the Commonwealth personal protection order, but this rarely happens. In Queensland, the Operational Procedures Manual for the Queensland Police Service outlines the procedure to be followed when a complaint is received about a breach of a personal protection order. The manual states:

Officers receiving complaints of breaches of injunctions made under the Family Law Act (Cwlth), should take appropriate action under any relevant Queensland law, e.g. prosecution for assault, wilful damage or stalking (s. 112AM of the Family Law Act (Cwlth) refers).

If the application of Queensland law is not appropriate or the complainant seeks the enforcement of rights conferred by an injunction, officers should advise the complainant to seek legal advice with a view to enforcing the injunction through the Family Law Court.

This is the actual manual. So Queensland police currently have the power to arrest someone under the Family Law Act when a personal protection order has been breached, but their own manual tells them not to. As a member of Tasmania Police said, when he gave evidence to the Senate inquiry into this bill:

… responding to incidents of family violence or complaints that people's safety might be in jeopardy is done by general duties police. In this state at least, they would be the police members with the least understanding of the Commonwealth criminal procedure …

It is not very comforting that state police do not use the powers they already have been given under the Commonwealth Family Law Act.

Before we criminalise personal protection orders under the Commonwealth Family Law Act, we need to be sure that state and territory police will enforce breaches of those orders. The intent of the proposed measure is to make victims of family violence safer. It would be horrendous if new provisions were enacted that gave victims of family violence a false sense of security and, inadvertently, actually made them less safe. The Attorney-General's Department acknowledged at the Senate hearing:

… that the practical implementation issues with the enforcement of criminalisation of personal protection injunctions need to be worked through.

How can parliament be asked to pass a law when the government does not know how it will be enforced? That is not good government. It is irresponsible government.

That is why, negotiating with the Labor Party, this measure was excised from the bill. Labor suggested that the intent of this measure be brought forward after the Australian Law Reform Commission has reported on its review of the family law system, which is due in March next year. That will also give the department time to work through the practical implementation issues. There will be no real delay in taking this course of action, as the measure that has been excised was only due to come into effect 12 months after royal assent. In fact, the measure may be operational sooner than was intended, by the government, originally. Labor will always welcome sensible family law reform. There is no doubt that the family law system is in crisis. Every MP and every senator would have had someone come to their office with concerns. Families are waiting years to have their disputes resolved, and this could be half a lifetime for a child at risk or under pressure.

This situation has been going on for far too long and it is, sadly, worsened under the Turnbull government's watch. Judges have not been replaced in a timely manner, even though these positions are funded in budgets. It took 560 days for a judge in the Sydney registry of the Family Court to be replaced. It took 12 months for Justice Bell to be replaced in the Brisbane registry, even though the Attorney-General knew he was going to retire—40 years out. These delays cause backlogs of work in industries, backlogs that are never caught up. The new judge starts behind the starting line on their first day.

The bulk of the blame for the crisis in the family law courts falls squarely at the feet of this Turnbull government. In 15 days, the coalition start their sixth year of government. They have had ample time to fix this system, which is in dire straits and is their mess. A former Chief Justice of the Family Court called for more resources for the family law system in March 2016, 2½ years ago. She asked for an extra $20 million for family consultants and registrars to help judges manage cases. Sadly, this measured call for resources from the chief justice fell on deaf ears. Nothing was done. No extra resources were given to the courts. There were just further delays in replacing the judges of an already overburdened court.

The mismanagement by this government has caused the current crisis in the family law system. Nevertheless, the measures remaining in this bill are sensible and supported by Labor. The government has announced other reform proposals for the family law system. They have a proposal to protect victims of family violence from direct cross-examination.

Labor took a policy to protect victims of family violence from direct cross-examination to the last election, more than two years ago. It was my policy proposal; I remember announcing it with the member for Griffith at the Women's Legal Service in Annerley. Our policy was accompanied by funding of $43 million to provide representation for unrepresented parties so that direct cross-examination could be avoided. The government's proposal contains no funding.

The Leader of the Opposition has written to the Prime Minister, imploring him to provide funding for this proposal so that it will actually do what it promises. Without funding, the legislation will be impotent. The bipartisan Senate committee that reported on this bill recommended that the bill not be debated until funding of the measures were made public. That is a Senate committee that is full of Liberals. This is a measure that is overdue for implementation. I hope the government does the right thing and provides the necessary funding to make this measure effective in protecting victims of family violence from being re-traumatised in the court system. I see that it will be debated this week or in September, but I'm yet to hear that funding announcement.

The government has also proposed, effectively, to abolish the Family Court of Australia. The government has done no stakeholder consultation on this radical proposal at all. Legal practitioners, family violence groups, community legal centres and even judges have been ignored. And how have they responded? With strong criticism and concerns. Labor has not yet seen the proposed legislation, but such a radical change to the family law system needs to be undertaken only with proper and thorough consultation—especially by talking to judges and practitioners. This has not yet happened.

A strong family law system is important for all Australians. More than any of our courts, the courts that deal with family breakdown need to be well resourced. They need to be structured so that families can have their disputes resolved in a timely manner and they need to have specialised judicial officers who are experienced in the complex issues that accompany family law, such as family violence, mental health issues and drug and alcohol dependency and abuse. Australian families deserve a government that will properly manage the family law system.

11:32 am

Photo of Chris HayesChris Hayes (Fowler, Australian Labor Party) Share this | | Hansard source

I too would like to make a contribution in this debate on the Family Law Amendment (Family Violence and Other Measures) Bill 2018. I should make clear from the outset that we on this side will be supporting this bill. This is something, by the way, that has been part of Labor Party policy for some time. The reforms captured in the bill are issues that we on this side of the House have been demanding over the last two years. As a matter of fact, we took the measure that's included in this bill to the last election, in 2016. I was with the Leader of the Opposition in November 2016 when he reaffirmed his support for this measure at a White Ribbon Day function.

What the bill does, in essence, is put an outright ban on the direct cross-examination of both victims and perpetrators in family law hearings where there is evidence or allegations of family violence. The explanatory memorandum to the Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018 says the prohibition will be administered through the process of the court, which will make a request or a direction that the party engage a lawyer, either privately or through legal aid, for the purpose of cross-examination where either party is not represented by a solicitor.

The significance of these reforms was certainly captured by the Queensland Law Society in their submission to the Senate Legal and Constitutional Affairs Committee when they stated:

It is well recognised that direct cross-examination of victims of family violence not only perpetuates the abuse but can result in the court receiving incomplete or poor quality evidence. Victims of family violence are likely to find court processes stressful and traumatic, which will impede their capacity to properly present their case and effectively cross-examine the other party.

Like many in this House, I am an ambassador for White Ribbon and have participated in various events organised either here, around the parliamentary precincts, or in our electorates. I have taken a very strong view when it comes to family violence. That is why we should all have a direct interest in this matter that is before us today.

