Referral and terms of reference
1.1
The Joint Select Committee on Australia's Family Law System (the committee) was appointed by resolution of the Senate on 18 September 2019 and resolution of the House of Representatives on 19 September 2019.
1.2
The committee was established to inquire into and report on the following matters:
(a)
ongoing issues and further improvements relating to the interaction and information sharing between the family law system and state and territory child protection systems, and family and domestic violence jurisdictions, including:
(i)
the process, and evidential and legal standards and onuses of proof, in relation to the granting of domestic violence orders and apprehended violence orders, and
(i)
the visibility of, and consideration given to, domestic violence orders and apprehended violence orders in family law proceedings;
(b)
the appropriateness of family court powers to ensure parties in family law proceedings provide truthful and complete evidence, and the ability of the court to make orders for non-compliance and the efficacy of the enforcement of such orders;
(c)
beyond the proposed merger of the Family Court and the Federal Circuit Court any other reform that may be needed to the family law and the current structure of the Family Court and the Federal Circuit Court;
(d)
the financial costs to families of family law proceedings, and options to reduce the financial impact, with particular focus on those instances where legal fees incurred by parties are disproportionate to the total property pool in dispute or are disproportionate to the objective level of complexity of parenting issues, and with consideration being given amongst other things to banning ‘disappointment fees’, and:
(i)
capping total fees by reference to the total pool of assets in dispute, or any other regulatory option to prevent disproportionate legal fees being charged in family law matters, and
(ii)
any mechanisms to improve the timely, efficient and effective resolution of property disputes in family law proceedings;
(e)
the effectiveness of the delivery of family law support services and family dispute resolution processes;
(f)
the impacts of family law proceedings on the health, safety and wellbeing of children and families involved in those proceedings;
(g)
any issues arising for grandparent carers in family law matters and family law court proceedings;
(h)
any further avenues to improve the performance and monitoring of professionals involved in family law proceedings and the resolution of disputes, including agencies, family law practitioners, family law experts and report writers, the staff and judicial officers of the courts, and family dispute resolution practitioners;
(i)
any improvements to the interaction between the family law system and the child support system;
(j)
the potential usage of pre-nuptial agreements and their enforceability to minimise future property disputes; and
1.3
The committee was due to present its final report by 7 October 2020. The Senate and House of Representatives granted an extension of time for presentation of the final report until the last sitting day in February 2021.
Conduct of the inquiry
Submissions
1.5
The committee invited submissions from individuals and organisations by 18 December 2019. The committee provided an extension to organisations and individuals to lodge submissions up to 31 January 2020. Due to the significant interest in this inquiry, the committee continued to accept submissions beyond this date to ensure that it heard from a wide cross-section of the community on these important issues.
1.6
The committee developed a submission template to assist submitters to share their experiences and address the inquiry's terms of the reference. The submission template was made available on the committee's website. The committee also made arrangements to assist people who had difficulty with reading and writing to make a submission.
1.7
The committee received 1692 submissions (to 6 October 2020). The submissions received by the committee are listed at Appendix 1.
Hearings
1.8
It was the committee’s decision to first hear from individuals and organisations prior to hearing evidence from the Family Court of Australia (Family Court), in order to obtain evidence directly from individuals about their experiences of the family law system. Evidence from individuals has been received at in camera (confidential) hearings, and evidence from organisations at public hearings. The committee has held the following public hearings:
14 February 2020 in Canberra
10 March 2020 in Townsville
11 March 2020 in Rockhampton
12 March 2020 in Brisbane
27 May 2020 (by video/teleconference)
24 June 2020 (by video/teleconference)
8 July 2020 (by video/teleconference)
22 July 2020 (by video/teleconference)
19 August 2020 (by video/teleconference)
16 September 2020 (by video/teleconference)
1.9
The committee intends to hold further public hearings prior to tabling its final report. It also intends to hear from the Family Court prior to tabling its final report.
1.10
As a consequence of the COVID-19 pandemic, hearings that occurred after the hearing of 13 March 2020 were conducted primarily by videoconference and teleconference. A list of witnesses who gave evidence at the public hearings is available at Appendix 2. The Hansard transcript of the evidence provided at the public hearings may be accessed through the committee's website.
1.11
As at 31 July 2020, the committee had held 13 in camera or confidential hearings. While the committee was able to hold in camera hearings in Queensland in early March, the remainder of the in camera hearings were conducted by teleconference. In total, the committee heard from 85 individual witnesses about their personal experiences of the family law system.
Submission and hearing protocols and other information on procedures
1.12
The committee agreed to protocols in relation to submissions and hearings. The protocols were made available on the committee's website.
1.13
Those protocols provided that any submission that identified parties to a family law matter, made allegations of domestic violence, or contained adverse reflections would be accepted by the committee as confidential. The protocols also noted, in relation to hearings, that the committee was mindful of the need to ensure the safety of witnesses.
