This chapter sets out a number of issues that were repeatedly raised in evidence to the inquiry from both individuals and organisations and that can be described as systemic issues within the family law system. These include issues of alleged bias; unprofessional and/or unreliable expert witnesses; the adequacy of the adversarial system for resolving family law disputes; the alleged misuse of the family law system or processes; and professional misconduct by the legal profession.
The lack of resources and funding of the family law system was also raised by a large number of submitters. This issue has been discussed in detail in Chapter 6 in the context of its impact on delays experienced in the family law system. Family violence was also raised in the majority of submissions. Issues regarding family violence are discussed in a number of the chapters in this report and is dealt with in significant detail as a dedicated Chapter 7.
This chapter will not revisit the evidence from individual submitters—this was examined in detail in Chapter 3—but will examine the evidence received in submissions from organisations, as well as evidence from the committee's public hearings.
As outlined in Chapter 3, the committee heard from individual submitters that there is a perception that the family law system is biased against men, and operates in favour of women. This perception was also reflected in some organisational submissions, with other organisations rejecting this assertion and suggesting the opposite. This section examines some of these concerns.
Better Place Australia, which operates a dispute resolution service in Victoria, was one organisation that cited complaints data which showed that 'male [Family Dispute Resolution (FDR)] participants consistently feel that the system has a gender bias in favour of women'. Better Place Australia proffered that 'perceptions of bias are partly due to the gender composition of the [FDR Practitioner (FDRP)] workforce', noting that '[m]ost FDR practitioners are women'. Better Place Australia suggested that this perception could be addressed by moving toward a more gender-balanced FDRP workforce.
Justice for Broken Families suggested that the feminist movement has led to the corruption of family law and child support systems, which in turn leads to the alienation of children:
It is the power of the feminist movement that has shifted the Overton window in favour of feminist ideology and resulting policy and law decisions. Our Family Law and Child Support systems have been corrupted by this process. This is why many claim that court decisions are as a general rule very female biased. The recent Final Report submitted by the Australian Law Reform Commission … in March 2019, when analysed through a Foucauldian lens, shows a high level of bias against men and shared custody. So adopting the findings of this report will just be 'more of the same'.
One worrying result of this bias is the alienation (sanctioned abuse) of children.
The Men's Rights Agency suggested that bias in favour of women and against men is pervasive, stating that:
People suspect the Court personnel; the associated service providers such as family report writers - a particularly protected species whose opinions cannot be qualified; independent children's lawyers, who are unable to represent the children's views effectively because they might never speak to the children or only for the shortest time possible and others associated with the Court are biased towards the mother/child doctrine, whilst ignoring the importance of a father in a child's life.
These specialists and the judiciary are unaccountable. There is no Judicial Commission that can accept complaints of misbehaviour, incompetency and bias unless one is able and can afford to appeal a decision.
On the other hand, Women's Safety NSW referred to anecdotal evidence that family report writers are biased against women, and favour men:
… there have been reported incidents of family report writers accusing mothers who make abuse allegations of being 'hysterical, vindictive and manipulative'. Most concerningly, a number of family report writers continue to ascribe to outdated theories which are violence supportive and victim blaming, such as the debunked Parental Alienation Theory.
The Feminist Legal Clinic also noted that they 'receive many accounts from women of biased treatment by professionals within the family law system'.
Despite this perception of bias by professionals operating in the family law system, the committee heard that there are penalties for such professionals who do not fairly discharge their duties. Mr Craig Ray, of Craig Ray and Associates, spoke to the committee about the professional obligations on family report writers, who are often accused of bias:
I think that these people are experts. They have qualifications. They're discharging a role and a duty to the court, which is a fundamental, important role. If they are in fact not completing that role honestly, then there are consequences for them with respect to the current legislation. They'd be in contempt of the court if they provided false evidence.
The perception of bias within the family law system is not a new issue. The NSW Bar Association quoted a paper from 2000 written by the then Chief Justice of the Family Court of Australia (Family Court), the Hon. Alastair Nicholson AO RFD and Margaret Harrison, Senior Legal Adviser to the Hon. Chief Justice Alastair Nicholson, in which they stated:
In Australia disaffected persons constantly attack the system on the basis of gender bias, arguing that either mothers or fathers gain an unfair advantage in parenting disputes, because judges have particular preferences which the discretionary nature of the legislation accommodates.
