Many families across Australia access the federal family law system for assistance and support to resolve the legal issues which arise following family breakdown. Many of these families may have had an experience with family violence. It is imperative that adequate support and management is provided to these families to ensure their ongoing safety and wellbeing. However, evidence suggests that the family law system is not adequately supporting or protecting families which have experienced family violence.
In March 2017, the Attorney-General, Senator the Hon. George Brandis QC, requested that the House of Representatives Standing Committee on Social Policy and Legal Affairs inquire into how Australia’s family law system can better support and protect those affected by family violence.
This report presents the findings of the Committee’s inquiry, and recommendations to improve the family law system’s response to families impacted by family violence. The report advocates for an accessible, equitable and responsive family law system which better prioritises the safety of families.
The first and second chapters of this report provide an overview of the inquiry process, past inquiries and reports of a similar nature, and the family law system’s current approach to family law matters involving family violence.
Chapter 3 discusses the key concerns identified in evidence regarding the current family law system’s approach to family violence. These include:
the difficulties posed by an adversarial family law system;
the existence of inappropriate responses to reports of family violence;
that legal fees and complex court procedures which reduce the accessibility of the family law system; and
the complexity in navigating state, territory, and federal jurisdictions.
The Committee expresses concern that the current design of the family law system can fail to support and protect families affected by family violence, and proposes the exploration of reform for the current family law system.
Responding to these concerns, Chapter 4 presents various ways in which the family law system can be improved. The chapter recommends a nationally developed risk assessment tool for use across the family law system and by all professions working within and adjacent to the family law system. It then examines family dispute resolution and calls for a stronger, more uniform approach to identifying and responding to family violence in family dispute resolution using the new nationally‑consistent risk assessment tool. The chapter also proposes greater use of legally‑assisted family dispute resolution for families affected by family violence, thereby reducing the number of cases which proceed to court, which frequently leads to lengthy delays in resolving disputes and prohibitive costs.
Once a matter reaches court, the Committee recommends reform to ensure that the determination of family violence occurs earlier in proceedings, which must be supported by a stronger initial assessment of risk. The Committee also makes recommendations for improved case management of family law matters involving family violence, including the adoption of a single point of entry to the federal family courts so that cases may be appropriately triaged and actively case managed. The Committee also recommends the implementation of more uniform rules and procedures to reduce complexity as well as stronger referral pathways and penalties for abuse of process, perjury and non‑compliance with court orders. The Committee also calls for legislative amendments to require the Court to determine family violence allegations at the earliest practicable opportunity, so that the Court can make informed decisions regarding parenting and property matters. In addition, the Committee comments on the importance of information sharing regarding protection orders, the exercise of family law jurisdiction by state and territory magistrates, and the need to support one or more trials in state and territory courts so that all matters concerning family violence can be determined by the one court. The chapter also notes the early signs of success of the Australian Government’s new Family Advocacy and Support Services program and recommends the extension of this program, subject to a positive evaluation, including into regional Australia.
Obtaining an equitable property settlement after the breakdown of a relationship which has involved family violence can be very difficult. Chapter 5 presents evidence that property settlements can provide abusive partners with a new avenue for abuse and leave families impacted by family violence in significant financial hardship. It discusses options for safer, fairer and swifter property settlements, including simplifying the process for superannuation splitting orders.
The Committee believes that property division must be equitable and timely in order to effectively support families impacted by family violence. The Committee makes recommendations that the impact of family violence be expressly considered in all aspects of property division, suggests that an early resolution process for small claim property matters be adopted, and promotes consideration of amendments to the Family Law Act in relation to property and joint debt division. The Committee also makes recommendations for administrative and legislative changes to assist parties to identify and access their former partner’s superannuation details for the purpose of property settlement.
Chapter 6 explores matters involving children including the impact of family violence on children, and the need to prioritise children’s safety. The chapter discusses the legislative presumption of equal shared parental responsibility and the intended current exemption for cases involving family violence. The Committee expresses concern that this presumption is being improperly relied upon such that the safety of children is not being appropriately prioritised in many family law matters. The Committee recommends the simplification of Part VII of the Family Law Act, and that consideration be given to the of the removal of the presumption of equal shared parental responsibility. Further, the Committee suggests that, to ensure the safety of children in courts, a child safety service be incorporated into the courts to provide supervision and safety and facilitate appropriate communication between state, territory and federal child protection agencies. This could be an extension of the existing Family Advocacy and Support Services. In addition, the Committee makes recommendations for the extension of the Magellan program and for the adoption of multi-disciplinary panels in child abuse investigations.
Chapter 6 also examines the role of family reports in parenting orders, including the process of preparing reports, the cost of reports and the relative roles of private and court based family consultants. The Committee expresses concern about the quality and cost of family reports and makes recommendations to abolish private family consultants, and establish agreed fees for family reports. Further, the Committee believes that it is critical for children’s perspectives to be provided to courts and considers further exploration of this issue by the Australian Law Reform Commission’s review of the family law system is necessary.
Some families experiencing family violence can face additional barriers when accessing the family law system. Chapter 7 examines these additional difficulties for families from a number of different backgrounds including Aboriginal and Torres Strait Islander families, culturally and linguistically diverse families, and people with disability. The Committee acknowledges that the family law system can be particularly difficult for some groups to access. The Committee recognises the significant work that the Family Law Council has completed in relation to the family law system as it related to Aboriginal and Torres Strait Islander families and culturally and linguistically diverse families, and suggests that previous recommendations from the Family Law Council are implemented. The Committee also recommends that the Family and Advocacy Support Service be expanded to support families with additional needs and that one of the trial courts in which all family violence matters are determined be ideally located in an area of high Indigenous population.
Chapter 8 examines the capacity of family law professionals to respond to family violence. The chapter explores evidence regarding the skills and expertise of judicial officers, registrars and court staff, family consultants, Independent Children’s Lawyers, and family dispute resolution practitioners. The chapter also discusses resourcing of the family law system and the contribution that under-resourcing makes to delays within the family law system.
The Committee recognises that there are gaps in the capacity of some family law professionals, and expresses concern that such inconsistencies in capacity may be placing families at risk of further harm. The Committee responds to the evidence that many of these gaps in capacity are due to a lack of training, and makes suggestions for improvements to training for all family law professionals. The Committee expresses particular concern regarding the lack of accreditation of family consultants and the inability to make complaints when family consultants do not meet professional standards and makes recommendations to address this.
This chapter also examines resourcing of the family law system. The Committee discusses concerns about the current backlog of cases in the federal family courts and recommends that additional resources are provided to address this backlog.
Even after family law matters are resolved families which have experienced family violence may still experience some level of risk. Chapter 9 explores the ongoing support services available to families after a family law matter is resolved. The chapter examines court-based and external support services including housing, financial services and behaviour change programs for perpetrators.
The Committee believes that ongoing support services can provide families with security and safety after a family law matter has been resolved. The Committee expresses support for specialist domestic violence courts to employ wrap-around models of court-based support. The Committee also recognises the importance of evidence-based, evaluated, and best practice behaviour change programs in the ongoing safety of families which have experienced family violence and makes recommendations for the incorporation and expansion of programs within existing services.