But the point I want to stress is that the ongoing cross-examination of domestic abuse survivors by the perpetrators of the abuse is an absolutely shameful practice and has been allowed to go on for too long. We have heard from many women that, in various family court proceedings, they have settled for imperfect outcomes in order to avoid being cross-examined by the person who perpetrated the violence against them. In other words, they took the line of least resistance: they were prepared to accept an inadequate outcome that would bind themselves and their families for quite some time—simply to not have the perpetrator of the violence cross-examine them in court.

That is a shocking practice and it must end. Subjecting victims to hostile questioning by the perpetrator of the domestic violence in court inflicts a fresh trauma; it often makes the victim reluctant to even take a case to court. It perpetrates the cycle of violence by reasserting the perpetrator's power over the victim—in this case, in a courtroom. This is unacceptable, it is disrespectful, and anyone in this place who stands against domestic violence should say it must end.

When the Labor Party introduced its policy of preventing the cross-examination of victims of domestic violence in Federal Court proceedings by the perpetrator of that violence, we committed $43 million for legal aid. For the courts to decide to either request or direct an unrepresented party to have a lawyer undertake the cross-examination means the person must either fund the lawyer themselves, if they have the capacity to do so, or, alternatively, rely on legal aid. That is the basis for the Labor Party's commitment of $43 million for legal aid to facilitate the representation of litigants.

The bill before us today does not have any funding commitment with it. It says the right things about not having victims of domestic violence being cross-examined by the perpetrator of violence. It says the right things about the courts having a power to direct or request the litigant to have representation. But it does not give legal aid any additional funds to be able to facilitate this. In highlighting the importance of legal representation in matters of family violence and the need for adequate funding, the Australian Human Rights Commission, in its submission to the Senate inquiry, emphasised 'the need for full legal representation for each party to ensure procedural fairness' and suggested that 'the administration of the appointment of lawyers could be managed by the legal aid commission'. They went on to say that 'this could not be accomplished under existing legal aid funding levels'. In other words, the Legal Aid Commission doesn't have the additional money to facilitate this. If they were to respond to the direction of a judge to provide representation to the litigant—if they put a lawyer in charge of the cross-examination—it might be that they have to take funding away from other matters which are before the Legal Aid Commission. Matters that ordinarily would have been funded would be redirected to facilitate the judge's request in this regard.

That's not the way that you run legislation, particularly on such a sensitive issue as this. It's not the way that you make laws in this country that have bipartisan support. Say the government are serious about implementing these measures—and I hope they are, because we might have our differences with our colleagues on the other side, but, when it comes to family violence, I think we are all prepared to stand up as one and call out family violence wherever it occurs. If we are serious about making these changes and supporting the victims of domestic violence, and if we are serious about ensuring that we don't facilitate the continuation of violence even in another form, such as being attacked in cross-examination in the courts, surely the government would fund these measures? It cannot introduce legislation in this place making powers for the courts to unilaterally make directions but, when they do, there is no funding capacity for people who do not have the financial ability to engage their own lawyer. There is no additional funding capacity for Legal Aid to make good on the directions given by the court in this regard.

Governments make decisions on many things. We will argue to and fro, particularly when it comes to budgets. We will have our priorities that we believe in on our side of the parliament, and clearly those on the government benches will seek to fund the priorities that they think are most appropriate to them and the constituents they purport to represent. But, when you produce a piece of legislation that is supported by both sides—a piece of legislation that is designed to make a difference for the better in our community—and you bring it to the parliament with no funding attached to it, it's almost dooming it to failure. Either the legal aid commission can find efficiencies in other areas or the legal aid commission can give priority to one matter over another matter. That means injustice might be done to other people as a consequence. It just shows that this is very poorly thought out.

In June this year it was reported that the Attorney-General said the government was working closely with National Legal Aid on the implementation of the new law. However, he said there would be no extra legal funding as a result. If that were going to be the case and you'd gone to the national legal aid commission and told them there was to be no extra funding, why would you bother bringing the legislation into this place? This is not just to get a tick off for the purpose of politics to make yourself look good—and possibly go into an election shortly, if the pundits are right. I think that, on something that has the support of both sides of the House, we all have a vested interest in making sure we protect the victims of domestic violence. We all have a vested interest in ensuring that we don't perpetuate the trauma of victims of domestic violence. Surely we can make this work, not simply go to Legal Aid and tell them there's no extra money and they can work it out the best they can to facilitate directions of the courts.

The Australian Law Council has certainly explored much of this. It hasn't held back with its warnings that there could be significant unintended complications in the delivery of justice as a result of not attaching funding to this piece of legislation. The Law Council of Australia notes that it cannot envisage a process in which the family courts would be able to oversee parties acquiring legal representation without additional and further procedural requirements for the case management before trial, thereby adding additional costs to the cost of representing litigants. It also can result in delays of proceedings. The Law Council went on to say:

It is foreseeable that the Bill will have the consequence of trials being adjourned or trial listings being vacated so that legal representation can be obtained. The new provisions may also give parties the opportunity to delay for strategic reasons.

In other words, if one party is of wealth they could actually frustrate these trials for a party which relying solely on legal aid for their representation.

The government must give certainty on how it intends to meet the funding question, and it can't be by putting its head in the sand and saying, 'It's all up to National Legal Aid.' On our side, Labor have always maintained a commitment to an Australia free from domestic violence. We renew that commitment. We support the bill before the House but reiterate that our policy position is to appropriately fund National Legal Aid to be able to facilitate the outcomes envisaged in this bill.

11:46 am

Photo of Susan LambSusan Lamb (Longman, Australian Labor Party) Share this | | Hansard source

I rise today to speak on the Family Law Amendment (Family Violence and Other Measures) Bill 2018. It's a bill that seeks to change how the family law system operates when it comes to cases involving family violence. I've stood up in this chamber a number of times to speak out against family violence and to call for greater action by this government in this space. I recognise that the government has listened to Labor's representations and introduced a bill, for all intents and purposes, with good intentions.

This bill comes as a suite of changes to Australia's family law system are being worked on and debated currently. I must say that this is truly welcomed, particularly in my electorate of Longman. I've been doing a lot of work in this space in my electorate alongside a number of parents, my community and groups and organisations. I welcome and thank the shadow minister for human services, Linda Burney, on her support in working with my electorate in this space. From this consultative work that I have done, it's become very apparent that there is a significant amount of work that still needs to be done. Whilst this bill is a small step forward, it's a step forward nonetheless. As I mentioned, it is a very welcome piece of legislation.

I also commend the government for removing certain measures from this bill following the negotiations with Labor. When government and opposition work together in a bipartisan manner, Australia benefits from stronger legislation. I recognise the government for hearing the concerns that Labor raised with the bill as it had initially been drafted by this government. I recognise that that work has been done. As I said, we all benefit when the government and opposition can work together in a bipartisan manner. This issue of family and domestic violence is a space where we must work, where we can, in that manner.

