Senate debates

Tuesday, 23 November 2021

Committees

Australia's Family Law System Joint Select Committee; Report

6:32 pm

Photo of Matt O'SullivanMatt O'Sullivan (WA, Liberal Party) Share this | | Hansard source

On behalf of the Chair of Australia's Family Law System Joint Select Committee, I present the committee's third interim report and final report, together with the accompanying documents. I move:

That the Senate take note of the report.

I have risen today as I have many times—in fact, nearly 90 times since I was elected into this place—but I think one of the most memorable and possibly the most impactful of those was when I rose here in this Senate on behalf of the government in September 2019 to move to create the Australia's Family Law System Joint Select Committee here in the Senate. I'd been a senator for just over two months when I did that. It's been other two years since I moved that motion to establish this select committee. Now, two years on, we have finally finished the work of that committee. I make these points simply to highlight the importance of this inquiry as a senator. Over the course of this inquiry, the committee held 13 public hearings, 13 in camera hearings and received over 1,700 submissions. The committee has heard from many people who have direct experience of the family law system, advocacy groups and organisations. We heard from academics, legal professionals and, on behalf of the community, I thank everyone who made contributions ontributions were extremely heartfelt, personal and, in many cases, very difficult for them to make. I acknowledge, sincerely, the impact of each of those contributions and I thank those who made the brave decision to speak and to give a submission. Many were given in camera, because of the nature of them, but each and every one of them was important.

The report presented today follows on from the committee's first interim report, presented in October 2020, and second interim report on improvements in the family law proceedings presented in March 2021. The first interim report, previously tabled, canvassed the broad range of issues that arose in evidence provided to the committee, touching on matters like perceptions of bias within the system, the role of family consultants and expert witnesses, whether the adversarial nature of the family law courts could be improved—that's a big issue we continue to hear about—the misuse of systems and processes, professional misconduct and perceived or apparent systemic issues. We also heard about the cost of legal fees encountered in the legal and family law system, delays encountered in the Family Court and issues in family violence and the family law system.

The second interim report detailed the committee's conclusions and recommendations in relation to the family law system. This included proposed and contemporary reforms as well as suggesting extra measures that the committee considered were needed to better support Australian families using the family law system. The 29 recommendations contained within the report place emphasis on reducing cost and delays experienced by those interacting with the court as well as exploring how the enforceability of orders could be improved. Also explored were options to refine the family violence framework, amending the Family Law Act, alternative dispute resolution and several other issues.

I'm pleased to inform the Senate that the Australian government has already moved ahead on a number of these recommendations. For example, the government has allocated an additional $100 million in funding, over the next four years, to strengthen the Federal Circuit and Family Court. The committee heard from the court about how that will be implemented. It was certainly received with gratitude and they're already seeing the impact of that, which is good. In the second interim report, it was noted that there had not been enough time to consider issues related to child support. This issue was raised many times in the submission process and led to an agreement of the committee—and, ultimately, the Senate—to extend the deadline of the final report, which I'm proud to table today.

The third interim report, which I'm also tabling today, deals in majority with the systemic problems relating to children in the family law and child support systems and offers 19 new recommendations. One of these is that the government convene a ministerial task force and expert working group, with a broad range of representatives, to examine the child support formula. Unfortunately, the committee was not equipped to review this issue in the appropriate and required detail that would be necessary for a subject as important as this. A number of submissions were received. It does need further assessment, and that's why this recommendation is within the report.

The committee strongly believes that ongoing community engagement is a vital feature of government decision-making and policy development. The committee has recommended that regular meetings of the Child Support National Stakeholder Engagement Group should, therefore, be reconvened. The final report notes government actions and Family Court initiatives since March 2021 and makes further recommendations, supplementary to those made in the second and third interim reports. The committee reiterates its considered opinion that recommendations relating to the proportionality of cost and the use of arbitration are significant reforms that should be adopted.

Private meetings between the committee and the Chief Justice of the Federal Circuit and Family Court of Australia, and the Chief Judge of the Family Court of Western Australia, were held in order to discuss the proceedings and decisions of the respective courts and the committee. These meetings provided a solid foundation for further inquiries and informed the deliberations and recommendations contained within the report.

