The main purpose of the [Family Law Bill 1974] is to eliminate as far as possible the high costs, the delays and indignities experienced by so many parties to divorce proceedings under the existing Matrimonial Causes Act.
The Family Law Act 1975 (Family Law Act) and family law system have been the subject of ongoing review and reform since shortly after the Family Law Act’s inception. When the Family Law Act was introduced, the explanatory memorandum set out that family law 'procedures will be simplified, hearings will be less formal and costs will be reduced'. In addition, greater use was also to be made of conciliation processes and of welfare officers; there was to be greater opportunity for the wishes of children to be ascertained; and enforcement of parenting orders was to be more effective.
As noted in the committee’s first interim report, since 1975 the Family Law Act has been amended on over 110 occasions and increased by around 990 per cent. More than 40 years on, the same issues continue to be raised in the context of this and other recent inquiries. What is clear from those inquiries, and this current inquiry, is that the family law system does not meet the needs and expectations of some of those who use it.
The first interim report of the Joint Select Committee on Australia’s Family Law System (the committee) highlighted the various themes of evidence the committee received through submissions, as well as through public and in camera hearings held prior to 7 October 2020. The evidence provided to the committee was extensive, canvassing a wide range of issues relevant to the operation of the current family law system. Accordingly, the first interim report was comprehensive to ensure that all of the major issues raised with the committee were recognised. The report contained 12 chapters and was over 400 pages long. The first interim report did not set out to make any assessment or commentary on the evidence provided, rather its intent was to highlight the wide variety of perspectives and evidence before the committee up to the date of its tabling. As such, the first interim report contained no conclusions or recommendations.
Some of the key themes identified in the first interim report included:
the costs associated with the family law system;
delays in the court system;
the adversarial nature of the family law courts;
the role of family consultants, expert witnesses and independent children’s lawyers;
how family violence is considered in family law proceedings, and the interaction of the family law and family violence jurisdictions;
enforcement of family law orders; and
the appropriateness of the legal framework.
Scope of the second interim report
In preparing this second interim report, the committee has considered all of the evidence provided to the committee, and the current and proposed reforms being undertaken within the family law system in response to recent inquiries. This report contains the committee’s conclusions and recommendations on these matters and on additional measures that are needed to better support Australian families using the family law system. Although the committee has considered all of the evidence before it in the preparation of this second interim report, the report does not revisit all of the evidence contained in the first interim report; rather it identifies what the committee considers to be the key issues for reform and the committee’s recommendations.
This report does not contain any conclusions or recommendations on the child support system. The committee still has a number of outstanding questions regarding the child support formula and at this time considers that further information is required before it draws any conclusions. As such, the committee sought and received an extension of the final reporting date so that it could conduct a short inquiry, to be completed by the end of June 2021, in which it will seek expert advice on matters relating to the child support system.
It is the intent of the committee that this report deal finally with the family law issues. However, it notes that in light of the extension, should the committee become aware of any issues not raised previously, the committee may take the opportunity to address new matters.
Structure of the second interim report
This chapter is an introductory chapter which outlines the work of the committee, details how the first interim report has informed the second interim report and discusses the most recent reviews of the family law system, as well as recent and current initiatives. The remaining chapters cover the following:
Chapter 2 sets out the committee’s consideration of the key issues relating to delays, costs and other systemic issues in the family courts.
Chapter 3 contains the committee’s views and recommendations relating to family violence and the family law system.
Chapter 4 examines potential changes to the Family Law Act for parenting and property matters.
Chapter 5 considers the support services and alternative dispute resolution mechanisms available to people traversing the family law system and makes recommendations aimed at improving parties’ experience of the system.
Note on individual submissions
The committee received nearly 1500 confidential submissions from individuals who had either personal experience of the family law system or provided support to a family member through family law proceedings. Some of the submitters had matters that were currently before the courts, others described recent experiences with the courts in the past five years and a number recounted their dealings with the court from 20 or 30 years ago.
All of them detailed particular frustrations that they had with various aspects of the family law and/or child support systems. These issues have been canvassed in detail in the first interim report and the committee does not intend to go into the specifics of all of these issues in this chapter, suffice to say that the issues were broad and many, and often contrary viewpoints were provided to the committee on the same issue.
While it is clear to the committee from the evidence provided by individuals, academics and organisations that there are specific areas that require improvement within the family law system, the committee is cognisant that it has only heard from individuals who felt that the system, and in particular the courts, had let them down. This presented one side of the family law experience for that separating couple; the committee did not hear the perspective of the other party to that particular proceeding. However, the committee did hear from a wide cross-section of people who engaged with the family law courts and found that, particularly where family violence was alleged, the perspectives provided by alleged perpetrators and alleged victims were often conflicting (this is discussed in further detail in Chapter 3). The committee also did not receive any submissions from the thousands of Australian families who use the family law system successfully each year to resolve their family law matters.
