Due to the risk that family violence places on the safety and wellbeing of children and victims, we need to respond to the level of complexity that family violence adds to the Family Law process; and address the systemic gaps and issues to ensure that no further harm is experienced or compounded by the wider system.
3.1
The issue of family violence is pervasive within the family law system. As highlighted throughout the committee’s first interim report, allegations of family violence are present in the majority of matters that reach the family court. For example, the Australian Women Against Violence Alliance (AWAVA) stated that nearly 70 per cent of cases brought before the family courts involve family violence. A survey by the Australian Institute of Family Studies (AIFS) found that over 85 per cent of respondents reported allegations of emotional abuse and 53.7 per cent reported allegations of physical violence.
3.2
The committee heard a wide range of views from submitters regarding concerns about how family violence allegations are considered in family law proceedings. These issues ranged from fears that false allegations of family violence were widespread and were not being appropriately dealt with, to the belief that evidence of family violence was not being given due consideration by the courts, and family violence orders and family court orders were not being enforced.
3.3
In considering the issues presented, the committee is cognisant of the interaction between state and territory family violence jurisdictions and the family courts. As set out in the first interim report, it is state and territory courts that are empowered to issue family violence orders for the protection of individuals subjected to or exposed to family violence. The primary aim of these schemes is to ensure the safety of the victim.
3.4
The Family Law Act 1975 (Family Law Act) requires a party to a family law proceeding to inform the court of any family violence order that applies to the child, or a member of the child’s family. The existence of family violence orders or of family violence are relevant considerations in the determination of the child’s best interest, which is the paramount consideration in family law parenting proceedings. Paragraphs 7.17 through to 7.39 of the first interim report set out in detail the key provisions in the Family Law Act regarding the relevance of family violence to family law proceedings.
3.5
As highlighted in the first interim report at paragraph 7.124, the nature of the family violence and family law jurisdictions are different. The making of family violence orders are:
… for the immediate protection of parties and children, and limited in time, and then the long-term issue [is] dealt with by family courts of what order should be made in the best interest of the children having regard to the need for their protection from risk of harm.
3.6
While amendments to state and territory laws are outside of the committee’s remit, the committee has considered below the interaction between these two systems and, where appropriate, made relevant recommendations.
State and territory family violence orders
3.7
The committee heard contradictory accounts from submitters regarding the ease or difficulty involved in obtaining a family violence order. For example, the Victims of Crime Assistance League Inc NSW (VOCAL) advised that:
There is a misconception within the wider community that [Apprehended Violence Orders (AVOs)] are easy to obtain, and that women only seek AVO's to give them advantage in Family Court. In our extensive experience with clients seeking police assistance, unless there is clear evidence of a physical assault, it is extremely difficult for a domestic violence victim to get assistance from police, let alone protection from State courts.
3.8
On the other hand, a number of individual submitters and witnesses recounted the perceived ease with which their ex-partner obtained a family violence order against them. When asked during an in camera hearing about whether there was any other evidence, apart from his ex-wife's statement, taken into account when a family violence order was made against him, one submitter stated:
… [n]o, none at all. They took her statement, and I was basically just told that if I were to fight it would be put on longer. I would just have to accept it.
3.9
The committee was also advised that police were often reticent to issue a family violence order where family law proceedings were on foot or where the police considered it to be a family law matter. VOCAL provided their experience that:
… many of our clients have been turned away from police stations when attempting to provide evidence of repeated and unwanted, stalking and intimidation, despite having contemporaneous records and previous police event numbers. Often police advice [sic] 'it's a family law issue' and are reluctant to take any further action other than to suggest 'talk to a solicitor'.
3.10
Similarly, a number of organisations and individuals noted that men who had been victims of domestic violence often had difficulty in obtaining a family violence order with police assistance:
I had a guy that was really on the edge. He felt like he was losing his mind. His executive functioning was offline, big time. He was being affected by domestic violence. He went to the police, and they kind of made a joke of him, because he's obviously a guy. Then they said: 'You have no evidence, mate. Sorry.' So he walked away.
3.11
Where family violence orders were obtained, the committee heard many examples of a party’s significant disappointment at the lack of action that was taken when these orders were breached:
[Domestic Violence Orders (DVOs)] etc. are mere pieces of paper and are no deterrent to a determined violent abuser. In some instances, DVOs have been breached on numerous occasions and reported to the police but no action has been taken.
