Thursday, 8 October 2020
Australia's Family Law System Joint Select Committee; Report
I would like to begin by thanking the chair, the member for Menzies, for his work and thanking the secretariat for managing what has been at times a very emotional inquiry. I also thank the many individuals and organisations who made submissions to the committee. They have often shared personal experiences of navigating the family law system that were no doubt traumatic for them to relive. These submissions have been valuable to the work of the committee. I want to thank the organisations that provide family law services for their input to the inquiry and to acknowledge the very difficult work that they undertake.
As a psychologist, I was a scientist practitioner. This meant that evidence based approaches guided my clinical practice. As a member of parliament, I have maintained that an evidence based approach to creating policy and legislation will create the best outcomes for our nation. The input of researchers in family law will provide a significant body of evidence to guide us in making recommendations.
My membership of this committee has been shaped by a unique experience, working with families going through separation and divorce. Relationships are often complex. No matter the reasons why an individual or couple choose to end a relationship, it's never easy. It impacts not only on the immediate family members but also the extended family network. There is a spectrum of experiences when a couple separates. Some may experience relief at having left a dysfunctional or abusive environment, while others may mourn the loss of the relationship.
When children are involved, their interests and wellbeing should be paramount. We cannot set out to improve the family law system unless we first take into consideration the rights, safety and experiences of children involved. The committee has heard from several submitters that have alleged that both mothers and fathers have sought additional time for their children solely for the reason of maximising their individual property settlement and influencing the amount of child support to be paid. My concern is always on how such actions affect the child, particularly their mental health, but also the mental health of both parents. Ideally, the best outcome would be two healthy parents engaging in cooperative, shared parenting and working together in the interests of their children during and after separating.
The safety and wellbeing of all family members must be a critical consideration when working to improve the family law system. Almost two in five women and one in three men who temporarily separated from a violent former partner experienced family violence during the separation. Family violence occurs when a person tries to control their partner or other family members in ways that intimidate or oppress them, including through coercive control as well as physical, emotional, sexual or financial abuse. During the hearings, a recurring theme presented itself: family violence and other controlling and abusive behaviours did not necessarily cease once a relationship ended. In some circumstances, the family law process increased the risk and extended family violence and abusive behaviour after separation. As we develop the final recommendations, we should keep the rights of the child at the centre of this discussion, as well as the safety of the family as a whole.
Finally, I would like to briefly comment on the adversarial approach of the family law courts. The reality is that only a small proportion of separating families have their family law disputes determined by the courts. These cases tend to be more complex. It will always be to the family's benefit to mitigate the need to go through an expensive and adversarial process, and it's important to look to alternatives to dispute resolution, including arbitration, conciliation, family dispute resolution and mediation.
The committee now has substantial evidence to guide our deliberations in developing the final recommendations, and I trust that this process will place the safety and wellbeing of children and both parents at the centre of the family law system.
I rise today to speak with regard to the interim report tabled on behalf of the Joint Select Committee on Australia's Family Law System, of which I am a member. The reality of modern society, sadly, is that 40 per cent of marriages end in divorce. While many of those separations are conducted fairly and amicably, there are still many Australians who rely on the family law system to settle their divorce and resolve disputes over property and custody of children. Most of us know someone who has gone through the family law courts or have experienced it first hand ourselves. To various degrees, this process can be adversarial, confrontational, emotionally unsettling, financially crippling and life changing. It's for that reason that it's imperative that our family law system is not only functional but is fair and well funded. It's for that reason that this report of this inquiry is important.
At this stage, I want to commend the government for its budget announcement that it will inject $35.7 million over four years for resourcing and judicial numbers in the Federal Circuit Court. This is important, and I acknowledge the overall investment of a projected $132.1 million, aimed at expediting the handling of family law and other matters over the same period. This is an important first step, and I thank the government for addressing this urgent need for resourcing.
When this inquiry was first announced I, like many others, was sceptical. It should be noted there have been 67 different inquiries into the Family Law Act since it came into effect in January 1976—that should be nearly a record. The most recent of these was the Australian Law Reform Commission report, handed down in March 2019, entitled Family law for the future—An inquiry into the family law system. The report contains 60 different recommendations on how to improve the system. Sadly, some 18 months on, the government is yet to release its response to that report, and I, of course, use this opportunity to call on the government to do so and urgently implement the full list of recommendations.
