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On 7 March 2017, the Attorney-General, Senator the Hon. George Brandis QC, asked the House of Representatives Standing Committee on Social Policy and Legal Affairs (the Committee) to inquire into how Australia’s federal family law system can better support and protect people affected by family violence.
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Family violence is widespread in Australia, affecting people regardless of sex, age, race, sexuality, disability, gender identity, socio-economic status or lifestyle. In Australia, one woman per week is murdered by a current or former partner in a family violence related murder. Thirty family violence incidents are reported to the police every hour, equating to 723 incidents every day. A vast number more go unreported, hidden behind the front doors of everyday households.
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Research indicates that one in four Australian women have experienced at least one incident of violence from an intimate partner since the age of 15, and one in 19 Australian men have experienced physical or sexual violence by a current or former partner. Pregnant women are 230 per cent more likely than non‑pregnant women to experience family violence. In Victoria, the violence of an intimate partner was found to be the main contributor to death and disability of women aged 15 to 44. According to 2006 statistics, children were reported to be present in 49 per cent of cases of violence by a current partner.
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The decision to leave a violent relationship can involve a total relocation away from family and friends, changes in education and employment arrangements, and significant financial and emotional hardship. It is a decision that families affected by violence would not enter into lightly. Notwithstanding, for many people affected by family violence, it is broadly recognised that it is often not possible to leave a violent relationship. The lack of alternate housing, financial resources, threats of further family violence and increased risk to the partner and any children are some of the reasons that people stay in the home.
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The federal family law system responds to families in crisis and change, and one of its key responsibilities, is to ensure the ongoing safety and wellbeing of families. However, evidence to this inquiry, and numerous recent reports, indicate that the family law system is not adequately protecting and supporting families experiencing family violence.
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In light of the statistics, it is perhaps unsurprising that 50 per cent of matters before the Family Court of Australia (the Family Court), 70 per cent of matters before the Federal Circuit Court of Australia (the Federal Circuit Court) and 65 per cent of matters before the Family Court of Western Australia, involve allegations of family violence. As a result, responding to family violence has been described as ‘core business of the federal family courts’.
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The Family Court advised that in 2016-17:
2,748 final orders applications were filed;
2,742 final orders applications were finalised; and
14,182 applications for consent orders.
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The Family Court further advised that in the same financial year, 653 Notices of Child Abuse, Family Violence or Risk of Family Violence were filed. However, the Court also commented that the ‘proportion of matters in which a Notice of Child Abuse, Family Violence or Risk of Family Violence has been filed does not reflect all the cases in which family violence is raised or is an issue’. The Court stated, ‘allegations of abuse or risk of abuse and family violence or risk of family violence are also raised by parties in affidavits filed in the proceedings and … by the filing of a Family Violence Order’.
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In its Annual Report, the Federal Circuit Court reported that in 2016-17:
17,791 family law final orders applications were filed; and
17,239 family final orders applications were finalised.
Recent reviews and amendments
Overview of the reports to date
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In referring the inquiry, the Attorney‑General requested the Committee have regard to a number of recent reviews. The family law system’s response to family violence has been the subject of multiple inquiries, reviews and a royal commission in Victoria over the past decade, making it clear that the current system is not adequately responding to instances of family violence. Some of these inquiries and reviews include:
Family Law Council, Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems – Interim and Final Reports (2015 and 2016);
Victorian Royal Commission into Family Violence, Report and Recommendations to the Victorian Government, (2016);
Special Taskforce on Domestic and Family Violence in Queensland, Not Now, Not Ever Report, (2015);
Victorian Coroner’s Court, Finding – Inquest into the Death of Luke Geoffrey Batty (2015);
Australian Institute of Family Studies, Evaluation of the 2006 Family Law Reforms (2006) and Evaluation of the 2012 Family Violence Amendments (2015); and
Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence – A National Legal Response, (2010).
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Collectively, the reports written to date run to several thousand pages, with many hundreds of recommendations to state and territory and federal governments. Some of these reports have focussed on the intersection of the federal family law system with other state-based systems—such as the child protection system—whilst others have proposed reforms that fall within the jurisdictions of state and territory governments.
