Introduction
3.1
The family law system has a central role in identifying and responding appropriately to family violence, yet in many cases, it can fail to protect families from violence on a multi-dimensional basis. Evidence to the inquiry suggests that the family law system ‘does not recognise the reality of family violence’, nor ‘recognise and address power imbalances, financial and emotional abuse tactics and … victims’ right to safety’.
3.2
Although there is ‘some great practice in the family law system’, problems arise in the failure to achieve consistency within and across jurisdictions, and the experience of parties is that this can be destabilising, uncertain and creates fear for families.
3.3
This chapter presents the evidence received that identifies the key challenges of the current family law system’s response to family violence including that:
the adversarial system is inappropriate for resolving family law disputes;
it does not respond appropriately to reports of family violence;
it is inaccessible for most families;
it is open to abuse of process, including ongoing coercion and control of victims;
it does not respond sufficiently to perjury and false allegations; and
the structure and interaction with other jurisdictions including the state and territory family violence legislation and child protection systems is fragmented, leading to inconsistent approaches and exposing families to a greater risk of harm.
Adversarial system
3.4
A recurring theme in a significant body of evidence to the inquiry, and the conclusions of other reviews, is that the current adversarial system is inappropriate for resolving family law disputes, particularly those involving family violence. The inappropriateness of an adversarial system to family law was identified as early as 1976 by the first Chief Justice of the Family Court of Australia (the Family Court).
3.5
Perhaps most critically, stakeholders identified that the existing adversarial approach is ‘too confronting’, leading to ‘escalation of conflict by its very nature’. As a result, families may not raise family violence concerns or not seek to use the family law system to protect them from ongoing risk of harm. For example, the Eastern Community Legal Centre argued:
As the family law system is adversarial … allegations of family violence are often viewed in a suspicious and oppositional manner. This attitude does not contribute to any sense of safety for victims of family violence, and in fact acts as a clear obstacle for family violence victims to: a) disclose their experiences of family violence and b) even engage in the family law system at all.
3.6
Australia’s National Research Organisation for Women’s Safety (ANROWS) commented that the adversarial system is not effective where there is a power imbalance in the relationship of the two parties:
Certainly the adversarial system does not seem to be very effective where you have a power imbalance. This is part of the problem of coercive controlling violence, where you have a perpetrator who is engaging in a process of advocating for themselves and expecting a victim of coercive controlling violence to advocate for themselves in an adversarial system; so it is problematic.
3.7
Similarly, Jannawi Family Centre highlighted that the adversarial approach where parties are in conflicting roles, mirrors the dynamic of abusive relationships:
[T]he family court system appears to function as a closed system which limits feedback and differing viewpoints. It mirrors the very dynamics of families where there is violence and abuse and this in itself is abusive and ineffective. A family law system which places safety at its core needs to be implemented in Australia.
Box 3.1: Adversarial system
The following is a selection of responses to the Committee’s questionnaire:
‘The family law system is very much the wrong system to deal with family violence issues. It is adversarial, not designed to produce an outcome that doesn’t promote rage when a perpetrator doesn’t ‘win’ that then puts the victim ‘winner’ in grave danger of revenge’.
—Respondent from South Australia
‘An adversarial system invites parties to fight to the bitter end for what they perceive to be their ”rights” as parents ... Family law matters should be resolved with a panel that includes a judge, but also includes other professionals such as a social worker, educational psychologist and even the family’s [general practitioner]’.
—Respondent from Queensland
‘Family violence matters are heard as part of an adversarial system which creates further trauma to victims. It would be better to take family violence cases out of the Family Court altogether and make the focus on finding the truth of the matter by family violence experts asking informed questions to both parties and their children. Also by making the protection of children in family violence matters a top priority by listening to the children and their experiences of family violence. The adversarial system that we currently have in place only encourages abusive people who want to use power and control to further harm their ex‑partner’.
—Respondent from Victoria
‘It seems there needs to be a tribunal type approach to the whole family law space that deals with everything from [domestic violence orders] though to divorce ... so that these matters can be judged on their merits rather than through the traditional adversarial approach—it doesn't help anyone in the family situation when the aim is to get winners and losers’.
—Respondent from the Australian Capital Territory
3.8
Even where families do access the family law system to address family violence concerns, the adversarial nature of that system does not necessarily lead to appropriate outcomes for that family. The Eastern Domestic Violence Service explained that poorly‑resourced parties traumatised by family violence are ‘clearly disadvantaged’ in an adversarial system where it is the responsibility of the parties to collect, collate and tender the evidence to the Court for it to decide upon that evidence. Jannawi Family Centre similarly commented that the adversarial nature of the existing family law system also ‘inhibits creative, meaningful solutions to family problems, instead leading to long delays and entrenching already problematic behaviours and patterns’.
3.9
In light of these criticisms, it was suggested to the Committee that Australia adopt an inquisitorial approach to family law disputes, particularly those involving family violence. For example, the Eastern Domestic Violence Service commented that as the evidentiary burden falls to the Court in an inquisitorial system, ‘fewer children would be subjected to high levels of conflict, stress and trauma’. In an inquisitorial court system, the Court or a part of the Court is more actively involved in investigating the facts of the case.
3.10
In May 2017, the Australian Government announced a pilot of parent management hearings in Parramatta, which will adopt a non-adversarial approach to parenting matters, led by a multi‑disciplinary panel. At time of writing, it is not clear whether disputes involving allegations of family violence could proceed to a parent management hearing. Parent management hearings are discussed further in Chapter 4.