But a number of concerns with this bill do remain. I call on the government to join with Labor to ensure that the bill achieves what it is intended to as effectively as possible. For example, the bill seeks to extend the jurisdiction of state and territory courts in family law matters. While this might very well make it easier for families to navigate a system that is often described as confusing at the best of times, it puts additional pressures on state and territory systems. These are systems that are already overburdened at their current funding levels, let alone picking up additional responsibilities. We need to be very, very careful not to push struggling court systems too far and ensure that they have the capacity for the extra workload that these changes would bring.

I'll highlight some remarks made recently in the Senate inquiry that looked into this bill. The Chief Magistrate of the Local Court of New South Wales recognised these changes and the extra workload that these changes would bring when they presented to the Senate inquiry. They noted:

…if there is an increase in the Local Court's case load … it is essential that enough resources be made available to the Court to respond to the increase in matters before its magistrates. This would include an increase in the number of magistrates appointed to the Court.

Further, due to judicial officers in state and territory courts not regularly exercising their existing Family Law Act jurisdiction, as recognised by the Law Council of Australia in their submission to this inquiry, an expansion of their responsibilities would require that ongoing judicial training accompany amendments. Naturally this isn't free, so I urge the government to take the time to seriously consider the funding implications that arise from the implementation of this family law amendment bill.

I urge the government to work co-operatively with the state and territory systems to ensure that any changes can be made without having an adverse effect or impact on the system, the court officials and, most importantly, the families that are involved. We need to take every step we can to ensure that acts of parliament do not cause more harm than good.

I noted earlier that the government had taken on board the concerns that Labor had raised. The original bill previously contained a measure that would criminalise the breach of personal protection injunctions, PPIs. Following representations from Labor, this has now been removed. In principle, I have to say, Labor does support criminalising breaches of PPI. We support a tough-line approach to preventing domestic and family violence. By making victims bring a civil action in the family law courts to enforce a civil penalty for a breach, the system, in its current state, is putting too much onus on the victims. Victims have often been through deeply damaging and traumatising experiences. I'd like to raise the fact that, in particular, women of culturally and linguistically diverse backgrounds are often those who suffer most with an experience of domestic or family violence. The damage and traumatisation of these women can be much more significant and can affect them for the rest of their lives.

The government's proposal for criminalisation of PPI breaches contained in this bill, contains serious flaws. More specifically, the changes that would have been applied would have been retrospective. It is democratically unjust to change the law on people who could not possibly have known the potential consequences of their decisions. Further, the bill sought to instate this as a Commonwealth criminal offence whilst having the provision enforced by the state or territory police. Maybe this would be ideal on a theoretical level but, practically, it leaves a lot to be desired. Unfortunately, I have to say that this is typical of government policy—thought bubbles never delve deep enough and never consider implementation.

I'd like to go back to some evidence presented by Senior Sergeant Luke Manhood of Tasmania Police:

… we are supportive of the principles proposed by the bill, we do see some practical issues with the proposal ... For your information, state and territory police … do not routinely enforce the Commonwealth criminal law. In fact, ensuring that the Commonwealth criminal law is routinely enforced is a primary reason for the existence of the Australian Federal Police.

The evidence continues to recognise that, while state and territory police are empowered to address Commonwealth criminal law, there are a number of procedural discrepancies that can often impede this from being put into practice. Tasmania Police ultimately recognise that these issues prevent the measure in this bill from achieving what it sets out to do: enforce breaches. The parliament simply cannot pass a law that just can't be implemented—at least, it cannot be passed until the government has done its job and worked out how to implement it as effectively and as practically as possible.

I will take the opportunity to thank the government for taking Labor's advice and waiting, because, in just a few months, a major Australian Law Reform Commission report into the Family Law Act and the family law system will be released. This report will address how family violence matters are dealt with through the family law system and will likely make some recommendations that more suitably address issues like criminalisation of personal protection injunction breaches. Labor has asked that the government hold off on the measures that I have just explained until the report has been released. As I said, it won't be long before that's released. It makes sense to wait until the report's released and the recommendations are in front of us and we've had some time to look through them. This wouldn't impose a time delay on a change being made, as the criminalisation of PPI breaches in the original bill would not have taken place until long after the release of this report. There's no time delay in waiting at all. Effectively, all Labor has called on the government to do is to take a more considered approach, not to rush things and wait for the evidence. When the report's released early next year, I look forward to working cooperatively with those opposite to ensure the best possible outcomes for victims and all other affected stakeholders.

I've heard some truly heartbreaking stories while consulting with my community on matters of family law and family violence. Many of these people have truly suffered, and I feel it's our duty as parliamentarians to ensure that each and every one of them is afforded the support they deserve. Support can come in many ways. It can come by providing community services, and the funding and resources that those services require, to help people through difficult times—services like CADA, in Caboolture. It can come by legislating a system that provides fairness, equity and protection for victims. As I said earlier, this is just a small step in the significant reforms to the family law system that need to take place.

It's also important to acknowledge the work that the Palaszczuk government and the Queensland police are undertaking, under the leadership of the police minister, Mark Ryan, and Moreton District Superintendent Michael Brady. In my local community, Superintendent Michael Brady has been instrumental in the development of community based programs, in particular the PRADO and It's Your Choice programs, that address domestic violence for all of the Moreton Bay region.

But, as I keep reiterating, still more needs to be done. I'd like to pick up one step in particular, and that is providing paid domestic violence leave as a national employment standard. This is a step that is important in particular to women. The ABS estimates that two out of every three women who experience domestic violence are in the workforce. For those who have experienced domestic violence, this leave would provide for those impacted to have some time to attend their court appearances, to go and seek the legal advice that they need and to make relocation arrangements. That's not easy to do if you've got children at school and you need to pack up and move home, get children resettled and attend medical appointments. These are really important parts of recovering from domestic and family violence, and access to paid domestic violence leave would provide that very much needed financial support for those women in the workplace.

I'd like to take this opportunity to ask the government as a matter of urgency to join with Labor and legislate 10 days paid domestic violence and family leave to reduce that fear that many victims experience of losing their job and the financial disadvantage of going without pay during this time when they're attending court, getting legal advice, taking care of their children and going to medical appointments. I ask the government as a matter of urgency to legislate 10 days paid domestic violence leave for victims immediately.

Photo of Ross VastaRoss Vasta (Bonner, Liberal Party) Share this | | Hansard source

I thank the honourable member for Longman and welcome her back to parliament.

12:01 pm

Photo of Anne AlyAnne Aly (Cowan, Australian Labor Party) Share this | | Hansard source

The Family Law Amendment (Family Violence and Other Measures) Bill 2018 is a really important piece of legislation. I'm very pleased to stand up here today and contribute to the discussion on this bill, particularly as a survivor of domestic violence. I often say that, though my experiences happened many, many years ago and I've come a very, very long way since then, when you have survived domestic violence, there is always a little part of you that remains broken and that you carry with you throughout your life, no matter how far you come. And while this bill is important—and I know that my colleagues who have spoken before me have spoken on the specifics of the bill and what the bill legislates, so I won't go too deeply into that—I just point out to the House here that we still have a very long way to go.

