Kevin Andrews (Menzies, Liberal Party) Share this | Link to this | Hansard source

On behalf of the Joint Select Committee on Australia's Family Law System, I present the committee's report, incorporating dissenting reports, entitled Improvements in family law proceedings: second interim report.

Report made a parliamentary paper in accordance with standing order 39(e).

by leave—The 1973 bill to establish the Family Law Act was based on a series of principles, including that the financial dispute between the spouses should be resolved as quickly and finally as possible and that the whole process should be performed with dignity, relative privacy and as little expense as possible. Regrettably, some of these objectives remain elusive almost half a century after the introduction of the Family Law Act. Throughout the course of this inquiry, four issues have been raised continually in submissions and hearings: extensive delays, excessive legal costs, the difficulty of enforcing court orders, and timely and fair resolution of family violence allegations.

People find themselves in the family law system because of a breakdown of a relationship. For the most part, they are ordinary families who entered a marriage or relationship with the best of intentions but, for various reasons, find it difficult or impossible to sustain. They are generally of ordinary means with little apprehension that the breakdown of their relationship can result in very substantial legal fees. And, if parents suffer financially, so do their children.

While legal advice is necessary to ensure that the interests of the parties are properly considered and fair fees are charged, lawyers and other professionals should not be profiteering from the financial and emotional stress of a relationship breakdown. That is contrary to the principles of the Family Law Act and the principles upon which it was based.

The maxim 'Justice delayed is justice denied' has been applicable to the Family Court for many years. Hundreds of Australians have told the committee of the emotional and financial strains of being trapped in seemingly endless processes of multiple court appearances, ongoing delays and confidence-sapping years of unresolved litigation. To their credit, the current leadership of the courts has made considerable efforts, despite the challenges occasioned by the COVID-19 restrictions, to reduce backlogs and hasten proceedings. This has involved a greater use of judicial registrars, the practice of call-over of cases and the creation of a special COVID court list. The committee is of the strong opinion that these measures should be incorporated into the ongoing operation of the court. Accordingly, the committee has recommended an increase in the number and in the role of the registrars.

Complaints about excessive legal costs are not new. Almost 30 years ago, Justice Michael Kirby observed: 'Something appears to be seriously wrong in the organisation of the provision of legal services in this community when charges of this order'—in the case he was referring to, of some half a million dollars—'can be contemplated, still less made.' Judges have made similar complaints in a series of more recent cases. In 2014, Justice Loughnan observed that 'a forest of trees has been killed' in one case before him. A year later, Justice Bennett stated that there was something askew in the proportionality of the wife's representation when her retention of senior counsel had contributed in no small part to the wife being left with nothing more than a modest business and an unpaid debt to her legal advisers. The committee has heard evidence of legal costs nearing or exceeding the total value of the assets of the parties. In 2017, Justice Benjamin said:

… the consequences of obscenely high legal costs are destructive of the emotional, social and financial wellbeing of the parties and their children. It must stop.

The committee concurs. These practices must stop, wherever they occur—hence our recommendations to cap fees in property disputes, introduce a proportionality requirement in Family Court costs generally and to ban so-called disappointment fees. Unless approved by a judge or a registrar in exceptional circumstances, the committee proposes that legal fees in property matters be capped at $50,000 or 10 per cent of the parties' identified property and superannuation, whichever is the higher. This cap will not include mediation or arbitration. Secondly, the committee recommends that there be a requirement for proportionality of costs in all family law matters. And, thirdly, the majority of the committee recommends a prohibition on the use of disappointment fees, adopting the comments of Justice Benjamin:

… I have grave difficulty in endorsing, as fair and reasonable or proportionate, terms in fee agreements which provide for barristers to be paid for doing nothing.

The third significant cause of complaint to the committee concerned the fact that many court orders are simply ignored by parties and not enforced by the courts. This is an injustice which brings the court processes into disrepute. Accordingly, the committee recommends the establishment and funding of a registrar-driven national convention list to deal with parties breaching orders of the Family Court. This would involve the appointment of additional registrars to ensure that all contravention applications can be triaged within 14 days. The committee also recommends that the Australian government review the act to consider whether additional penalties should be included to deter the contravention of orders, including specific penalties for repeated noncompliance.

As detailed in the first interim report of the committee, a series of issues relating to family violence were raised in many submissions to the inquiry. The committee has made a series of recommendations about the subject, including the need to have a consistent definition in Commonwealth, state and territory legislation and more streamlined and consistent procedures for investigating claims and determining applications. The committee has made 29 recommendations in this second report. Important other proposals include the implementation of procedures to enable the court to investigate claims of a party wilfully misleading the court and accreditation of professionals in the family law system. There are also a series of recommendations about making the family law system less adversarial. This second report represents the committee's final and concluded views on the matters contained in it. However, the committee has had insufficient time to consider several issues relating to child support that were raised in many submissions. Accordingly, the committee will conduct a further short inquiry into these matters, utilising the evidence already provided to it, before tabling a third and final report.