3.12
The committee was also informed by a number of individuals that the orders against them were based on allegations that they maintained to be false as a means to influence the outcome of the family law matter. While this is discussed in more detail later in this chapter, the committee’s attention was drawn to the impact of such an order on the party subject to the order and to their relationship with their children:
The interim DVO required me to move out of the house, not contact my ex‑wife and have no contact with the children. After about 2 months I was permitted to see the children in the presence of supervisors proposed by my ex-wife.
3.13
The committee also heard concerns about the time between an interim family violence order being made and a contested hearing, as well as the lack of recourse when a final order is not made, especially where the party asserts that this was because the allegations, which they assert were false, were not substantiated or were proven to be false:
I also believe that, where accusations are made, they need to be proven with evidence, and, in instances where they are proven to be false, charges should ensue without delay. In the event of DVOs, these need to be fully investigated and, where they are found to be false and malicious allegations, the offender should be charged with perjury to discourage those who use this as a way of getting back at the other party.
3.14
Further, the first interim report contained a detailed discussion about the ability of a person to ‘consent without admission’ to family violence orders, with the Australian Brotherhood of Fathers (ABF) suggesting that this option should be removed such that a person can either agree to the order or the evidence supporting the application for the order is tested in a hearing.
Committee view
3.15
While the committee acknowledges that it is not within its competence to make recommendations directed at state and territory laws, the relevance of these orders to family law proceedings, and the ability of these orders to impact on these proceedings cannot be ignored. Although the committee accepts that false allegations of abuse are not widespread—which is discussed in greater detail later in the chapter—the committee agrees that where false allegations are clearly proven before a state or territory court, an investigation for perjury should be given serious consideration. This may have a deterrent effect on those looking to abuse the system.
3.16
The committee supports the statement of the former Justice of the Family Court of Australia (Family Court), Professor Richard Chisholm AM, that:
There is no doubt a risk that family violence orders can sometimes be made in circumstances where they are not justified. The seriousness of this risk is related to the resources available to the magistrates (and to legal aid): if their resources were more adequate, they could no doubt deal with these cases more thoroughly, and have ex parte orders in force only for a very short time before the respondent would have a chance to set them aside. However if the law were to be changed to make it harder for applicants to obtain family violence orders, there could be an unacceptable risk that the many people who really are in danger may go without protection.
Family violence orders are of real value to many who suffer from or fear violence. They provide a degree of immediate protection in the period before the issues can be fully explored. Unfortunately there is a great deal of family violence and abuse, especially in the circumstances of family breakup, and many people are at risk of death or injury. Although there are problems with family violence orders, their value in providing needed protection should not be underestimated.
3.17
The committee is not advocating for a change to state and territory laws; however, considers that it would be beneficial if the Council of
Attorneys-General (CAG) undertakes a review of the broader family violence order framework to consider what may be done to address the concerns raised in this inquiry, particularly around the following issues:
how police respond to requests for family violence orders or enforce breaches of existing orders where a family law matter is on foot;
what actions should courts take to discourage improper applications, such as those made based on allegedly false allegations not ultimately upheld on review of the evidence (including whether any record of such application should be removed from the alleged perpetrators record);
the length of time between an interim order and a contested hearing; and
does the ability to ‘consent without admission’ to a family violence order have unintended consequences on family law proceedings, and if so, should any state or federal amendments be made.
3.18
The committee’s recommendation is set out later in this chapter.
Family violence and the family law system
Consideration of family violence
3.19
As with family violence orders, the committee has heard a divergence of views in relation to family violence and how it is considered in family law proceedings.
3.20
The committee heard of many experiences where victims did not raise allegations of family violence, often on the advice of a lawyer or other professional, for fear of losing their children, not being believed, depicted as the hostile parent or being accused of parental alienation. Where a parent did raise family violence, they often stated that the courts failed to take family violence seriously. The committee was advised of a number of cases where one parent felt that the family court did not take family violence orders, criminal convictions, disclosures by the victim or other corroborating evidence into consideration and had placed the child/ren at risk by providing the offending parent with access. For example, AWAVA suggested to the committee that:
The family law system as it operates at present does not place the safety of victims/survivors and their children at its heart. Cultural perceptions surround family law that indicate that the disclosure of experiences of domestic and family violence will be to the detriment of a victim/survivor. The system itself does not do enough to prove otherwise …
3.21
By contrast, the committee was also told of situations where a judge is alleged to have accepted the family violence order without question and not considered any of the evidence refuting the alleged violence.
3.22
The first interim report explored the evidence suggesting that a family violence order could result in some form of advantage to the protected person in family law proceedings. The Men’s Rights Agency expressed their view that it was not ‘unreasonable to suggest the change to the family law act to elevate the issue of domestic violence has clearly encouraged more people to use the domestic violence legislation for their benefit, when making an application to the family courts’ and provided a number of examples of the benefits that flow from having a family violence order, such as not having to participate in mediation.