Current estimates of the extent of domestic violence suggest that one in six women will have experienced physical and/or sexual violence by a current or previous partner from the age of 15, and one in four women has experienced emotional abuse by a current or previous partner. I'd like to just ask the House here to take time to think about what that looks like. What that looks like is that, if you can imagine walking through a shopping centre, one in every four women that you see walking past you as you walk through that shopping centre will have experienced some form of violence in her life. That's a pretty staggering statistic. So far today, police in Australia would have dealt with, on average, around 300 domestic violence incidents, and that will increase every two minutes. So, while I'm speaking here, over the next 15 minutes or so, that means another seven cases will have been dealt with by police in Australia.

As well meaning as our Prime Minister's words are about respect for women, they don't go far enough, because this is not just about respect for women; this is about taking actual action to improve the lives of domestic violence survivors and also to stop the scourge of family and domestic violence. As long as we only talk about respect for women, those words become empty platitudes that have no real meaning and no real significance to the lives of people who are currently suffering family and domestic violence or who have suffered and survived family and domestic violence—because, as I said, it is not just about respect.

Colleagues who have spoken before me have spoken about resourcing our courts. Labor, of course, has a very strong position on that and has made some very strong statements about the need to adequately resource our courts, particularly in our states, not only in order to meet the requirements of this legislation practically but also to ensure that those who are suffering family and domestic violence have a fair and expedited process through which they can go.

I also want to mention access to family and domestic violence leave, which the previous member also spoke about. About six months ago, the Western Australia government legislated family and domestic violence leave. Since that regime was instituted by the WA Labor government six months ago, WA public servants have taken 150 days of family and domestic violence leave. That is certainly a very surprising statistic for many of us in Western Australia.

I also think we need to take more action on financial abuse—the hidden side of domestic violence. Speaking of my own experiences, when I finally had the will—as opposed to the means or, indeed, the courage—to leave a domestic violence situation, I found myself in a situation of abject poverty, with huge debts to meet and no way of actually meeting them. So, if we are going to back up our words with actions, we need to look more holistically at the range of issues that arise in family and domestic violence situations. One of them, of course, is financial abuse and the financial situation that many victims of family and domestic violence find themselves in when they finally leave an abusive relationship.

Importantly, we need to break the culture of silence and acceptance of family and domestic violence that exists within some communities. We need to start by educating police officers and service providers to not misjudge family violence, where, in some cases, they leave victims in a situation of family violence or, in some cases, issue notices against victims. I would like to tell a story here, Several years ago, I became aware, through community contacts, of two young girls who were being violently abused by their father. Over a period of a number of weeks they had been subjected to physical abuse by their father. I had a community meeting and at that community meeting we decided that we should go to the authorities. So I took it upon myself to notify the authorities of this information that I had received. The authorities then went in and removed those two young girls—I think they were 15 and 16 years old—from their family situation.

A couple of weeks later, I got called in to a meeting. Present at that meeting that I attended were representatives from the service providers and two self-appointed representatives from that particular culturally and linguistically diverse community. Those two representatives from that community proceeded to chastise the service providers for removing the girls from their family. A number of weeks later I found out that the service providers had caved in to the community representatives and had returned those two young girls to the violent situation within their family. As much as I tried to find information about what happened to those young girls, I'm sorry to say that I don't know. To this day, I remain concerned about what happened to those two young girls and their wellbeing. We need to break this culture of silence and to have an open discussion about family and domestic violence, particularly within some culturally and linguistically diverse communities, without fear and without being reprimanded, basically, by some members of those communities who wish to sweep these issues under the carpet.

We also need to look at accessible support services for those who are in a situation of family and domestic violence—when and where those support services are needed. Several years ago, when I was a mum—I'm still a mum, but this was when I was a mum of young boys and doing the school run—I remember being stopped by another mum after dropping off my sons at school. She knew that I worked in government and that I worked in the community sector. She pulled me aside and proceeded to tell me about her sister who was in a family-violence situation. She asked me how I could help and what she could do to help her sister get out of that situation.

It struck my mind, then, that these kinds of support services need to be reaching out to women who perhaps don't have the capacity, the knowledge or the ability to go to those support services when they need to. They need to be able to resource support services adequately so that these services can do that kind of work, so that they can get out into communities, so that they can reach some of the most vulnerable in our society who may not be able to access those services. It is one way of taking action on our words about respect and on our words about ending family and domestic violence.

I've noticed a very worrying trend in our society—and a growing trend, I have to say. It is a trend in the development of a very toxic discourse around domestic violence. It is a discourse that blames the victim and that paints men who perpetrate violence as victims—and women who suffer from domestic violence as somehow deserving of it, as somehow bringing it upon themselves. This is something particularly close to my heart. I know I didn't deserve to be slapped. I didn't deserve to be kicked. I didn't deserve to be punched. No matter what I did, I didn't deserve that. No woman, no child, no man—no person—deserves to be hit, to be slapped, to be punched or to be abused. I must speak out against this trend. I must speak out against this trend that I've seen on social media, that I've seen in some parts of media discourse, that seeks to turn the blame onto the victims—as if, somehow, it is their fault that they are in a situation of family and domestic violence. There is never any blame to be laid on the victims, because never do victims deserve to be abused and hit and punched and slapped and kicked and humiliated in the ways that I was when I was in a violent relationship.

So, yes, this legislation is important. All legislation that we take and all measures that we take to end family violence, to ease the process of justice for victims of family violence, to assist our courts in dealing with family violence, to assist our police in dealing with the calls they have to attend domestic-violence situations—one every two minutes—are really important. But I do reiterate that they are not enough. We're simply not doing enough. The fact that we are here in 2018 and that family and domestic violence statistics clearly show this is a situation that is not getting any better, speaks volumes and should be a wake-up call to all of us here in the House that we are not doing enough, that we need to do more than just talk about respect for women. Respect may be where it starts, but it certainly isn't where it ends. It's not enough to say that we respect women; it's not enough just to offer those words. As a survivor myself, I know that those words have empty meaning when they're not backed up by action.

So I appreciate the opportunity today to speak on this legislation. And I end where I started: it is an important piece of legislation but it's certainly not enough. Unless we back it up with actions, unless we provide more support services, unless we resource our courts better, unless we have a program of educating our police and our service providers about domestic violence—about the impacts that it has—and unless we take a concerted effort to break this culture of silence, to break the stigma of domestic violence in our society, this situation is not going to get any better.

12:15 pm

Photo of Linda BurneyLinda Burney (Barton, Australian Labor Party, Shadow Minister for Preventing Family Violence) Share this | | Hansard source

I pay tribute to the member for Cowan for her extraordinarily brave words and the honesty with which she has spoken to the Family Law Amendment (Family Violence and Other Measures) Bill 2018. I think that the really important point the member for Cowan was making was that, when it comes to this issue of family violence, it does not discriminate. Family violence is an entrenched problem within the Australian community, and the member for Cowan's call for action, not just words, is something we must hear—and not just hear but actually move on. So I thank her very much for sharing her personal story, which is not an easy thing to do in this situation.