Unresponsive to reports of family violence
3.11
Evidence to the inquiry also indicates that the current family law system is unresponsive to reports of family violence. This can be through strategic disincentives to raising family violence concerns, dismissing reports of family violence, or court delays. Each is examined below.
Legal strategy of not raising family violence
3.12
A number of submissions noted that families are frequently advised not to raise family violence during family law matters for reasons of legal strategy. In a submission, Safe Steps Family Violence Response Centre quoted Emeritus Professor Rosalind Croucher AM, who wrote that families will hear ‘conflicting messages and divergent expectations at different points in the continuum of the broad family law system’.
3.13
Professor Croucher best described the legal conundrum faced by families:
[W]hen a mother is experiencing family violence that may have attracted the attention of the relevant child protection authority, she is told that she is expected to be ‘protective’, otherwise she faces the potential that the interest of the child protection authority may lead to her ‘losing’ her children. And yet, if she is drawn into family law proceedings, she is faced by the allegation that she is not being a ‘friendly parent’, so, in order that her children have a ‘meaningful relationship’ with both parents, she is faced with a parenting order that requires contact with the man she fears—particularly at moments of ‘handover’ of the children to their father—and her fear continues.
3.14
Similarly, ANROWS advised that:
[M]any women decide not to refuse contact time with the father for fear of being perceived as an ‘unfriendly parent’ and being penalised for it—as this would then lead to children residing with the father and risking exposing them to even further violence … In this instance, the use of the ‘unfriendly parent’ provision is often counter-productive as it tends to be used against women who report family or domestic violence.
3.15
Sexual Assault Support Service noted that sexual violence is ‘rarely raised’ in family law proceedings, referencing the Australian Law Reform Commission (ALRC) finding that legal representatives may be ‘reluctant’ to advise the Court of intimate partner sexual violence.
Box 3.2: Legal strategy of not raising family violence
The following is a selection of responses to the Committee’s questionnaire:
‘In my case, anything to do with family violence was not brought up as [the] lawyer said I would be looked down upon and it would go against me.’
—Respondent from Victoria
‘I was advised from the start when completing the affidavit by my own lawyers [not] to mention the domestic violence, that it wasn’t relevant, that the judge would see it as a ploy or false or would make me look bad’.
—Respondent from New South Wales
‘Family violence was not taken into consideration. [I was] advised not to pursue’.
—Respondent from Victoria
‘I was advised not to raise [family violence] by my lawyer’.
—Respondent from New South Wales
3.16
Reflecting on the legal conundrum, Eastern Community Legal Centre strongly advocated that families affected by violence ‘should not be encouraged by the legal system to hide their experiences of family violence out of fear that they will face disadvantage in the family law system’.
Dismissing reports of family violence
3.17
Participants noted that where families do report family violence, these reports can either be dismissed or viewed with suspicion. For example, the Domestic Violence Crisis Service advised:
[W]e are still being told by women that their lawyers warn them about raising abuse allegations and are pressured to sign consent orders they fear will endanger their children. Victims are still finding that both their disclosures and those of their children are diminished or disbelieved.
3.18
Jannawi Family Centre also reported that the family law system ‘fails to listen’ to families who report family violence, particularly children, and does not recognise how trauma may impact disclosure:
Jannawi believes the way that child sexual assault disclosures are managed in the family law system requires an overhaul. The lack of recognition of the way complex trauma impacts on brain functioning, particularly memory and the ability to provide significant recall is a barrier to disclosing. This is then further exacerbated by a system which may not believe, or discredits disclosures. It appears that disclosures are viewed as a tactic to prevent contact or that children have been coached and this is a dangerous starting point.
3.19
In their research, Professor Rachael Field, Ms Zoe Rathus AM, Dr Samantha Jefferies, and Dr Helena Menih found that family violence can be invalidated by the family law system, including in family reports, by:
re-constructing domestic violence as inconsequential and thereby diminishing its relevance to parenting arrangements;
naming coercive control is reconstructed as something else—it is ‘not that serious’, episodic, ‘only parental conflict’, and/or an act from the past that victims needed to ‘get over’;
adopting normative gender misconceptions that demand maternal support of the perpetrator/child relationship and call into question women’s credibility by labelling them dishonest and manipulative; and
the selective silencing and misconstruing of children’s voices.
Box 3.3: Dismissing reports of family violence
The following is a selection of responses to the Committee’s questionnaire:
‘Take the risk seriously, believe that a woman who presents herself that she is afraid of an ex-husband as being the truth until proven otherwise. Part of the flaws with[in] the system are that these matters take time to be proven and as a result are ignored by the family court. In our case, the Court writer completely dismissed any risk of harm to children despite one felony, one misdemeanour and an apprehended domestic violence order (all proven in Court) against ex-husband. It’s just appalling’.
—Respondent from New South Wales
‘The judge was dismissive of the violence and that it had no bearing on the outcome or was taken into account in the decision making process’.
—Respondent from Queensland
‘I was re-traumatised by my family report writer who did not understand family violence and subjected me to … inappropriate questions …, was dismissive and stated that he didn’t care about family violence and didn’t want me to talk about it’.
—Respondent from Queensland
‘Family violence has so far not been taken into account and dismissed as “he said, she said” or “not severe enough”’.
—Respondent from Queensland
Delays
3.20
The family law system’s lack of responsiveness to reports of family violence can be exacerbated by significant delays in the system, exposing families to ‘exponentially’ more risk.
