Mary Anne Neilsen, Law
and Bills Digest
Debate about family law has focused on how the system has dealt with the complex problems of family violence. The issues are challenging and are likely to remain a focus for the new Parliament.
Recent political debate about family law has
focused on how the system has dealt with the complex problems of family
violence. As various studies
have indicated, families with complex needs, including violence, are the
predominant clients of the family law system. The issues are challenging and
important and will continue to keep family law reform on the political agenda
during the 45th Parliament.
The Australian Parliament has already paid considerable
attention to proceedings relating to family violence in parenting under the Family Law Act 1975.
in 2012 made under the then Labor Government were significant and intended to
place family violence at the centre of parenting cases. Under the Family Law
Act judges now have two primary considerations when assessing what is in
the best interests of the child:
- the benefit to children of having a meaningful relationship with
both of their parents and
- the need to protect them from physical or psychological harm,
including being subjected or exposed to violence.
Furthermore, where there is a clash between these
two interests, the safety of children is to be prioritised over the benefits of
a meaningful relationship with both parents.
The effect of these reforms is as yet unclear.
However, as Chief Justice Diana Bryant has frequently said,
legislative amendment alone does not suffice and without resources these
reforms are inadequate.
Reviews and inquiries
The last ten years have seen a plethora of reviews and inquiries into family law matters including the issue of family
violence and child abuse. In one of the more recent inquiries the Coalition
Government has tasked the Family Law Council to inquire into Families
with Complex Needs and the Intersection of the Family Law and Child Protection
Systems. Due to be given to the Attorney-General in June 2016, this
inquiry is a response to ‘the growing concerns about the separation of the
federal family law and state and territory child protection and family violence
systems and the risks to children’s safety associated with this situation’. One
recommendation from the interim
report relating to state and territory interim family violence
protection orders and their interaction with parenting orders under the Family
Law Act was implemented
The Council of
Australian Governments (COAG) has also been active. In recognition of the
fact that a whole-of-government and community response is required to address
family violence, COAG established an Advisory Panel on Reducing Violence
against Women and their Children. The Panel
delivered its final report to COAG on 1 April 2016.
The family courts
The recent history of the family courts has been
marked by controversy and criticism about their handling of family violence
matters (family courts, in this brief, generally refer to the Family Court of
Australia and the Federal Circuit Court of Australia).
Professor Patrick Parkinson has described
the courts as ‘almost dysfunctional’, noting that lack of resources and federal
funding, plus their exponentially increasing workload, has led to unacceptably
long delays. The courts have also angered fathers’
advocacy groups for a perceived bias against shared parenting. Criticism
has also come from women’s
legal services who argue the courts are failing to protect women and
children seeking protection from family violence.
In the weeks before the election Rosemary Batty, former
Australian of the Year, addressed the issue
of violence and family law with the major political parties. In conjunction
with Women’s Legal Services Australia she presented a petition calling for
reform and urging the political leaders to adopt the following five
step plan to prioritise safety in the family law system:
- develop a specialist pathway for cases involving family violence
- reduce trauma and support victims, including legislative protections
that prevent victims from being directly cross-examined by their abuser
- intervene early and provide legal help for the most disadvantaged
- support victims to recover financially
- strengthen the understanding of all family law professionals on
More recently the Family Court has received renewed
publicity. Pauline Hanson and the One Nation party platform
propose that the Family Court be abolished and replaced with a family tribunal
made up of people from ‘mainstream Australia’. Respected members of local
community, social and health groups would be invited to participate.
Chief Justice Diana Bryant has been drawn into this
While she can see some value in putting minor matters before a tribunal, the
Chief Justice argues that the One Nation policy is simplistic. As she says,
abolishing the court would raise constitutional issues. In a speech
given in 2015 the Chief Justice articulates clearly the needs of the courts. On
the subject of resourcing she commended the Government’s $100 million Women's
safety package aimed at addressing family violence but is concerned that
the crucial role of the courts (and the corresponding necessity of resourcing
them properly) has not to date been recognised as part of addressing family
J Philips et al, Domestic violence: issues and policy challenges, Research paper series, 2015–16, Parliamentary Library, Canberra, 24 November 2015.
D Bryant, The family courts and family violence, speech presented by the Hon Chief Justice Diana Bryant AO to the Judicial Conference of Australia Colloquium, 10 October 2015.
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