We've listened to the member for Cowan and we've heard other members, including the member for Lindsay, talk about their personal experiences. That really is a brave and important thing to do, because other women and other people who have been affected by family violence, be it physical, psychological, financial, sexual or the various other forms of violence that are perpetrated, will be able to see that this does affect all rungs of society—that this does affect all people. They will take heart and will take an enormous amount of bravery from the words of the member for Cowan, so thank you.

I think what we've also heard is of the picture that's been painted of what it means, not just for individuals but what it actually means for the families who live in households where violence is a factor. I know personally that the intergenerational trauma and effect of violence is substantial. I note that the Minister for Agriculture and Water Resources is in the House today. I'm sure that some of the stories he's hearing from families who are stressed and have things happening that they're not used to would be that they're experiencing similar things.

The tentacles of family violence are long, insidious and far-reaching. It is absolutely the business of all of us—it's our responsibility as lawmakers—to turn words into action. We know from the fear, the anxiety and the urgency—not only for personal safety but for the safety of children—that this is such an important piece of legislation. I rise, as have my colleagues, to support this piece of legislation.

Unfortunately for many, there is the added anxiety of managing legal proceedings through the family law system. I've just had a meeting with a woman who talks and works with victims of domestic and family violence. She works in the court system. She was sharing with me some of the enormous challenges, particularly for people who are going through these horrors and who then, somehow, have to try and pull themselves together to actually deal with the legal side of it. That is not just about the head but about the heart as well. Unfortunately for many, there is that added anxiety. It should be easier, simpler and less confusing. It should function to protect victims of domestic violence.

The Family Law Amendment (Family Violence and Other Measures) Bill 2018 will do a number of things. It will reduce interactions with multiple courts through a number of jurisdictional reforms and streamlining federally and among the states and territories. It will allow parties to resolve related matters to reduce the need for litigation, which is so important. It will increase the property value threshold under which state and territory courts can hear contested family law property matters without both parties' consent. Courts will no longer be required to explain details of family violence to children when it is not in their best interest. For me, that is one of the most important functions of this bill. It will also remove the 21-day time limit on reviving, varying or suspending family violence orders. That is important because putting a mandatory 21-day time frame on that is extraordinarily difficult for people who are going through trauma and incredible upheaval. It will also abolish outdated text that potentially condones marital rape—and I don't have to speak to this House about how important abolishing that outdated, offensive part of the legislation is.

On the whole, Labor supports this bill because it will strengthen the powers of the courts to protect victims of family violence. It will also foster the resolution of family law disputes by state and territory courts. We know how daunting legal proceedings and resolving family related matters in the courts can be. It can be a particularly anxious time when it involves threats of harm and when it involves children. The fear and anxiety is compounded by the fact that parties must navigate different jurisdictions. It can be confusing and it can be time-consuming. It can take not only a financial toll but also an extraordinarily huge emotional and, often, physical toll.

Under this bill, specialist children's courts will have the power to make parenting orders pursuant to the Family Law Act. The bill will also extend the jurisdiction of state and territory courts to make orders in family law property matters by including disputes above the current monetary limit of $20,000. Labor supports extending the jurisdiction of state and territory courts in family law matters to make it easier and less confusing for families navigating the system at a time when there is enormous upheaval, trauma and distress. It will reduce the need to have to navigate both the state and federal court systems.

However, we are concerned that already overburdened state and territory courts will not have the capacity for the extended workload without a significant increase to their resources. That is a really important point that Labor is stressing: an increase in resources to make these reforms work is absolutely crucial. This is a concern that has been expressed by many stakeholders in the family violence prevention space. Women's Legal Services Australia, for example, in their submission on this bill, said:

The experience of WLSA member lawyers in state and territory courts is that there is already a pressing demand for court services and a lack of resources for these courts to hear matters in a timely and effective manner.

Our further experience is that as state and territory courts exercise their limited family law jurisdiction infrequently, few have the requisite expertise to properly hear and determine family law property and parenting matters.

State and territory courts also lack access to the services and systems currently available to assist decision-makers in family courts.

It is for all of the above reasons that we posit, alongside the Family Law Council, that state and territory courts will require a significant injection of resources.

The government cannot take credit for these reforms unless there are resources that go along with them.

The Law Council states:

It is clear that there will be financial implications for state and territory courts arising from any increase in the family law work consequent upon these amendments.

The last thing we want is for parties to family law disputes being caught in bureaucrat bottlenecks on top of an already difficult circumstance. If we want to properly realise the intent of these amendments then appropriate resources, including increased funding and ongoing judicial training, must accompany these amendments.

We recognise, as Women's Legal Services Australia does, the need to reduce the abuse of the family law system by perpetrators through providing for the summary dismissal of frivolous, vexatious or unmeritorious claims. The proposed amendment would set a test for applications to the court to have a reasonable prospect of success. The Family Law Act already contains powers to summarily dismiss claims. The Law Council therefore says that it cannot envisage how the reasonable-prospect-of-success test would change the current power vested in the court to dismiss a claim. Women's Legal Services Australia is also concerned about these costs. Women's Legal Services Australia said it could potentially be used as a threat to deter real and legitimate family court orders or applications.

As I have said, the important thing is that there is proper resourcing and that victims are properly listened to and their circumstances considered in these cases. To this end, Labor is concerned that these provisions may have unintended consequences and potentially work to the disadvantage of disempowered victims. Labor believes that this provision should be reviewed after a two-year period, and the provision is very much set out in the texts that I have in front of me.

Finally, Labor recognise the need to ensure compliance with injunctions and court orders, in particular, those relating to personal protection. In principle, we support the criminalisation of breaches of personal protection injunctions. However, we also recognise the concerns around the practical implementation of criminal penalties underpinning such court interventions. Under the measure, as proposed, the criminal penalties could apply retrospectively—not in the sense that it would apply to past breaches, but in the sense that it could apply to orders issued prior to the commencement of these measures. As we have heard from the Law Council of Australia, it is often the case that personal protection orders are entered into by consent. It is often the case that many parties informally vary or discharge such protection orders, so it is foreseeable that unintended consequences could arise from this measure. I note that the Australian Law Reform Commission will be reporting on this issue in 12 months time. Again, Labor recognise the need for such protection orders and for the people they seek to protect to be treated with the utmost importance and seriousness. We must ensure that we do so appropriately and that we get this right.

In conclusion, Labor supports this bill. It will make it easier for victims of family violence to seek stronger protection under the family law framework, and it will make it easier for victims to seek that protection. In order for the aspirations of this bill to be realised, we must ensure these measures receive the necessary resources—as I have outlined in my speech today on this bill—and that they are calibrated to optimally protect the interests of the vulnerable and avoid the two unintended consequences that I have also outlined.

This is an issue, as I stated at the very beginning, that is fundamental to the way in which we see ourselves as a society. It is fundamental to all of us in this place, as law makers, that we make this not just words but very strong action. It is the responsibility of all of us. Once again, I recognise the member for Cowan's speech and the fact that family violence does not discriminate. I say to the people who are affected by this dreadful aspect of our society to take heart from the sentiments being expressed in this debate, to be brave and to know that you have the support of this parliament.