3.21
The Law Council of Australia advised that delays from court filing to the commencement of a trial can be as high as 36 months in both the Family Court and the Federal Circuit Court of Australia (Federal Circuit Court). The Council explained how the delays can increase the risk of harm to families:
If a man applied to the Family Court of the Federal Circuit Court today seeking contact with his children, the first thing is that that is not treated as an urgent issue by the court. You will not get an urgent hearing for that, because the Court simply does not have the resources to give them an urgent hearing. So it is not uncommon these days for a man who is not seeing his children to wait six months for a hearing and then another, say, three months for there to be some identification by a family consultant of the dynamics in the family. There might be really good reasons why he should not be seeing his child, but the risk that that puts the woman in while the man is not seeing his children exponentially grows. We all know that women, particularly those who are victims of coercive and controlling violence, are at most risk of homicide in the 12 months post-separation. If you make him wait to have a proper determination, where he has a chance to say his story, even if he is going to be unsuccessful, you really raise the risk for that woman.
3.22
In remote or regional areas, delays can be even greater. In Alice Springs, the federal family courts sit only three or four times per year, presenting significant problems for families who require urgent family law orders to provide protection from family violence.
3.23
InTouch Multicultural Centre Against Family Violence also advised that, increasingly, there are long delays for family consultants and the development of family reports to aid in the courts’ decisions.
Box 3.4: Court delays
The following is a selection of responses to the Committee’s questionnaire:
‘The property settlement was fairly quick. Settled out of court in a matter of months. Took my ex[partner] a couple of months after the deadline to actually make the payment’.
—Respondent from New South Wales
‘The process for property order was delayed for several years while Family Court decisions were being made regarding residence of children’.
—Respondent from Queensland
‘The delays make domestic violence and trauma go on so much longer’.
—Respondent from New South Wales
‘The system takes too long and perpetrators can delay and manipulate systems to their own gain to cause ongoing anxiety to the families’.
—Respondent from Queensland
‘The family violence services were hard to access due to delays and inflexible times for appointments’.
—Respondent from Victoria
3.24
Delays across the family law system can be exacerbate low levels of trust in the existing system to respond effectively to that violence, with families feeling their ‘lives are on hold while waiting for a resolution’.
3.25
According to evidence to the lnquiry, the family law system’s lack of responsiveness to family violence is also encouraging families to stay in violent relationships. For example, the Alice Springs Women’s Shelter advised that in such situations, families are forced back to ‘environments where they must measure the level of violence they will experience in order to stay safe by relying on safety planning rather than legitimate justice outcomes’.
3.26
Alternatively, families are relying on informal arrangements or outcomes that are not in their interests, without the certainty and protection that a court decision might otherwise provide. The Law Council of Australia noted that families who have experienced violence may develop ‘litigation fatigue and make poor decisions about their case as a result of an inability or unwillingness to continue with litigation to obtain more suitable orders... [including] parenting arrangements’.
3.27
Similarly, Micah Projects noted that:
… women living with violence often feel that staying is the safest option. Many feel that separation will put them and their children at greater risk of harm and threats. Many women are unwilling to expose the children to unsupervised contact with an abusive father.
3.28
This accords with evidence from the National Family Violence Prevention and Legal Services Forum that family law proceedings can trigger the re‑emergence or escalation of family violence, leading to particularly unsafe environments. ANROWS research also found that actual or impending separation is associated with an increased risk of family violence, particularly lethal violence.
3.29
The Family Court acknowledged in a submission to the inquiry that ‘it is unacceptable for matters involving family violence to be maintained in the family law system for a long period of time as this increases the risk of conflict’.
Family law system is inaccessible
3.30
The current family law system is inaccessible for many families due to the cost of legal representation, as well as the complexity of navigating the family law system. For example, Victoria Legal Aid advocated that ‘the primary barrier victims of violence face, is not, in our view, the legislative framework. It is access to an expensive and onerous system’. Both issues are addressed below.
Costs
3.31
The cost of accessing the family law system is prohibitive for most families, or ‘impoverishes’ those families that do access the system. Domestic Violence NSW advised:
[W]omen from all backgrounds, professions and income strata … have borrowed thousands of dollars to pay for representation in the Family Court … We are aware that many women give up because they are in huge debt as a result of court costs.
Box 3.5: Costs of accessing the family law sytsem
The following is a selection of responses to the Committee’s questionnaire:
‘The biggest issue was facing financial hardship and without being able to get legal aid I needed to self-represent. I still incurred legal costs which drained any funds I had, and I was continually under stress and unable to settle into the employment which I had acquired’.
—Respondent from Queensland
‘I do have very limited funds and have found the costs of lawyers, barristers etc. quite crippling financially. I am in debt to my parents and have no idea how or if I will ever be able to repay them. This seems unfair given that I have done nothing wrong and have been a victim of family violence. In fact, the financial hardship I have faced as a result feels like an extension of the violence I have experienced’.
—Respondent from Victoria
‘I ran out of money early on in the court process. All of my settlement money went into the legal custody battle. I wasn't entitled to Legal Aid because I had “too many assets” (I owned my car and that was it). My parents then took over payment my legal costs and I owe them close to $200,000 to date, on top of the $100,000 or so I paid out of my settlement money’.
—Respondent from the Australian Capital Territory
‘The legal costs of attempting to gain a fair settlement are prohibitive. Abusive men will fight to the death (figuratively speaking) to ensure they win. Abused women just want peace, so they back down and take the little they’re thrown’.