The committee also heard about other forms of bias. For example, Rainbow Families Victoria pointed to anecdotal evidence of what one of the respondents to their community survey suggested was 'unconscious bias', stating that:
… judges have allegedly commented on the biological relationships of children in rainbow families to parents and their donors, misused the term 'father' or misrepresented donors as fathers…and misunderstood the role of the parents involved.
Women's Legal Service NSW also discussed unconscious bias, and recommended '[o]ngoing training for all working in the justice and family law systems' on a number of issues, including with respect to 'recognising unconscious bias'.
In its submission, the Royal Australian and New Zealand College of Psychiatrists (RANZCP) expressed its concern that 'biases and stigma in relation to mental illness may operate within the family law system to negatively impact those who are parenting with mental illnesses and/or disabilities'. The RANZCP suggested that:
… appropriate training should be available to family law professionals in relation to mental health issues…and disabilities so that proper assessments can be made in relation to whether the parent's mental illness affects their capacity to parent.
The RANZCP considered that such training would lead to a decrease in 'the tendency to equate mental illness with a lack of capacity, or with dangerous behaviours' and would thus allow 'more parents with a mental illness to care for and spend time with their children in a meaningful and safe way'.
Family consultants and expert witnesses
As outlined above, many submitters were critical of the perceived bias of expert witnesses. However, submitters also expressed other concerns with respect to expert witnesses, such as the need for accreditation and adequate training. Submissions and witnesses have used many terms to describe those witnesses engaged to appear as experts and/or write reports by the court.
This section will set out the legal framework by which the court engages family consultants and expert witnesses (both often referred to as 'family report writers'), outline the current regulations, and examine the evidence received with respect to these court-appointed consultants and experts.
Family consultants or family report writers?
Pursuant to section 62G of the Family Law Act 1975 (Family Law Act), the court can direct a family consultant to give the court a report on such matters relevant to the proceedings as the court thinks desirable. All family reports prepared by family consultants are funded by the court at no cost to the parties. Notably, the term 'family report writer' is not used or defined in legislation or court rules.
Family consultants can be employees of the court or private practitioners who have been selected as suitable by the court. Both court-employed and private family consultants who prepare reports for the court pursuant to section 62G of the Family Law Act are usually social workers or psychologists, and private consultants are often used when court‑based family consultants cannot meet the demand for family reports.
In addition to ordering that a report be prepared by a family consultant, the court may also appoint a private practitioner for the purpose of obtaining expert evidence in a particular matter. Individual parties to a proceeding may also engage an expert witness to provide a report to the court. These private practitioners are referred to as an 'expert witness' or 'single expert witnesses' pursuant to Chapter 15 of the Family Law Rules 2004. These experts are governed by part 15.5 of the Family Law Rules and division 15.2 of the Federal Circuit Court Rules 2001. They are sometimes referred to as 'Chapter 15 Experts'.
As far as possible, the committee has tried to use the terms 'family consultant' and 'expert witness', however in quoting or referring to evidence have adopted the terminology of the submitter or witness. Unless otherwise stated, the committee has assumed a reference to a 'family report writer' to mean either a family consultant or an expert witness, or both.
Accreditation scheme for family consultants and expert witnesses
The Australian Standards of Practice for Family Assessment and Reporting, developed by the family courts, currently provides minimum standards and best practice guidelines for family consultants and Chapter 15 experts. These standards are not binding or enforceable, and there is no formal accreditation or monitoring process for compliance in place.
The committee received evidence about concerns over the accreditation of family consultants and expert witnesses.
For example, the International Commission of Jurists Australia expressed concern at 'the current use of Chapter 15 experts', stating that '[t]hey are not held to minimum standards of accreditation or best practice and can make mental illness diagnoses of a parent solely on the basis of a brief assessment'.
The committee heard evidence in support of an accreditation scheme from Ms Zoe Rathus AM, Dr Helena Menih, Dr Samantha Jeffries and Professor Rachael Field who, since 2015, have undertaken research into addressing the issue of family violence in family reports:
There should be a process for proper and rigorous accreditation of private professionals who wish to prepare family reports and an ongoing system of annual certification. These professionals should have access to the resources available to family consultants based at the courts to the greatest extent possible …
There also needs to be clarity about what documents constitute a 'family report'. During our research we became aware of a range of documents labelled 'family reports' which had been prepared by people who were neither family consultants employed at the court nor [family report writers] appointed under the Family Law Regulations.