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Although the focus of these reports differs, many come to similar findings or make similar recommendations for reform. Key and repeating themes in many of these reports include:
Legislative reform to the Family Law Act 1975
a common interpretive framework across federal and state/territory law for what constitutes family violence
clarifying the jurisdiction of state and territory courts to make orders under the Family Law Act 1975
strengthening the administration and enforcement of intervention orders
Integration and cross-jurisdictional collaboration
improving inter-jurisdictional collaboration and information sharing (between and within governments, courts of different jurisdictions, and police)
specialist family and domestic violence courts and court services
incorporating the expertise of specialist family violence services into the family law system
development of an integrated case management system
Risk assessment and early identification
development of a trauma-informed risk assessment identification protocol and guidelines to support family law practitioners to ensure risks are managed and a strategy for implementation
integration of a whole-of-family risk assessment process that is admissible in court
Improving the safety of children and promotion of children’s voices
Removing access barriers to justice
developing culturally appropriate support services for Aboriginal and Torres Strait Islander families and culturally and linguistically diverse families
improving support to self-represented litigants
Capacity, training and resourcing for family law practitioners (including judicial officers, court staff, family report writers and legal professionals) to better identify and develop appropriate responses to families experiencing family violence; and
Perpetrator interventions and accountability.
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The reports are briefly summarised below with relevant recommendations from each appearing in Appendix A. These reports have been pivotal in Australia’s understanding of family violence–its prevalence, challenges and pathways for reform. These reports have not only informed the present inquiry, but they have also framed the Committee’s own recommendations to the Australian Government, and will be referenced throughout the report.
Family Law Council – Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems –Interim and Final Reports (2015 and 2016)
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The Attorney‑General tasked the Family Law Council to consider opportunities to improve the intersections between the family law and child protection systems.
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The Interim Report (2015) identified the potential of a streamlined, coherent and integrated approach to the family law, child protection and family violence jurisdictions, which would improve the safety of families and children. The Final Report (2016) made recommendations that sought to enhance collaboration and information sharing within and between the family law system, the child protection systems and other support services.
Victorian Royal Commission into Family Violence (2016)
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In February 2015, the Victorian Government established the Royal Commission into Family Violence (Royal Commission). The Royal Commission was tasked with finding effective ways to prevent family violence, better support victim survivors, and make perpetrators accountable.
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The Royal Commission’s final report included 227 recommendations for improvements to the way Victoria responds to family violence. The recommendations included endorsements of, and ways to improve, existing strategies to address family violence. All recommendations were directed at the Victorian Government, some of which were for progressing reform at the federal level. Following the release of the report, the Victorian Government accepted all 227 recommendations of the Royal Commission’s report.
Special Taskforce on Domestic and Family Violence in Queensland – Not Now, Not Ever Report (2015)
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The Queensland Special Taskforce into Domestic and Family Violence (the Taskforce) was announced by the Premier of Queensland on 10 August 2014. The Taskforce was led by former Governor-General, The Hon. Quentin Bryce AD CVO. The final report was provided to the Premier on 28 February 2015.
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The report contained 140 recommendations along three themes: culture and attitude, police response, and the justice system. Of particular relevance to the present inquiry, the Taskforce recommended the establishment of a specialist family violence court, and the implementation of the National Domestic Violence Order Scheme.
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The Queensland Government accepted all recommendations directed at government, and supported the recommendations directed at non‑government bodies.
Australian Institute of Family Studies – Evaluation of the 2006 Family Law Reforms (2006) and Evaluation of the 2012 Family Violence Amendments (2015).
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In 2015, the Australian Institute of Family Studies (AIFS) released a report of the evaluation of the 2012 amendments made to Family Law Act 1975 (Cth) (the Family Law Act). As will be discussed later in this report, the 2012 amendments sought to remove disincentives for families to disclose family violence to the courts and prioritise the safety of children in family violence situations.
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The AIFS report indicated that the amendments were a positive step towards improving the response to family violence. However, data also suggested that only minor improvements in screening for family violence had occurred since the reforms; that families reported feeling that the issues of family violence and child abuse were still not dealt with effectively; and that there has been minimal impact on parenting arrangement outcomes.