3.23
Other organisations, such as the Australian Bar Association (ABA), stated that family violence orders are just one piece of the evidence to be considered but are not determinative. Similarly, researcher Ms Zoe Rathus AM explained her view that these orders are given very little relevance in family law proceedings:
… the family courts have little regard to the existence of a domestic violence order in terms of the parenting orders they will make. The mere existence of a DVO is certainly not seen as evidence that there was serious domestic violence nor that any domestic violence that has occurred should be relevant to parenting order. The fact that one or both parents sought a DVO may be considered, but the relevant [sic] and effect of that evidence will vary widely depending on the facts.
3.24
Where there did appear to be more agreement was around the impact of family violence orders on interim orders. The ABA and the Law Council of Australia (Law Council) agreed that the presence of a family violence order may cause a judge to act cautiously on an interim basis and constrain a child’s time with the alleged perpetrator until the evidence can be appropriately tested at the hearing. There are often lengthy delays between an interim family law order and the final trial. Where the allegations are not ultimately made out, this delay can have a significant impact on the relationship between the child and parent.
Committee view
3.25
The issue of delays in the family law system are discussed in detail in Chapter 2. It is the committee’s view that the recommendations of the committee regarding delays will assist to address the issue of the time between the making of interim and final family law orders.
3.26
The committee also considers that the three-year screening and triage pilot (the Lighthouse Project) currently being undertaken in the Federal Circuit Court of Australia (Federal Circuit Court), which involves the screening of parenting matters for family safety risks at the point of filing, will go a significant way to ensuring that family violence issues are appropriately considered by the courts and dealt with expeditiously. This will ensure matters where family violence is alleged are identified at an early stage of proceedings. These matters will then be triaged to an appropriate pathway based on the identified level of risk.
A specialist list (the Evatt List) has been created to hear matters assessed as involving a high risk of family violence. The committee was advised that:
… high-risk cases would be intensively case managed. There would be an offer of immediate assistance, safety planning and other such measures. Moderate-risk cases would be, again, offered a safety plan and alerted to the support services that might be available. Low risk cases might be assessed as suitable for family dispute resolution. For the high-risk cases, the pilot will establish a specialist family violence list, which will be overseen by a judge and intensively case managed, with a view to having a matter dealt with quickly.
3.27
Subject to a positive evaluation, the committee considers that the Lighthouse Project should be rolled out to all family court locations across Australia (see Recommendation 1).
3.28
The committee notes that the recently introduced ban on direct cross‑examination—which protects victims of family violence from being directly cross-examined by, or having to directly cross-examine, their perpetrators in family law proceedings—will also assist the court’s consideration of family violence in family law proceedings. As discussed in the first interim report, this requires the court to make a determination in advance of a hearing whether the ban on direct cross-examination does or should apply, bringing the issue of family violence to the forefront of the court's consideration. Where it does apply, the Australian Government (Government) has provided funding to Legal Aid Commissions to legally represent any
self-represented parties subject to the ban on direct cross-examination under the Family Violence and Cross-examination of Parties Scheme (the
cross-examination scheme). This funding applies to both the alleged victim and the alleged perpetrator if they do not have private legal representation. This ensures that both parties are represented by a qualified lawyer who will assist the family court to obtain and test the relevant evidence concerning the existence and nature of alleged family violence.
3.29
While this reform has been well received, the committee was advised of some teething issues concerning the adequacy of the Legal Aid funding for this new cross-examination scheme. The cross-examination scheme has received significantly more applications for assistance than was anticipated. The Government has addressed this shortfall in the Budget 2020–21 by providing an additional $7.4 million in 2020–21 for the scheme.
Perjury and false allegations
3.30
The first interim report canvassed the evidence provided by individual submitters and organisations on the incidence of a party making false allegations of family violence as a tool to influence the outcome of a family law proceeding. The evidence provided by various stakeholders was inconsistent. The Men’s Rights Agency contended that ‘police suspect that one in four DV allegations are false, magistrates suspect that only five per cent are genuine.’ Single Parenting is Killing our Kids referred to a 2014 study of 107 children in the United Kingdom which found that ‘in 70% of cases the allegations of physical and sexual abuse were deemed false and in 24% of cases the allegation was unsubstantiated leaving a very small percentage of abuse cases upheld.’