The concern about the lack of accreditation is not a new issue, and has been examined by previous inquiries.
For example, in 2017 the House of Representatives Standing Committee on Social Policy and Legal Affairs conducted its inquiry into A better family law system to support and protect those affected by family violence, and made the following comments:
Despite the critical role that family reports can play in the outcome of family law proceedings, family consultants are not required to undertake formal training, accreditation or evaluation.
Currently family consultants must have a tertiary qualification in the social sciences—usually psychology or social work—and a minimum of five years' practice experience. At present, family consultants are not required to undertake formal family violence training.
During the course of the Australian Law Reform Commission (ALRC) Family Law for the Future–An Inquiry into the Family Law System (ALRC 2019 Report), concerns were raised by stakeholders with respect to:
… the possible negative outcomes for children in cases where the report writer is not appropriately qualified or expert in the relevant issues, such as an understanding of family violence, trauma and its impacts on adults and children, child abuse, cultural competency, or disability.
The ALRC noted that '[t]hese concerns were raised in relation to both court‑employed and private family report writers, including Chapter 15 Experts'. There were other concerns that were raised with the ALRC, such as the 'limited time both court-based and regulation 7 family report writers spend with families…and the cost of privately commissioned expert reports'.
The ALRC therefore suggested the introduction of 'a mandatory accreditation scheme with minimum standards for private family report writers who provide reports to the court under regulation 7', which it considered would 'enhance public trust in report writers and the quality of their reports, and contribute to the integrity of the family law system'.
The ALRC identified the Attorney-General's Department (AGD) 'as the appropriate accreditation body' for this scheme, owing to its existing responsibility for the accreditation of FDRPs. Previous inquiries have recommended that an accreditation scheme for report writers be modelled on the existing accreditation system for FDRPs.
Training of family consultants and expert witnesses
There were consistent calls from submitters and witnesses for increased training and regulation of family consultants and expert witnesses who appear in the Family Court. Submitters and witnesses to this inquiry expressed concerns that expert witnesses often gave evidence which leads to detrimental outcomes for parents and children.
For example, the Council for Single Mothers and their Children (CSMC) observed that:
Too often, decisions to award custody or shared parenting rights to violent parents (mostly but not always fathers) based on enabling a longer-term relationship have scarred a child for life or in some cases, led to their death. CSMC notes that in some cases, 'expert witnesses' testimony has been directly implicated in these decisions.
The CSMC recommended that '[a]ll expert witnesses dealing with children demonstrate current expertise in assessing family violence, the impacts of trauma on victims and children and in communicating with children'.
The Eeny Meeny Miney-Mo Foundation recommended 'appropriate training and core competencies for all single expert witnesses and family report writers', which it suggested should 'include knowledge of and the capacity to reliably assess the following':
anxieties, fears and phobias;
family violence and child maltreatment;
parental alienation dynamics.
The Victims of Crime Assistance League Inc. NSW (VOCAL) suggested that:
It insufficient to assume that because a professional has previously been employed by the court to write reports, that the professional will properly respond to updated legislation, newer research, understanding of the complexities of family violence and remain impartial.
VOCAL therefore recommended 'increased training for family court professionals' in the following areas:
trauma informed practice, including child responses to trauma and abuse
characteristics of systems abuse.
Ms Rathus, Dr Menih, Dr Jeffries and Professor Field, discussed their extensive research into family report writers which suggested:
… that some [family report writers] tend to invalidate coercive control and other forms of family violence when they look for ways to build and maintain the children's relationships with the perpetrator of the abuse.
These submitters made the following recommendation with respect to training:
Recommendation 1 – Family Report Writing Training and Processes
a) family report writer training (to increase knowledge and understanding of coercive control);
b) the provision of support, supervision and increased family report writer accountability;
c) making the family report assessment process more thorough (through provision of additional time, utilising a broader range of information, and mandatory risk assessments and/or guidelines);
d) creating a less sterile/intimidating assessment environment; and
e) moving to a pro-safety narrative in the family law system.
Women's Legal Services Queensland also advocated for standardised training of family report writers—both those working for the courts and the services the courts outsource.
In its submission, AGD noted that 'additional resourcing' was provided to the Federal Court by the Government in the 2017–18 Budget, to enable the court to:
… employ up to 16 family consultants and $180 000 over two years to improve the training available to these consultants. The funding was assigned to the Federal Circuit Court's budget and has been used to develop new induction training and an advanced family violence training program for family consultants.