Australian Law Reform Commission and New South Wales Law Reform Commission – Family Violence – A National Legal Response (2010)
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In 2009 the Attorney-General referred the Australian Law Reform Commission (ALRC) and the New South Wales Law Reform Commission (NSWLRC) to conduct a wide‑ranging review of family violence laws and legal frameworks.
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The ALRC/NSWLRC report presented 186 recommendations aimed at making the legal framework seamless for those engaging with it; creating better access to legal and non-legal services for victims of family violence; ensuring legal responses are fair, safe, and just; and providing effective support for victims of family violence.
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The Australian Government considered 56 of the recommendations to be appropriate for the Commonwealth to respond to, with the remaining directed towards state and territory jurisdictions.
Recent proposed family law amendments
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In recent months, the Australian Government has presented two exposure drafts of proposed amendments to the Family Law Act that seek to better support and protect families affected by family violence.
Exposure draft – Family Law Amendment (Family Violence and Other Measures) Bill 2017
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Released in December 2016, the exposure draft of the Family Law Amendment (Family Violence and Other Measures) Bill 2017 proposes to amend the Family Law Act to increase the number of state and territory courts that may exercise jurisdiction under that Act as well as expand the jurisdiction to a wider range of matters. Specifically, the amendments would:
expressly enable state and territory children’s courts to exercise jurisdiction under the Family Law Act; and
enable state and territory courts to hear more family law property matters by increasing the monetary limit on the total property pool to be assessed by the court. The limit would instead be prescribed in regulations, at a higher amount than currently provided for ($20,000), to increase the jurisdiction of these courts and enable them to hear more matters.
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The Australian Government, in an accompanying consultation paper, argued that ‘these changes are intended to reduce the need for some families to navigate both the state/territory and federal court systems in order to resolve their disputes’.
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The exposure draft of the Bill also proposes to amend the Family Law Act to create a new criminal offence for breaching a personal protection injunction issued under the Act.
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It also proposes to extend the operation of family law orders varied by a state or territory judge, removing the 21 day limit on a state or territory court’s variation of a family law order. Instead, the amendment proposes to enable a court’s variation to continue to have effect until a time specified in the order, or a further order is made.
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The amendment also seeks to strengthen the family law courts powers to dismiss unmeritorious matters ‘at the earliest opportunity’.
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At the time of writing, the Bill has not been introduced into the Parliament.
Exposure draft – Family Law Amendment (Family Violence and Cross‑examination of Parties) Bill 2017
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Released in July 2017, the exposure draft of the Family Law Amendment (Family Violence and Cross‑examination of Parties) Bill 2017 proposes to amend the Family Law Act to prevent parties from cross‑examining each other in specific circumstances, and would allow the court to have discretion to apply the legislative ban in other cases where allegations of family violence are made.
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Rather, the proposed amendments would see a court-appointed person asking questions on behalf of a party for the purposes of cross‑examining the other party. The court-appointed person will not be a legal representative for a party and they will not provide any legal advice to a party.
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At the time of writing, the Bill has not been introduced into the Parliament.
Australian Law Reform Commission – Review of the Family Law System
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On 27 September 2017, the Attorney‑General released terms of reference for a new ALRC review into the family law system. The Review of the Family Law System is the ‘first comprehensive review … since the commencement of the [Family Law Act] in 1976’. The ALRC’s review will be completed by 31 March 2019. The terms of reference for the ALRC’s review are included in Appendix B.
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The ALRC’s review will focus on:
the appropriate, early and cost-effective resolution of all family law disputes and whether the adversarial court system offers the best way to support the safety of families;
the protection of the best interests of children and their safety, and how to best determine those interests and incorporate the views of children;
family law services, including (but not limited to) dispute resolution services;
family violence and child abuse, including protection for vulnerable witnesses;
collaboration, coordination, and integration between the family law system and other Commonwealth, state and territory systems, including family support services and the family violence and child protection systems;
mechanisms for reviewing and appealing decisions;
families with complex needs, including where there is family violence, drug or alcohol addiction or serious mental illness; and
the skills, including but not limited to legal, required of professionals in the family law system.
