Tuesday, 16 March 2021
Australia's Family Law System Joint Select Committee; Report
It is easy for me to talk about this because I have had personal experience in it, unfortunately. About 26 years ago, I had the unfortunate experience of going through a divorce. In my case my ex-wife and I were very amicable, she was very easy to work with, and we decided to put the children first, which is the way it should be. Unfortunately, it doesn't always work out that way. I have heard for years and have seen personally as well—as in the electorate now I'm an elected official—personal and heartbreaking stories from people in our community when a marriage or relationship breaks down and it isn't so amicable. I have heard stories about mums fleeing in the middle of the night with their children because of an abusive partner. I have heard stories about dads who have been denied access to their children, simply because of spiteful behaviour.
Divorce can be also an expensive process, particularly when it gets dragged out in the courts. I hate it when there's $500,000 worth of assets and $400,000 ends up going to lawyers. It is just unfair. All of these situations were exacerbated when COVID-19 struck. As the Family Court backlog grew longer, people were forced to accept delayed outcomes which put strain on parents and their children. In the 2016 census, almost 15 per cent of people aged over 15 in my electorate of Longman were either divorced or separated. That is around 18,000 people.
The Family Law Act has been called overly complex and lengthy. It's probably an understatement. The Morrison government is committed to ongoing improvements to the family law system so that families can resolve matters safely, fairly and quickly. The Joint Select Committee on Australia's Family Law System, as I said—I was a late call-in on that one, due to someone else leaving the committee—has tabled its recommendations for family law reform, which will be considered by government.
These reforms focus on four major areas of concern: extensive delays, excessive legal costs, the difficulty of enforcing court orders, and timely and fair resolution of family violence allegations. It makes 29 recommendations broadly regarding: legislative reform, legal costs, court funding, legal assistance funding, accreditation and training, Family Law Council, family violence.
One of the recommendations put forward by the committee was around the concept of shared equal parental responsibility. Reforms made to the Family Law Act in 2006 by the Howard government aimed to ensure children could have meaningful relationships with both parents after a marriage breakdown. This is extremely important, in my view. In reforms made to the Family Law Act, the idea was that both parents would share equal parental responsibility. In practice, though, this is not always applied and for good reason. There are instances when it's not safe to do so. If one parent is violent or addicted to illegal substances, for example, then the child is at risk. The family law courts must ensure each individual situation that comes before it is determined with the best interests of the child at the forefront. The courts must consider whether a child spending equal or substantial time with both of their parents is in that child's best interests and is also practicable to do so.
The Australian Law Reform Commission, in its review of the family law system, recommended clarifying the idea of shared equal parental responsibility to reduce any confusion that might arise from its usage. It is an important point and it is imperative that we get this right. The commission stated that the concept of equal parental responsibility is a good starting point for negotiations between parents and should be retained. Many decisions that occur after the starting point have their foundations in that concept.
Further family law reforms in 2012 included attaching greater weight to child protection than to parental involvement when determining what is in the best interests of the child. In practice, it was found that, in cases where there were allegations of family violence or child abuse, shared parental responsibility was decided in only 33.8 per cent of cases. Shared care time involving between 35 per cent and 65 per cent of time was decided in only 10.6 per cent of cases.
Issues related to family violence were raised in many submissions to the committee's inquiry. The committee made specific recommendations aimed to improve the experience of victims of family violence in the family law system. These include reviewing state and territory family violence order frameworks, and reviewing definitions of family violence to ensure a consistent approach; developing an appropriate technology platform for information sharing; and reviewing family violence and family law services to ensure adequate support services for all victims of family violence in considering initiatives to encourage a more gender balanced workforce.
While the Joint Select Committee on Australia's Family Law System considers its response to the recommendations of the commission, the government has put in place a range of measures to improve safety within the family law system. We have supported the launch of a new family safety risk screening and triage process being piloted in the family law courts with a $13.5 million federal government investment. The pilot, known as the Lighthouse Project, was launched in December last year. All new parenting matters are systematically screened for family safety risks when filed in court. Matters are then triaged according to the level of identified risk.