1.14
To ensure the safety of witnesses, parties to a family law dispute, and children, the committee put in place safety measures, including by providing counsellors at interstate hearings, hearing evidence in camera and/or hearing evidence by teleconference.
1.15
The committee also released a 'Statement on Submissions' which noted:
In accepting submissions and hearing evidence of your experience, the committee must consider the right to privacy of all parties involved in the family law process. Although submitters may request that their submission be published, under these protocols, the committee may decide that it be accepted as confidential.
About this interim report
1.16
In light of the committee's extension to its reporting date, the committee agreed to table an interim report. The report is designed to summarise the wide range of views and issues raised during public consultation. The committee has not yet made recommendations and reproduction of comments from submissions in this report should not be taken as the committee expressing agreement with those views.
1.17
A significant number of submissions from individuals sought to specifically recount and re-prosecute their particular family law dispute, raising allegations of fact that were simply not possible for the committee to test or verify as the committee was only hearing from one party of a dispute. As such, the committee makes no comment or finding on the truth of the allegations.
1.18
The committee notes that a significant number of submissions, both from individuals and organisations, have provided evidence about the prevalence of family violence allegations in family law disputes. While not making any recommendations at this interim stage, the committee considers that a primary task of the committee’s work is to identify measures that reduce the risk of harm to children and parents traversing the family law system.
1.19
The committee acknowledges the concerns raised in submissions and correspondence that many victim-survivors would choose not to participate in the inquiry to avoid re-traumatisation. As discussed in paragraphs 1.14 and 1.15, the committee was acutely aware of the sensitivities around individuals providing evidence of their personal experience. Accordingly, the committee put in place protocols to support those witnesses who did choose to provide oral evidence to the committee.
Summary of submissions
1.20
This section provides a snapshot of the statistics in relation to submissions received by the committee up to, and including, 6 October 2020.
Individual submissions
1.21
The committee received 1523 individual submissions by 6 October 2020.
1006 were received prior to the submission closing date of 18 December 2019; and
517 were received after the submission closing date.
Organisational submissions
1.22
At 6 October 2020, the committee had received 169 submissions from organisations, academics and other professionals. Of these:
79 were received prior to the submission closing date of 18 December 2019; and
90 were received after the submission closing date.
Classification of individual submissions
1.23
The following table sets out the categorisation of the 1523 individual submissions received up to 6 October 2020 according to acceptance by the committee.
Table 1.1: Categorisation of submissions accepted by the committee
|
|
|
|
Public
(name and submission public)
|
2 per cent
|
|
Name withheld
(submission public)
|
4.5 per cent
|
|
Confidential
(in camera)
|
93.5 per cent
|
|
TOTAL
|
100 per cent
|
Geographic spread of submissions
1.24
The following table sets out the categorisation of the 1523 individual submissions, and the 169 organisational submissions processed at 6 October 2020.
Table 1.2: Geographic location of submitters for individuals and organisations
|
|
|
|
|
Australian Capital Territory
|
11
|
12
|
|
New South Wales
|
165
|
29
|
|
Northern Territory
|
6
|
4
|
|
Queensland
|
132
|
17
|
|
South Australia
|
31
|
5
|
|
Tasmania
|
14
|
6
|
|
Victoria
|
101
|
32
|
|
Western Australia
|
72
|
10
|
|
Overseas
|
4
|
-
|
|
Unknown
|
987
|
54
|
Individual submitters who have engaged with the court process
1.25
The following table sets out the engagement of individual submitters in family dispute resolution, as well as those submitters who have been issued with a section 60I certificate. These figures are an approximation only, as in some submissions it was unclear whether submitters engaged in family dispute resolution and/or were issued a section 60I certificate.
Table 1.3: Engagement by submitters with the court process
|
|
|
|
Family dispute resolution only
|
4.2 per cent
|
|
Section 60I certificate only
|
25.3 per cent
|
|
Family dispute resolution and section 60I certificate
|
7.3 per cent
|
|
No family dispute resolution, no section 60I certificate
|
55 per cent
|
|
Unknown
|
8.2 per cent
|
Work of the committee
1.26
Since its inception the Family Law Act 1975 (Family Law Act) has been amended by over 110 separate Acts of the Commonwealth Parliament. It has grown from around 55 pages to well over 600 pages. The family law system has also been the subject of numerous reviews, which are listed in Appendix 3. Some of these reviews, and the resulting legislative changes, are discussed further in Chapter 2.
1.27
What is clear from all of those inquiries, and this current inquiry, is that the family law system is struggling to meet the needs and expectations of those who use it. Many of the issues raised by witnesses have plagued the family law system, in one way or another, since the introduction of the Family Law Act.