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As is noted throughout this report, evidence to the present inquiry suggests that the family law system is in need of major reform. The ALRC’s current inquiry will provide a wholesale review of the family law system—a review that is broader than the terms of reference this Committee received.
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In focussing on how the family law system can better support and protect families from violence, the Committee’s report sets out a set of principles for a reformed family law system, and a triaged and actionable approach to achieving much needed reform for families affected by family violence.
Principles for a reformed family law system
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Successive reviews and reports have demonstrated that in responding to family violence, the family law system must be accessible, equitable and responsive, and prioritise the safety of families.
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A legal framework should be seamless from the point of view of those families which engage with it, and integrated with other legal systems and support services from the moment of first contact.
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The system must also be accessible in regards to costs, complexity and culturally appropriate, so to ensure that the system is fair and just, holding those who use family violence accountable for their actions and providing protection to the targets of that violence.
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The system must also be effective in facilitating early interventions and ongoing support in circumstances of family violence, be responsive to the risk of harm, and prioritise safety of families.
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Evidence received during the inquiry indicates that the current system achieves some of these outcomes haphazardly at best. In developing its recommendations, the Committee has drawn upon these principles to develop a triaged pathway for reform.
A triaged, actionable pathway for reform
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As noted above, various inquiries on family violence have been conducted in the last ten years, but a sizeable majority of recommendations have not been implemented. Drawing upon the consistent findings and recommendations of the reviews done to date, the Committee’s report presents an actionable, triaged pathway forward.
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The triaged pathway provides long-term recommendations to restructure Australia’s adversarial approach to family law disputes. This will also be a focus of the ALRC’s Review of the Family Law System as announced by the Attorney‑General.
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However there is a chronic and critical need for reform immediately, to improve the protection and support to families experiencing violence. The Committee is of the view that these short-term and immediate reforms can be achieved swiftly and promptly, and are likely to receive broad support within the stakeholders engaged in this inquiry.
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Indeed, the Committee’s short-term and immediate recommendations for reform are designed to improve the protection and support that these families require now. The Committee is not of the view that these proposals are alone sufficient to respond to the scale and level of risk experienced by too many Australian families. Nonetheless, the Committee hopes that until lasting, structural reforms can be developed and implemented, these reforms will go some way to addressing the critical need for greater protection and support.
The inquiry process
Referral of the inquiry
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On 7 March 2017, the Attorney-General tasked the Committee to inquire into how Australia’s federal family law system can better support and protect people affected by family violence. The Committee agreed to adopt the terms of reference for the inquiry, as referred by the Attorney-General, on 16 March 2017.
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The terms of reference directed the Committee to consider:
1
how the family law system can more quickly and effectively ensure the safety of people who are or may be affected by family violence, including by:
a.
facilitating the early identification of and response to family violence; and
b.
considering the legal and non-legal support services required to support the early identification of and response to family violence;
2
the making of consent orders where there are allegations or findings of family violence, having regard to the legislative and regulatory frameworks, and whether these frameworks can be improved to better support the safety of family members, as well as other arrangements which may be put in place as alternative or complementary measures;
3
the effectiveness of arrangements which are in place in the family courts, and the family law system more broadly, to support families before the courts where one or more party is self-represented, and where there are allegations or findings of family violence;
4
how the family law system can better support people who have been subjected to family violence recover financially, including the extent to which family violence should be taken into account in the making of property division orders;
5
how the capacity of all family law professionals—including judges, lawyers, registrars, family dispute resolution practitioners and family report writers—can be strengthened in relation to matters concerning family violence; and
6
the potential for a national approach for the administration and enforcement of intervention orders for personal protection, however described.
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The inquiry was referred to the Committee in the context of numerous existing and recent reports to government into improving how the family law system responds to family violence. To avoid duplicating the work of these existing reports and reviews, and given the sensitive nature of the inquiry, the Committee adopted the following principles for its inquiry:
The inquiry will have particular regard to:
the administration of family violence matters in comparable overseas jurisdictions, as they relate to the inquiry’s terms of reference;
the particular needs of, and supports required for high risk groups; and
ensuring that the inquiry processes are such that people who have been affected by family violence and who wish to contribute to the Committee can do so:
in a manner which does not re-traumatise them;
from a safe and secure location, where necessary;
in a manner which will not prejudice or compromise current or future family law or other civil or criminal proceedings.