While the evidence of those who have experienced significant trauma as a result of their engagement with the family law system has been highly informative, the committee notes that it must consider this evidence within the context of both the data and all of the evidence provided for the family law system as a whole. For example, it is well known that only a small percentage of separating families utilise the family courts to determine their disputes. As such, there will be areas where the committee does not reach the conclusions or make the recommendations sought by individual submitters. The committee wants to assure all individual submitters that it has heard their stories and these experiences have informed the committee’s understanding of how the family law system works in practice.
Conduct of the inquiry
As noted in the first interim report, the committee was appointed by resolution of the Senate on 18 September 2019 and resolution of the House of Representatives on 19 September 2019 to report by 7 October 2020. Due to the impact of COVID–19 on the committee’s ability to travel and hold hearings, and the significant number of submissions that were made to the committee, the committee sought additional time to comprehensively consider the multitude of issues raised during the inquiry. On 31 August 2020, the Senate and the House of Representatives granted an extension of time for presentation of the final report until the last sitting day in February 2021.
The committee invited submissions from individuals and organisations by 18 December 2019. The committee provided an extension to organisations and individuals to lodge submissions up to 31 January 2020. Due to the significant interest in this inquiry, the committee continued to accept submissions beyond this date to ensure that it heard from a wide cross-section of the community on these important issues. Late submissions were received until 1 February 2021.
The committee received 1716 submissions (to 1 February 2021). The submissions received by the committee are listed at Appendix 1 and copies of the publicly available submissions are on the committee’s webpage. Analysis of the submissions received until 6 October 2020 can be found in the first interim report.
The committee has held 12 public hearings and 13 in camera hearings for the inquiry. During the in camera hearings, the committee received approximately 42 hours of evidence from 85 in camera witnesses. A list of the witnesses who appeared at the public hearings can be found at Appendix 2 and copies of the transcripts are available on the committee's webpage. As noted in the first interim report, as a consequence of the COVID–19 pandemic, hearings that occurred after the hearing of 13 March 2020 were conducted primarily by video and teleconference. The following public hearings were held:
14 February 2020 in Canberra
10 March 2020 in Townsville
11 March 2020 in Rockhampton
12 March 2020 in Brisbane
27 May 2020 (by video/ teleconference)
24 June 2020 (by video/ teleconference)
8 July 2020 (by video/ teleconference)
22 July 2020 (by video/ teleconference)
19 August 2020 (by video/ teleconference)
16 September 2020 (by video/ teleconference)
23 November 2020 (by video/ teleconference).
The committee visited the Southport Magistrates Specialist Domestic and Family Violence Court on Wednesday 10 February 2021 and the Family Court of Australia (Brisbane Registry) on Thursday 11 February 2021. A detailed description of these site visits is at Appendix 3.
Previous reports into the family law system
As outlined in the first interim report, the work of this committee has followed two recent and extensive inquiries into the family law system—the House of Representatives Standing Committee on Social Policy and Legal Affairs’ inquiry into how Australia's family law system can better support and protect those affected by family violence, the report for which was tabled in December 2017 (2017 Family Violence Report), and the inquiry of the Australian Law Reform Commission (ALRC). The ALRC final report was tabled in Parliament in March 2019.
2017 Family Violence Report
The 2017 Family Violence Report made 33 recommendations and advocated 'for an accessible, equitable and responsive family law system which better prioritises the safety of families'. The committee highlighted some of the key recommendations in Chapter 2 of the first interim report.
On 19 September 2018, the Australian Government (Government) responded to the 2017 Family Violence Report. The Government agreed or agreed in principle to 14 of the recommendations, agreed in part to two, and noted 17. The Government noted that its response:
… reflects the importance of a co-ordinated and considered approach to meeting the complex needs of separating families experiencing violence. The Government has already commenced work which, once completed, would address a number of the Committee's recommendations in whole or in part. The response highlights this and other related work, where relevant.