12:29 pm

Photo of Cathy O'TooleCathy O'Toole (Herbert, Australian Labor Party) Share this | | Hansard source

I would like to acknowledge the member for Barton and her wonderful words, and the member for Cowan who spoke of her own personal experience with great courage and bravery. Not now, not ever. That is what all Australians must say to family and domestic violence. Family and domestic violence does not discriminate, it does not choose where it goes and it can happen in any strata of society. And although there have been numerous campaigns to end the scourge of family violence, the sad fact is it is still continuing and at alarming rates.

The facts and statistics regarding family violence are truly devastating for a nation such as Australia. These figures remind us that this issue is real and, unfortunately, rife across the nation. It is a national shame that, on average, one woman a week and one man a month are killed by a current or former partner. It is a national shame that one in three Australian women have experienced physical violence since the age of 15. It is a national shame that intimate-partner violence was the single greatest health risk for women aged between 25 and 44. It is a national shame that domestic and family violence is the principal cause of homelessness for women and their children. It is a national shame that Aboriginal and Torres Strait Islander women and girls are 35 times more likely than the wider female population to be hospitalised due to family violence. And it is a national shame that one in four children is exposed to domestic violence.

It is an atrocity that in my electorate of Herbert we have the second-highest number of domestic violence reports in the state per capita, according to police statistics. It is a devastating shame that this is an issue that has come down to statistics, but in reality that is exactly what seems to be happening. These statistics need to ring loudly and clearly, to all elected members, so that we act on this issue. And the time to act is now.

There are many organisations in the electorate of Herbert that are working hard and collaborating to address this issue. There is the work of the Women's Centre, often the only and last hope of a number of women experiencing domestic violence every day. There is the work of Sera's Women's Shelter that provides women and children seeking urgent shelter support and a roof over their heads at their most vulnerable time. Those organisations in my electorate are working hard to tackle family and domestic violence. It is essential that we in this place do so as well.

With those sobering statistics in mind, I welcome the intent of this bill, which aims to make a number of changes to how the family law system operates in this country in relation to family and domestic violence. It's main aim is to simplify the jurisdictions in which family matters can be heard and dealt with. To summarise its main provisions, the bill: would expand the powers of some state and territory courts, such as children's courts, so that these courts gain some family law parenting jurisdiction; would increase the property value threshold under which the state and territory courts can hear contested family law matters without both parties' consent; would allow for short-term judgements in interim matters before the state and territory courts; would remove the 21-day time limit that applies to a family law order that is revived, varied or suspended by a state or territory court when making an interim family violence order; would strengthen the power of the family law courts to summarily dismiss unmeritorious cases and vexatious claims; would remove the requirement that the court must explain certain matters to a child when that explanation would not be in the child's best interests; and would remove vastly outdated wording in the act that suggests marital rape and an obligation to perform marital services still exists in Australian law.

The other consideration is the major Australian Law Reform Commission's report into the Family Law Act and the family law system, which is due in March next year. This report will inevitably address how family violence matters are dealt with through the family law system. Labor has called for the government to wait until that report is published to consider how to best make the significant change to criminalise the breach of parenting protection injunctions and take action to legalise immediately thereafter. This would not impose a time delay in making this change. Under the original bill, the criminalisation of PPI breaches would not have come into force until 12 months after the royal assent—that is, after the publication of the Australian Law Reform Commission's report at the end of March. So the only difference excising this measure from the bill will make, in fact, will be to make it better in a more informed way, immediately after the publication of the Australian Reform Commission review. In fact, it could happen even earlier.

A contentious part of this bill is the expansion of some of the family law parenting jurisdiction to relevant state and territory magistrates courts. In principle, Labor supports this measure. If relatively simple parenting matters can be adjudicated in the same jurisdiction as other family law matters, that is a good thing for all parties involved. However, it is well known, and evidence provided at the Senate inquiry revealed, that state and territory magistrates courts are already incredibly under-resourced for the workloads that they have now. It is partly due to an increase in unrepresented litigants, thanks to cuts to legal aid and community legal centres' funding and inadequate funding for the judicial system in general.

Giving certain courts expanded jurisdiction with no extra funding is simply and completely unworkable. It is impossible to expect overstretched systems to take on more responsibility without more resources. It is just that simple. Moreover, the Law Council gave evidence during the relevant Senate inquiry that many state and territory courts do not actually exercise the family law jurisdiction that they already have, due to a lack of training and expertise. I provide a direct quote:

Many judicial officers in state and territory local courts do not have experience or knowledge of the family law jurisdiction, or have only limited knowledge and experience, and are reluctant to exercise their powers as a result.

The government has sought to allay these concerns by arguing that the expanded jurisdiction will first be tested through a series of pilots in different states and territories in conjunction with the governments. But once again I'm going to bring this back to funding, urging the government to put funding concerns first and foremost when considering the design of these pilots and to work cooperatively with state and territory governments and the court systems. It's imperative that these already struggling court systems are not pushed beyond the brink.

The government has expressed an intention to merge the Federal Circuit Court and the Family Court and gradually phase out the Family Court as a specialist division. It also wants to abolish the appeals division of the Family Court and have that responsibility instead become part of the Federal Court. There has been huge debate and discussion about this issue.

Although my sister is a family law barrister, I am not a lawyer. I have never been through or experienced the family law court system. However, in preparation for debates like this one here today, I wanted to be educated and aware of the issues on the ground. As such, at the invitation of Judge Coker, I spent a full day listening to and hearing the matters before the family law court. I witnessed a very professional and caring approach to what is in fact a very complex and distressing environment. I was surprised at the number of people who present to the court unrepresented. As such, this takes time from the judge and the court to ensure that procedural fairness is delivered to all parties. I also witnessed a strong focus on the needs of children, who are, sadly, caught up in these complicated cases.

Although Labor is yet to see any legislation in this space, I want to make my view very clear today on this matter. The combining of the Federal Court and the Family Court is in effect the downgrading of the importance of the Family Court. It is also a clear indication of just how out of touch the Turnbull government really are, as the family law court deals with the most complex cases. It is where the most traumatised and dysfunctional families' cases are heard. This change shows just how out of touch the government really are. They are seeking to put commercial matters ahead of complex family matters, a clear indication of the government's attitude towards understanding the complexities in the breakdown of families and the distress that it causes.

The Family Court deals with families where millions of dollars are involved in settlements, and matters before the court often take days or weeks before the judge. Currently the Family Court is on the same level as the Federal Court, but the suggested changes by this government will downgrade the Family Court, which would result in no more appointments of family law judges. Any changes to the Family Court must be done with the utmost care, as family law touches people's lives at a time when they are at their most vulnerable and distressed. It will be absolutely critical that the family law community be consulted in any of the change processes. Labor will ensure that we diligently scrutinise any and all of the changes that the government puts forward to our family law system.