The AGD did not refer to any additional funding for expert witnesses.
The committee also heard other concerns with respect to family consultants and expert witnesses.
For example, Australia's Right to Know (ARTK) coalition recommended the amendment of section 121 of the Family Law Act so that it does not apply to expert witnesses, a recommendation also made by Women's Safety NSW. The ARTK provided two examples of how the identity of the expert was in the public interest, one of which is as follows:
Case study 2: Expert witness involved in reporting on child abuse allegations within a custody dispute is himself facing charges of sexual assault against children
Secrecy around the identity of single expert witnesses also prevents the public's right to know about experts who are facing criminal charges.
This anonymity is not afforded to other health professionals in circumstances where there has been disciplinary action taken by regulators or criminal convictions.
The ABC has reported on a single expert witness who is currently before the courts on historical child sex charges whom we are unable to name.
The expert has been involved in Family Court cases where allegations of child sexual abuse have been made.
… his report recommended the child 'continue to live with [the father]' after the mother raised allegations of sexual abuse, saying he 'found no significant evidence' the abuse had occurred.
The psychologist is due to face trial in June 2020 charged with nine counts of indecent assault and two counts of buggery against three 12-year-old boys.
The ARTK has suggested that parties to Family Court proceedings are potentially 'deprived … of the opportunity to apply to review the outcome of their cases on the basis of a significant change in circumstance' owing to the fact that these parties are unaware of whether 'single experts have been disciplined, charged or convicted'.
Women's Safety NSW cited Professor Patrick Parkinson AM who stated that the suppression of the identity of 'family report writers and expert witnesses' has 'made it “almost impossible” to critically evaluate the performance' of these professionals.
Another issue that was raised with the committee was the lack of accountability of these court-appointed professionals. For example, For Kids Sake stated:
For years, the Family Court – with the acquiescence of the Australian Health Practitioner Regulation Agency – has prevented investigation of its expert witnesses while proceedings are on foot. This has led to a situation where, as happened in 2019, more than seven years had passed between the date of an initial complaint and when a practitioner was brought before a State Administrative Tribunal to be found guilty of professional misconduct.
Ms Rathus, Dr Menih, Dr Jeffries and Professor Field also discussed this issue in their submission, stating that the 'unsatisfactory nature of the complaints system for [family report writers] has been a problem for many years'. These submitters recommended the establishment of a complaints unit 'for dealing with complaints against family report writers', which would require the consideration of the following issues:
who should constitute the panel to hear such matters?
what would be the basis of complaints – it is something different from unprofessional unethical conduct because it may be more about lack of expertise?
when should matters be referred to the disciplinary body of the relevant profession?
what are the consequences of an adverse finding?
Another issue that the committee examined were the delays in accessing family report writers, and the implications that these delays have on parties to a proceeding, as explained by Ms Deborah Awyzio of the Queensland Law Society (QLS):
In relation to family report writers in Queensland, the waiting time for appropriately qualified family report writers can be three to four months before an interview date is available. And then obviously the family report writer has to give proper consideration to their recommendations and writing the report, so that takes a further four weeks. That's what we're looking at in Queensland at the moment.
Ms Awyzio confirmed that these delays meant it could be a year before the request was before the judge:
If you file an initiating application there's often a delay of two to three months before the first court date. If, on the first court date, an order is made for a family report, then there is the potential to have that further four- to five-months delay after that. So, yes, that takes it close to a year.
The issue of delays in the courts is discussed further in Chapter 6.
Professor Parkinson raised another issue with the committee—the prohibitive cost of engaging private family report writers for parties to a family law dispute:
The difficulty in my experience with reports is that, unless one of the court family report writers is writing it, the cost can be prohibitive. Regularly I see in Sydney expert reports costing $12,000, $15,000 or $20,000—well beyond the level that people can afford. The family report writers are overworked and can sometimes take up to 12 months to be able to schedule an appointment. So resources are probably the bigger issue in terms of quality of reports in my view.
Professor Field also agreed that family report writers are overworked, adding that they require further resourcing:
… in order to be able to conduct the process of the report interview properly and with efficacy. They need time, they need to be able to connect with the family appropriately and they also need proper remuneration.
Ms Rathus also noted that although the Family Court conducts 'great training for its family report writers', the quality of their reports are unknown:
We are unable … to specifically comment on the quality of the reports that then emerge, and part of the reason for that is the issue of not being able to clearly access court files. We've not been able to read family reports. Yes, they're very well resourced, and we would like to see report writers outside the courts as well resourced. What we don't know is the exact translation of that resourcing into quality.