For example, the response highlighted the following work that had been or was being undertaken at that time:
the Family Advocacy and Support Service (FASS) was being evaluated and the Government agreed to consider options for extending the FASS, subject to a positive evaluation;
work was being undertaken with states and territories to strengthen family violence risk assessment and management practices across Australia. The Government noted that national principles for risk assessment for victims, perpetrators, children and other family members had been developed;
major reforms to the structure of the federal family court system were being developed, with the purpose of ensuring Australian families experience shorter waiting times, and a reduction in the potential for conflict caused by prolonged and acrimonious family disputes. This will provide opportunities for early identification and triaging of matters involving family violence and other risks;
a pilot of legally-assisted family dispute resolution was being undertaken, to be evaluated by December 2019. The Government agreed to consider options for extending the program;
work was underway with states and territories through the Council of Attorneys-General (CAG) to improve information-sharing between state, territory and federal systems and jurisdictions;
the Government was working to encourage and support the increased exercise of family law jurisdiction by state and territory courts, where appropriate, when hearing family violence and child protection matters. The Family Law Amendment (Family Violence and Other Measures) Bill 2017, which was before Parliament, included measures to expand state and territory courts family law jurisdiction; and
the introduction into Parliament of the Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018 to ensure that appropriate protections are in place for victims of family violence during cross-examination in all family law proceedings under the Family Law Act.
The ALRC inquiry had been announced prior to the Government providing its response to the 2017 Family Violence Report. As a consequence, the Government suggested that at least 13 of the 2017 Family Violence Report’s recommendations ‘should be considered alongside the outcomes of the ALRC's review and its recommendations for broader reform of the family law system’.
The Attorney-General’s Department (AGD) advised that as at 2 December 2020, of the 33 recommendations made, ‘21 recommendations have been implemented in full or in part; 10 recommendations are currently under consideration; and the remaining two recommendations were addressed to the ALRC, not to the Government’.
ALRC 2019 Report
In March 2019, the ALRC delivered its final report titled Family Law for the Future – An Inquiry into the Family Law System (ALRC 2019 Report) containing 60 recommendations for reform. As discussed in the first interim report, the ALRC stated that implementing the 60 recommendations will:
promote an integrated court response to family law matters, child protection matters and matters involving family violence, providing better protection to individual litigants and their children;
assist separated couples and the courts to arrive at parenting orders that promote the best interests of the child;
assist separated couples to understand and comply with parenting orders, reducing conflict thus contributing to the welfare of children;
increase the proportion of separated couples who are able to resolve their parenting matters, and property and financial matters, outside the courts through a process that ensures fairness and reduces ongoing conflict;
reduce acrimony, cost and delay in the adjudication of family law disputes through the courts and ensure family law matters are subject to rigorous case management by the courts to reduce delay and cost; and
ensure that families who seek assistance from the family law system with legal and other support needs receive that support in a coordinated and efficient manner.
The Government has not responded to the ALRC 2019 Report at the time of finalising this report.
Recent and current initiatives in the family law system
During the course of the inquiry, the committee heard about a large number of reforms to the family law system that have been recently implemented or are currently being pursued. These have been discussed throughout the first interim report. Many of these reforms respond to the recommendations of the 2017 Family Violence Report and the ALRC 2019 Report. Key reforms include:
a small claims property pilot of a simpler and quicker process for distributing property of less than $500 000 between parties following a relationship breakdown from January 2020 to December 2021;
increased property mediation with ongoing funding for Family Relationship Centres (FRCs) to undertake family law property mediation and funding for Legal Aid Commissions to conduct a two year pilot from January 2020 to December 2021 of lawyer‑assisted property mediation for matters with a property pool of up to $500 000, excluding debt;
funding from 1 June 2017 to 30 June 2020 for pilots of legally-assisted and culturally appropriate family dispute resolution services for parenting matters for Indigenous and Culturally and Linguistically Diverse families who have experienced family violence;
the piloting from January 2020 of the co-location of state and territory child protection and policing officials, in family law courts across Australia to increase the information on family violence being shared between these systems;
funding to represent parties to a family law hearing who are subject to the ban on direct cross-examination under Part XI Division 4. The implementing legislation requires this Division to be reviewed as soon as possible two years after commencement;
a measure aimed at improving the visibility of superannuation assets in family law proceedings. This measure provides $3.3 million over three years to the Australian Tax Office (ATO) to develop an electronic information sharing mechanism with the family courts to allow the superannuation assets held by parties to family law proceedings to be identified swiftly, more accurately and at a lower cost to parties;
funding to pilot a screening and triage program in the Federal Circuit Court of Australia (Federal Circuit Court) for matters being considered by family law courts, with three interconnected processes:
screening parenting matters for family safety risks at the point of filing;
triaging matters to an appropriate pathway based on the identified level of risk; and
maintaining a specialist list to hear matters assessed as involving a high risk of family violence.
In addition, on 5 December 2019, the Government introduced the Federal Circuit and Family Court of Australia Bill 2019 (the FCFC Bill) which proposes unifying the administrative structure of the Family Court and the Federal Circuit Court to create the Federal Circuit and Family Court of Australia, comprised of Division 1 (which will be a continuation of the Family Court) and Division 2 (which will be a continuation of the Federal Circuit Court). The FCFC Bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report by 20 November 2020. The Bill was passed by the Australian Parliament on 17 February 2021.