—Respondent from Western Australia
3.32
During the course of the inquiry, the Committee heard in private on multiple occasions of private legal representation in family law matters, costing well over $100,000, and in one matter over $600,000. In addition to hourly solicitor fees, parties to proceedings can incur significant additional costs including file management and transcription costs, court fees and third party disbursements such as the costs of counsel.
3.33
Women’s Legal Services Australia commented:
If you are in the family law system with a private lawyer over a two- or three-year period, you are quite easily going to get up to $100,000 of legal fees because it is likely that there is going to be regular contact with the lawyer in between the parties over that period. If you had some earlier decision-making, it may well be that a lot of those costs could be avoided. Frequently, the cost imperative for people who have private lawyers is that they resolve their matters earlier in the process.
3.34
Responding to questions from the Committee regarding the hourly rate for some private family law practitioners, which can be as high as $600 per hour, the Law Council of Australia commented:
I think you would find that there are a whole bulk of family lawyers who do not charge at that level. There are absolutely lawyers—and I am one of them—who charge at that level, because I have clients who can afford it and who have the resources to do it and pay that amount of money. But there are a whole raft of family lawyers who do not charge anything like that … The scale rate under the Family Law Act is about $235 an hour, which is not quite a third of what you might find in more superior courts’ scales.
3.35
The Council noted however, that court delays and the number of court appearances ‘significantly drives’ up the cost of legal representation for parties in family law proceedings: ‘people spend less when they are in the system for less time. They have fewer court events, they need less judicial time and there is only so much money that they can spend in that period of time’. Law firm Lander & Rogers concurred with this new, further commenting that costs of legal representation can also be exacerbated when parties do not comply with court orders. To address this, Lander & Rogers recommended strengthening the enforcement of family law orders. Enforcement of family law orders is examined in Chapter 4.
3.36
Interrelate, a not-for-profit provider of relationship services, was of the view that both financial and emotional costs of access are preventing a large percentage of families who have been granted exemptions from family dispute resolution from accessing the Court, with no resolution or protection. Interrelate advised that as many as 43 per cent of clients attending family dispute resolution are granted exemptions from mandatory family dispute resolution, of which 49 per cent commence proceedings in the family courts. Of that 49 per cent, only 17 per cent proceed to final orders. Analysing these results, Interrelate commented:
… a picture emerges of a high percentage of parents who are issued with a certificate but do not access the Family Court. Well-known barriers are the costs involved, delays in obtaining orders and a distrust of the legal system.
3.37
The cost of private representation can also force families to represent themselves in family law proceedings. Increasingly, self-represented litigants are representing a significant portion of users of the family law system. According to the Family Court’s Annual Report, in 2015–16, 11 per cent of matters involved parties without a legal representative at trial, and in 26 per cent of matters only one party had a legal representative at trial. The challenges for self-represented litigants are address in detail in Chapter 4.
Overly complex processes
3.38
Complex processes may also impede families from accessing the family law system, particularly where one or both parties are self-represented. Navigating the family law system can be difficult for an average person with no legal training. The required forms are difficult to identify and complete. Determining what evidence needs to be put to the Court can be confusing. The formal legal language and processes used in the family law system can be intimidating.
3.39
Significantly, the processes between the Family Court and the Federal Circuit Court differ, adding to the complexity. As the Magistrates’ Court of Victoria noted:
Currently, there are two sets of rules which apply in relation to family law proceedings; rules which apply in the Federal Circuit Court and the Family Courts respectively. Given that most family law proceedings take place in the Federal Circuit Court, the Federal Circuit Rules 2001 apply to most family law proceedings. However, family law proceedings which are initiated in the Magistrates’ Court are bound by the Family Law Rules 2004. However, when family law proceedings are transferred they are transferred to the Federal Circuit Court. These anomalies have created some confusion and inconsistencies in the administration of the family law jurisdiction, particularly for self-represented litigants.
3.40
For parties escaping family violence, the stress and difficulty involved in being able to summarise relationship history, financial situation, contribution to assets of the relationship, and any likely future needs or other considerations to be taken into account on division of the property, is compounded by the anxiety created by the likelihood of facing an abusive ex‑partner in court. Navigating the complexity can be re‑traumatising for families who have experienced family violence.
3.41
If a family is experiencing additional barriers such as cultural or language barriers, low literacy or the ramifications of trauma, accessing the family law system is more difficult again. Some families, including Aboriginal and Torres Strait Islander and culturally and linguistically diverse families, as well as families with parents or children with disabilities, may face additional accessibility challenges. These specific challenges are addressed in detail in Chapter 7.
Abuse of process
3.42
Abuse of process is the exploitation of rules or processes to control, financially damage or abuse another person. It includes vexatious behaviour by the other party, controlling parties through the emotional and economic toll of ongoing court proceedings. These tactics are also referred to as malicious, frivolous, vexatious or querulous.. Some examples include the perpetrator failing to appear in court, repeatedly seeking adjournments, or appealing decisions on tenuous grounds.
3.43
The opportunity for perpetrators to continue to exert control over a family was discussed widely in evidence to the inquiry. Perpetrators can employ tactics, such as being able to continuously delay court proceedings, which is not just costly for families and coercing them to accept unsafe arrangements, but also contributes to an escalation of risk. Such tactics continue patterns of power and control that were mirrored in the violent relationship.
