The Australian Greens reiterate our comments in the second interim report that this inquiry was politically-motivated and fraught. The weight of evidence given to the committee over many months confirms what was already known—that gendered violence is a core problem at the heart of the family law system, that inadequate resourcing has created delays and gaps in the system that continue to put women and children at risk, and that funding, specialisation and wrap-around service models are the solution.
We are relieved that, having heard all the evidence, the committee’s primary recommendations are not those championed by the men’s rights movement. Instead, they largely acknowledge the need for a better understanding of gendered violence to be embedded throughout the family law system.
The inquiry has identified, again, the need for evidence-based strategies and additional funding to make family law safer for survivors of family violence, and re-affirmed the role of the Federal government in facilitating that.
Thank you to everyone who made a submission sharing their story and their expertise, who appeared at public and private hearings, or who briefed the committee. Thanks also to the secretariat staff for their tireless efforts to collate the evidence presented.
Federal Circuit and Family Court
The Final Report notes the merger of the Family Court with the Federal Circuit Court took effect on 1 September 2021, and a number of programs have been implemented to improve the efficiency of the merged court.
The Australian Greens remain opposed to the merger of the Family Court and Federal Circuit Court, and the loss of specialisation in a court that relies on specialist expertise to navigate complex matters and ensure the safety of children. We support case management measures and harmonisation of rules and practice directions, but note that these measures were possible and, indeed, already underway, without the merger.
Anecdotally, we understand practitioners are finding that the new rules impose significant additional administrative costs, taking far longer to complete and requiring considerably more information from the parties prior to that information having been tested. This added complexity may make it more difficult for unrepresented parties to prepare documentation, increase costs for all parties, and potentially delay proceedings. We urge the court to regularly review the implementation of the new rules to address any adverse impacts on the cost and efficiency of proceedings.
Conservative estimates suggest at least 60 per cent of Family Court matters involve family violence. Even those that do not involve violence regularly involve complex parenting or property matters. Skilled, experienced registrars, particularly senior registrars, liaison officers and non-judicial staff play a critical role in implementing risk screening and triaging programs, helping parties to navigate the family law system and understand what preparation is required to facilitate constructive interim hearings, and encouraging mediated outcomes. However, many family matters simply cannot be resolved in a way that ensures the safety of children without a judicial hearing.
The Greens continue to support the appointment of more family law judges to maintain the specialist expertise needed to resolve complex family matters.
Federal Family Violence Orders
The Final Report notes that the Federal Circuit and Family Court has indicated that issuing Federal Family Violence Orders would require additional resources to manage the additional workload. This is consistent with evidence presented to the Legal and Constitutional Affairs Committee inquiry into the Family Law Amendment (Federal Family Violence Orders) Bill 2021.
The Law Council of Australia told that inquiry that the reforms would trigger a 'tsunami of applications' for FFVOs, and the Legal Aid Commissions warned that the changes could place significant pressure on already stretched resources as more parties seek assistance for contested applications and the cross-examination program under section 102NA of the Family Law Act 1975. Services also predicted that police resources to enforce FFVOs may also be stretched, and Relationships Australia warned that, without proper resourcing, there is a substantial risk that the FFVOs will not be enforced in practice, 'rendering illusory the protection they are intended to provide to vulnerable people. People are endangered by such illusions'.
Many witnesses to that inquiry raised concerns that providing for a new violence order could create confusion and inconsistency with existing state and territory processes, and provide an opportunity for perpetrators to abuse the new system to delay or undermine family law proceedings. The concerns raised by practitioners regarding the potential impacts of FFVOs, particularly on already over-policed communities, must be taken seriously.
The family law system is already under immense strain, which could be exacerbated by the poorly managed introduction of new orders. FFVOs should not be introduced without ensuring adequate resources are available not just to the Court, but to all the services involved in seeking, issuing and enforcing the orders. Further consideration must be given to measures to minimise the risk of delays, systems abuse and misidentification of perpetrators.
Funding and resources
Review after review has confirmed that the entire family law framework is over-stretched and under-resourced. While we acknowledge funding in the 2021-22 budget to support court programs and some additional funding to legal services, this will not go far enough to significantly reduce delays and improve access to justice in the family law system.
The government must ensure that Legal Aid, community legal centres, Aboriginal and Torres Strait Islander Legal Services, Family Violence Prevention Legal Services, and their peak bodies, have adequate and secure funding to provide timely advice and representation to parties. Failing to strengthen the legal assistance sector will simply exacerbate delays and costs that directly impact on the accessibility and quality of justice.
National Plan for Elimination of Violence Against Women and their children
Ongoing reform and review of the family law system will be critical to the success of measures in the next National Plan to ensure the safety of women and their children. It is essential that the National Plan provides for culturally safe, wrap-around, and responsive support services so women and children have access to immediate support when leaving abusive relationships, and longer term support to navigate the legal system.
The Plan must be funded to at least $12 billion over the life of the plan for prevention programs, and legal, social and support services for families and survivors of family and domestic violence.
As highlighted at the recent Women’s Safety Summit, it is also critical to have a stand alone National Plan for First Nations Women and Children. We welcome the government’s apparent commitment to a First Nations Women’s National Plan, however this plan must be truly self-determined by, and prioritise the expertise and solution of, First Nations women and their community-controlled services and organisations. We call on the government to hold a First Nations Women’s Gathering to facilitate development of this plan and at all stages of developing this plan First Nations leadership, expertise and solutions must be prioritised
Senator Larissa Waters
Australian Greens’ Senator for Queensland