Conduct of the inquiry
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The inquiry was advertised on the Committee’s website, and a call for submissions was made in March 2017. The Committee received 126 submissions and 19 supplementary submissions, which are listed at Appendix C, and were published on the Committee’s website. The Committee received 21 exhibits and 3 additional documents, which are listed at Appendix D.
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The Committee held 10 hearings in Canberra, Melbourne, Sydney and Alice Springs, and conducted a number of site inspections in Melbourne and Alice Springs. These activities are listed at Appendix E.
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One public hearing was postponed in which the Committee was to hear from the Chief Justice of the Family Court and the Chief Judge of the Federal Circuit Court in order to seek advice from the Attorney‑General on the appropriateness of the heads of federal and state jurisdictions appearing for questioning by Members of Parliament.
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Following advice received from the Attorney-General, the Committee did not proceed with the hearing with the Family Court and the Federal Circuit Court. The Committee did, however, put questions in writing to the Family Court to which responses were received (and taken as supplementary submission 44.1).
Community engagement strategy
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The inquiry focused on issues that have had a profound impact on many Australian families. It was therefore important to the Committee to provide opportunity for Australians who have had experience with family violence and the family law system to share their experiences with the Committee in a safe and confidential way.
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In addition to standard committee practice of accepting submissions and holding public hearings, the Committee developed a questionnaire, held two community statement sessions, and received correspondence from members of the public sharing their personal experiences and recommendations. Through these avenues, the Committee estimates that over 5,600 individuals contributed to the inquiry.
Questionnaire
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The Committee created a questionnaire to provide individuals with the opportunity to share their insights and experiences of the family law system’s response to family violence. The questionnaire was anonymous, which enabled people to speak freely about their own experiences without the need to be concerned about their, or their family’s privacy.
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The questionnaire was launched in March 2017 and closed at the end of September 2017. During those six months, the Committee received 5,490 responses to the questionnaire. The questionnaire asked about respondent’s experiences of family violence, and the different pathways through the family law system, using a series of multiple-choice questions and open‑text boxes. It took approximately 45 minutes to complete.
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Over the course of the inquiry the Committee published key findings from the questionnaire on the following themes:
navigating the family law system;
accessibility and affordability of the family law system;
dispute resolution for family law matters involving family violence; and
areas for improvement in the family law system.
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The information shared by the individuals who completed the questionnaire provided the Committee with important insights into their experiences, and highlighted components of the family law system’s response to family violence which need the most improvement.
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The questionnaire was not designed to produce scientifically rigorous statistical information, and so the Committee has not attempted to rely on the questionnaire as a source of empirical evidence. Rather, the questionnaire provided valuable insights into the lived experiences of those interacting with the family law system when responding to family violence. In asking people impacted by family violence to complete the questionnaire, the Committee was concerned to send a strong message that ‘your voice matters’.
Who completed the questionnaire?
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Questionnaire respondents provided the following demographic information:
78 per cent were women and 22 per cent were men;
17 per cent were under 35 years of age, 65 per cent were aged 35 to 54 years of age, and 18 per cent were over 54 years of age;
four per cent identified as Aboriginal or Torres Strait Islander; and
five per cent identified that English was not their first language.
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Key findings and quotes from the questionnaire are thematically incorporated throughout this report. Consolidated results from the survey are included in Appendix F.
Community statement sessions
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In order to provide another avenue for individuals’ voices to be heard, the Committee held two community statement sessions. In these sessions members of the public were given the opportunity to provide oral statements to the Committee about their experiences in the family law system and family violence.
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The Committee was aware of the very high levels of public interest in the inquiry, and expected that large numbers of people would wish to participate in these sessions. As such, the Committee asked for expressions of interest from members of the public who wished to take part, aware that it would not be possible to offer a place to all individuals.