Adversarial versus inquisitorial systems
A common thread among submissions was the view that the adversarial nature of the family law system is detrimental to all parties. This is especially the case for children, who may be central, but not party, to a family law dispute.
For example, The Benevolent Society submitted that 'the process of engaging in an adversarial court process can mirror the dynamics of an abusive relationship and cause more trauma for the victim-survivors' of abuse. This point was also made by the Australian Brotherhood of Fathers (ABF) in their submission.
The Aboriginal Legal Service of Western Australia Limited suggested that the adversarial 'win or lose' approach is not 'the best way to reach decisions in the best interests of children - who require their parents and family members to collaborate where possible'.
Professor Bruce Smyth suggested that the processes within the adversarial system 'frequently erode[s] the parental alliance, and the ability of parents to develop a cooperative or even business-like working relationship as parents', identifying that children can suffer as a result of this.
Some submitters therefore called for a more 'inquisitorial' approach to resolving family law disputes.
The QLS describes the difference between the adversarial and inquisitorial systems as follows:
In the adversarial system, judges are relatively passive in the collection of evidence. Advocates play the role of calling on and questioning witnesses and producing documents and there are complex rules of evidence which dictate how information is to come before a court. The inquisitorial system allows judges to direct a pre-trial inquiry, actively collect or disregard evidence and call and question witnesses. Rules of evidence under the inquisitorial system are somewhat less restrictive. The collection of evidence is however influenced significantly by the Judge. This control by the arbiter of fact risks a party being denied the opportunity to put evidence they consider significant forward for consideration.
This section will examine the suitability of the adversarial system, as well as historical and proposed reforms to this system.
Is an inquisitorial system superior to an adversarial system?
As Professor Parkinson and Mr Brian Knox SC noted, an inquisitorial system is more likely to work out the relevant issues than a system that is reliant upon self‑represented litigants to present their cases and to adduce relevant evidence.
The Feminist Legal Clinic stated that the existing system 'is an inappropriate model' for the resolution of family law disputes:
Too often the formal application of the rules of evidence are used to hamper proper airing and consideration of all concerns and places self‑represented parties at a distinct disadvantage. Women who are victims of domestic violence typically have less access to financial resources than men and are psychologically vulnerable and are falling through the massive gaps in a severely under resourced legal aid system. As a result, the existing legal system facilitates perpetrators ongoing abuse of their victims.
The Feminist Legal Clinic recommended the adoption of an inquisitorial system:
… with three adjudicators with diverse areas of expertise … Parties should not need to attend multiple different court hearings and mediations in disparate jurisdictions and locations in an attempt to have the various elements of their dispute resolved.
In his submission, Professor Lawrence Moloney proposed the replacement of the existing adversarial system with a two-track system of resolving disputes which distinguishes 'commonplace' family law disputes from 'forensic' disputes, where a commonplace dispute has no allegations involving safety concerns.
However, the QLS noted its support for the Law Council of Australia (Law Council), who the QLS cited as suggesting that 'the adoption of an entirely inquisitorial system would increase the burden on courts and ultimately the public'. The QLS further noted that:
The inquisitorial system also introduces the potential for greater political bias. Importantly, there is no evidence to establish and QLS does not accept that the inquisitorial system is more effective or that it would provide greater efficiency in the resolution of family law disputes.
The ABF submission stated that 'every effort should be made to avoid families being exposed to the ongoing high family conflict of Family Court proceedings and the adversarial process generally'. The ABF therefore advocated for alternative dispute resolution processes such as mediation as being 'the first point of call'.
Significant reforms to reduce the adversarial nature of the family law system
The family law system was initially established to be less adversarial than the litigation process in other areas of law, and there has long been reform of the system so as to make it more accessible to individuals experiencing a family law dispute.
In their submission, the Law Council identified 20 such 'positive initiatives' by the 'Australian Government, the Courts, family lawyers, legal assistance services, family relationship services and social science professionals and bodies'. These initiatives—which include the Children's Cases Program (CCP) and the Less Adversarial Trial (LAT) approach, both of which are discussed further below—were 'developed … with the aim of keeping children and their families' safe, and maintaining their health and well-being during an extremely difficult and highly emotional period in their lives'. Many of the positive initiatives discussed by the Law Council had the effect of breaking down the adversarial nature of the family law system.