The Federal Circuit Court is also operating specialist family violence lists to resolve high-risk matters faster and more safely. The government has also provided funding of $10.4 million to pilot the rollout of child protection and policing officials in family law courts across Australia. These officials are improving the information available to the family law courts through the sharing of relevant information from different states and territories. The government is also working on a national information sharing framework to further enhance information sharing between these organisations. And we have funded the establishment of a family advocacy support service.
The reforms to our family law system are incredibly important. We need to ensure that we get it right. Marriage breakdowns are emotional and stressful situations, particularly for the children. We need to ensure that the children are properly protected but, at the same time, we need to ensure that mums and dads have access to their children where appropriate and safe and practical. We also need to reduce the financial burden on families going through the family law process.
I commend to the House the second interim report tabled on behalf of the Joint Select Committee on Australia's Family Law System, of which I was a member. I'd like to take this opportunity to thank my colleagues and fellow parliamentarians for the work on this inquiry, which was quite lengthy, over the period of time, with a substantial number of submissions. We also had robust discussions, which really can be seen through this report. I'd also like to thank the secretariat, who really had to do a lot of work in light of the volume of submissions and the highly emotional nature, in many instances, of the issues being the subject of submissions.
In commending to the House this second interim report, I also must call on the government to actually act on the report. Don't let it sit on the shelf like so many similar reports that have come before it. We have to actually note this. It should be noted that there have been 67 different inquiries into the Family Law Act since it came into effect in January 1976, and 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.
Out of respect for the people of Australia who are going through these highly distressing situations, I call on the government to enact the changes and the recommendations that are called for. The most recent inquiry led to the Australian Law Reform Commission report, which was handed down in March 2019, entitled, Family law for the future: an inquiry into the family law system. That report contains 60 different recommendations on how to improve the system, and, ironically, our inquiry looked at many of them and arrived at similar conclusions. Sadly, almost two years after that report was tabled, the government is yet to respond. Just recently, in Senate estimates, it was revealed that the Attorney-General had the government's response on his desk 17 months ago, but it is yet to see the light of day. I use this opportunity to again call on the government to publicly respond to the ALRC report and to urgently implement the full list of recommendations.
The reality of modern society is that, sadly, 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 firsthand themselves. I should say that I have been through the system and my husband has also been through the system, so I do know, from a personal point of view, the experience of the Family Court system, but also from having practiced in the jurisdiction as a family law barrister for some 10 years before coming to this place. To various degrees, the process can be adversarial, confrontational, emotionally unsettling, financially crippling and life-changing. It's for those reasons that it is imperative that our family law system needs to be not only functional but also fair and well funded. It's for that reason that this inquiry and its recommendations are so important.
Over the course of the inquiry, we received more than 1,600 submissions. The majority were from individuals, detailing their very personal cases and experiences, and another 169 submissions were from organisations, academics and other professionals. Despite the various challenges of COVID-19 throughout 2020, the committee held 12 public hearings and 13 in camera hearings, so there was a very thorough hearing of the issue. At this stage, I would like to thank all the people who participated in the inquiry and made submissions. They often aired issues that were deeply personal and deeply emotional. It was often in the hope that others would have a better experience that they shared their experience. It was vitally important that we heard from those who have firsthand experience of the system and a desire to improve it. The terms of reference for the inquiry were far-ranging and, on the whole, I feel they are addressed in the interim report. I should say they are consistent with my own experience as a family law barrister.
There were a number of key issues identified through this inquiry: the costs associated with the family law system; the adversarial nature of the family law courts and whether we should move towards a more inquisitorial model; the issue of distressing delays in the court system, and that was a recurring complaint—the amount of time it took for highly sensitive issues of parties to come before a judicial officer for determination; and the role of family consultants, expert witnesses and the independent children's lawyer—the weight that is given to their opinion and advice, and maybe the inconsistent approach or experience of witnesses in their interactions with family consultants and independent children's lawyers. Enforcement of family law orders was a real question. What happens after you leave the courtroom? How are orders that are made put into practice? In fact, are they keeping families and children safe and delivering their stated purpose, especially when it comes to parenting, to ensure that decisions and arrangements in the best interests of the children are, in fact, continuing?
