CHAPTER 1


CHAPTER 1

Introduction

Purpose of the Bill

1.1        On 25 March 2011, the Senate referred the provisions of the Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 (Bill) to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 23 June 2011.[1] The Bill was introduced into the House of Representatives on 24 March 2011 by the Attorney-General, the Hon. Robert McClelland MP. The Senate extended the reporting date to allow the committee to table its report on 22 August 2011.[2]

1.2        The stated purpose of the Bill is to amend the Family Law Act 1975 (Act) to provide better protection for children and families at risk of violence and abuse. The Bill also makes several technical amendments to correct drafting errors and minor policy oversights, and to provide efficiencies for the courts and litigants.[3]

1.3        The Explanatory Memorandum (EM) states that the Bill is the Australian Government's response to three reports regarding reforms introduced by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (2006 family law reforms) and how the family law system deals with family violence. These reports are:

  • the Australian Institute of Family Studies, Evaluation of the 2006 family law reforms;[4]
  • the Hon. Professor Richard Chisholm AM, Family Courts Violence Review; [5] and
  • the Family Law Council, Improving responses to family violence in the family law system: An advice on the intersection of family violence and family law issues.[6]

1.1        The EM acknowledges that there are other relevant research reports, which provide a strong evidence base for reform.[7] Many of these reports are listed but the October 2010 report, Family Violence–A National Legal Response, published jointly by the Australian Law Reform Commission (ALRC) and the New South Wales Law Reform Commission (NSWLRC), is not mentioned in the EM.[8]

1.2        In November 2010, the Attorney-General's Department (Department) released an Exposure Draft of the Bill (Exposure Draft) for public comment. The Consultation Paper also did not refer to the ALRC and NSWLRC research report.

1.3        In the Second Reading Speech, the Attorney-General stated that the measures proposed in the Bill received overwhelming support from the community, and bodies and professionals working within the family law system. The Attorney-General elaborated that, of the 400 submissions received by the Department, 73% of submitters supported the Exposure Draft and 10% of submitters offered information about their personal experience.[9]

1.4        The Attorney-General further advised that the Australian Government has taken into account all submissions that were received during the public consultation process, and that 'we have refined the measures that are proposed today in light of that process'.[10]

1.8        As rationale for the Bill, the EM states that the research reports indicate that the Act fails to adequately protect children and other family members from violence and abuse:

The safety of children is of critical importance...The family law system must prioritise the safety of children to ensure the best interests of children are met.[11]

1.9        To address this concern, the key provisions of the Bill aim to:

  • prioritise the safety of children in parenting matters;
  • change the definitions of 'abuse' and 'family violence' to better capture harmful behaviour;
  • strengthen the obligations of advisers by requiring family consultants, family counsellors, family dispute resolution practitioners and legal practitioners to prioritise the safety of children;
  • ensure the courts have better access to evidence of abuse and family violence by improving reporting requirements; and
  • make it easier for state and territory child protection authorities to participate in family law proceedings, where appropriate.[12]

Conduct of the inquiry

1.10      The committee advertised its inquiry in The Australian on 30 March 2011, 13 April 2011 and 27 April 2011. Details of the inquiry, the Bill and associated documents were placed on the committee's website. The committee also wrote to 102 organisations and individuals, inviting submissions by 29 April 2011. The committee encouraged and continued to accept submissions and supplementary submissions up to, and including, 21 August 2011.

1.11      The committee received 275 submissions, which are listed at Appendix 1. Public versions of submissions authorised for publication are available online at https://www.aph.gov.au/senate/committee/legcon_ctte/index.htm.  

1.12      The committee held a public hearing in Canberra on 8 July 2011.

1.13      A list of witnesses who appeared at the hearing is at Appendix 2, and copies of the Hansard transcript are available through the internet at https://www.aph.gov.au/hansard.

Acknowledgement

1.14      The committee thanks those organisations and individuals who made submissions and gave evidence at the public hearing.

Scope of the report

1.15      Chapter 2 provides a brief overview of the Bill. Chapter 3 discusses the key issues raised in submissions and evidence, as well as providing the committee's conclusions and recommendations.

Notes on references

1.16      References in this report are to individual submissions as received by the committee, not to a bound volume. References to the committee Hansard are to the proof Hansard: page numbers may vary between the proof and the official Hansard.

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