Box 3.6: Abuse of process
The following is a selection of responses to the Committee’s questionnaire:
‘I have been in this system for 20 plus years now. With my ex marriage … my family and I have now been enduring systems abuse for 19 years’.
—Respondent from Western Australia
‘Government systems are easily being used to facilitate further family violence i.e. “systems abuse”’.
—Respondent from New South Wales
‘The [children’s] father then abuses the systems to cause further emotional abuse. [He] decides to contest a domestic violence order application, [I] file [a] hearing affidavit as is required, [he] fails to file a hearing affidavit in response and then at the hearing immediately consents without admission to a Protection Order being made. Despite this [he] then immediately files an application in the family court with false allegations of [family violence] from the Mother, and supports it by referring to the Protection Order just made against him! [He] also applied for a Protection Order against [me]. Despite the Magistrate concluding that there were no grounds for a [family violence] order, the Father insisted … and requested a 3 month adjournment’.
—Respondent from Queensland
3.44
Ms Rosie Batty described how abuse of process can manifest:
I have a particular person I know who you would say is a well-off woman. Her business is very successful. She has done well. She has already been through the family law court system once. She had the outcome she asked for that was deserving of her. There is nothing stopping him coming back and taking her through the system again. And that is exactly what he is doing, and he is doing it at a time when he can see her thriving, see her achieving and see her rebuilding her life. He wants to bring her back down and put her back into a financially compromised position, and there is nothing stopping him from doing that.
3.45
Indeed, where unmeritorious applications are lodged by perpetrators, InTouch Multicultural Centre Against Family Violence commented that the family law system does not respond appropriately, advising that the Court does not strike out such applications, but rather allows successive adjournments.
3.46
Jurisdictional fragmentation can amplify abuse of process, as ‘what is going on in one system is not being picked up in the other’, and therefore perpetrators are able to exploit the fragmentation because the systems are not working as ‘one whole entity’. ANROWS stated:
[P]erpetrators of violence are very adept at manipulating the system and being able to articulate their experiences of verbal abuse or other aggression as intimate partner violence and to portray themselves as victims when, in fact, they are the perpetrators and there is a response.
3.47
This practice can also occur in interviews with family consultants for the purpose of developing a family report to the Court, increasing the control exercised by the perpetrator over proceedings and the information provided to the Court.
3.48
A number of participants in the inquiry also reported that perpetrators, or their legal representatives, are issuing subpoenas for medical records, or to specialist family violence services for confidential client files. The Royal Australian and New Zealand College of Psychiatrists noted that applications for subpoenas for such records has ‘become a common event in court proceedings’, presenting ‘serious implications for patient welfare and the effectiveness of therapy’.
3.49
Similarly, Safe Steps Family Violence Response Centre noted that while each subpoena it has received was ultimately unsuccessful, should an application be successful in the future, it ‘may open the floodgates to applications of this nature, critically damaging the vulnerable trust relationship between family violence specialist providers and clients’. To address the emerging practice, Women’s Legal Service NSW recommended the development of guidelines as to when therapeutic records be subpoenaed and produced.
3.50
The capacity for a perpetrator to cross-examine a target of their violence during court proceedings was also identified as abuse of process in evidence. Chapter 4 addresses the capacity for a self-represented perpetrator to cross‑examine a victim during court proceedings.
3.51
ANROWS identified that family violence expertise among family law professionals, including family consultants, is crucial to addressing abuse of process. Specific training on the way perpetrators use the system to perpetuate ongoing control over, and abuse of, the victim was also supported by Family and Relationship Services Australia. Fragmentation and the intersection of the family law system with other systems is discussed further below; the capacity of family law professionals is discussed further in Chapter 8.
3.52
In December 2016, the Australian Government released an exposure draft of the Family Law Amendment (Family Violence and Other Measures) Bill 2017, which proposes to reduce abuse of process by perpetrators of family violence, including by increasing the power of the Court to dismiss unmeritorious claims. The Amendment was supported by a number of organisations, however, the ACT Human Rights Commission advised that the implementation of the Amendment alone is ‘insufficient’ to address abuse of process in family law, further commenting that ‘in the absence of legal representation for victims, [the Amendment] may even result in more victims having legitimate claims dismissed as unmeritorious’.
Coercion and consent orders
3.53
As noted in Chapter 2, consent orders are parenting or property division orders agreed to by the parties, which must be put before the court. In 2016‑17, 14,182 applications for consent orders were filed in the Family Court. The Federal Circuit Court reported that in 2016-17, 52 per cent of family law applications related to matters involving children, 35 per cent related to property, and 12 per cent involved both children and property. For parenting matters, the parties must advise the Court of any family violence, or the risk of such violence. In property matters, the Court will not make an order unless it is satisfied that in all circumstances, that the orders are just and equitable.
3.54
Although consent orders were identified as an opportunity for a quick settlement and offer a legally enforceable negotiated agreement, a large number of participants in the inquiry also raised concerns about consent orders in matters involving family violence. This echoed concerns raised by the Victorian Royal Commission into Family Violence with respect to both family law orders and family violence intervention orders under state legislation.
3.55
As identified in the previous section, power imbalances in situations involving family violence can be exacerbated in the family law system whereby a party will agree to unsatisfactory consent orders to avoid further litigation. Queensland Domestic Violence Services Network commented that a ‘level playing field [is] required for consent orders to be freely negotiated’, but noted that this is unlikely due to the power imbalance in relationships where family violence has occurred. The Network elaborated:
The experience of many of the clients of our services is that consent orders have been agreed to under duress or in the face of direct threats, are often unfair or unworkable, and frequently place children at greater risk of harm.