We also heard a lot around the interaction between the family law and domestic violence jurisdictions when it came to local courts interacting with the Family Court system.
The committee arrived at 29 recommendations. I won't go into all of them in detail but I would encourage everyone interested in this area to read the report. Broadly speaking, they cover: the funding and expansion of a number of pilot programs providing support and mediation to parties going through family separation; the resourcing of the Family Court of Australia and the Federal Circuit Court, which have now changed since the merger legislation passed this place; the harmonisation of processes between the Family Court of Australia and the Federal Circuit Court, which again are slightly outdated now; the levelling of certain costs and fees in family law proceedings; mandatory accreditation standards and monitoring processes for those involved in family law proceedings as well as professional development opportunities, and it's important that we recognise the stress that professionals who work in this system are under, especially judicial officers; the approaches to make Family Law courts less adversarial; the amplification of the voice of children in proceedings, where appropriate; the issue of perjury and wilfully misleading the court; and issues of domestic and family violence and the role of police, family violence orders and personal protection orders. We dealt with a number of issues in relation to allegations of false complaints. This is where the delay in the timeliness of the resolution of disputes came to the fore. The recommendations also include: improved information-sharing between various government agencies and various jurisdictions; increased funding for legal aid and community legal centres; a review of policies to allow for funding of both parties in appropriate circumstances; amending the Family Law Act 1975 to address a misunderstanding about shared parental responsibility; clarifying the requirements on independent children's lawyers; and addressing the issue of disclosure duties in regard to financial circumstances. In general, I agree with the majority of the recommendations.
In closing, there are two issues I want to discuss: the number of judges in the family law system and the recent merger of the Family Court of Australia with the Federal Circuit Court of Australia. As of 6 November 2020 two in three Federal Circuit Court judges had more than 300 matters on their dockets, 27 judges had more than 400 cases, five judges had more than 500 cases and one judge had 659 cases. In the Family Court, two-thirds of judges had more than 300 cases on their dockets and five judges had more than 500 cases. To put this into perspective, this just shows that there is a chronic under-resourcing of the court and an inability to deal with issues in a timely manner.
While this inquiry has come up with very important recommendations, they will be for nothing if the courts are not adequately resourced with judicial officers to hear the matters. The delays are real and have a huge emotional impact on the parties participating. Many, many people who participated in the inquiry urged the government to be mindful of domestic violence and the interrelation with the family law system. I encourage all of those people to contact, and get help from, the various services. Thank you.
I'm really pleased to have the opportunity to speak about the second interim report from the Joint Select Committee on Australia's Family Law System. I was a member of that committee and the member for Warringah was also a member of that committee. As the member for Warringah said, it was a very long and oftentimes emotional inquiry. We heard a lot of conflicting evidence from people who have been through the system. I think one of the great values of the inquiry was that it gave people who have been through the system an opportunity to put in a submission or to give evidence at a hearing. I and the member for Warringah have both been through the system. We know what the deficiencies are and we know the impact that a bad experience in going through the system can have not just on yourself but on your children as well.
I'd like to start, first of all, by thanking the chair, who had an incredible job of bringing together some fairly disparate views of not just the people who were providing submissions but also the members of the committee. The chair, the member for Menzies, Mr Andrews, did an incredible job of bringing together those disparate views into a very coherent report. I'd also like to thank the committee secretariat, who worked incredibly hard on this and did an incredibly good job of bringing everyone together, and of course the other members and senators on the committee, who were representing the various sides of politics here.
The committee received over 1,700 submissions from organisations and individuals. I remember having to sit in a room and go through about 1,200 of them at one time. It was quite a daunting task. We had 12 public hearings and 13 in camera hearings—over 40 hours of evidence—and 85 witness were heard in in camera sessions. It was a very extensive review, but, as the member for Warringah said, this was a review that followed many reviews. It's an inquiry that followed many inquiries. In fact, it is the 68th report and inquiry on family law conducted by various parliaments over the years.