12:40 pm

Photo of Warren SnowdonWarren Snowdon (Lingiari, Australian Labor Party, Shadow Assistant Minister for External Territories) Share this | | Hansard source

I am pleased to be able to speak on the Family Law Amendment (Family Violence and Other Measures) Bill 2018. As we know, family violence continues to be a scourge on Australian society. I want to talk about family violence in the Northern Territory and, in particular, its impact on Aboriginal and Torres Strait Islander communities across the general population.

The Australian Institute of Health and Welfare report Family, domestic and sexual violence in Australia 2018 had a number of key findings. Family violence occurs at higher rates in Aboriginal and Torres Strait Islander communities than in the general population. Aboriginal and Torres Strait Islander Australians have increased risk factors of family violence, such as social stresses like poor housing and overcrowding, financial difficulties and unemployment. One in seven, or 14 per cent, of Aboriginal and Torres Strait Islander women had experienced physical violence in the previous year. Of those, one in four, or 28 per cent, reported their most recent incident was perpetrated by a cohabiting partner. Aboriginal and Torres Strait Islander women were 32 times and Indigenous men were 23 times as likely to be hospitalised due to family violence as non-Aboriginal and Torres Strait Islander Australians. Two in five Aboriginal and Torres Strait Islander homicide victims—41 per cent, or 32 victims—were killed by a current or previous partner compared with one in five for the rest of the population. Aboriginal and Torres Strait Islander children were about seven times as likely as other children to be the subject of substantiated child abuse or neglect. In the Northern Territory, a third of police time is spent dealing with family violence, and Aboriginal women are victims in 72 per cent of all cases.

This demonstrates the significance and the importance of this issue in my electorate of Lingiari and in the Northern Territory generally, and it is a sad indictment. The Northern Territory's Domestic, family and sexual violence reduction framework 2018-2028, which was released in December 2017 by the Minister for Territory Families, Dale Wakefield, revealed that there were 61 incidents relating to domestic and family violence on a typical day in the Northern Territory. The victimisation rate in the Northern Territory, according to this framework, is three times higher than anywhere else in the country, with 1,730 victims per 100,000 people. This report also revealed that Aboriginal girls were most likely to be the victims of sexual assault and that 91 per cent of sexual assault victims were Aboriginal and Torres Strait Islander. Over half of those—51 per cent—were under the age of 19. The report also showed the shocking demand being placed, in this instance, on the Alice Springs Women's Shelter. During the 12 months to March 2017, 531 women and 438 children sought safety at the shelter. Of the women who sought shelter at the refuge in Alice Springs, 96 per cent were Aboriginal women.

The framework introduced in December 2017 builds on the achievements of the previous Domestic and Family Violence Strategy of the Northern Territory government and continues the support of the Family Safety Framework across the regions—that is, across the Northern Territory. It provides: intensive intervention support for high-risk victims of domestic and family violence; additional resources for prevention programs; money for the integrated and specialist domestic, family and sexual violence hub model for Tennant Creek, in particular, to support women and their children in the Barkly region; and it ensures that the NT Public Service leads the way for Territory employers on domestic and family violence, including paid leave.

These are shocking statistics. Sadly, they lead some to conclusions which are inappropriate. There has not been sufficient discussion about issues of causation and measures for prevention of family violence across Aboriginal and Torres Strait Islander communities throughout this country. We know a number of things. We know this data, and how horrific it is. Whilst it's easy to criminalise behaviour—and it should be—what we need to do is look at the stories of these perpetrators, the history of the family and the community that people are living within, and the issues that are confronting. We know that one issue, for example, is alcohol and other drug abuse—that's not news to anyone. I want to commend the Northern Territory government, unlike other governments across this country, for taking the issue of alcohol abuse very seriously, introducing a floor price for alcohol and looking at opening times for alcohol outlets and their prevalence.

These are important measures in addressing the issue of alcohol harm. Sadly, because of the protests of the alcohol industry by and large, there's been less than fulsome support for the idea of changing the taxation arrangements for alcohol across this country. If we were serious in this country about seeing alcohol abuse as a public health issue—which it is—then we would be saying to the community that it is important that we look at the taxation issues relating to alcohol, address those issues so that we impact upon the demand for alcohol across the country, and know—because the research demonstrates it—that, if we use these price mechanisms as a result of increasing taxation, a volumetric tax and floor price, we will have a significant impact on the demand for alcohol. We know that that will mean fewer presentations at hospitals by people suffering violence as a result of alcohol abuse and fewer presentations to the police.

That's just one issue. There are many other issues that have not been properly addressed thus far. Recently we've seen the Royal Commission into the Protection and Detention of Children in the Northern Territory. We've seen a suite of recommendations made. We remind ourselves that this royal commission was called jointly by the former CLP Chief Minister of the Northern Territory, Mr Giles, and Malcolm Turnbull as the Prime Minister of this country.

The horrendous nature of the abuse which this concentrated on was there in the evidence, and the treatment of Aboriginal kids in the Northern Territory was observed by the national community. The report made significant recommendations, which involve significant cost. I know that the Northern Territory government has committed $50 million to address those recommendations but, to date, we've seen not one dollar—not one dollar!—come from the Turnbull government, the co-sponsors of this royal commission, to address the recommendations of that royal commission report.

They can't say, on the one hand: 'We think this is a fantastic idea and we, the Commonwealth, will have a role, because we think this is really so important. We'll help you fund this royal commission,' and, on the other, walk away and abrogate their responsibility for funding the recommendations of that royal commission. That is precisely what the Turnbull government have done. There's no excuse for that.

In addition, we saw recently some very sad and horrific events around Tennant Creek. They were well publicised. The Prime Minister visited Tennant Creek in what was really a political stunt. He had conversations with people about having a regional plan for the Barkly, but failed to involve key Aboriginal representatives from the communities around Tennant Creek—for whom this plan will be so important—in those discussions. They didn't have a voice in this discussion.

In the context of other issues, we know that there is not sufficient knowledge about the impacts of intergenerational trauma on the mental health and associated emotional wellbeing of Aboriginal people—not only in the Northern Territory but elsewhere in this country. There is not sufficient knowledge about the impact of mental health issues in families and, particularly, in relation to fetal alcohol disorders and the impacts they have not just on the children but in the results of those children themselves having children. All of these complicated factors are involved in discussing family violence.

The other issue is the issue of overcrowding. We know that there's a significant shortfall in housing in the Northern Territory and, indeed, across many parts of remote Australia, not just in the Northern Territory. We know that the Northern Territory government has committed $1.1 billion over a decade for this—in fact, closer to $1.6 billion if we include the money for servicing of land for housing. The Commonwealth has only committed to half that amount. There used to be a long-term—a decadal—commitment to the supply of Aboriginal housing across the Northern Territory. This government have said that they're not prepared to renew that agreement and that housing is a Northern Territory government responsibility.