3.56
Further, Women’s Legal Service Queensland commented that these pressures on families affected by violence, results in unenviable decisions about consenting to orders before trial where the perpetrator’s contact with children may be for a shorter period rather than full time living arrangements where they can be exposed to ongoing violence, including sexual abuse.
Box 3.7: Coercion and consent orders
The following is a selection of responses to the Committee’s questionnaire:
‘I felt forced, coerced and unsatisfied with [the custody] agreement but was ‘scared’ into agreeing because if we couldn't come to agreement I was told it would be another court appearance which I would not have legal representation and was told [that] the judge could go against me’.
—Respondent from New South Wales
‘I agreed to consent orders because I was terrified the judge would make a decision that could put my children at greater risk than anything I could negotiate outside of the court. So I settled on orders that continued to require me to put the kids at risk but gave clear parameters for breaching the conditions of their care’.
—Respondent from Tasmania
‘There was no mutual agreement. I was bullied each time into withdrawing interim intervention orders or into signing property consent orders and parenting plans. I was very dissatisfied each time and the children's best interests weren't taken into account at all’.
—Respondent from Victoria
‘The orders were based on a forced negotiation in which I felt obliged to accept his offer given the fact that continuing the hearing in court was beyond my financial capability. The judge approved the consent orders in spite of the fact that I felt they were not child focussed’.
—Respondent from Victoria
‘I was forced by my lawyers to sign the consent orders for my children to spend time with the[ir] abusive father. My daughter developed anxiety and depression within [three] months of unsupervised overnight visits and I was told that I had to send her every week by force to her father’.
—Respondent from New South Wales
3.57
The Sexual Assault Support Service explained how power imbalances and legal strategy can further compromise a party’s ability to freely consent to arrangements:
[M]any victims of family violence feel pressured to enter into consent orders ... often because of a justified fear—perpetuated by the court system—that if they resist the other parent having contact with the child/children they will be seen as alienating the child/children from their other parent, and may then risk losing custody of the child/children.
3.58
Women’s Legal Service NSW similarly stated that many of their clients disclose that they have ‘agreed to consent orders as they are fearful that the perpetrator of violence will retaliate if they do not get the orders that they are seeking’. A number of participants were therefore of the view that family law matters involving family violence should not be resolved through consent orders.
3.59
Family and Relationship Services Australia stated that the process for applying for consent orders is not client friendly, noting that the Family Court’s online application form is 25 pages long and ‘requires a paralegal resource to complete it’. Similarly, the National Family Violence Prevention and Legal Services Forum advised that without legal representation, Aboriginal families, in most circumstances, would ‘be unable’ to apply for consent orders and effectively enforce their rights and safety, nor the safety of their children.
3.60
InTouch Multicultural Centre Against Family Violence recommended that before making consent orders in cases involving family violence, the Court should be required to ensure that each party has obtained legal advice and had sufficient time to consider that advice. Domestic Violence Crisis Service, and the Queensland Law Society made similar recommendations.
3.61
Although mandatory for parenting applications to the court, a Notice of Risk Form is not required to be lodged with an Application for Consent orders made orally or in writing to the Court. This means that consent orders may be issued without the Court being fully informed of the presence of family violence, or without ‘full consideration of risk’. Hume Riverina Community Legal Service commented that ‘this has the potential to result in unjust outcomes simply because the Court is unaware of the circumstances of the parties’.
3.62
To address this, Eastern Community Legal Centre recommended a change to the filing Application Form for consent orders to require information about the presence of family violence. The Centre stated:
Whilst it cannot be guaranteed that a judicial officer would allow consent orders to be changed, this option at least provides an opportunity for victim/survivors of family violence to be able to identify that they have/are experiencing family violence. It would also operate as a ‘red flag’ to alert judicial officers to consider family violence if there are future applications to change consent orders.
3.63
Legal Aid NSW recommended stronger action: codification of the Court’s positive obligation to scrutinise consent orders to confirm that they are in the child’s best interest. This proposal is discussed further in Chapter 3.
3.64
In a submission to the inquiry, the Family Court advised that it is ‘aware that at times consent orders may be agreed by a party for reasons other than the best interests of the child, for example, fear of further violence or lack of financial resources to litigate’. The Court stated that ‘this is addressed in the process for making consent orders set out in the legislation and … the Best Practice Principles’.
3.65
Beyond the Court making consent orders, Family and Relationship Services Australia recommended regular and ongoing monitoring of the arrangements agreed to in consent orders to ensure those arrangements are in the best interests of families. It recommended that ongoing management could be reviewed by a court-appointed family counsellor.
Perjury and false allegations
3.66
Evidence to the inquiry also discussed instances of alleged perjury and false allegations being used as a tactic to influence parenting disputes in particular. The Lone Fathers Association advised that many of its members have had false allegations of family violence made against them. The Stop Male Suicide Project also discussed the impact that false allegations of family violence can have on parents’ relationships with children and on a party’s mental health.
3.67
The Central Australian Women’s Legal Service also reported scenarios where their clients have had false allegations of family violence made against them in parenting disputes. Women’s Legal Services Australia stated that perjury needs to be responded to, commenting:
If a person is lying on oath, that is really something that the police would need to respond to and that the Court would be directing the police to. I am not really familiar with perjury matters having been taken up … in many years of practice despite having seen judges become aware that somebody is saying something that is blatantly not true. One issue is that people in that private court system—the family law system—are not looking to punish parents for poor behaviour … I think there should be references for perjury if it is blatantly the case that that has happened. Possibly some people facing criminal prosecution over it may well be examples of why people should be more cautious about saying things that are clearly untrue in court or in their documentation.