From the outset, Labor members stated that, quite frankly, we did not consider there was a need for another review and another inquiry. We know what the problems are. We've been told what the problems are. Nearly 100 recommendations have been made over the years on how to fix, and what to do for, the family law system. None of those have been acted on. But, even though Labor members argued from the outset that we did not need or want another review and another inquiry, we undertook our roles seriously and participated in the inquiry diligently.
As I said, the inquiry was quite emotional at times, particularly for somebody who's been through the system, who has lived experience of the system and who has lived experience of domestic violence. There were times when it was quite emotional. It also opened up a discussion, and my office has since been contacted by many people who did not put in a submission but who wanted to come and talk to me personally about their own personal experiences as well. We've been quite inundated with calls. One of the good things to come out of that has been being able to help some people navigate the system, after they contacted my office either after appearing at a hearing or putting in a submission, and that's been a rewarding experience and a rewarding part of being a member of this committee.
But the thing that really came out and stood out during the inquiry was the adversarial nature of our system. By the time families get to the point where they are relying on the court system there has already been a considerable breakdown between the parties. They may have already sought some form of counselling or mediation that has failed. They end up in the courts. They end up fighting it out in the courts. I don't think there is anyone who has been in that position who will tell you that it was a completely positive experience for them. The adversarial nature of our family law system creates further stress and further pressure and makes the daunting and devastating situation of a family breakdown even more daunting and devastating—and it has an even more devastating impact on children in particular.
Resourcing was another issue, including the resourcing of judges, as the member for Warringah said—and I'm glad to see that some of the recommendations look at the appointment of additional judges and registrars. But that lack of resourcing and the backlog of cases and the delays that it creates only add to the adversarial nature, only adds to the devastation and the negative experience of going through the family law system. That was certainly something that struck me in a number of submissions that we had.
The other thing is the misunderstanding around the equal shared responsibility. The misunderstanding that equal shared responsibility equates to equal time with the children as opposed to what it is, which is equal say in the management of the children's affairs, also adds to, again, the adversarial nature. It can also add to the backlogs, and, in situations where there is domestic violence, it can also add to the retraumatising of the victim.
Finally, one of the other things that stood out to me was the cost of family law practitioners. Some of the costs are really astronomically high. If I look to my very first divorce—it's funny that I can say my first divorce, second divorce!—I think the total asset pool at the end of it all was $26,000 and the lawyer got $10,000. For a single mother raising two children on a minimum wage, that was a lot of money—$10,000 for a lawyer. That was primarily because it became so adversarial that I had to go to the courts several times, and those fees just piled up and piled up. That happened to me some 30 years ago now, and we're hearing stories like that now. It just brings back the point that, after 67 different inquiries, 67 different reports, close to 100 recommendations, I'm hearing today, 30 years later, the same kinds of issues, the same experiences.
In closing, I want to say the committee is quite an unusual committee in that it is allowed to go on for the term of this parliament, so we have made recommendations to look into further aspects. I believe that our child support system needs to be looked at very carefully and very closely, and I welcome further work of the committee looking at the child support issue.
I urge the government to no longer kick the can down the road on this issue of reforming the family law system. The government needs to address those issues. If I went through this 30 years ago and people are going through it now, that really, really says something. If I am talking to women and men who have identical experiences to what I had 30 years ago, how much longer are we going to make people wait? How many more families, how many more individuals are going to be devastated by this system? We need to act. The time for inquiries is over. Let's get this job done and let's get it down now.