The ALRC stated that it was as early as 1999 that the then Chief Justice Nicholson recognised that 'increases in the numbers of unrepresented appellants … [had] a negative effect on the development of family law jurisprudence'.
In 2004, Chief Justice Nicholson suggested that:
… major reform of the adversarial process was necessary to address 'the weaknesses of the traditional processes that allow the parties via their legal representatives (where they have them) to determine the issues in the case, the evidence that is to be adduced and the manner of its use'.
This major reform was the CCP. As Margaret Harrison explained:
The CCP pilot was preceded by several years of jurisprudential development, study and investigation, and its introduction was motivated by a growing concern that the traditional adversarial system of determining such disputes (albeit modified in children's cases … ) had failed to provide the optimal method for determining children's best interests, which the Court was statutorily required to do.
The CCP was followed by the LAT, which is now encoded in Division 12A of Part VII of the Family Law Act.
Professor Parkinson described the LAT as follows:
… litigants spoke directly to the judge, explaining what orders they sought and why. Judges could take an active role in determining what evidence might assist the court in coming to the determination of the issues. Family consultants, with expertise in child development, would attend the initial hearing to be a source of neutral and expert guidance on appropriate parenting arrangements in the circumstances of the case. An evaluation of the program by a child psychologist showed demonstrable benefits in terms of reducing the stress of litigation on parents and therefore indirectly benefiting children.
However, Professor Parkinson observed that '[f]ew if any judges now practice it in the way the process was originally designed' and further noted that '[t]he process was never really adopted in what is now the Federal Circuit Court'. Professor Parkinson ultimately recommended the revival of the LAT process with modifications where appropriate, and the training of 'at least 30 judges initially, in the methodology and its underlying rationale'.
The Law Council commented in its submission that the LAT 'demonstrates the utility of enabling the court to interact appropriately with the parties as a way of reducing conflict between them', which it suggested was especially important with respect to disputes involving children.
Is there a need for further reforms to the adversarial system?
The question of whether there was a need for further reforms to the adversarial system was most recently examined by the ALRC, which was tasked with determining:
… whether the adversarial court system offers the best way to support the safety of families and resolve matters in the best interests of children, and the opportunities for less adversarial resolution of parenting and property disputes.
In its final report, the ALRC observed that the Family Court is already empowered to implement a less adversarial approach to family law matters:
… that is child focused, protective of children and parties who are exposed to child abuse or family violence, quasi-inquisitorial, interdisciplinary, less formal, accessible to self-represented litigants, and connected with relevant support services.
The ALRC identified four ways in which the Family Court is less adversarial in its approach than other civil courts:
children, who are non-parties to a family law parenting proceeding, are required to be the 'winners' of the proceeding, rather than the opposing parents who are the parties in the proceeding;
the family court can exercise a power in child-related proceedings on its own initiative, contrary to other adversarial proceedings where parties present their own evidence on which the court must determine the facts;
the family court may order that an Independent Children's Lawyer independently represent the child's interests, and may make other orders that are necessary to secure that independent representation of the child's interests; and
the family court may order state or territory agencies to provide the court with documents or information regarding 'suspected abuse of a child to whom the proceedings relate or of suspected family violence affecting the child'.
However, the ALRC also observed that 'there is little evidence' the Family Court is exercising the above powers, or other powers it has to conduct child‑related proceedings. Further, similarly to Professor Parkinson (see above), the ALRC observed that the Federal Circuit Court, which also presides over family law matters, has never been empowered to adopt the LAT procedures at Division 12A of Part VII of the Family Law Act.
Despite acknowledging the importance of the adversarial nature of family law proceedings to enable stringent testing of evidence before the courts, the ALRC ultimately recommended a less adversarial approach in the family law system, such that:
Combined rules for the Family Court of Australia and the Federal Circuit Court of Australia should provide for proceedings to be conducted under Pt VII Div 12A of the Family Law Act 1975 (Cth) by judges of both courts. Both courts should be adequately resourced to carry out the statutory mandate in s 69ZN(1) of the Family Law Act 1975 (Cth).
The ALRC considered that the legislative mandate exists for a less adversarial approach, but concluded that the courts must be adequately resourced in order to perform their statutory function.
The ALRC also made a number of other recommendations around support to families and vulnerable applicants that would also serve to lessen the adversarial nature of the current system.