I kid you not, Mr Deputy Speaker Vasta: if we don't address the horrendous issues of overcrowding, which involve communities, and families in particular, and which go to issues of child abuse and of alcohol and family violence, then we will not address the problem. Yet this government, for whatever reason, feels that it's okay to put in just enough to seed the process but not to commit long term to addressing the housing shortages across the remote Northern Territory.

Family violence is awful. We've got to treat the problem, address the people who are victims and provide them with freedom and the capacity to deal with the plight they're in, but it will not be easy unless there are a number of complementary measures which go to addressing the root causes behind the family violence in the first instance.

12:55 pm

Photo of Sarah HendersonSarah Henderson (Corangamite, Liberal Party) Share this | | Hansard source

It's my great pleasure to rise to speak on the Family Law Amendment (Family Violence and Other Measures) Bill 2018. There's absolutely no doubt that, as we've heard in this debate, family violence is one of the most insidious and horrific issues in our community. It is a scourge across Australia. I want to commend the government, the Prime Minister and the Attorney-General for the very strong support and leadership they have shown in bringing forward these measures. Let's not forget that the very first thing Prime Minister Turnbull did when he became Prime Minister was to announce a $100 million women's safety package to combat family violence on the front line. So this has been an absolute mission for our government from the get-go.

I also draw on the work of the Social Policy and Legal Affairs Committee and the inquiry into family violence law reform we conducted last year when I was the chair of that committee. I certainly want to make the point that many of the measures that have been introduced in this bill have been supported by the recommendations of that committee. I'm really proud of the work that committee did.

One of the biggest complexities in this horrific situation when people get caught up in family violence is dealing with a multitude of different jurisdictions, the complexity of the laws and the sense: 'Where do I go next? How can I afford it? How do I get urgent help? How do I feel safe? How do I ensure my children are safe?' One of the big issues that we identified in our inquiry was the complexity of the legal system, which in many respects puts the safety of men, women—principally women—and children second in so many cases. There's no one reason for that other than the fact that this is a very complex jurisdiction coupled with the fact that many of the remedies through intervention orders or apprehended violence orders are obviously available through state and territory courts. Of course, the children's court also plays a very strong role. So we certainly identified the need to make this system less complex and made some recommendations in relation to single courts which could deal with all issues relating to parenting, family violence and even property matters, meaning all particular issues that might come before various courts in the family law sphere.

This bill enhances the capacity of the family law system to provide effective outcomes for people who are experiencing family violence. In particular, it aims to reduce the need for families to interact with multiple courts across the federal, family law and state or territory family violence and child protection systems. As I said, the Attorney-General and the government are to be commended for this very important response.

I reflect on the member for Lingiari. I've never been more horrified than when our committee visited Alice Springs and took evidence in Alice Springs. We visited the Alice Springs Women's Shelter, which is, in reality, a homicide prevention centre. It is unbelievable that in our nation women go into this centre. There are two lots of fences. There's an inner wall and then there's a very high outer wall. It's like a prison, but women—principally women, Aboriginal women—go there to seek refuge to literally stop themselves from being seriously injured or killed. When this centre is overflowing, there are women who can't get in, and at night-time you can hear them in the bushes outside being raped or attacked—and this is happening in our own country.

The Alice Springs Women's Shelter are seeking a lot more funding. They certainly need a lot more funding. They need a major upgrade of their facility to better protect women and children. I heard the shocking story of a woman who was inside the shelter with her baby. Such was the pressure, the coercion and the threats that she was subjected to from her husband, or her partner, who was standing outside the facility—on the other side of the very high wall—that she threw her baby over the wall at the insistence of her partner. The baby was okay, but you can only imagine what women are subjected to if they do those sorts of things to try to alleviate the threats that they face in those horrific circumstances.

This is a real crisis, and that crisis is playing out every single day, in every street in every community across this nation, but it is on full display in communities like Alice Springs and other parts of the Territory. I take exception to the derogatory comments that the member for Lingiari made in relation to the Prime Minister's visit. The Prime Minister's visit was very significant and very important. The Prime Minister is on the ground, out in our communities, understanding these issues and taking the appropriate action—and this bill is part of that.

The bill has a range of very important protections, including that Children's Courts will be able to make appropriate orders under the Family Law Act to resolve matters in the best interests of the child. So the Court of Summary Jurisdiction will be able to hear contested family law property matters up to a higher value without requiring both parties' consent to the court exercising the jurisdiction. A lot of those jurisdictional barriers have been lifted. I want to applaud the government for this action. As I say, this is a very complex area of the law, and much more reform is required.

When allegations of family violence are made in a family law court or in a family law situation, one of the very strong recommendations of our committee is that those allegations must be heard at the earliest possible opportunity. We can't have a situation where allegations of family violence and family law proceedings are dragged on for one, two and perhaps three years. This often means that inappropriate orders are made, because these allegations haven't been tested, which puts the safety of parents and children at risk. Of course, when there are false allegations made, it also leads to terrible injustice to those against whom those false allegations are made. I want to note more broadly that the Attorney-General has commissioned the Australian Law Reform Commission to conduct an inquiry into the family law system, and many of the matters that we've raised in our inquiry recommendations are being examined in that broader context. So, again, I commend the government and I commend the bill to the House.

1:03 pm

Photo of Alex HawkeAlex Hawke (Mitchell, Liberal Party, Assistant Minister for Home Affairs) Share this | | Hansard source

I thank members for their contributions to the debate on this bill. The government is pleased to support the passage of the Family Law Amendment (Family Violence and Other Measures) Bill 2018. The bill will enhance the capacity of the justice system to provide effective outcomes for vulnerable Australians who experience family violence. It will implement a number of expert recommendations, including those from the Family Law Council, Victoria's 2016 Royal Commission into Family Violence, the Australian and New South Wales Law Commissions' report and the coronial inquest into the death of Luke Geoffrey Batty.

The bill will facilitate the resolution of family law matters by state and territory courts in appropriate cases. This will reduce the need for vulnerable families to interact with multiple courts across family law, family violence and child protection systems to address their legal needs.

This bill will increase protections for victims of family violence by reducing the potential for inconsistent family violence orders and family law parenting orders. It will facilitate the expeditious resolution of family law matters and enable courts to better protect victims from perpetrators who attempt to use the family law system as a tool of continued victimisation. It will do this by strengthening and codifying the summary dismissal powers of the family law courts to ensure this provision is operating as intended and providing better protection to victims. The government will review this provision after two years.

The bill will also enforce the principle of equality within relationships by removing a redundant provision in the Family Law Act that suggests that conjugal rights and an obligation to perform marital services still exist in Australia.

The government has delayed introducing criminal offences for breaches of family law injunctions made for personal protection. This government takes the safety of family violence victims seriously and remains committed to the policy intention of the proposed offences. The government will continue to work on implementation issues with policing agencies and other stakeholders, and will further consider the proposed offences once the Australian Law Reform Commission has completed its comprehensive review of the family law system. The measures in the bill will deliver immediate benefits for families and courts dealing with complex issues involving family violence across multiple jurisdictions.

I thank members for their contributions and commend this bill to the House.

Question agreed to.

Bill read a second time.