Unfortunately, there is a history of successive inquiries identifying similar systemic problems with our family law system and successive governments being unwilling or unable to make the necessary changes. So, when this joint select inquiry was announced, I hoped that maybe this time it would be different. I hoped that this inquiry would lead to that fair and fully funded system we so desperately need. I nominated as a member not just to represent the interests of my constituents in Warringah, many of whom have gone through the family law system, but also to bring to the process my experience and knowledge as a family law barrister prior to entering this parliament. That was over a year ago.
The 24th of this month will, in fact, mark exactly 12 months since we first met as a committee charged with the responsibility of improving the family law system. In those 12 months, we've received more than 1,600 submissions, the majority from individuals detailing their personal cases and experiences and another 169 submissions from organisations, academics and other professionals. Despite the various challenges, of course, of COVID-19, we've held 11 public hearings and 13 in camera hearings. So it's important at this stage that I thank all the people who took time to provide to the committee a submission or to appear at one of our hearings. It's vitally important that we hear from those who have had firsthand experience with the system, those who are seeking to improve it and from those who have the skills and expertise in the law, in child protection and in community services. I really thank everyone for their contribution.
The terms of reference for this inquiry were very broad and far-reaching. They covered interaction of the family law system, state and territory jurisdictions, the appropriateness of the Family Court powers and enforcement, the proposed merger of the Family Court and the Federal Circuit Court, the financial costs and impacts to families in the process, the effectiveness and enforcement of the family law outcomes, the support available throughout that process and services to families, the family dispute resolution processes and then, ultimately, the impacts of family law proceedings on the health, safety and wellbeing of children and families involved in those proceedings. Of course, it also dealt with issues arising for grandparents and carers in the family law system and in relation to the monitoring of professionals involved in family law proceedings. There were, of course, very far-ranging areas and scope for this inquiry, and, on the whole, I feel that the issues covered in this interim report before the House are consistent with those terms of reference but also my own experience as a family law barrister.
The interim report has not made recommendations, but it has set out the breadth of the evidence that's been received and the areas covered, and these have been very broad. But I should say first off that the committee is not in a position to determine the truth of the facts alleged and set out before it during hearings or in submissions. We are simply and very frequently only hearing from one side of a story. So, while some may feel that it's a question of forming a judgement, that is not the role of the committee. It was simply to gather the experiences, identify some of the problems and take on board the submissions from some of the professional organisations that work in the space.
It's clear the family law system has a huge impact on people's lives. Some of the areas that were brought to our attention included very much the challenges in engaging with the legal system. The family law system is often the very first time a person is having to engage with the court process. So it can be incredibly confronting and debilitating as your most personal situation is laid bare before a court and often put in the hands of somebody else to determine. This can be incredibly confronting and challenging. Parenting arrangements, enforcements, allegations of alienation of parents, legal costs, mediation, dispute resolution—these are all major issues covered.
We can't talk about breakdown of families without talking about domestic violence. It is a scourge in our society and must be addressed. We heard a lot of evidence in relation to domestic violence and how it interacts with the family law system and engages at all levels. There were points raised around systemic issues when it comes to costs, qualifications, consultants and expert witnesses. Of course, the adversarial nature of the system was also brought up. The question of, 'Should we move to a more inquisitorial system?' is something that has been explored. Legal fees and costs are also often tied to the length of time that it takes for proceedings to be dealt with. This, of course, all comes back to fully funding the courts to be able to deal in a timely manner with disputes in a fair and balanced way.
I look forward to working with the committee to continue the inquiry and work at developing, I would hope, some recommendations that will, in fact, deal with a lot of the issues that were raised before the committee. As I said, I think this interim report is promising and that the inquiry's on the right track to formulating some clear recommendations for how the family law system in Australia can be improved. But those recommendations will be useless unless the government commit to implementing them. So I do look for that assurance from the government—that they will fully implement the recommendations of last year's report from the Australian Law Reform Commission and will fully implement the recommendations of this report. Australian families deserve a legal system that is fair and fully funded. I look forward to working with my fellow committee members from both sides of the aisle and with the government to achieve that outcome.
In conclusion, we're all aware that the COVID-19 pandemic has created added pressure for relationships that were possibly already under stress. This is really important for everyone. Support services and welfare agencies all report an increase in people seeking help either for mental health issues or on family violence. So anyone in a situation where they feel their relationship is causing mental distress please reach out. Lifeline is at 131114. Beyondblue is at 1800512348. If you are in a situation of family violence or if you are worried about someone who is in a situation where there might be intimidation, controlling behaviour, harassment or physical violence, whether they be male or female, please call 1800RESPECT—that's 1800737732—or MensLine Australia at 1300789878.