During the inquiry, the committee also heard from various organisations about the establishment of court lists by the Family Court of Australia (Family Court) and the Federal Circuit Court dedicated to dealing exclusively with urgent family law disputes that have arisen as a direct result of the COVID–19 pandemic. Where a party meets the criteria for the COVID–19 list, the parties will receive a first return date within three business days of the application being assessed as suitable. These matters are being dealt with by electronic means, such as virtual court hearings and electronic dispute resolution.
Budget measures 2020–21
The following three measures were announced for the Attorney-General’s portfolio in the 2020–21 Budget:
the Government will provide $2.5 million over two years from 2020–21 for federal family law courts to maintain specialised court lists for urgent matters arising as a result of COVID–19;
the Government will provide $132.1 million over four years from
2020–21 to expedite the handling of family law matters and other matters in the Federal Circuit Court. This includes:
$87.3 million over three years from 2021–22 to maintain funding for family law services funded under the Family Relationship Services Program, following the cessation of the social and community services wage supplementation funding;
$35.7 million over four years from 2020–21 in additional resources and judges for the Federal Circuit Court to assist with the timely resolution of migration and family law matters;
$4.8 million in 2020–21 for the Family Violence and
Cross-Examination of Parties Scheme, which helps protect victims of family violence in family law proceedings;
$1.8 million over four years from 2020–21 to implement Federal Family Violence Orders under the National Domestic Violence Order Scheme; and
$2.5 million in 2020–21 for a new case management system for the Family Court of Western Australia.
the Government will provide $134.1 million over five years from
2019–20 to support legal services and workplace advice to individuals and businesses affected by COVID–19. The support includes:
$49.8 million over two years from 2019–20 for additional legal assistance services for families and children experiencing hardship;
$13.5 million in 2019–20 to allow legal assistance providers to deliver services virtually to the community in response to the impact of COVID–19;
$6.2 million over four years from 2020–21 to assist the states and territories in administering the National Legal Assistance Partnership;
$2.6 million in 2020–21 for the Family Violence and
Cross-Examination of Parties Scheme, which helps protect victims of family violence in family law proceedings …
The Government also announced the following measures in the Social Services portfolio:
… funding over four years from 2020–21 to deliver Australia’s sexual assault, domestic and family violence counselling service provided through 1800RESPECT, to provide COVID-specific advertising over the Christmas period, and to meet increased demand;
… $590.4 million over two years from 2019–20 to increase services and support available to vulnerable Australians affected by COVID–19. The package includes:
… $150.0 million to support Australians at risk of domestic, family and sexual violence during the COVID–19 pandemic. This includes up to $130.0 million for states and territories to invest in specialist services, including crisis accommodation, and $20.0 million for a nationwide awareness campaign, additional programs including 1800RESPECT and other national responses.
Committee approach to the inquiry
The committee acknowledges that there are currently a significant number of reforms being piloted/progressed and recommendations being considered by the Government to improve the family law system. The committee appreciates that while some of these measures have been evaluated, some are only in the early stages of being trialled and it is premature to determine if they are achieving their intended purpose.
The committee is cognisant of the need to see the outcomes of these evaluations and the impact that these measures have had on the family law system before changes or additional recommendations are made in these specific areas. The committee recognises that too many changes at once may overwhelm the participants in the family law system and create additional and unintended delays. As such, the committee has largely focussed its attention on areas that it considers require immediate reform and on areas that have not already been the subject of recent reform or recommendations.
As noted in the first interim report, the committee is particularly interested in non-legal reforms—namely, those primary and secondary interventions that may assist Australians to avoid the costly and emotionally damaging litigation that typically accompanies the breakdown of family relationships.
The committee has referred throughout the report to the Family Court and the Federal Circuit Court as they are currently known. However, the committee acknowledges that the name of these courts will soon change due to the unification of these courts as a consequence of the passage of the Federal Circuit and Family Court of Australia Bill 2019 on 17 February 2021.
The committee thanks all of those who contributed to the inquiry. In particular, the committee would like to thank all the individuals who shared in camera and through submissions their personal experiences of the family law system with the committee. The committee acknowledges that the sharing of personal stories has been a difficult and emotional experience for many individuals. These stories provided the committee with great insight into the family law system and were integral to the committee’s work.
The committee also thanks the Southport Magistrates Court and the Family Court of Australia (Brisbane Registry) for facilitating and hosting site visits on 10 and 11 February 2021.