3.31
By contrast, a number of organisations noted the lack of empirical evidence to support the notion that false allegations are widespread in the family law system. No to Violence advised the committee that:
There is an often-broadcast belief that mothers in the family law court fabricate allegations of family violence to help their family law cases. However, the evidence shows that this is not the case and that women are disinclined to raise family violence allegations due to a fear of not being believed. The research shows that false allegations are much rarer than the issue of victim survivors not reporting abuse and the minimisation and denial of abuse by men who use violence.
3.32
With regard to victim survivors not reporting abuse, the committee was advised that:
in its 2016 Personal Safety Survey, the Australian Bureau of Statistics (ABS) reported that only around 31% of female victims of physical assault and 13% of female victims of sexual assault actually report to police.
54.1% of males who have experienced current partner violence have never told anybody about it, along with 20.9% of males who have experienced previous partner violence.
3.33
It was also noted that family court referrals to police to investigate an allegation of perjury is rare. The committee was advised that:
The [Family] Courts do not keep specific data regarding the number of times allegations of perjury are raised in proceedings, and the extent to which these allegations are tested against evidence provided. The decision to refer an allegation of perjury to the Courts’ Marshal is at the discretion of the individual judge. In the 2019-20 financial year, the Courts referred one matter involving perjury to the Australian Federal Police for investigation.
Committee view
3.34
The committee is persuaded by the evidence of former Chief Justice of the Family Court, the Hon Diana Bryant AO QC, and former Family Court Judge, Professor the Hon Nahum Mushin AM, which was canvassed in the first interim report. Both of whom agree that parties before the family court often have very different perceptions of what has occurred during the same incident but do not accept that parties frequently set out to deliberately misrepresent or invent the facts. Professor Mushin observed:
I do not accept the sometimes ventured view that there are frequent circumstances in which evidence, particularly of family violence and child abuse, is 'made up' or 'invented'. Making such an allegation publicly is usually profoundly difficult for a litigant. In my experience, there are circumstances in which a victim of violence is not prepared to allege violence for fear of being disbelieved.
However, there are circumstances in which witnesses exaggerate allegations of violence as distinct from suggesting behaviour which has never occurred. That is not necessarily lying under oath. The human mind has the propensity to come to believe things as a result of the stressful nature of relationship breakdown. Part of a Judge’s role is to determine the truth.
3.35
Similarly, the Hon Diana Bryant recounted:
In family violence matters in particular, to the best of my recollection I have rarely, if ever come across a matter in which I've been satisfied that one party has totally fabricated an allegation of family violence. Where facts are disputed, and found not to be accurate, more often they will be either an exaggeration of what occurred, or a failure to include relevant matters which might reflect upon their own part in this process. It is not absolute, but rarely occurs that the other party when faced with an allegation will totally deny the violence alleged.
3.36
That is not to say that the committee does not accept that false allegations are made in family law proceedings. The committee accepts that this does happen on occasion but does not agree with the notion that this is prevalent within the family law system. However, where it does occur it is important that the family courts have the appropriate tools to provide legal consequences for any false testimony provided. The committee has heard the concerns raised about the absence of penalties where a party has deliberately provided false evidence or allegations to the court.
3.37
The committee has considered the existing powers of the Family Court, as highlighted in the first interim report. These include the power to refer a party for investigation for perjury, the power to hold a party in contempt of the court and the ability to make a costs order against an offending party. The existing powers are in the committee’s view sufficient.
3.38
There were a number of calls for the committee to recommend increasing the penalty for perjury. As perjury is a criminal offence under state, territory and Commonwealth criminal legislation, this is outside the remit of amendments to the Family Law Act. However, as perjury in family law proceedings would be captured under section 35 of the Commonwealth Crimes Act 1914, which is punishable by 5 years imprisonment, the committee considers that this penalty is adequate.
3.39
There were also calls for, where a person is found to have knowingly made a false allegation of family violence or abuse, that the person should be punished by losing the custody of the child/ren. The committee does not agree. The purpose of family law parenting proceedings is to determine the best interests of the child/ren. The committee is persuaded by the submission of the Family Law Practitioners’ Association of Queensland where it stated:
That a child has a parent who is prepared to mislead a Court is not directly relevant to the parenting arrangements which ought be implemented for that child. The reality is that the needs of the child may mean that even a parent who has, for example, perjured themselves ought to continue to provide for those needs.
3.40
The committee agrees that to impose a punitive outcome of losing the custody of the child, while certainly a deterrent, would ameliorate the stated objective of section 60B (to achieve the best interests of children), and cannot be countenanced. However, the committee encourages the court, in circumstances where the evidence is clear that a false allegation has deliberately been made, to refer these matters to the Commonwealth Director of Public Prosecutions for investigation and, where appropriate, prosecution.