Proposed Parenting Management Hearings
The Family Law Amendment (Parenting Management Hearings) Bill 2017 was introduced to the Senate by the Government on 6 December 2017. The bill would have established the Parenting Management Hearings Panel as an independent statutory authority to 'provide self-represented litigants with a more flexible and inquisitorial alternative to the court process for resolving parenting disputes'.
The proposed model for the Parenting Management Hearings used both multidisciplinary and inquisitorial hearings to resolve less complex parenting disputes in cases where both parents would continue to have parental responsibility, but cannot agree on their future parenting arrangements in the aftermath of parental separation. The model combined features of the CCP (discussed above) and the Informal Domestic Relations Trial from Oregon in the United States of America and also drew upon experience of the tribunal sector with multidisciplinary panels.
The AGD noted that this proposed model 'received limited support from stakeholders' and was 'particularly opposed by the legal profession'. The bill lapsed at the end of the 45th Parliament.
Misuse of system and processes
This section will examine evidence presented to the committee that perpetrators of family violence can misuse the court systems and processes to further perpetuate abuse.
For example, the Australian Institute of Family Studies (AIFS) noted that its research has identified a tension between upholding procedural fairness and protecting parties from harm:
… including in relation to experiences suggestive of post-separation systems misuse involving the use of administrative and legal systems or services or other agencies (including family law services) to further perpetuate abuse.
Some submitters agreed arguing that the unnecessary prolonging of legal processes could constitute a form of family violence:
Vexatious misuse of legal process and courts systems by perpetrators constitutes family violence. By endlessly pursuing legal processes despite evidence or witness statements identifying them as perpetrators, those who use violence can continue to exercise behaviours of control and intimidation pressuring the targets of their violence to enter into court orders that do not address family violence or dragging them through legal procedures that unnecessarily increase costs and stress for the other party.
AIFS put forward a similar view submitting that its findings suggested:
… the need for a more comprehensive analysis of systems abuse as a form of family violence and greater awareness of the possibility that services, systems and processes may be misused by perpetrators of family violence to perpetuate dynamics of abuse and control.
Indeed, the Australian Women Against Violence Alliance (AWAVA) informed the committee that '[s]ystems abuse has been consistently identified throughout the Australian and international literature and evidence as being used in the family law proceedings', and provided the following examples:
2010 Australian Law Reform Commission report identified systems abuse as 'the vexatious use of cross applications for protection orders and giving false evidence';
2014 [Women's Information and Referral Exchange Inc] research reports that examined experiences of 200 women found systemic continuation of financial abuse post separation through legal systems by their violent partners. This included financial costs of protracted legal costs, vexatious litigation, and partners hiding their assets to avoid paying child support;
2017 [Australia's National Research Organisation for Women's Safety] research has found that systems abuse type behaviours of perpetrators included: exploiting the intersection between family law, child protection and criminal legal systems to their advantage, raising counter-allegations and unjustifiable applications in family law or personal protection orders; manipulative engagement with family law services, noncompliance with court orders and exhausting women's legal and financial resources;
[Heather] Douglas in her study [into legal systems abuse and coercive control] reports that women's engagement with the legal systems is experienced as an extension of coercive control. This included frequent requests for adjournments, making counter allegations, calling irrelevant witnesses and initiating excessive litigation in the Family court.
AWAVA therefore called for 'better training of family law professionals and better procedures to prevent systems abuse and hold perpetrators to account'.
The Australian Dispute Resolution Advisory Council also called for better training, suggesting that foundation and common competencies for professionals working in the family law system needs to include '[u]nderstanding how the family law system can be used to continue and perpetuate abuse'.
In its submission, Relationships Australia proposed reforming the Family Law Act 'to include misuse of courts and family dispute-related processes as a form of abuse in family law matters and to clarify court powers to impose consequences for misuse'. Relationships Australia reasoned that this proposal was necessary as:
Powers to identify and respond to abuse of systems and processes need to recognise the multiplicity of systems and processes that can be used, in concert or in succession, to perpetuate abuse, control, intimidation and coercion.
AWAVA referred the committee to a similar proposal by the ALRC to amend the definition of family violence in the Family Law Act to include the 'use of systems or processes to cause harm, distress or financial loss'.