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More than 300 expressions of interest were received, with interest from every state and territory. The Committee issued invitations to a geographically diverse cross-section of the Australian public, including individuals from a range of metropolitan, outer-metropolitan, regional and remote locations.
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The Committee held two in camera community statement sessions in which they heard from ten individuals. The issues raised in these sessions were highly emotional, confronting and, for some participants, difficult to discuss. The participants in these sessions provided valuable real‑life examples of how family violence and the family law system can impact families.
Confidential correspondence
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The Committee also received a large volume of confidential correspondence, much of which provided detailed personal accounts of family violence and experiences of the family law system. While the Committee chose not to publish these accounts for reasons of privacy and protection of correspondents and because of possible legal restrictions that may apply to that information, the material has formed part of the evidence base for the inquiry and the Committee’s report.
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The Committee thanks all correspondents, questionnaire respondents and community statement session participants for taking the time to share their personal stories with the Committee. Though these contributions would have been difficult and traumatic, your contributions have been invaluable to the Committee’s inquiry.
Structure of the report
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This report consists of nine chapters. Chapter 2 provides an overview of the family law system as it relates to matters involving family violence, as well as its intersection with state and territory family violence legislation and child protection systems.
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Chapter 3 discusses the well-recognised challenges of the current system, including that the existing family law system is inappropriate for resolving family law disputes and that it does not appropriately respond to reports of family violence.
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Chapter 4 establishes a new family system in accordance with the principles as set out above. In order for the family law system to respond appropriately to family violence to support and protect affected families, improvements are required to identifying the risk to families at first instance as well as changing risk dynamics. Processes both out-of-court and once a matter reaches court, also require reform to ensure that matters are appropriately triaged and holistically addressed within fragmented jurisdictions.
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Chapter 5 discusses reform to property division following family violence to better support the financial recovery of families affected by violence. Equitable division of financial assets is critical to preventing poverty and homelessness following relationship breakdown and, for matters involving family violence, is particularly important for a family’s independence and autonomy from violent perpetrators.
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Chapter 6 focuses on how the safety of children must be prioritised, recommending legislative amendments and program reform to ensure their protection. The Chapter also examines the significant concerns about family consultants, making recommendations for change to respond to those concerns.
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Chapter 7 addresses the additional needs that some families at high risk of family violence require, including Aboriginal and Torres Strait Islander families, culturally and linguistically diverse families, and families with parents or children with disability.
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Chapter 8 examines the importance of improving the capacity of family law professionals right across the family law system, as a reformed family law system can only be as effective as the calibre of professionals upon which it relies. The chapter has a particular focus on the skills and expertise of judges, court staff, family consultants, independent children’s lawyers, and family dispute resolution practitioners.
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Chapter 9 discusses the role of support services throughout a family’s navigation of the family law system when responding to family violence, highlighting the importance of wrap-around services.
A note on terminology
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Many different terms are used to describe violence in close relationships including ‘family violence’, ‘domestic violence’ and ‘intimate partner violence’. Part of the complexity is in arriving at a term that adequately encapsulates diverse and dynamic relationships.
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To adequately respond to the terms of reference and for the purposes of this report however, the Committee has elected to use the broader term of ‘family violence’.
Definition of family violence
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Defining what is, and what is not, family violence can also be complex. Further, as individual families and relationships are dynamic and unique, care is required when any system of classification is required.
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There is no uniform definition of family violence across the federal and state and territory jurisdictions. For the purposes of this report, the Committee has adopted the definition of family violence as included in the Family Law Act that provides:
Family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family… or causes the family member to be fearful.
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Behaviour that may constitute family violence under this definition includes, but is not limited to:
a sexual assault or other sexually abusive behaviour; or
repeated derogatory taunts; or
intentionally damaging or destroying property; or
intentionally causing death or injury to an animal; or
unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
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
preventing the family member from making or keeping connections with his or her family, friends or culture; or
unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
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This definition came into effect in 2012 and is ‘significantly broader’ than the definition that formerly appeared in the Family Law Act. Unlike the earlier definition, there is no requirement that any fear experienced by the victim of the violence is reasonable.
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Importantly, the Family Law Act also provides that a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.