I'd like to take this opportunity to thank Chief Justice Alstergren and Deputy Chief Justice McClelland for their assistance to the committee during this inquiry. The committee and I thank all those who stepped up and gave evidence before the committee. It was not an easy thing to do, and Senator Waters will be able to attest to that. We had quite significant moments in that committee, where people were quite moved by the evidence they were giving, and I really do thank them for that. It was a brave thing for many of them to do. Many of them are living in the middle of it, dealing with it, while for some of them it was reliving some of the worst times of their lives. The courage required touched me and no doubt every member of the committee. I thank those that stepped up, very much indeed.

Also deserving thanks are the committee secretariat, who do a whole body of work behind the scenes. The workload and the difficult nature of the subject matter for this committee was immense. I acknowledge and thank them very much indeed. We also met with many legal professionals, community groups and academics, and I thank them also. Throughout the inquiry the committee sought to understand the ongoing deficiencies and issues present in the Australian family law and child support systems. The committee sought to find solutions that are practical, workable and equitable and that will make an ongoing improvement to the lives of the many men, women, children and extended family that use this system.

Finally, I acknowledge all members of the committee, including the member for Menzies, Mr Andrews, as chair; the deputy chair, Senator Hanson; and all the other colleagues involved in that committee. We approached it in a very collegiate way. We worked exceptionally well together. Senator Rice, who is in the chamber now, was part of that, and I thank her for the commitment, which we all had, to making sure that we were able to canvas the many and difficult issues that relate to the family law system. On that, I table these reports. They conclude the work of the committee. I commend both the final reports and the interim ones that have been put in. I seek leave to continue my remarks later.

6:42 pm

Photo of Larissa WatersLarissa Waters (Queensland, Australian Greens) Share this | | Hansard source

The Australian Greens opposed this inquiry from the outset not because we think there are no problems with the family law system but because those problems have been the subject of numerous comprehensive inquiries. Understanding the problem is not the issue—doing something about it is. This politically motivated inquiry sought to relitigate old issues and delay implementations of previous recommendations. It emboldened domestic violence offenders and retraumatised victims-survivors and their children. Experts and service providers opposed the inquiry. The government should have prioritised evidence based strategies to make family law safer for victims and survivors of family violence, rather than allowing this compromised inquiry to proceed.

The weight of evidence given to the committee over many months—years, in fact—confirms what was already known: that gendered violence is a core problem at the heart of the family law system; that inadequate resourcing has created delays and gaps in the system that continue to put women and children at risk; and that funding, specialisation and wraparound service models are the solution. We are relieved that, having heard all of the evidence, the committee's primary recommendations are not those championed by the men's rights movement. Instead, they largely acknowledge, once again, the need for a better understanding of gendered violence to be embedded throughout the family law system. The inquiry has identified, once again, the need for evidence based strategies and additional funding to make family law safer for survivors of family violence, and it has reaffirmed the role of the federal government in facilitating that.

While the inquiry was unnecessary and damaging, I thank everyone who—once again—made a submission, sharing their story and their expertise, who appeared at the public and private hearings or who briefed the committee. I thank, in particular, the secretariat staff for their tireless efforts to collate the evidence presented.

We have supported recommendations calling for more training for judicial officers and report writers, implementation of the successful Lighthouse Project and the priority property pool conciliation pilots, and increased staffing. We note the progress that's been made on harmonising definitions, procedures and information-sharing to reduce the number of times survivors have to re-live the same trauma. We note that progress and welcome it. But more needs to be done.

Importantly, the whole basis on which this inquiry was set up is the idea that women routinely weaponise the family law system against their ex-partners and concoct or exaggerate domestic and family violence. It is a horrifying and dangerous myth that cannot stand. This dangerous myth was clearly contradicted by the vast bulk of expert evidence to the inquiry, noting that women are more likely to underreport violence because they fear they will not be believed and they fear that disclosures of violence will disadvantage their case and jeopardise the safety of their children. The only way to strengthen the outcomes of family law matters is to ensure that they are heard by an experienced, specialist judge who has an understanding of the dynamics of family violence.

The final report notes that the merger of the Family Court with the Federal Circuit Court took effect on 1 September 2021. The Australian Greens, along with the vast majority of those working with and within the family law system and in the legal profession and former Family Court judges, opposed the merger. The merger risks the specialist expertise that is essential to ensuring a child safety focus in family law matters. We continue to oppose the merger and we believe that the strongest protection for children, families and survivors of family and domestic violence is a strong, standalone, specialist Family Court involving a holistic, specialist system of collaborative, culturally safe, co-located services and resources.