Box 3.8: Perjury and false allegations
The following is a selection of responses to the Committee’s questionnaire:
‘Some parents make up false allegations in order to maintain an upper hand in family law matters. If it was not considered I feel the level of allegations would drop considerably’.
—Respondent from New South Wales
‘In my experience, because the applicant can commit perjury by filing an erroneous Notice of Risk against [the other parent], it seems that it’s a case of “guilty, until proven innocent”’.
—Respondent from Queensland
‘Perjury in [the Family Court of Australia] needs to be enforced and all perjury evidence should be considered in the judgement process’.
—Respondent from Victoria
‘Make people accountable for their actions of filing false affidavits, perjury, false accusations’.
—Respondent from Western Australian
‘Remove the incentives for making false accusations. Then there would be more resources for genuine cases’.
—Respondent from South Australia
‘[My] ex made false allegations. I’d been fathering my son since he was one and my word meant nothing’.
—Respondent from Queensland
3.68
A number of organisations supported stronger responses to instances of perjury and false allegations. To respond more effectively to false allegations and perjury, the Lone Fathers Association recommended that the Court have access to better information on which to assess risk to families and children, and ensure that there is a significant deterrent to those who would make false allegations. In Chapter 4, the Committee considers options to improve:
the disincentives to parties not to make false allegations or provide false evidence to the Court; and
the information available to the Court in determining the risk to families as well as a proposal to determine family violence allegations earlier in proceedings.
Fragmentation of jurisdictions
3.69
As noted in Chapter 2, no single jurisdiction has sole responsibility for family violence matters; this responsibility is shared. The ‘constitutionally entrenched fragmentation’ of the federal family law system as well as the child protection and family violence systems at the state and territory level, is a key source of difficulty in family law matters involving family violence.
3.70
Such disputes cannot usually be ‘neatly divided into public and private’ spheres. Yet, families who have experienced violence must use multiple federal and state systems to obtain legal orders necessary for safety and dispute resolution. Indeed, the jurisdictional fragmentation is ‘most acute’ in these matters.
3.71
However, when these jurisdictions do not operate with sufficient integration and referral, a fragmented system not only creates confusion for families, it ‘potentially limits the protection offered by each court’. The three jurisdictions can, in effect, operate as ‘silos’ resulting in ‘increased vulnerability’ and potentially, the ‘re‑traumatisation of victims of family violence, who are required to navigate a complex system and re-tell their story of trauma’.
3.72
In 2014, the Productivity Commission found that the ‘interaction and overlap between jurisdictions can result in multiple proceedings and inconsistent orders, which can cause unsafe and traumatic situations for parents and children’. The Family Law Council similarly addressed the fragmentation between the family law system and the child protection systems in two separate reports in 2015 and 2016. The fragmentation of jurisdictions and resulting inconsistencies, were discussed by a large number of stakeholders.
3.73
For example, the Springvale Monash Legal Service described the challenge of fragmented jurisdictions, each with a different focus:
There are serious variances between state based [intervention order] system and the inevitable transfer of the matter to the Federal Family Law System. [State courts] tend to concentrate on immediate safety while the Federal system has a stronger emphasis on children and their meaningful relationships with parents. It becomes difficult to keep the issue of [family violence] forefront in proceedings as the focus of the Judiciary shifts.
3.74
Queensland Domestic Violence Services Network explained that it has witnessed state courts providing an exception in intervention orders to permit a perpetrator to have contact with a family affected by violence, despite the safety risk that poses to that family:
… the primary response [in local Queensland courts] remains for the making of an exception in Domestic Violence Protection Orders of contact being allowed for ‘family law court, mediation and child protection matters’. In a practical sense, the Court is determining an aggrieved is in need of significant protection, including no contact and in many cases ouster orders, however allows for permitted contact with an aggrieved for child handover [under family law]. Our experience confirms that this is a significantly risky time, which can in fact elevate the use of abuse in front of children—the ultimate contradictory aim of the system.
3.75
Safe Steps Family Violence Response Centre and the Gippsland Community Legal Service provided similar evidence.
3.76
Jannawi Family Centre was of the view that the family law system shifts responsibility to state‑based child protection agencies, creating ‘significant and detrimental gaps for the safety and wellbeing of children’. The Centre further commented that the ‘silo nature of the child protection, domestic violence and family law systems is problematic and creates a situation where neither system adequately addresses family violence effectively’.
3.77
Some organisations also asserted that the family law courts have either dismissed or disregarded intervention orders made under state and territory family violence legislation. For example, research by Monash School of Social Sciences found that family law orders ‘appeared to ignore, or fail to take sufficient account of’ intervention orders or prior criminal histories around family violence, ‘creating a new and critical area of risk’. Other organisations reported that the family law courts have taken family violence orders as an indication that the parent will be unwilling to co‑parent with the perpetrator parent, and awarded custody to that latter parent. This is examined in greater detail in Chapter 6.
Box 3.9: Fragmentation of jurisdictions
The following is a selection of responses to the Committee’s questionnaire:
‘Breaches which are made at Magistrates court are not automatically sent through to Federal Court or to the portal relating to the parties. It should be put in place that all matters relating to the case and parties should be made available on the [Commonwealth] courts portal’.