3.41
To facilitate this consideration, the committee is of the view that the family courts should establish a mechanism by which parties and judges can refer allegations of perjury and/or wilfully misleading the court to a designated officer, such as a registrar, for review. Where there is evidence to support the claim of perjury, the matter would then be referred by the court to the police and Commonwealth Director of Public Prosecutions for investigation.
3.42
The committee recommends that the Family Court of Australia and the Federal Circuit Court of Australia establish a mechanism by which allegations of a person wilfully misleading the court in family law proceedings can be reviewed, and where appropriate, referred for investigation for perjury.
3.43
Although outside the remit of the committee, the committee nonetheless wishes to acknowledge the evidence provided by a number of submitters regarding the difficulty in regard to the lack of independent mechanism for, and lack of transparency about, complaints regarding judicial performance. This is an issue the committee considers the government should give further consideration to within an appropriate forum.
Consistency between family law and family violence orders
3.44
As discussed in the first interim report, section 68R of the Family Law Act allows state and territory courts to revive, vary, revoke or discharge specified Family Law Act orders to resolve inconsistencies between family violence orders and Family Law Act orders allowing persons to spend time with a child. However, it has been suggested that there is a lack of knowledge of, or a reticence by state or territory judges to use, this provision. This can lead to inconsistencies between family violence and family court orders, creating confusion and potentially greater danger to a party who is unsure what orders they are required to give precedence to.
3.45
Similarly, family law courts can make family law orders that are inconsistent with family violence orders and make the family violence order invalid to the extent of the inconsistency; but the Family Law Act does not allow the family court to amend the family violence order. This also creates confusion for parties. As such there is what has been described as a “jurisdictional gap” between the family courts and state and territory courts and there is currently a lack of certainty regarding the accrued jurisdiction of the family courts.
3.46
The ALRC 2019 Report provides a detailed overview of constitutional issues arising in relation to child welfare and protection and the current limits of accrued jurisdiction in the family law courts.
3.47
In Secretary, Department Of Health And Human Services v Ray [2010]
FamCAFC 258, the Full Court found that the parens patriae jurisdiction of the Tasmanian Supreme Court did not fall within the accrued jurisdiction of the Court and, therefore, the Court had no jurisdiction to make order binding a third party with parental responsibility. However the Court did not state that jurisdiction in child welfare matters could never be exercised by the Family Court using the doctrine of ‘accrued jurisdiction’. Rather, the Court found that, at least, there needed to be a “pending dispute, claim or proceeding existing under [state] law”.
3.48
Applying this reasoning, if there is a current family violence order or proceedings on foot in a state or local court, then the family court arguably has accrued jurisdiction to deal with the matter as the resolution/ongoing force of the Family Violence Order will undoubtedly be integral to the determination of the issue before the Family Court. However, if there is no ongoing dispute, the reasoning in Ray would be applicable. It is to be noted that the reasoning in Ray has been the subject of commentary suggesting that no proceeding need be on foot in order for accrued jurisdiction to arise. However, without express authority to that effect it appears that the reasoning in Ray would be applied.
3.49
The “jurisdictional gap” will remain unless and until the family courts are able to determine the issue of accrued jurisdiction or there was a referral of powers from states on this issue.
Definition of family/ domestic violence
3.50
The committee has also heard complaints from some submitters that differences in the definition of family or domestic violence between Commonwealth, state and territory jurisdictions can cause confusion and misunderstanding, and may lead to unjust outcomes, especially with regard to one parent being able to maintain contact with their children.
3.51
Family violence is defined for the purposes of the Family Law Act in section 4AB to mean ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.’ The provision also includes a non-exhaustive list of examples that may constitute family violence:
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
3.52
This definition differs from those in the states and territories, which also differ between each other.
Committee view
3.53
Earlier in this chapter the committee recommended that the Council of Attorneys-General (CAG) review the broader family violence order framework to consider what may be done to address some of the concerns raised in this inquiry. The committee considers that any consideration of the issues raised should include whether state and territory legislation should require a court making a family violence order to inquire about any relevant Family Law Act orders and then take such steps as is necessary so as to avoid inconsistencies between the two orders. At least two jurisdictions, Victoria and South Australia, already have similar provisions.
3.54
The committee also notes the issue raised in a confidential submission that there is currently no power for a magistrate to make changes to family law orders where one party has been convicted of a family violence offence but there are no family violence orders in place. This appears to the committee to be anomalous. The committee believes that the Commonwealth should be a party to any CAG consideration of family violence orders and this issue should also form part of that consideration. The committee therefore considers that, should such a power be warranted, this can be done through amendment to the Family Law Act.