1.28
The work of this committee has followed from two recent and extensive inquiries into the family law system—the House of Representatives Standing Committee on Social Policy and Legal Affairs (House Committee), the report was tabled in December 2017, and the Australian Law Reform Commission (ALRC), the report was tabled in Parliament in March 2019.
1.29
The Government has provided a response to the House Committee's report and a number of those recommendations have been implemented. In relation to other recommendations, the Government indicated that it would await consideration of the ALRC report. The Government has yet to provide a response to the ALRC report.
1.30
Appendix 4 sets out the recommendations of the House Committee, alongside the Government's response to each, as well as the recommendations contained in the ALRC's report.
1.31
The committee understands that the Government wishes to give full consideration to the ALRC's report and looks forward to the Government providing its response.
1.32
In the absence of a response to the ALRC report, the committee is aware that there are programs being piloted and measures progressed to improve the family law system. The committee was particularly interested in non-legal reforms—namely, those primary and secondary interventions that may assist Australians to avoid the costly and emotionally damaging litigation that typically accompanies the breakdown of family relationships. The committee appreciates that while some of these measures have been evaluated, some are only in the early stages of being trialled and it may be too early to determine if they are achieving their intended purpose.
1.33
Since its establishment in September 2019, the committee has undertaken significant work in gathering evidence pursuant to the terms of reference—first through submissions, and secondly through both the public and in camera hearings. In the course of the inquiry, the committee has heard from individuals who have direct personal experience of the family law system, advocacy groups and other organisations, academics and members of the legal profession.
1.34
There are a number of themes that have emerged from the evidence including the costs associated with the family law system, delays in the court system and the appropriateness of the legal framework. Many submitters and witnesses have offered constructive suggestions on ways to improve this system and to ensure better outcomes for the fathers, mothers and children who are engaging with this system every day.
1.35
While the committee is disappointed that the travel restrictions associated with the COVID-19 pandemic have limited its ability to hold in-person hearings, the committee has endeavoured to continue its work through the use of videoconference and teleconference. However, it is clear that the size and scope of the inquiry means that the committee will not meet its reporting date of 7 October 2020. The committee has therefore resolved to table this interim report, which sets out the evidence it has received to date. As mentioned earlier, the committee has sought and been granted by both Houses of Parliament an extension to the reporting date until the last sitting day in February 2021. This extension will enable the committee to hold further hearings and, travel restrictions permitting, to undertake some site visits to courts.
Structure of the report
1.36
This chapter is an introductory chapter which outlines the administrative and procedural details of the committee's work. The remainder of the report is structured as follows:
Chapter 2 provides a brief overview of the family law system, particularly the courts, and summarises the reforms to the Family Law Act since its introduction and the outcomes of the House Committee's and ALRC's recent inquiries.
Chapter 3 is a snapshot of the issues raised in the many individual submissions in the inquiry.
Chapter 4 focuses on the recurring systemic issues in the family law system, including the perceptions of bias within the system; the role of family consultants and expert witnesses; whether the adversarial nature of the family law courts could be improved; misuse of systems and processes; and professional misconduct.
Chapter 5 looks at legal fees and costs.
Chapter 6 examines delays in the court system.
Chapter 7 outlines the issues in relation to family violence and the family law system.
Chapter 8 explores parenting matters.
Chapter 9 deals with matters in relation to the division of property following separation.
Chapter 10 looks at child support and its interaction with the family law system.
Chapter 11 details the support services within the family law system.
Chapter 12 explains alternative dispute resolution within the family law system.
Acknowledgements
1.37
The committee thanks the many individuals who made written submissions. Every relationship which breaks down is unique in its circumstances. However, what the committee heard was that there is additional trauma beyond the ending of a relationship, which is brought about by interactions with the family law system. The opportunity to hear directly from so many people about their experiences with the family law system has significantly enhanced the committee's work and the committee thanks all submitters for sharing their personal stories.
1.38
The committee also wishes to acknowledge those individuals who shared their private circumstances and experiences with the family law system at the in camera hearings. The opportunity to speak with so many people, to hear a diverse range of experiences, to ask questions about the failings in the system from the viewpoint of those most affected, and to receive proposals for improving the system, added further to the committee's deliberations. The committee appreciates that recounting of these experiences can be difficult and traumatic and the committee thanks those individuals for bringing such a candid and personal perspective to the inquiry. Unfortunately, the committee was not able to hear from all those submitters who wished to give evidence at the in camera hearings, but nevertheless thanks those submitters who volunteered to share their stories.
1.39
The committee extends its thanks to the organisations, academics and professionals who provided submissions and appeared at public hearings. This evidence also greatly assisted the committee.
1.40
Finally, the committee would like to extend its gratitude to the counsellors from Lifeline that attended each interstate hearing to provide support to both those that gave evidence as well as to the members of the public who listened to the evidence.