I might start by just saying that it is actually a real honour to follow the member for Reid and the member for Warringah in speaking on this interim report of the Joint Select Committee on Australia's Family Law System. Like the member for Warringah, I too was sceptical going into this committee inquiry, primarily because we have had so many such inquiries before but also because of some of the public statements that had been made by the deputy chair of the committee. But I have to say that working on a committee with some very strong and very professional women who have brought to the committee a wealth of experience—the member for Reid with her experience in counselling and her professional experience working with people in relationships and the member for Warringah with her experience with the family law system—and the composition of this committee has been absolutely critical to the success thus far that I see in this committee and in the interim report that has been produced. I commend the members of the committee, and I commend the secretariat for a very long and very comprehensive interim draft.
As the member for Warringah mentioned, we heard from 64 different organisations and professionals and 85 individuals through 11 public and 13 in-camera hearings. With COVID creating the disruption that it did, it's quite a feat that we managed to get through that number of hearings using teleconference and videoconferencing facilities as we did. COVID certainly did not arrest the development of this committee and our ability to progress the inquiry.
The committee received a huge number of submissions—well over 1,600. One of the things about this committee and the subject matter is that it is a highly emotive issue. One of the reasons that I nominated to be on this committee is that I have been through the system, had dealings with the Child Support Agency and the Family Court, and also had experiences of family and domestic violence. So from my perspective I was really interested to see if things had changed in the 25 years or so since I had dealings with those agencies.
Sadly, what I've found through this inquiry, through the hearings and evidence that was presented, is that nothing's changed. The issues and challenges and the substantive issues with the process that I encountered all those years ago still exist. It's heartbreaking that since then families and individuals have had to go through that same thing.
The Labor members of the committee have submitted some additional comments to the interim report. The primary point that we make in these comments is the point made by the member for Warringah earlier: that this inquiry follows no less than 67 other inquiries and reports into the family law system since the Family Law Act 1975 commenced in January 1976. You would think that 67 inquiries and reports would have fixed some of those issues that I mentioned, issues which I witnessed personally 25 years ago and which still exist, as the committee heard in evidence over last few months. We make several recommendations in our additional comments. Every single one of those recommendations relates to a recommendation that was made in previous reports, the two most recent previous inquiries and reports being the House of Representatives Standing Committee on Social Policy and Legal Affairs report A better family law system to support and protect those affected by family violence, tabled in December 2017—also known as the Henderson report—and the Australian Law Reform Commission's report Family law for the future: an inquiry into the family law system tabled in March 2019. Together, these two reports have a combined 93 recommendations, which we believe will improve the family law system. Many of the recommendations in our additional comments relate to calling on the government, as the member for Warringah did, to implement the recommendations of previous reports to address the issues that have been raised once again through this inquiry and no doubt will be raised and become recommendations—though I don't want to pre-empt the final report but, given the evidence we've heard so far, will be recommendations in the final report from this committee as well.
I want to say one last thing, and that is the level of evidence that we heard about domestic violence. As the member for Warringah said, the terms of reference for this inquiry were extremely broad and covered child support, domestic violence and childcare responsibilities, as well as the overwhelming issue that came out: the adversarial nature of the family law system. Domestic violence came up time and time again and we heard a lot of conflicting evidence, some from men who alleged to be falsely accused of domestic violence and some from women who were victims of domestic violence. Through all that evidence, it became very clear to me that more needs to be done. When we talk about domestic violence, it's not just about preventing domestic violence but about how we deal with it when it presents in the Family Court. Included in the evidence that we heard from professionals in this space was their recommendation of better training for those in the family law system to recognise and deal with domestic violence. That is something that we could start working on immediately.
Finally, I commend this interim report to the House. It is, as I mentioned, a long report, but it is very comprehensive and I think it does justice to the people who came and gave evidence. To the individuals who came and revisited very emotional times in their life, very emotional situations and experience in their lives, I thank you. I thank you for your bravery in coming forward. I thank you for your generosity in sharing your story. I know that it can be very difficult and very taxing on both your mental and your emotional wellbeing when you do that, but I learned a long time ago that nothing changes if you don't speak up and don't share your story. Sharing that story can be very powerful. It has been an honour to hear the evidence from those people, as well as the evidence from professionals, but I particularly want to make special mention of the individuals who came and told their personal stories. Some went through quite horrific and highly emotional circumstances. Once again, I commend this interim report to the House, and I give my thanks to the committee, the secretariat and all witnesses who put in submissions and appeared at the hearings.