I thank my colleagues on the committee, some of whom are in the House today, for their constructive and thoughtful consideration of often very complex issues. I also thank the members of the secretariat for their untiring and professional assistance to the committee. I commend the report to the House.

Graham Perrett (Moreton, Australian Labor Party, Shadow Assistant Minister for Education) Share this | Link to this | Hansard source

by leave—I speak today on the tabling of the second interim report of the Joint Select Committee on Australia's Family Law System. Before I do so, I'd like to particularly commend the chair of the committee, the member for Menzies. I don't think there is a more disparate group of cats in this parliament than was on that committee, but he managed to herd us together. I say, with all respect to some of my fellow committee members, that he managed to herd us together very well and did an exceptional job. I again commend the member for Menzies for his great work.

This report details the committee's views on the family law system and makes 29 important recommendations. We do so after receiving over 1,700 submissions from organisations and individuals with direct or indirect experience of the family law system. We conducted 12 public hearings and 13 in camera hearings. More than 40 hours of evidence from 85 witnesses was heard during the in camera sessions. I thank each of the submitters and witnesses, who provided the committee with very valuable evidence to consider when compiling this report. Thank you to the secretariat for undertaking that compilation because much of the evidence, I know, was distressing and many of the witnesses were presenting information in a highly charged state. For many witnesses, the process of giving evidence before the committee was very daunting, particularly because of comments made by the deputy chair prior to the inquiry commencing. The deputy chair publicly declared that women lie about domestic and family violence in Family Court disputes. I am pleased that the committee unanimously concluded that false allegations are actually not prevalent. I don't think an inquiry was needed to come to that conclusion; nonetheless, I welcome the committee's finding.

The report makes a total of 29 recommendations to improve the family law system, and I particularly welcome more funding for legal aid commissions and community legal centres; funding for an additional 25 to 30 registrars in the family courts to address backlogs and delays; a mandatory accreditation scheme for family report writers; the urgent release of an exposure draft of legislation to address the current misunderstanding of equal shared parental responsibility; amending the Family Law Act to reflect the impact of family violence on property settlements; expanding legally assisted family dispute resolution; the recommendation that the Family Law Council be reconstituted; and continued funding for non-legal support services for all victims of family violence.

These are all sensible recommendations that will improve the family law system. Each recommendation I listed had already been made in previous inquiries and reports. Those recommendations are collecting dust on the shelves in the Attorney-General's office right now. We didn't need this inquiry to know that these are all measures that will improve the family law system; we already knew what to do. This parliament knew what to do. There has not been the will from this coalition government to do it. There have been 67 previous reports and inquiries into family law. I think the member for Menzies was on one of those back in the early 1990s. Just the two most recent reports collectively made 93 recommendations to improve the family law system. The 2019 Australian Law Reform Commission report into family law has still not been responded to by the Morrison government. We were told in Senate estimates that the Attorney-General had the government response to this report on his desk 17 months ago. What happened to it? Obviously responding to the most comprehensive review into family law commissioned by his own government isn't a priority for the Attorney-General, despite him implementing the biggest structural reform on the family law system since the Family Court was established way back in 1976.

I'd like to just touch on that. The Attorney-General rammed through his bill to merge the Family Court of Australia with the Federal Circuit Court last month. He didn't listen to the overwhelming calls from experts, academics and advocates that it was a really bad idea. He didn't wait for this committee to table its final report. He pushed through a bill that was designed to abolish the only standalone specialist family law court. Had the Attorney-General waited for this committee to report, he would have received further evidence given to the committee of the harm the merger will bring to families navigating the family law system.

I'm greatly saddened by the abolition of the Family Court of Australia, but now more than ever the family law system needs to be well resourced and strengthened. I urge the Attorney-General and the Prime Minister to actually read the committee report, to read the 29 recommendations and to read the additional comments by Labor members of the committee. Don't just receive it; actually read it. Many of the 29 recommendations in this report are not new. They have been recommended by previous inquiries and previous reports. There is no reason to delay implementing these recommendations. In fact, the work should have been started years ago. The family law system has been neglected for far too long. I urge the government to urgently implement these recommendations. There should be no more inquiries and no more reports into the family law system until the current government addresses and implements the recommendations already made.

Kevin Andrews (Menzies, Liberal Party) Share this | Link to this | Hansard source

I move:

That the House take note of the report.

David Gillespie (Lyne, National Party) Share this | Link to this | Hansard source

The debate is adjourned. The resumption of the debate will be made an order of the day for the next sitting.