It's my pleasure to note this interim report of the Joint Select Committee on Australia's Family Law System today. I'm not a member of the committee; I wasn't part of the inquiry, but I wanted to take this opportunity to speak on behalf of all the people in Dunkley who have been and are going through the family law system and on behalf of the Peninsula Community Legal Centre. The recommendations in this interim report are considered, and I want to congratulate those members of the committee who took to this task in good faith and with a real intension to improve the lives of people, particularly to improve the lives of people who often are going through the worst experience they will go through in their lives, which is the breakdown of a relationship. By definition, if you're at the Family Court, your relationship has broken down. But it does not have to be a retraumatising experience, the way that the member for Cowan has so eloquently described it as. And it certainly should not be a retraumatising experience for children. If anyone is innocent in the breakdown of a relationship, it is the children. We cannot continue to have a family law system where children's experiences and voices are too often not heard or not heard properly, and where the system allows them to be used at times as weapons in an ongoing fight between their parents.
The Peninsula Community Legal Centre in my area of Dunkley is staffed by the most dedicated lawyers and service professionals that one could hope to meet. They are people who are working in the justice system, to be honest, not to make money for themselves. Most of them could go out and make a huge amount more money in the private system but they want to serve their community. They do so, essentially, on the smell of an oily rag. When I have spoken to the Peninsula Community Legal Centre and Jackie Galloway, their general manager—who is an amazing woman—about what do you want to see change in the family law system and are you putting in recommendations? I see the weariness in their eyes and the weariness in their demeanour because they have put in these submissions to various inquiries over and over again. As the member for Cowan also just said, the time for submissions is over.
They want a number of things to change in the family law system. A number of them are addressed in the recommendations of this report. Funding for community legal centres is money so exceptionally well spent because it is, in some ways, a preventative measure of people getting caught up in a legal system over and over again and not being able to get out because they can't represent themselves, or because they are forking out all of their savings and all of their retirement savings, often, to pay for private lawyers, which leads to further problems down track, which often gets them back into the justice system. Funding a community legal centre and an entire legal system properly is for the good of the entire community, including those of us who aren't using it. But in particular, it is for the good of some of the most vulnerable people in our community who just need help in their time of great crisis,. and that's what the Peninsula Community Legal Centre and community legal centres across Australia do.
Building on the Australian Law Reform Commission report of 2019, the Productivity Commission report, pleas of people across the justice sector, Justice Connect—for years—and the recommendation in this report we need to fund those community legal centres properly. I agree, we also need to look at the fees that are charged privately. This won't surprise people, given that I come to this place with a legal background and having been a practising lawyer and barrister, I agree with the proposition that lawyers need to be paid and paid well for the job that they do. This isn't often said but a lot of lawyers, particularly those who work in community legal areas, family law and criminal law, often work over and above what they get paid for. But not all lawyers and not in all cases. When we have a family law system that is supposed to be helping people divvy up their savings and their property for the good of them and the good of their children, we shouldn't be leaving them to divvy up the dregs that remain at the end of a protracted adversarial system, where the lawyers have had to have been paid so much money because it's gone on for so long.
Just today I have had two emails from constituents. One telling me about her daughter who exhausted all of her superannuation to pay for the family law legal fees. We know what happens when women retire without decent superannuation. There was another who wanted to tell me about a situation where her daughter is having to go to her father for a loan in order to go through the family law system. That's just two stories from today. So I wholeheartedly endorse the proposition that we have to have a family law system where access to justice means something. It shouldn't be a system that's available for those who can pay. It shouldn't be a system that only works well for those that have resources. It should be a system for everyone.
Like my Labor colleagues and the crossbench, who voted against the government's legislation, I want to restate my profound disappointment at the changes to the family law system, which have effectively led to the abolition of a specialist family law court. In this week, when we've heard thousands and thousands of women and the men who support them around the country calling for a better system to deal with domestic and family violence, to lose the specialised system to deal with people who have gone through that is a tragedy. We didn't need to lose the family law court; we needed better funding and better resources for the family law court to be able to deal with people who are dealing with family and domestic violence, particularly children.
I too would like to make a short contribution in relation to the second interim report by the Joint Select Committee on Australia’s Family Law System. Similar to others, I commend the chair, the member for Menzies; and all those who participated in the inquiry, and I commend them on the report. I, like many, probably didn't give this much chance of success. I initially thought it was a short-term political fix, mainly to accommodate the head of One Nation, Pauline Hanson. But, having read the report and its 29 recommendations, I think they have done a very good job indeed.