3.55
Similarly, the committee considers that CAG should also consider whether the family court can or should be able to make changes to a family violence order that is in effect in a matter before them to ensure consistency with family court orders and the appropriate protection of the parties. This may require consideration of a referral of powers or an application to the High Court for clarification.
3.56
In addition, the committee is of the view that CAG should review the definitions of domestic violence at the Commonwealth, state and territory level to bring about a uniform definition. The committee expects that these definitions would have been considered by CAG in the development of the model provisions for the National Domestic Violence Order Scheme but no uniform definition was included. The committee regards this lack of uniformity to be less than ideal and proposes that it be revisited with a view to the adoption of a uniform definition.
3.57
Senator Hanson believes that domestic violence should be categorised into levels of seriousness and clearly defined to ensure that parents are not unfairly prevented from maintaining contact with their children or adversely impacted in their employment.
3.58
The committee notes that Recommendation 14 regarding information-sharing of family violence and family law orders between jurisdictions also has relevance to this issue.
3.59
The committee recommends that the Commonwealth, states and territories, through the Council of Attorneys-General, undertake a review of the state and territory family violence order framework to consider what may be done to address the concerns raised in this inquiry, particularly in relation to the following issues:
how police respond to requests for family violence orders or enforce breaches of existing orders where a family law matter is on foot;
how breaches of federal personal protection orders can be acted upon by state and territory police promptly to ensure protected persons, including children, are not left without protection;
what actions should courts take to discourage improper applications, such as those made based on allegedly false allegations not ultimately upheld on review of the evidence (including whether any record of such application should be removed from the alleged perpetrators record);
the length of time between an interim order and a contested hearing;
does the ability to ‘consent without admission’ to a family violence order have unintended consequences on family law proceedings, and if so, should any state or federal amendments be made;
whether state and territory legislation should require a court making a family violence order to inquire about any relevant Family Law Act 1975 orders and then take such steps as is necessary so as to avoid inconsistencies between the two orders;
whether there should be a power for a magistrate to make changes to family law orders where one party has been convicted of a family violence offence but there are no family violence orders in place (noting that this is a matter for discussion between the states/territories and the Commonwealth and would require an amendment to the Family Law Act 1975); and
whether judges of the family law courts can or should be able to amend a family violence order that is in existence between the parties before it to ensure consistency with family law orders.
3.60
The committee also recommends that the Council of Attorneys-General undertake a review of the definitions of domestic violence to ensure a uniform approach by Commonwealth, state and territory governments.
Information-sharing
3.61
As highlighted in the first interim report, a key issue in relation to consideration of family violence allegations is the need for improved interaction and information-sharing between family law courts and state and territory family violence and child protection jurisdictions. This would ensure that all relevant information concerning family violence and the risk to parties is available to the respective courts.
3.62
As noted in the Australian Law Reform Commission (ALRC) report into Family Law for the Future—An Inquiry into the Family Law System:
The federal family courts have limited investigative powers to follow up allegations made in family law proceedings that indicate potential risks to the parties, their children and third parties. The federal family courts are reliant on receiving information from state and territory courts and agencies about risks to families and children to inform decision making and better protect against risk. In particular, the federal family courts often require information from child protection departments and police in order to arrive at appropriate orders.
3.63
The committee was advised of a number of initiatives being progressed to address this issue, including:
[Together with all State and Territory Governments, a commitment,] through the CAG, to developing an information sharing regime so that family violence, child protection and family law orders, judgments, transcripts and other relevant documentation are accessible at an early stage of investigations and court proceedings to support informed, efficient and effective decision-making in the best interests of children and families at risk of experiencing family violence or abuse.
$10.4 million provided over three years to pilot the co-location of state and territory officers, such as child protection practitioners and policing officials, in family law courts across Australia. This measure will increase the quality and timeliness of information shared between systems, helping to ensure courts have the right information to support decision-making that promotes the best possible outcomes for children and a court system that is responsive to safety risks.
Funding committed to consider how technology could assist with sharing information about family violence between the family law courts and the family violence and child protection systems.
Committee view
3.64
The committee is cognisant that these reforms are in the pilot or developmental stage and need to be appropriately evaluated. However, the work being undertaken appears to be comprehensive in addressing the concerns raised and, once implemented, should provide the appropriate framework for the collaboration, coordination and integration of the family law, family violence and child protection jurisdictions. The committee notes that the current information-sharing regime and co-location pilot have been developed independently of a unified technology platform and are process driven to ensure the swift and effective exchange of information between agencies and courts in different jurisdictions.
