The Inquiry
As already articulated in the first interim report, Labor Members did not consider there was a need to conduct this inquiry when a great many inquiries and reports into family law had not yet been acted on or responded to by the Government. However Labor Members have undertaken their role in the inquiry process diligently. They have listened to the evidence and included eight of their own recommendations with additional comments in the first interim report. Five of those recommendations, or recommendations in similar terms, are now included as recommendations of the whole committee.
Labor Members have worked hard in the committee process to achieve a majority report that makes recommendations that will improve the family law system. These additional comments by Labor Members are included in this second interim report to provide a fuller explanation to some of those recommendations and conclusions.
Previous reports and inquiries
There have already been 67 reports and inquiries into family law. The most recent two reports, the Australian Law Reform Commission 2019 report (ALRC report) and the House of Representatives Standing Committee on Social Policy and Legal Affairs’ inquiry report (Henderson report), were comprehensive reports which made collectively 93 recommendations to improve the family law system.
On 22 October 2019, Senator the Hon. Marise Payne, Minister for Foreign Affairs and Minister for Women, told Senate Estimates that the Government’s response to the ALRC report was with the Attorney-General. As the committee report acknowledges, the Government has still not provided a response to the 60 recommendations in that report.
Labor Members urge the Government to immediately respond to the ALRC report.
This report makes another 29 recommendations to improve the family law system. Labor Members call on the Government to promptly respond to the recommendations in this report.
Labor Members are strongly of the view that the Government should not undertake any further inquiries or reports into family law until they have responded to, and implemented where appropriate, recommendations made in this and in previous reports.
Labor Members consider that merely instituting inquiries, without an intention to act on any recommendations, will not fix the multiplying problems in the family law system. The family law system will only be improved by implementing recommendations for reform from credible reports and inquiries, such as the recommendations in the Henderson report, the ALRC report and this committee report, without undue delay.
False Allegations
At the commencement of this inquiry Labor Members were concerned that stakeholders would not participate in the inquiry process. Publicity around comments made by the Deputy Chair that women lie about domestic violence in family court disputes had understandably caused some stakeholders to be worried about giving evidence to the committee.
Labor Members welcome that the committee has accepted the evidence provided by former Family Court judges including former Chief Justice, the Hon Diana Bryant AO QC, that parties do not frequently set out to deliberately misrepresent or invent the facts and false allegations are not prevalent within the family law system.
Abolition of the Family Court
The Federal Circuit and Family Court of Australia Bill 2019 (Merger Bill) was passed by Parliament on 17 February 2021. The passing of this bill will result in the abolition of the Family Court of Australia, the only stand-alone specialist family law court.
The proposal implemented by the passing of the Merger Bill was not recommended by any parliamentary inquiry or report, or any report by experts in family law. A desktop review by PricewaterhouseCoopers Australia (PwC) recommended a restructure in similar terms to the Merger Bill but with the caveat that stakeholder advice should be sought if the ALRC did not make a similar recommendation. The ALRC did not make any recommendation to merge the courts or abolish the Family Court.
The committee heard evidence during the public hearings about the harm this court merger will bring to families navigating the family law system. In particular, Ms Elizabeth Evatt, former Chief Justice of the Family Court, said in her submissions to the committee:
… the proposed merger of the Family Court and the Federal Circuit Court is likely to undermine the integrity of the Family Court and lead to undesirable outcomes for the parties.
Mrs Pauline Wright, President of the Law Council of Australia told the committee:
… the current merger proposal of the Family Court of Australia and the Federal Circuit Court is not the answer. It would result in the effective abolition of the Family Court of Australia; a respected, specialised and focused court dealing with family law issues.
Mr Michael Kearney SC, Chair of the Family Law Committee, New South Wales Bar Association told the committee:
The backlog of matters in the FCC has gone up by some 63 per cent, so what’s being proposed under the merger is to collapse into the Federal Circuit Court all of the family law matters that may then get referred back to div 1 but into a court that’s already overburdened. What’s that going to do to litigants? What’s that going to do to judges? It’s extraordinary that anyone would contemplate that course.
Ms Liz Snell, Law Reform and Policy Co-ordinator, Women’s Legal Service New South Wales told the committee that she was very concerned about the proposed merger and said:
We would support a model that would go the reverse and that would increase specialisation. That would mean retaining the standalone specialist superior Family Court.