One recommendation is for the funding of legal aid commissions and community legal centres. As the member for Dunkley has just expressed, for many, particularly in working-class suburbs, that is the only access to the law they will have. As a consequence, it is essential that legal aid centres and community law centres are adequately funded. There is a recommendation for another 25 to 30 registrars in the Family Court to address the backlog. The registrars do a profoundly good job at reducing a lot of the hearing time that needs to take place, and as a consequence that is a welcomed contribution.
The report deals with the capping of legal fees at $50,000 or 10 per cent of the combined value of parties' identified properties. If you put that in a Sydney or Melbourne context, where the average property is worth over $1 million, you're talking about capping it at $100,000. No wonder people can be locked out of access to that legal system, the way it is at the moment. The ones principally being locked out are women. People can engage in litigation with a view to having one party simply give up. The system of justice for family law shouldn't be on the basis of attrition; it should be on the basis of fairness and justice for all.
The recommendation to urgently draft and release an exposure draft of the legislation to address the current misunderstanding of the equally shared parental responsibility is something I've spoken about on many occasions here, where families can get access to an apprehended violence order only for it to be misinterpreted, in terms of the access, by the Federal Circuit Court. These are things which are real. It probably doesn't sound like much to those who don't practice in the field, but certainly, particularly for people who are the victims of domestic violence, these are very real things. It's not a legal misunderstanding, but it's certainly a legal misinterpretation of the shared parental responsibility, and bringing about a change is something that's well overdue.
Another aspect I'd like to touch upon is the merging of the Family Court through the Federal Circuit Court. We've had, so far into family law, about 67 inquiries. Various recommendations have been made. In this report we have before us, 29 recommendations were made. I very much support what they have found in that regard. But we have had recommendations made by various inquiries that have occurred and yet none of those dealt with the merging of the Family Court to the Federal Circuit Court. This is something that, to be fair to the government, might have been looking into efficiencies.
The Family Court is a specialised court. Set up over 30 years ago, it was due to simply specialise in family matters. We don't have to look too far from our own electorates to see some of the issues confronting families. In my area, I get very worried about the higher instances, particularly during this COVID pandemic, of domestic violence and how that's playing out and impacting on families. Having a court that specialises in these matters makes a heck of a lot of difference. That's why I welcomed, as I said earlier, putting more registrars on. That will actually help alleviate some of the backlog. Simply putting this into the Federal Circuit Court, which itself has a significant backlog at the moment, is not going to do anything to immediately assist families in need. At least the Family Court was a court that specialised in dealing with these matters.
From time to time there have been many debates in this place, about extensive delays, excessive legal costs—which the member for Dunkley just spoke about—the difficulty in enforcing various court orders, and the ability to get a fair and quick resolution of matters. That's where, particularly where it does involve family violence, the Family Court really did excel.
The two most recent reports on the Family Law Court—apart from the one we're talking about now—is the Australian Law Reform Commission report in 2019 and the Henderson report. Collectively, they made 93 recommendations to improve family law. I was told, in the Senate estimates almost two years ago, that the Attorney had the government's response to the Law Reform Commission's report but they were still sitting on the desk. They haven't seen the light of day. There are 93 recommendations still sat there and have fundamentally been ignored.
Having said that, I think it is commendable that the inquiry, conducted by the member for Menzies and all those who have participated, should bring forward these 29 recommendations. I certainly support what they have done. Against a backdrop, I didn't give much chance of success from the start. I thought it was simply a political fix, but I think they have worked through the inquiry, taking their evidence, in such a way that they have produced a commendable result. I think we need to work with them into the future to ensure that at least family law is treated in such a way that it makes the court and the access available to all families. For a court to be at least seized of the significance of family violence as being a matter of fact when addressing many of its issues. I won't take it any further than that, but I do commend this inquiry. I commend the way the committee went about that, and I support its recommendations.