3.65
The committee supports this work and, subject to a positive evaluation of the co-location pilot, recommends that the pilot be expanded to all family court registries and locations. The co-location of police and child protection officers in the family court enables the swift sharing of information between police, child protection and courts without the need for an integrated IT system. This recommendation for expansion of the pilot based on a positive evaluation has been included in Recommendation 1 in Chapter 2.
3.66
The committee notes that it is important that all relevant information concerning family violence and the risk to parties is easily accessible for the courts. This is particularly true in urgent matters where issues of risk are raised and must be assessed without delay. The information-sharing regime should result in accessibility at an early stage of family court proceedings to child protection and family violence orders, judgments, transcripts and other relevant documentation. The finalisation of the scoping study will clarify how technology can assist such information-sharing. The committee recommends that, once the information-sharing regime has been finalised and is in place, the Government develop with state and territory governments an appropriate technology platform to support the sharing of this information. This would allow the family courts to have immediate access to current and enforceable family violence orders without the need to rely upon evidence filed by the parties. The committee is aware that the current reliance upon subpoenas and evidence filed by parties impedes the courts’ ability to promptly and accurately assess risk in a matter.
3.67
The committee is aware that a major issue that would need to be overcome is the inconsistency and potential incompatibility between the information technology systems and resources between the state and federal courts. It would be necessary for a system to be developed that enabled the transfer of information between the courts without significant increased burden on the current resources of the courts. Alternatively, further resourcing may be required to enable a national shared database to be effectively implemented and to operate in a timely and efficient manner.
3.68
The committee recommends that, subject to the finalisation of the information-sharing regime currently being progressed through the Council of Attorneys-General, that the Australian Government lead the development of an appropriate technology platform for information-sharing between family law, child protection, and family violence systems at a Commonwealth, state and territory level.
Training for family law professionals
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The need for specialised training for judges and other professionals engaged in the family law system has been raised in a number of previous inquiries, such as the ALRC 2019 Report and the House of Representatives Standing Committee on Social Policy and Legal Affairs Report, A better family law system to support and protect those affected by Family Violence, (2017 Family Violence Report), and was a regular issue raised in submissions and oral evidence in this inquiry:
There is limited understanding of family violence, trauma, cultural issues and disability amongst many professionals working in the system. This can lead to poor management of risks to the safety of children and women. We need comprehensive and ongoing training of all professionals working within the family law system—including family consultants, lawyers, judges and interpreters—in a range of issues, including family violence and trauma-informed practice, cultural competency, LGBTQ awareness and disability awareness.
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The committee specifically heard about a 2015 research project that indicated that:
… the belief that women make false or exaggerated claims of family violence to obtain tactical advantage in family law proceedings persists among members of the legal professional ...
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The Attorney-General’s Department (AGD) and the Department of Social Services have advised of the following measures that have been implemented which are relevant to this issue:
Funding for specific training and resources in family violence, such as the online National Domestic and Family Violence Bench Book and the funding of the National Judicial College of Australia to deliver family violence training to family law and other judges.
$26.2 million to continue the DV-alert training program, which provides free, nationally-accredited training to build the capacity of health, allied health and community frontline workers to recognise, respond to and appropriately refer domestic and family violence. Frontline workers include legal professionals and court services.
In the 2017–18 Budget, the Federal Court of Australia was provided with additional resourcing to employ up to 16 family consultants and $180 000 over two years to improve the training available to these consultants. The funding has been used to develop new induction training and an advanced family violence training program for family consultants.
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The CAG Family Violence Working Group (the CAG FVWG) is also identifying options for improving the family violence competency of professionals working in the family law and family violence systems. In 2019, the CAG FVWG conducted a consultation process on options for improving the family violence competency of legal practitioners. A consultation paper was developed which sought feedback on family violence capabilities required by legal practitioners, and at which stage in their careers they should be addressed. The CAG FVWG was to report back to CAG in mid-2020.
Committee view
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While the committee acknowledges that there has been increased focus on professional training in recent years, the committee is of the view that the training must include core components based on the information that has been raised in this inquiry. As such, the committee considers that all family law professionals, including judges, should be required to undertake regular professional training, that includes specific training on issues of:
family violence and child abuse, including coercive control; and
complex trauma/ trauma informed practice, including child responses to trauma and abuse.
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The recommendation below also includes other proposals for additional training which have been discussed in other chapters of this report, as indicated in the footnotes.