Labor Members are very disappointed that the Morrison Government pushed through the Merger Bill despite opposition from an overwhelming number of legal experts, advocates and former judges and before this committee presented its final report.
Labor Members consider that the family law system will be less safe for families, in particular children, without a stand-alone specialist court.
Labor Members also consider that it is now more important than ever that issues that have been raised in many of the previous reports and inquires as being of concern in the family law system should be acted on urgently to protect vulnerable families and children.
Appointment of additional Judges and Registrars
Labor Members welcome Recommendation 3 of the committee report to appoint 25 to 30 additional Registrars as well as support staff to assist the Courts to address backlogs and delays. Labor Members acknowledge, as stated in the report, that these appointments will happen over time as reforms are being rolled out. However, Labor Members would urge the Government to, where possible, expedite the appointment of additional Registrars to prevent families from suffering unnecessary delay when negotiating the family law system.
As stated in the committee report, Labor Members also support the appointment of additional family law judges in both the Family Court of Australia and the Federal Circuit Court of Australia. Labor Members consider that the continued appointment of more judges is particularly important now that the Merger Bill has passed Parliament. The provisions of the Merger Bill now mandate only a minimum of 25 judges to be appointed to the Family Court of Australia (new Division 1). Currently there are 37 judges appointed to the Family Court of Australia. Labor Members consider it crucial that, at the very least, as current Family Court judges retire, they should be replaced in a timely manner.
Ms Pauline Wright, President of the Law Council of Australia told the committee of the:
… failure to make timely appointments of judicial officers and registrars. This has created a backlog of cases, produced delays and frustrated the proper management of the resources that the courts have.
Ms Elizabeth Evatt, former Chief Justice of the Family Court, told the committee:
Sometimes when judges retire or move on, there are delays in making new appointments, and the court will be understrength for some time.
Mr Iain Anderson, Deputy Secretary, Legal Services and Families Group in the Attorney-General’s Department told the committee:
I’m saying that there is no current plan to increase the number of judges beyond filling the existing vacancies.
Labor Members are concerned that the new requirement of a minimum 25 judges in the Family Court of Australia (new Division 1) will mean there will technically be no ‘vacancies’ to fill in that court.
Labor Members are very concerned that there will be a diminution of judicial resources in the new merged court and would urge the Government to replace judges promptly as they retire, but also to appoint additional judges to decrease delays in the court.
Funding for Legal Aid and Community Legal Centres
Labor Members are aware that legal assistance services, including Legal Aid Commissions, Family Violence Prevention Legal Services, Aboriginal and Torres Strait Islander Legal Services and Community Legal Centres, have been struggling to meet demand for their legal services for many years. The Justice Project report undertaken by the Law Council of Australia and released in 2018 called for ‘significant additional resources’ for these vital services.
The committee heard that some litigants are unable to access the family law system or see it through to its conclusion or else are forced to appear unrepresented.
For women and children fleeing family violence, access to legal services is crucial to enable them to safely leave a dangerous situation and to access justice through the courts.
Labor Members welcome the committee recommendation to increase funding to Legal Aid and Community Legal Centres and would urge the Government to provide this additional funding immediately.
Equal Shared Parental Responsibility
Labor Members note that section 61DA of the Family Law Act 1975 (FLA) which contains the presumption of equal shared parental responsibility has been a concern since it was introduced to Parliament in 2005, from the concerns expressed by Shadow Attorney-General, Nicola Roxon, in the Parliament in 2006 to the ALRC report handed down in 2019 recommending that the provision be amended.
As set out in Labor Members’ additional comments to the first interim report, many witnesses and submitters gave evidence to this committee about the consistent confusion and misapprehension around the presumption of equal shared parental responsibility.
Labor Members continue to hold the view that a repeal of the presumption in section 61DA FLA would provide greater protection for children.
However, given the inaction of the Government to address this important issue at all, Labor Members consider the urgent release of an exposure draft to amend section s61DA to address the current misunderstanding that the provision is a presumption of equal shared care, would at least allow stakeholders to consider whether a proposed amendment would clarify the provision and make it safer for children.
Labor Members consider that the exposure draft should be released widely for stakeholder consultation.
Labor Members also consider that section 65DAA FLA should be repealed as recommended by the ALRC report and would encourage the Government to urgently respond to that report.
