The Australian Greens opposed this inquiry from the outset. Not because we do not acknowledge problems within the family law system, but because those problems have been the subject of numerous, comprehensive inquiries and yet no action has been taken to implement the recommended reforms.
This politically-motivated inquiry sought to re-litigate those issues, delaying implementation of previous recommendations, emboldening domestic violence offenders, and re-traumatising victim-survivors and their children.
Experts and service providers opposed the inquiry, noting that survivors would not feel safe given the pre-determined views expressed by the Deputy Chair, and tacitly supported by the Government. The Law Council withdrew its initial support for the inquiry following early hearings. Then President, Pauline Wright, said:
We are now concerned the inquiry is being used for political purposes to undermine domestic violence claims made by women and thereby putting vulnerable families at further risk by inciting hatred and excusing domestic violence.
The Government should have prioritised evidence-based strategies to make family law safer for victims and survivors of family violence, rather than allowing this compromised inquiry to proceed.
While we maintain that the inquiry was unnecessary and damaging, the Australian Greens acknowledge the extensive work of the committee in this inquiry, particularly the secretariat.
We also thank everyone who appeared at public and private hearings, briefed the committee, or who made a submission. A particular thanks must go to the staunch organisations who advocate for and support survivors of family and domestic violence in the face of a Government yet to act on all their previous submissions.
We support a number of the recommendations regarding training, information sharing, implementation of successful pilot projects and increased staffing. Our dissenting and additional comments in relation to key issues are set out below.
Merger of the Family Court and Federal Circuit Court
The Australian Greens maintain the position expressed in the dissenting report on the recent inquiry into the Federal Circuit and Family Court of Australia Bill 2019 (the Merger Bill):
The strongest protection for children, families and survivors of family and domestic violence is to maintain and strengthen a stand-alone, specialist family law court involving a holistic, specialist system of collaborative, culturally-safe, co-located services and resources.
This was the intention when the Family Court was created.
The Merger Bill was not recommended by any of the various inquiries into the family law system, including the ALRC Report. More than 155 court users, organisations and members of the legal profession signed a letter opposing the Merger Bill, saying that it would put families at risk.
Former Chief Justice of the Family Court, Hon Elizabeth Evatt AC told this Committee:
… the proposed merger of the Family Court and the Federal Court is likely to undermine the integrity of the Family Court and lead to undesirable outcomes for the parties.
Increased efficiencies between the Federal Circuit Court and Family Court of Australia can be, and were being, achieved without a merger through administrative practices, such as rules harmonisation. The formal merging of the courts will divert resources from the implementation of these practices and other reforms recommended by previous inquiries.
Critically, the merger will also reduce specialisation in a court that relies on specialist expertise to navigate complex matters and ensure the safety of children. While a number of judges on the Federal Circuit Court have some family law experience, they do not have the detailed expertise, jurisprudential experience, or family violence training required to preside over complex family matters.
The Australian Greens remain opposed to the merger and call on the Government to repeal the Merger Bill and instead consider the Family Court 2.0 model proposed by the NSW Bar Association.
Recommendation
Repeal the Federal Circuit and Family Court of Australia Act 2019 and Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2019.
Funding and resources
The committee heard evidence regarding various programs and initiatives aimed at improving the administrative and practical operation of the Family Court and Federal Circuit Court, including harmonisation of rules, improved information sharing tools, the Covid list, the Lighthouse Project and Priority Property Pool 500 pilot. These initiatives are commendable. However, the idea that practice efficiencies alone can address the significant delays experienced in the family court system ignores the complexity and the prevalence of family violence in matters that reach the Family Court.
Former Chief Justice of the Family Court, Elizabeth Evatt AC, told the committee that the priority action must be increased funding:
If I had to say one thing, it would be resources, because that would help to overcome some of the delays and costs involved for parties, which are very detrimental … That would be my first priority.
Review after review has confirmed that the entire family law ecosystem is over-stretched and under-resourced. This was echoed in many submissions and evidence to this inquiry.
We are broadly supportive of the committee recommendation for more registrars. However, it is critical that registrars have the necessary family violence training and practical experience to identify risks. Further, resources for additional registrars should not come at the expense of specialist judicial appointments.
Many Family Court matters involve family violence—conservative estimates suggest at least 60 per cent of matters—or complex parenting or property matters. Skilled, experienced registrars, particularly senior registrars, play a critical role in implementing risk screening and triaging programs, helping parties to navigate the family law system and understand what preparation is required to facilitate constructive interim hearings, and encouraging mediated outcomes. However, many family matters simply cannot be resolved in a way that ensures the safety of children without a judicial hearing.
The current workload of sitting Family Court judges, including interim and final hearings and judgment writing, is overwhelming. Relieving them of responsibility for some interim determinations, or ensuring that parties are better prepared to proceed, will have a marginal impact without more judicial resources.
We therefore strongly support the appointment of more judges, and a clear process to quickly fill future vacancies with appropriately qualified judges to maintain the specialist expertise needed to resolve complex family matters. Judicial resources should be directed to the registries based on need. We understand that there are 9 current vacancies and more than 10 additional upcoming retirements.
But, again, more judges and more registrars will not be sufficient to address delays.
We need to ensure that Legal Aid and community legal centres are funded to provide timely advice and representation to parties, including in situations where s.102NA applies. Failing to strengthen the community legal sector has produced unacceptable delays and costs that directly impact on the accessibility and quality of justice. We welcome the increased funding as part of the National Legal Assistance Partnership, but more, secure funding is essential to meet existing and predicted demand.
