Introduction and background

1.1        On 7 December 2017 the Senate referred the Family Law Amendment (Family Violence and Other Measures) Bill 2017 (the bill) to the Legal and Constitutional Affairs Legislation Committee (the committee) for inquiry and report by 20 April 2018.

1.2        The Senate Selection of Bills Committee recommended that the bill be referred for a number of reasons, including to:

• address issues of concern to relevant stakeholders that require opportunity for feedback;
• consider expert views on impacts and possible improvements;
• address concerns about the bill dramatically affecting the manner in which proceedings are conducted; and
• assess any  potential impacts on families experiencing family violence.[1]

Background and purpose of the bill

1.3        On 6 December 2017, the Assistant Minister to the Prime Minister, Senator the Hon James McGrath introduced the bill into the Senate. In his second reading speech he outlined the nature and purpose of the bill:

Family violence and child abuse are unacceptable and require a strong legislative response. The [bill] will enhance the capacity of the justice system to provide effective outcomes for vulnerable Australians who are experiencing family violence. In particular, the Bill will strengthen the powers of courts to protect victims of family violence, and facilitate the resolution of family law matters by state and territory courts in appropriate cases.[2]

1.4        Senator McGrath noted that the bill would fulfil a number of Commonwealth commitments with states and territories, as well as some recommendations made by recent inquiries and reviews of the family violence system:

The Commonwealth, states and territories have made shared commitments under the National Plan to Reduce Violence against Women and their Children 2010-2022, which sets an ambitious agenda for addressing the scourge of family violence affecting many Australians. Under Action 5.1 of the Third Action Plan of the National Plan, governments have agreed to implement supported recommendations of the Family Law Council's 2015 and 2016 reports on Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems. This Bill implements four of those recommendations.

The Bill also responds directly to calls for reform from Victoria's 2016 Royal Commission into Family Violence, the Australian and New South Wales Law Reform Commissions' 2010 report: Family Violence—A National Legal Response, and the Victorian State Coroner's 2015 findings of the inquest into the death of Luke Geoffrey Batty. This Bill demonstrates the seriousness with which the Government has taken the findings of these [inquiries], and its commitment to improving how the federal, state and territory justice systems help vulnerable families.[3]

Overview of the bill's provisions

1.5        According to the Explanatory Memorandum, the bill would amend the family law jurisdiction of state and territory courts to:

• [allow] relevant state and territory courts, such as children's courts, to be prescribed to have the same family law parenting jurisdiction as that held by state and territory courts of summary jurisdiction under Part VII of the Family Law Act; and
• [provide] for an increased total property value to be prescribed in regulations, under which courts of summary jurisdiction can hear contested family law property matters without the parties' consent.[4]

1.6        The bill would also allow regulations to be made 'to prescribe the applicable rules of court, and making clear that judgments in interim matters can be given in short form, so that state and territory judges exercising family law jurisdiction can do so expeditiously'.[5]

1.7        The bill would also criminalise breaches of family injunctions that are made for personal protection (PPIs). The Explanatory Memorandum sets out the nature and justification of these provisions:

Currently [PPIs] are enforceable only by civil action brought in the family law courts–the amendments would remove the onus on family violence victims to bring a private application for contravention of the injunction. This amendment would reinforce the Government's strong view that family violence is not a private matter, but a criminal offence of public concern.

These amendments would prevent a perpetrator from relying on self-induced intoxication as a defence to a breach offence, and would ensure that victims cannot be charged with aiding and abetting the offence if their actions invite a breach. The Government recognises the ongoing power and control dynamics of family violence and is committed to ensuring that the law prioritises the safety of victims.[6]

1.8        The Explanatory Memorandum also notes that the bill contains a number of other provisions that would amend the Act by:

• removing  the 21-day time limit which applies to a family law order that is revived, varied or suspended by a state or territory court when making an interim family violence order;
• strengthening and codifying the power of the family law courts to dismiss unmeritorious cases and proceedings that are frivolous, vexatious or an abuse of process;
• removing the requirement that a court must explain certain matters to a child, when it would not be in the child's best interest to receive the explanation; and
• removing the  misleading and unnecessary wording that suggests that conjugal rights and an obligation to perform marital services still exist in Australian law.[7]

Financial implications

1.9        The Explanatory Memorandum states that the bill would have no immediate financial impact. It notes the Commonwealth is currently consulting with the jurisdictions on any financial implications that may arise from prescribing state and territory courts in subsequent regulations.[8]

Compatibility with human rights

1.10      According to the Explanatory Memorandum, the bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.[9]

Conduct of the inquiry

1.11      This bill was referred to the committee at the same time as the Family Law Amendment (Parenting Management Hearings) Bill 2017. The committee tabled its report into that bill on 26 March 2018.

1.12       Although both bills would amend Australia's family law framework, the committee undertook separate inquiries to give each bill due consideration, and is reporting on the bills separately. It should be noted that several submitters made a single submission to both inquiries, with the committee's approval.

1.13      The committee also undertook two hearings in Sydney and Melbourne, at which some witnesses gave evidence on both bills.

Submissions and public hearings

1.14      Details of this inquiry were advertised on the committee's website, including a call for submissions to be received by 7 February 2018. The committee also wrote directly to some individuals and organisations inviting them to make submissions.[10] The committee received 21 submissions, which are listed at appendix 1 of this report. All submissions are available in full on the committee's website.

1.15      The committee held two public hearings, on 21 February 2018 in Sydney and on 22 February 2018 in Melbourne.

Structure of this report

1.16      This report consists of two chapters:

• This chapter provides a brief background and overview of the bill, as well as the administrative details of the inquiry.
• Chapter 2 discusses matters raised about the proposed amendments in evidence, and sets out the committee's views.

Acknowledgements

1.17      The committee thanks all organisations and individuals that made submissions to this inquiry, as well as those that gave further evidence at public hearings.

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