Capping of Practitioners’ Costs
Labor Members understand that some family law matters are complex and require a significant amount of legal work before they can be resolved and accept that legal practitioners should be remunerated for their work. However, Labor Members agree that families should not be paying legal fees in property disputes disproportionate to the pool of assets being divided.
The committee report recommends that the Family Law Act 1975 be amended to include the provisions set out in Appendix 4 of this report. The draft provisions in Appendix 4 include a provision to cap legal fees. While Labor Members agree with the intent of that provision, they consider it would be prudent to consult with relevant stakeholders once this report, including Appendix 4, has been released and prior to introducing any of the draft provisions in Appendix 4 to Parliament.
Family Law Council
Labor Members welcome the recommendation to re-constitute the Family Law Council. The Family Law Council, whose purpose is to advise and make recommendations to the Attorney-General about the workings of the Family Law Act and other legislation and matters relating to family law including legal aid, has not had any members since 2016. Labor has repeatedly called on the Government to reconstitute the Family Law Council since that time. Labor members urge the Government to immediately reconstitute the Family Law Council.
Less Adversarial Courts
Labor Members note the ALRC report handed to Government in 2019 discussed and made recommendations about a less adversarial approach to family law disputes. The report noted that concerns about the best way to resolve matters in the best interests of children and opportunities that exist for less adversarial approaches were not new. The ALRC report also noted that after receiving the Terms of Reference for their inquiry the Government introduced to Parliament the Family Law Amendment (Parenting Management Hearings) Bill 2017 (Parenting Management Hearing Bill). The ALRC report discussed the proposal in the Parenting Management Hearing Bill along with already implemented less adversarial processes in the family courts and concluded:
A close examination of the existing provisions for Less Adversarial Trials reveals that, properly resourced and implemented, they largely correspond with the essential components of the multi-disciplinary panels or tribunals proposed in submissions. In particular, they are expressly child-focused, quasi-inquisitorial, focused on safeguarding children and parties from family violence, designed to promote cooperative child-focused parenting, and are to be conducted without undue delay. Multi-disciplinary expertise is provided either by Family Consultants, or by the ability of the court to appoint an assessor, pursuant to s102B of the Family Law Act, in any field of expertise deemed necessary, to assist with the hearing and determination of proceedings...
The ALRC report recommended that both the Family Court and the Federal Circuit Court should be adequately resourced to carry out the statutory mandate in s69ZN(1) of the FLA, that is, the principles for conducting child-related proceedings contained in Division 12A FLA.
This committee report recommends that the reconstituted Family Law Council be tasked with determining how to make the family law courts less adversarial and that the courts better utilise the less adversarial trial approach in Division 12A of Part VII of the FLA.
Labor Members consider that the Government should also ensure that the courts are properly resourced to conduct child-related proceedings as mandated in Division 12A and as recommended by the ALRC report.
Parenting Management Hearings
As discussed above, recommendations have been made by this committee, and in the ALRC report, to support the courts to carry out their statutory mandate to conduct less adversarial child-related proceedings. The committee also recommends implementing a three year pilot of an inquisitorial tribunal model similar to the parenting management hearing proposal introduced to Parliament as the Family Law Amendment (Parenting Management Hearings) Bill 2017, which attracted limited support at the time, but re-designed with adequate safeguards for families and which addresses the concerns raised about the original proposal.
Labor Members would expect that the proposed pilot would not be a ‘radical departure from the established position under Australian law’. The Law Council of Australia considered the original parenting management hearing proposal concerning on many levels, including:
Rule-making powers given to the Minister in a departure from the separation of powers in the determination of family law disputes;
How and when an Independent Children’s’ Lawyer will be appointed;
How parties are to give informed consent to participate in the tribunal process;
How the panel can provide protection and procedural fairness to parties where family violence is present;
Whether the panel is empowered to make a determination about changing a child’s residence without the consent of the parties to make that determination;
The qualifications of panel members;
The right to legal representation;
Appeals should not be limited to a ‘question of law’, which is a more limited right of appeal than lies from a decision of a Federal Circuit Court judge; and
How panel decisions could be enforced.
Labor Members consider that a limited pilot of a tribunal model with safeguards to address concerns raised about the original parenting management hearings would allow an evaluation of this less adversarial model when the pilot concludes.
Labor Members would expect the Government to release legislation to implement this pilot as an exposure draft to allow broad stakeholder consultation prior to the legislation being introduced to Parliament.