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The committee recommends that all family law professionals, including judges, undertake regular professional training, including in the areas of:
family violence and child abuse, including coercive control;
complex trauma/ trauma informed practice, including child responses to trauma and abuse;
characteristics of systems abuse;
parental alienation dynamics;
engaging and communicating with children; and
Legal Services
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As discussed in the first interim report, the committee received much evidence about the need for additional legal services, particular with regard to the small number of people who qualify to receive Legal Aid. Mrs Gabrielle Canny, the Director of Family Law Working Group of National Legal Aid, told the committee:
… so 14 per cent of the Australian population at that time, late 2014, were living in poverty, but only eight per cent at that time were eligible for legal aid.
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Other witnesses told the committee of the difficulty for some parties, to pay for legal costs. The committee also received evidence that, once one party obtained legal aid, it was difficult for the other party who had similar means to also receive aid. This appeared to be an anomaly to the committee and results in an imbalance between the parties. This was distinct to issues regarding conflict of interests, where the legal aid commission is able to represent one party and utilises a panel lawyer from a private firm to represent the other party. In some regional and rural areas, there may be limited panel lawyers available. However, the committee is aware that this system is used effectively in terms of duty advice in the Southport Specialist Domestic and Family Violence Court.
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The committee heard evidence of the importance of funded legal services including legal aid and community legal centres. Caxton Legal Centre in their submission to the committee recommended that:
Commonwealth and state government funding contracts to community services, FDR programs, legal aid bodies and community legal centres be better coordinated so that the right mix of funding is allocated (funding usually comes in uncoordinated dribs and drabs which effects all service providers in delivering seamless, well connected services, especially to families with complex needs);
Community legal centres and legal aid bodies should receive adequate and ongoing funding to provide legal and social support services to disadvantaged clients.
Committee view
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The committee has heard the calls for additional funding for legal aid and community legal centres to support the most disadvantaged and vulnerable members of our community as they traverse the family law system. The committee notes that the measures included within this report to address delays and costs will also help to decrease the costs of these bodies and hopefully enable them to assist additional people. However, the committee agrees that more adequate and on-going funding of these bodies is needed.
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The committee recommends that the Australian Government increase funding to Legal Aid and community legal centres, including funding to enable Legal Aid Commissions to relax their means tests so as to increase legal assistance to vulnerable families.
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The committee also recommends that Legal Aid Commissions then review their means and merits policy to allow funding of both parties in appropriate circumstances.
Family Advocacy and Support Service
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As shown from the above discussion, there are a number of new initiatives that have been implemented, are being piloted or are being developed to improve the way in which family violence is considered in family law proceedings.
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The committee received significant evidence about the effectiveness of the Family Advocacy and Support Service (FASS) (which commenced providing services in 2017) and how it assists various aspects of the family law system. The FASS is an initiative that increases the capacity of duty lawyer services in family law court registries and integrates family violence support services, to help families affected by family violence with matters before the family law courts. The FASS provides support to both the alleged victim and alleged perpetrator.
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In addition, one of the key functions of the FASS is 'assisting families to transition between, and manage matters across, the Commonwealth family law, state family violence and state child protection jurisdictions'. Furthermore:
The lawyers engaged in FASS (as the review of the pilot scheme showed), had the great advantage of being involved in both state and federal jurisdictions. They were shown in the review to be able to smooth the pathways, to reduce the confusion and to increase the provision of needed information to the litigants.
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The FASS Evaluation released in October 2018 found it to be an effective and important program which fills a gap in both legal and social service provision to family law clients with family violence matters. It found that the FASS has increased awareness of family violence by clients and family law stakeholders, increased feelings of support and levels of help-seeking by clients with experience of family violence, and contributed to positive legal and social outcomes for clients. As a result of this positive independent evaluation, the Government committed a further $22.6 million to extend the FASS for three years from 1 July 2019.
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The committee has heard that there are a lack of resources for men who have been victims of family violence in the family law system. The committee also heard that the FASS fills that gap by providing legal and support services for men who have experienced family violence, either as victims or perpetrators. The issue of support services is discussed in more detail in Chapter 5.
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After the positive independent evaluation, the Government committed an additional $7.84 million from 1 July 2019 over three years for dedicated men's support workers to be engaged in all FASS locations. The dedicated men's support workers provide access to appropriate support services for both alleged perpetrators and male victims of family violence involved in family law proceedings, including parenting programs and men's behavioural change programs.
Committee view
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The committee understands that the FASS is available at the majority of Family Court and Federal Circuit Court registries and circuit locations but not at every registry or circuit location. The committee supports the expansion of the FASS to all registry and circuit locations with ongoing funding to be provided for all FASS locations, with appropriate resourcing in rural and regional areas.
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The committee’s recommendation on the expansion of the FASS is contained in Recommendation 26 in Chapter 5 where the committee considers the extension of the FASS to case management services.