—Respondent from Victoria
‘The Magistrate and Family Courts do not share information as easily and freely as they should’.
—Respondent from Tasmania
‘The two courts are unaware of the action occurring in the other court … [causing] huge delay and confusion’.
—Respondent from Victoria
‘[There is] no communication between courts and the departing and incoming judges regarding adjourned matters’.
—Respondent from Victoria
‘Communication between Magistrates, Family Courts, police and child services [was] non‑existent’.
—Respondent from New South Wales
3.78
The Castan Centre for Human Rights Law noted that in recent years a number of solutions have been proposed to overcome the constitutional limitations of a fragmented jurisdiction, including:
state referral of powers to the federal family courts;
establishing a single, unified family law court to deal with all matters relating to family law and violence;
expanding the jurisdiction of the federal family courts so that they have the power to make child protection orders and more effective family violence orders; and
giving state and federal courts corresponding jurisdictions so that they can decide cases under both systems.
3.79
The recommendations of the joint ALRC and New South Wales Law Reform Commission report in 2010 and the Victorian Royal Commission into Family Violence in 2016 advocated working within existing limits, without creating new courts but encouraging and supporting state and territory magistrates to exercise family violence, child protection and family law matters could be dealt with by a single judge.
3.80
These recommendations align with evidence to the present inquiry. Building upon the recommendations of the Family Law Council, and of the Victorian Coroner in the report of the inquest into the death of Luke Batty, the Law Council of Australia and others recommended improved collaboration between and within jurisdictions for family violence matters. The challenges of jurisdictional fragmentation was acknowledged by the Attorney-General’s Department, which commented that better supporting the interaction between these jurisdictions was ‘a current focus’ of the Department’s work. Opportunities for collaboration between jurisdictions are addressed in Chapter 4.
Committee comment
3.81
The Committee is of the strong view that that the family law system should not encourage families affected by violence to hide their experiences of out of fear that they will face disadvantage in the law system, the purpose of which is to protect and support families. For families who choose to report family violence and seek protection and support from the family law system, it seems incongruent for that system to continue to provide the structural disincentives reported to this Committee.
3.82
The Committee is deeply concerned that the family law system can fail to protect and support families from ongoing family violence. Evidence indicates that this can be the result of the very design of the current family law system. Particularly for matters involving family violence, the structural design of an adversarial system—where parties are in direct opposition to one another—fuels conflict and can mirror the very dynamics of abusive relationships.
3.83
Indeed, the Committee is of the view that the existing adversarial system for family law disputes is not appropriate to address matters involving family violence. The family law system must be restructured and redesigned so safety and accessibility are central.
3.84
The Committee is encouraged, however, that the Australian Government has commissioned the ALRC to undertake a broad review of the family law system, including whether the adversarial court system offers the best way to support the safety of families and resolve matters in the best interests of children.
3.85
In light of overwhelming evidence received highlighting the complexity of navigating multiple jurisdictions, and multiple courts within the same jurisdiction, the Committee considers that the system of the two federal courts with concurrent jurisdiction should be simplified. While the Committee did not receive sufficient evidence to support a specific recommendation at this stage, this matter is worthy of further investigation. The ALRC, as part of its current review, might consider the benefits of combining the federal family courts into one court. This single court might provide more opportunity for appropriate triaging and case management upon filing, which could be more responsive to the needs of families who are affected by family violence.
3.86
As referenced in Chapter 1, the review of the family law system by the ALRC includes reviewing ‘whether the adversarial court system offers the best way to support the safety of families and resolve matters in the best interests of children, and the opportunities for less adversarial resolution of parenting and property disputes’. The ALRC’s terms of reference are included in Appendix B of this report.
3.87
The Committee notes the considerable evidence received by this inquiry which highlighted the significant challenges of an adversarial model. Whilst felt most acutely by families experiencing, or at risk of, family violence, these challenges are also encountered by families where family violence has not occurred. The Committee therefore is encouraged by the inclusion of this matter in the ALRC’s which is substantially broader in its reference than the Committee’s focus on the family law system’s response to family violence. The Committee keenly awaits the final report of the ALRC on this matter.
3.88
Significantly, achieving structural reform of this kind will not be achieved easily or quickly. The ALRC has been requested to provide its report to the Attorney‑General by 31 March 2019. Any reform recommended from the Commission’s review is likely to take significant time to implement.
3.89
The Committee is therefore of the view, as noted in Chapter 1 of this report, that there is a chronic and critical need for reform both immediately, and in the medium‑term, neither of which can be provided by the Commission’s review.
3.90
Whilst acknowledging the significance of the Commission’s review, the Committee’s report provides both immediate and medium‑term recommendations for reform to improve the support and protection that families affected by violence urgently require. The Committee also hopes that its recommendations, and its vision for a better family law system, are integrated into any long‑term reforms the Commission may recommend to the Attorney‑General.
3.91
As stated in Chapter 1, the Committee’s vision for a reformed family law system is as follows: to better support and protect families affected by family violence, the family law system must be accessible, equitable responsive and prioritise safety.
3.92
The Committee concurs with comments from the Hon. Professor Marcia Neave AO that law reform alone is not going to be sufficient to address family violence. Though fundamental, amending the Family Law Act must be accompanied by practical measures to ensure families’ safety is better protected. The remainder of this report therefore focusses on these dual goals: law reform, and changes in practice and delivery. These initiatives will ultimately result in a more efficient, cost effective and, most importantly, safer family law system.