We need to ensure contact centres are properly resourced and staffed by relevantly qualified workers to provide safe options for parental contact while matters are resolved.
We need adequate resources for family consultants, report writers, and independent children’s lawyers to support the court’s work in finalising matters.
Critically, we also need a significant capital investment to ensure that Family Courts have enough hearing rooms, meeting rooms, and staff spaces to meet demand, and sufficient physical space and design flexibility to implement best practice measures for safe entry, egress and waiting areas for parties. The approach adopted in the Southport DV Court is a model of how structural design can improve court experience by minimising contact and conflict between parties.
Recommendation
Urgent appointment of specialist family law judges to fill current vacancies and five additional specialist family law judges, to be assigned to registries according to current needs.
Recommendation
The Government ensures that future judicial appointments are made within a reasonable time of a vacancy becoming available.
Recommendation
The Government provides adequate resources for the appointment and retention of appropriately experienced registrars, family consultants, independent children’s lawyers, and other staff to provide culturally safe, wrap-around, and responsive support for parties before the court.
Recommendation
The Government commit to, at least, additional funding of $310 million per annum for legal assistance providers as identified by the Law Council to make up the shortfall of successive cuts to Aboriginal and Torres Strait Islander Legal Services, Community Legal Centres, Women's Legal Services, and Legal Aid Commissions.
Recommendation
The next National Plan for Reduction of Violence Against Women and Children include $12 billion funding over the life of the plan for prevention programs, and social and support services for families and survivors of family and domestic violence.
Training and accreditation
Given the prevalence of family and domestic violence in contested family matters, it is critical that all those involved in the operation of the family law system have a sound, contemporary understanding of family violence.
We support the committee’s recommendations regarding accreditation and ongoing professional development for family law professionals, judges, registrars, family consultants and report writers (internal and external to the court), and children’s contact centre staff.
Funding should be prioritised for in-house family consultants and report writers over those engaged under Regulation 7. This will allow greater opportunity for court oversight and quality control, minimise conflict risks, and facilitate more active case management.
Definition of domestic and family violence
We support the committee’s recommendation for the Council of Attorneys-General to work towards a harmonised definition of domestic and family violence. Any efforts to develop a consistent definition must have regard to the growing body of research regarding controlling behaviour and reviews currently being undertaken in various states and territories regarding criminalisation of coercive control.
We strongly oppose the suggestion made by Senator Hanson (paragraph 3.57 of the majority report) that domestic violence should be categorised into levels of seriousness. The committee heard from a number of witnesses that there is a growing understanding that controlling behaviour can be the most damaging aspect of domestic and family violence, regardless of physical violence. For example, Mrs Leanne McLean, Commissioner for Children and Young People, told the committee:
We have a very broad definition of family violence that is operating across Australia. I'm very supportive of that definition. It's important that we do consider the long-term impacts of things like controlling or coercive behaviour all the way through to physical abuse that may occur. I can commend to you the National Domestic and Family Violence Bench Book definition of how violence and abuse against children can impact them in their everyday lives. It's an extensive list of issues, including lesser health and educational outcomes, psychological issues and mental health issues later in life. The types of toxic stress that can be experienced by a child because of various forms of violence, be it coercive, controlling behaviour right through to physical violence, should not be underestimated, categorised or discounted by the committee.
Misleading evidence
We disagree with Recommendation 12 of the majority committee report regarding perjury.
The idea that women routinely weaponise the family law system against their ex-partners, and concoct or exaggerate domestic and family violence was the explicit basis on which this inquiry was formed. The tacit acceptance of this idea by the Government is incredibly dangerous. It sends a message to
victim-survivors that they will not be believed, it emboldens abusers, and it can lead women to agree to inappropriate parenting arrangements to avoid the risk and trauma of a court hearing.
Many submissions and the bulk of relevant expert evidence to this committee contradict the prevalence of false allegations in family law proceedings, and noted that women often under-report violence because of concerns that disclosures of violence will disadvantage their case and jeopardise the safety of their children.
No to Violence, an organisation focussed on men’s behavioural change, told the committee:
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.
The Queensland Law Society held a similar view:
… we note the lack of empirical evidence to support the notion that false allegations of family violence are regularly made in an attempt to gain an advantage in family law proceedings. In contrast, extensive research confirms the difficulties victims of domestic and family violence encounter when disclosing their experience to courts; including fear of not being believed and fear that disclosure will increase the risk of violence to them or their children.
The incidence of wilful misrepresentation or perjury in the Family Court has been significantly overstated by proponents of this inquiry. Former Chief Justice of the Family Court, Hon Diana Bryant AO QC, told the committee:
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.
This is not to say that evidence regarding allegations of violence should not be tested. As Former Family Court Judge, Professor the Hon. Nahum Mushin AM said:
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.
Rather than supporting the need for tougher responses to perjury, these observations demonstrate the importance of ensuring that family law matters are heard by an experienced, specialist judge with an understanding of the dynamics of family violence. This is the specialisation at risk in the merger of the Family Court and the Federal Circuit Court.
Marriage
The Australian Greens strongly oppose Recommendation 29 regarding a productivity assessment of preventing marriage breakdown. This is not the 1950s.
Senator Larissa Waters
Australian Greens Senator