In 1975, the Family Law Act was described by then Prime Minister Gough Whitlam as ‘the most progressive and extensive social reform achieved’ during his term of Government. He said broken families under the new regime would be ‘handled in an atmosphere now of dignity and compassion, taking full account of the welfare of children and the interests and feelings of the partners’.
After more than forty years, the family law system is now struggling under the pressure of under-resourcing, the scourge of family violence, complex issues such as drug and alcohol abuse and mental illness, along with litigants appearing unrepresented in the courts. Where family violence is present, victims are remaining in unsafe situations, often with their children, while waiting for judges to find time in their over-burdened dockets to resolve their dispute. Australian families are suffering.
In addition to the commentary and recommendations outlined in the Majority Report of the Committee, Labor members wish to make the following additional comments:
Resourcing the Family Law System
Many of the difficulties experienced by Australian families seeking to resolve their family disputes are due to under-resourcing of the family law system. Delays of sometimes more than two years are being experienced in the Family Court and the Federal Circuit Court before families can have their dispute heard.
Delays in replacing judges in a timely manner have caused additional backlogs in the Family Court and the Federal Circuit Court. It is completely unacceptable that it took 560 days to replace a Sydney Family Court judge, more than twelve months to replace a Brisbane Family Court judge, and more than seven months to replace a Federal Circuit Court judge in Newcastle. These delays are continuing to cause harm to families and children across Australia.
The family law system and support services should be properly resourced to ensure Australian families have timely access to justice so they can move on with their lives safely.
Family Law Reform
The Australian Law Reform Commission’s review of the family law system is welcome. Labor members look forward to considering the recommendations when the review is completed.
However, Labor members are concerned about Government reforms that are being implemented before this review is complete. Reforms should be implemented in a transparent, considered manner.
During this Inquiry, there were significant contradictions regarding the Government’s proposed Parenting Management Hearings. The evidence about the proposed model changed dramatically over the course of the Inquiry and still appears to have not been settled.
In June, the Committee was told that the Parenting Management Hearing pilot would not deal with cases where family violence is present. In October, the architect of this model, Professor Patrick Parkinson, was asked about the same issue and stated ‘Absolutely it ought to be dealing with cases involving family violence. It would be an extraordinary mistake if it didn’t, because that's 60 per cent or more of the workload’.
However, on the same day, the Committee was told by the Department that there could be no ‘final comment on how family violence would be dealt with’ and ‘that is a final decision yet to be made by government’.
In response to a Question in the Senate on 6 December, the Attorney‑General asserted that if there are family violence allegations raised in Parenting Management Hearings, those matters will be referred back to the courts.
Labor is concerned about this seeming lack of agreement about the fundamental guiding principles underpinning the reform.
Family law reform should be a considered process. This reform will have enormous impact on the families that are involved in the pilot.
Labor members cannot give unqualified support to a reform that is clearly in its developmental infancy, is yet to be implemented and, as such, lacks any formal evaluation.
We seek further detail from the Government on the development, implementation and evaluation of this program.
There was also conflicting evidence given to the Committee about the impact of less formal proceedings for families where family violence is present.
For instance, Dr Nancarrow from Australia’s National Research Organisation for Women’s Safety, said that the ‘adversarial system does not seem to be very effective where you have a power imbalance’. However, Ms Rathus from the Griffith Law School, said that ‘one of the things we do know is that informality can work to the disadvantage of women who have experienced family violence’.
The rule of law underpins our Australian legal system. It enshrines the principles of a fair trial, access to justice, the presumption of innocence and equality before the law. Australia’s legal system is adversarial. The adversarial system of justice ensures that evidence is tested and an impartial adjudicator will make a decision based on facts which are proven.
The Australian Law Reform Commission (ALRC) has been tasked with a review of the family law system. One of the terms of reference is to inquire whether the adversarial court system offers the best way to support the safety of families and resolve matters in the best interests of children.
Labor members support this review and will be interested in any recommendations made by the Commission. However, the Attorney‑General has said that the Government is open to ‘radical change’. Labor members consider it would be premature for any ‘radical change’ to be implemented by the Government prior to the completion of the ALRC review.
Judges Appearing Before Parliamentary Committees
It is vitally important that Committees can freely hear from all stakeholders when inquiring into important issues affecting Australian families. Labor members were disappointed that this Committee was prevented from inviting the Heads of Jurisdiction to give evidence in person on the basis of unprecedented advice from the Attorney General.
This approach represents a drastic and detrimental departure from a time‑honoured and effective practice of the Parliament.
Judges have previously appeared as witnesses before House committees on a voluntary basis. They have given evidence about matters of policy and law.
The Chief Justice of the Family Court and the Chief Judge of the Federal Circuit Court would each have unique perspectives about how the family courts could better assist families and children. This Committee has not had the benefit of those opinions being invited.
Labor members recommend that the Committee and the Attorney-General seriously reconsider their position on this issue.
Labor notes the government’s recent announcement that it plans to make sweeping reforms to the family law system in the coming year. We also note the short time-frame for this reform, with the deadline understood to be Chief Justice Pascoe’s retirement date in December 2018.
Given the complexity of the issues in family law, and the vulnerability of those people who are involved in the family law system, it is imperative that this reform process is not rushed and any changes are evidence-based.
We call on the government to proceed cautiously, and ensure any proposed changes are done in careful consultation with Labor, other political parties, stakeholders, advocacy groups and users of the court system.
It is undeniable that some changes may need to be made. But this change should not be ideologically driven or made at the behest of special interest groups.
Importantly, major change cannot be made without serious consideration of resourcing issues. Much of the strain that is currently placed on the Family Court system is due to lack of proper resourcing and failure to replace retired judges. This issue must be considered alongside any reform.
Ms Sharon Claydon MP
Dr Mike Freelander MP
Ms Emma Husar MP