At least 60 per cent of Family Court matters involve domestic and family violence. The merger has delivered loss of specialisation in a court that relies on specialist expertise to navigate complex matters and ensure the safety of children. We support case management measures and the harmonisation of rules and practice directions, but we note that those measures were possible—and indeed already underway—without the merger. The backlog of cases is overwhelming and does a disservice to families seeking to move on safely with their lives.

Skilled, experienced registrars, liaison officers and non-judicial staff play a critical role in implementing risk screening and triaging programs. We support more registrars to help parties navigate the system, to prepare for interim hearings and to maximise the prospects of successful mediations. However, so many family law matters are complex and disputed. These cases simply cannot be resolved in a way that ensures the safety of children without a judicial hearing. This government must fund more family law judges to maintain the specialist expertise needed to resolve complex matters and improve the pace of justice. Justice delayed is justice denied.

On funding, review after review has confirmed that the entire family law framework is overstretched and underresourced. Funding in the 2021-22 budget for court programs and legal services is welcome, but it will not go far enough to reduce the significant delays and improve access to justice in the family law system. The government must ensure that legal aid, community legal centres, Aboriginal and Torres Strait Islander legal services and family violence prevention legal services, and their peak bodies, have adequate and secure funding to provide timely advice and representation to parties. Failing to strengthen the legal advice and assistance sector will simply exacerbate delays and costs that directly impact on the accessibility and quality of justice.

Finally, reform and review of the family law system will be critical to the success of the next national plan in protecting women and their children. It is essential that the national plan provides for culturally safe wraparound and responsive support services so that women and their children have access to immediate support when leaving abusive relationships and longer-term support to navigate the legal system. The plan must be funded to at least $12 billion over the life of the plan—that's $1 billion each year—for prevention programs and for legal, social and support services for families and survivors of family and domestic violence.

As highlighted at the recent Women's Safety Summit, it's also critical to have a standalone plan for First Nations women and children. We welcome the government's apparent commitment to a First Nations women's national plan. However, this plan must be truly self-determined by and prioritise the expertise and solutions of First Nations women and their community controlled services and organisations. We call on the government to hold a First Nations women's gathering to facilitate the development of this plan. And at all stages of developing this plan, First Nations leadership, expertise and solutions must be prioritised.

This was a politicised and fraught inquiry. We are glad it is over and we call on the government to now finally do what needs to be done to provide a family law system that works to minimise trauma and maximise the safety of all parties and their children. I seek leave to continue my remarks later.

Leave granted.

6:49 pm

Photo of Pauline HansonPauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | | Hansard source

[by video link] I rise to speak to the third interim and final report of the Joint Select Committee on Australia's Family Law System. I thank the committee secretariat for its considerable efforts since the establishment of this inquiry, for which I have fought tooth and nail. I was the one who got this inquiry up.

As many parents have attested, and as I myself have experienced, Australia's child support system is outdated, unfair and unjust. It's a broken system that breaks people. We can fix it, and we must fix it. It works to compound the hurt, pain and anxiety felt by parents at the breakdown of a relationship. It's a system which can be effectively weaponised by acrimonious parties seeking to inflict further hurt and financial penalty. It's a system which can effectively allow children to be used as pawns in such conflicts. It's a system which doesn't have to be this way, and, since my election to the Senate, I have worked hard to bring these matters to light and debate.

Ultimately, what we need is a fairer child support system which works to ensure all parents meet and fairly share their responsibilities to their children, works to ensure child support does not impoverish the party paying it or unduly enriches the party receiving it, minimises the cost to taxpayers through efficiency and streamlined processes, and ensures optimum service and speedy resolution to disputes.

I'd like to relate a complaint I received about the child support system which illustrates just how outdated, unfair and unjust it is. This parent equally shares access to and financial support for three children with their ex-partner. However, on receiving a pay rise, this parent was suddenly required to increase child support by $1,500 per year, even though their children's expenses did not change. Upon the ex-partner having a child with someone else, this parent was required to increase child support by another $2,000 per year, paying more to support a child who was not theirs. How is this fair? This is just one of the many examples of the inequity built into Australia's broken child support system.

I've been working towards a fairer child support system since I was elected to the Senate. In my first meeting with Prime Minister Turnbull, I said the family law and child support systems needed to be fixed.

This inquiry was about getting to the root of the problems and finding real solutions. But, despite the evidence presented by so many people who have experienced its unfairness, some of the other members of the committee have turned a deaf ear. They've preferred to listen to the bureaucrats and lobby groups who inflict this pain on parents, not the parents themselves. Perhaps it's due to the lack of personal experience with the system among committee members; it may be a little confronting for them to consider the input of families destroyed by this system.