The ALRC put forward this proposal in its discussion paper for its review of the family law system. However, the ALRC ultimately decided against putting this proposal forward as a recommendation in its final report, explaining that:
Whilst the ALRC acknowledges that the very wide range of examples of reprehensible behaviour suggested for inclusion in s 4AB(2) [section 4AB of the Family Law Act provides the definition of family violence] will, if they coerce, control, or cause fear, be examples of family violence, it is not persuaded that there will be sufficient utility, as a matter of law, in making amendments to the list of examples in s 4AB(2). Indeed, it is likely that the longer a list of examples becomes, the more likely it is to be assumed that something not on the list is deliberately excluded, regardless of inclusionary words at the beginning, or end, of the list.
This section will briefly discuss the issue of professional misconduct by the legal profession, distinct from professional misconduct by family consultants and expert witnesses, which has been discussed above.
As identified in Chapter 3, the committee heard from many individual witnesses that some lawyers practicing in family law did not comply with their professional and legal obligations.
In its submission, the ABF informed the committee of their awareness of:
... instances in which a clinical practitioners, judges, solicitors and barristers have been found to have acted improperly in the context of a family law matter, yet these individuals cannot, because of the current operation of s 121 [of the Family Law Act], be named publicly.
In the ABF's submission:
The purpose of s 121 is not to shield professionals; it is to protect the privacy of those whose most intimate relationships have become the subject of scrutiny by the courts.
The Law Council referred to such allegations of professional misconduct in its submission, and explained why lawyers are often drawn into family law disputes:
As parties become increasingly distressed the potential for lawyers to be drawn into disputes and to lose objectivity also increases. Poor professional practices cannot be viewed in isolation from a system that is stretched and with practitioners that are under high levels of pressure.
The Law Council discussed how allegations of unprofessional conduct or professional misconduct by lawyers are responded to by the legal profession:
Each state and territory have a disciplinary process to respond to allegations about unprofessional conduct or professional misconduct by lawyers. The [Law Council] notes that lawyers in practice are subject to an exhaustive range of rules, ethical guidelines and obligations, and duties to the court. There are extensive independent complaint mechanisms available to the public (and to judicial officers) in relation to the conduct of legal professionals.
Further, the court may make costs orders against lawyers, as the Law Council explained:
Within the Family Law Rules, there are provisions in rule 19.10 in relation to costs against lawyers. In rule 21.07 of the Federal Circuit Court Rules there are provisions for costs against lawyers. There are some examples, I think, at paragraph 123 of our submission in terms of cases in recent times. Rule 1.03 of the Federal Circuit Court Rules deals with the objects of those rules, which impose obligations upon lawyers as well.
When you go to the Family Law Act in section 117, the case law specifically makes clear that these costs orders can be made against lawyers. When you go to those overarching obligations, the practice direction just promulgated by the Chief Justice of the Family Court and the Federal Circuit Court is really designed to reinforce for everyone who practices in our jurisdiction the responsibilities that we as lawyers have to uphold the best traditions of our profession, to make sure that cases are disposed of in a timely and efficient manner. That is what most solicitors and barristers strive to do each and every day.
Official figures reflect the evidence received by the committee that many parties have complaints about their legal representatives, or those of the opposing party. For example, in the period 2018–2019 the Office of Legal Services Commissioner in New South Wales observed that 'more complaints
were received in relation to family and de facto law matters than any other area of law', and further noted that:
Many of these complaints are made not by the lawyer's client but by the opposing party, and many of the complainants are litigants in person. Often their complaints arise from a misunderstanding of the adversarial system and the role of a lawyer within that system, specifically that they are bound to act on the instructions, and in the best interests, of their own client, which often means putting forward evidence and making submissions that are adverse to the other party.
Complainants commonly complain of discourtesy, unfair tactics, false or misleading affidavits and submissions, and lawyers acting in a conflict of interests, particularly where work has been done for a couple and the lawyer subsequently represents one person from the couple.
The trend was similar in other jurisdictions. For example in South Australia, the Legal Profession Conduct Commissioner observed in respect of the 2018–19 period that, '[a]s has been consistently the case for many years, family law was the area of practice that generated the most complaints, by quite a considerable margin'. In Victoria, family law also led the area of law featured in new complaints to the Victorian Legal Services Board and Commissioner.
Indeed, it was observed by the Victorian Legal Services Board and Commissioner that the high rate of complaints in family law—and the other high-complaint areas of probate/estate provisions, conveyancing and commercial law—are areas of law which 'typically involve heightened states of emotion and stress, and often involve substantial sums of money'.