In every suburb, in every town and in every city, family violence is a scourge across Australia. It affects families and individuals in horrendous and insidious ways. Leaving a violent relationship is an overwhelmingly difficult process which may involve significant risk to those affected including children, financial pressures, relocation and emotional turmoil. Some people, of course, are unable to leave a violent relationship and that can lead to tragic consequences.
Whether it be in relation to parenting orders, property division or the protection and safety of children, many people affected by family violence turn to or are required to enter the family law system. However, rather than providing safety and resolution to these families, the journey through the family law system can be a very difficult one and result in increased risk, trauma, prohibitive costs, a lack of justice and unacceptable delays in resolving the issues in dispute. Abuse of the legal system, itself, can also be used to inflict family violence.
The inadequacy of the family law system’s response to family violence has been exposed in a number of recent inquiries, reviews and a state-based royal commission. Recognising that the family law system is no longer adequately meeting the needs of Australian families, the Attorney-General in September this year commissioned the Australian Law Reform Commission to undertake a comprehensive review of the family law system. It is hoped that this review will lead to a broader overhaul of the family law system.
This report adds evidence to the existing body of work in this area, and continues the call for swift and, in some cases, urgent improvements to the family law system. It provides suggestions to restructure the family law system so that it may provide support, timely resolution and safety to families experiencing family violence.
This inquiry provoked considerable interest, and the body of evidence received offers considerable insight into the experiences of families navigating the family law system. It is incredibly disturbing that the costs of private legal representation are so prohibitive, running into hundreds of thousands of dollars for a single matter. This is simply not affordable for the majority of Australians, and pushes already distressed families into debt and poverty. It may also force those affected by family violence to represent themselves in court which may give rise to unjust outcomes including the trauma of being cross–examined by the perpetrator of the violence. The family law system should protect families affected by family violence. It is therefore alarming to learn that the system provides opportunities for perpetrators of family violence to continue the abuse of their families. Perpetrators may use delaying tactics, repeated applications and failure to comply with court orders in order to continue to control their families and coerce them into unsafe consent agreements. It is unacceptable that there are not stronger deterrents or consequences for abuse of the legal process.
Children may be impacted by family violence, directly or indirectly, and it is paramount that their safety is prioritised during and after the resolution of family law matters. Sadly, the family law system too often appears to be failing to protect our young and vulnerable.
The Committee received considerable evidence that the presumption in the Family Law Act 1975 (Cth) of equal shared parental responsibility is leading to unjust outcomes and compromising the safety of children. The recommendation to remove this presumption represents a substantial departure from current law. However, this recommendation must be considered in tandem with the recommendations that allegations of family violence be determined at the earliest available opportunity in legal proceedings. Not only is this critical to deliver justice to those impacted by family violence, it is similarly of vital importance to people against whom false or spurious allegations of family violence are made.
A large number of parenting orders are heavily influenced by evidence provided in family reports prepared by family consultants. It is extremely concerning that families are often paying thousands of dollars for these reports, which may be written by practitioners who have no formal training or understanding of family violence or its impact on children. It is critical that the quality and reliability of family reports improves.
It has been uplifting to receive evidence that some recent initiatives by the Australian Government, such as the Family Advocacy and Support Services, have provided some much needed improvements in the family law system. The continuation and expansion of such services to a greater number of locations is required to ensure improved support for all families accessing the family law system.
More broadly, I commend the Australian Government for the significant number of family law reforms it has announced and is in the process of implementing including:
broadening the jurisdiction of state and territory magistrates courts to determine matters under the Family Law Act, including on property matters;
creating a new criminal office for breaching a personal protection injunctions;
strengthening the powers of the family law courts to dismiss unmeritorious matters at the earliest possible opportunity; and
preventing parties from cross examining each other in family law matters where allegations of family violence are made.
This report provides a vision for a reformed system which better supports and protects families affected by family violence. Such a system is accessible, equitable, and responsive, and prioritises the safety of families. This report makes 33 recommendations which the Committee believes, if implemented, will provide immediate improvements to a system which too often has failed families affected by family violence.
This inquiry was underpinned by the strong message that ‘your voice matters.’ In undertaking this inquiry, it was imperative that the Parliament hear the personal accounts of families which have navigated the family law system. Our committee received 126 submissions and a very significant 5,490 people submitted an anonymous questionnaire telling their story. I thank the committee secretariat for its hard work in collating this evidence and helping to produce this report.
Revisiting experiences of family violence can be very distressing. The Committee sincerely thanks all participants for their very important contributions to this inquiry. We have sought to give these people a voice in this report and in the vision we have for a new family law system to better support and protect families affected by family violence.
Ms Sarah Henderson MP