I've had a lot of personal experience with this system, and I propose a number of practical solutions to address the problems. For me this comes down to the simple fact that both parents have brought their children into the world, so they alone should share the responsibility of raising and supporting them. The aim for everyone should be equal child access, except where a parent is clearly unfit. While we must always ensure the welfare of children, we in this place are obliged by the Constitution to legislate parental rights. We don't need another stolen generation of children estranged or cut off from their family, including their grandparents. Many grandparents feel that they haven't been heard in this debate.

To this end, I have proposed the following principles. Assessable income should be defined as net salary, or wage after tax. It must be recognised that 80 per cent of working Australians are pay-as-you-go employees, and it's unfair that current child support arrangements discriminate against them in comparison to self-employed people. Services Australia consider $526.50 a week to be a liveable retained income, on the basis that approximately $27,000 a year is the threshold at which child support payments kick in. But, in a briefing, I told them they were leaving parents who are paying child support with as little as $370 per week. They had no idea. If $526 a week is the minimum, paying child support should not leave parents with less in their pay packets.

Salary assessment should be based on a 38-hour week and should not include overtime or additional employment. People need the incentive to move on with their lives. Child support should be based on the number of children at the time of separation, not based on subsequent children with other parents. Residential costs should be assessed individually, as both parents need to have homes to accommodate their children. Family tax benefits A and B should be part of assessable income. At the moment, a single parent with one dependent child receives a fortnightly family tax benefit payment of $320 which is not assessable income. Potential earning capacity or ability should not be a factor in income assessment. Just because someone is capable of earning a larger income does not entitle Services Australia to assess them in this way. WorkCover or TPI payments should not be assessable income and nor should superannuation payouts. Punitive action should result if a payee parent acts in contravention of court orders or mutual agreements regarding visitation rights. Child support payments should incorporate the travel incurred in delivering a child between parents and should be a shared responsibility.

Ultimately, the fairest approach is to determine child support payments according to what is needed to raise the child—food, clothing, housing, education and medical care—shared by both parents. This should be based on the average cost of such support to the average Australian family. The cost of raising a child should be the only factor which dictates the contributions from both parents. We must ensure these contributions are in fact to be spent solely on raising the child. Many parents are sick of paying child support only to see their ex driving a new car or taking luxury holidays. It's recommended that payments are made to a special child support account, and the recipient must be accountable to Services Australia for its expenditure. Where child access is between 35 and 65 per cent, effectively, costs are the same, so there simply should be no child support. This will minimise the practice of acrimonious parents withholding child access to boost their child support payments. It will take the sting out of it, and parents will be able to spend more time with their kids. It will also minimise costs, save a lot of time and encourage parents to get themselves a job and face up to their responsibilities, instead of relying on child support for income. They can move forward with their careers instead of taking lower-paid jobs to minimise their child support payments.

These are practical solutions which should have been adopted by the committee as formal recommendations. They haven't been, which has obliged me to lodge a dissenting report. In an attempt to prevent my dissenting report, the committee has just amended this report to include my proposals as issues raised, with a vague recommendation that these proposals be explored by some task force. It's not enough—not by a long shot. My dissenting report stands as an indictment of the refusal of the government and opposition to make meaningful changes to a broken child support system. I am not appeased. I will not be appeased until there is a real commitment to return fairness to child support. Ultimately, we all want the best for all families involved in these incredibly difficult circumstances—children and parents.

I will not speak to the remainder of the report except to say that I support some recommendations and disagree with others. What is more important is fixing a broken system that is ineffective, costly, slow and inequitable and which is all too easily abused in the name of acrimony and appeasing self-interest groups. It's time for a fairer system, and I'm not stopping until we get it. Too many parents are taking their lives due to our family law and child support systems. All parents and children deserve better. I believe Senator Waters is biased in her comments and is reluctant to acknowledge that domestic violence is committed by women, also. Evidence given was in camera. There was no traumatisation there. Everyone had a chance to put their story across. But, as I said, at the end of the day, we have to address the fact that people are committing suicide. They are taking their own lives. Children are not having time to spend with their parents. Grandparents are being denied the right to see grandchildren. If we can't intervene in the household, why are we doing it and telling them they can't see the children just because they go through the family law system and the courts? Judges need to wake up to the fact that they are denying parents the right to see their children. This is a fight I will continue on behalf of many Australians. (Time expired)

Debate adjourned.