1.1
Labor Senators support the purpose of the Family Law Amendment (Family
Violence and Other Measures) Bill 2017 to amend the Family Law Act 1975
(FLA) to strengthen the powers of courts to protect victims of family violence
and facilitate the resolution of family law matters by state and territory
courts in certain situations.
1.2
Labor Senators make the following additional comments and/or dissent in
relation to the provisions of the bill.
Family Law matters to be resolved by State and Territory Courts
1.3
Labor Senators acknowledge that navigating different jurisdictions can
be confusing, time consuming and often expensive for families.
1.4
The Bill confirms that specialist children's courts have power to make
parenting orders pursuant to the FLA.
1.5
The Bill proposes to extend the jurisdiction of state and territory
courts to make orders in family law property matters to include disputes above
the current monetary limit of $20,000.
1.6
Labor Senators support the intent of these measures but are concerned
that already overburdened state and territory courts will not have the capacity
to undertake the consequential extended workload without a significant increase
to their funding.
1.7
The Chief Magistrate of the Local Court of New South Wales said in his
submission:
...if there is an increase in the Local Court's case load as a
result of the increase in property value for the purposes of proceedings
pursuant to section 46, it is essential that enough resources be made available
to the Court to respond to the increase in matters before its magistrates.
This would include an increase in the number of magistrates appointed to the
Court.[1]
1.8
Ms Liz Snell, Convenor, Women's Legal Services Australia (WLSA) said in
her evidence to the Committee:
WLSA also supports the broadening of state and territory
courts' family law jurisdiction contingent upon these courts receiving
sufficient additional resources and training.[2]
1.9
Labor Senators are also concerned about the level of experience and
training available to judicial officers in state and territory courts.
1.10
The Law Council of Australia in their submission note:
The experience of most family
lawyers is that judicial officers in state and territory courts do not
regularly exercise their existing Family Law Act jurisdiction. State and
territory courts are struggling to meet the demands of the caseload arising
from their local jurisdiction and most do not have the resources (court time)
available to hear and determine, for instance, interim parenting applications.
Many judicial officers in state and territory local courts do not have experience
or knowledge of the family law jurisdiction, or have only limited knowledge and
experience, and are reluctant to exercise their powers as a result.[3]
1.11
Labor Senators consider that if these measures are to fulfil their
purpose of 'reducing the need for families to interact with multiple courts
across the federal family law and state or territory family violence and child
protection systems' and not just be an exercise in cost shifting, then appropriate
resources, including increased funding and ongoing judicial training, must
accompany the amendments.
Summary Dismissal provisions
1.12
Labor Senators note the concerns expressed by Ms Liz Snell of the WLSA:
We are concerned about expanding the court's power to dismiss
proceedings that are frivolous, vexatious or an abuse of power and express
strong support for the Family Law Council recommendation on research about
systems abuse prior to any changes to the courts' power to dismiss matters.[4]
1.13
Labor Senators also note the Family Law Council's submission where they
say:
The proposed new section incorporates into the Act, the
concept of 'no reasonable prospect of success' as is currently found in Rule
10.12 of the Family Law Rules 2004 (Cth) and 13.07 of the Federal
Circuit Court Rules 2001 (Cth). [The Family Law Section of the Law
Council] (FLS) cannot discern how this section adds to, detracts from, or
changes the powers currently vested in the court.[5]
1.14
To ensure that there are no unintended consequences from this measure
and that the amendment will 'better protect victims of family violence from
perpetrators who attempt to use the family law system as a tool of continued
victimisation', Labor Senators are of the view that this provision should
be reviewed after a period of two years.
Criminalisation of breaches of injunctions
1.15
Labor Senators strongly support the view that 'family violence is not a
private matter, but a criminal offence of public concern'. Labor Senators also
support the intent to criminalise breaches of family law injunctions for
personal protection.
1.16
However, Labor Senators share the concerns raised by some submitters
about the practical implementation of this measure as it is currently designed.
1.17
Senior Sergeant Luke Manhood, Legislation Development and Review
Services, Tasmania Police, in his evidence to the Committee said:
So we are supportive of the
principles proposed by the bill, we do see some practical issues with the
proposal to criminalise breaches of personal protection orders, especially with
the view that those offences be enforced by state and territory police. For
your information, state and territory police—this may not be something of which
the committee is aware—do not routinely enforce the Commonwealth criminal law.
In fact, ensuring that the Commonwealth criminal law is routinely enforced is a
primary reason for the existence of the Australian Federal Police. So although
state and territory police are empowered to address the Commonwealth criminal
law, there are substantial differences in criminal procedure between the
Commonwealth jurisdiction and the state and territory jurisdictions. As a
consequence, at least in this state, usually a small subset of police members have
some knowledge of the relevant criminal procedure that applies to the
Commonwealth. Conversely, responding to incidents of family violence or
complaints that people's safety might be in jeopardy is done by general duties
police. In this state at least, they would be the police members with the least
understanding of the Commonwealth criminal procedure...
So in terms of PPI providing
for the safety of victims, it's not clear that creating a criminal offence for
the personal protection injunctions would substantially increase safety for
those persons.[6]
1.18
Ms Esther Bogaart, Acting Assistant Secretary, Family Violence
Taskforce, Attorney-General's Department, admitted that the Department was
continuing to work through implementation issues with this measure:
We acknowledge that the practical implementation issues with
the enforcement of criminalisation of personal protection injunctions need to
be worked through. We don't think the issues are insurmountable. We have been
working through a Council of Attorneys-General family violence working group
with relevant states and territories, including a range of police and the
senior sergeant who just spoke, to work out the implementation issues and how
we can address them.[7]
1.19
The Law Council of Australia make the following points in their
submission about FLA personal protection orders:
In the experience of family
lawyers, they are most commonly made with the consent of both parties as part
of a wider agreement, usually about parenting arrangements and/or the use and
occupation of the family home...
The indefinite nature of
injunctions made under the Family Law Act may also create unintentional
consequences for parties who 'may, over time, make different, informal
arrangements without applying to vary the orders and discharge the injunction'
as noted in the joint submission of the Chief Justice of the Family Court
and Chief Federal Magistrate (as he then was) to the [Australian Law Reform
Commission] Report.[8]
1.20
Labor Senators are also concerned about the retrospectivity of this
measure in real terms. Although this amendment will only apply to future
breaches of a personal protection order, it will apply to orders made before
the amendment is passed.
1.21
Labor Senators share the concerns of the Law Council of Australia in
relation to the retrospective nature of this amendment:
The FLS submits that there will be many people who have
consented to personal protection injunctions being made against them. They
will have done so on the basis of advice that a breach of such an order is a
private matter, capable only of enforcement in a civil court. Many people will
have consented to these injunctions expressly because they are not capable of
criminal enforcement. They may be employed in a job where a criminal charge or
conviction could lead to dismissal. They may have been concerned about the
other party making false allegations against them, but been reassured that such
allegations could not lead to criminal charges. The FLS submits that it is
contrary to the public interest for these amendments to apply retrospectively,
and that, if pursued, the provisions should only apply to injunctions made
after the commencement of operation of the amendments.[9]
1.22
The Department of Attorney-General's Guide to Framing Commonwealth
Offences, Infringement Notices and Enforcement Powers states the principle
that:
An offence should be given retrospective effect only in rare
circumstances and with strong justification. If legislation is amended with
retrospective effect, this should generally be accompanied by a caveat that no
retrospective criminal liability is thereby created.[10]
1.23
Labor Senators are of the view that this amendment will create
retrospective criminal liability in orders that are already in existence and
that such an amendment would be an abrogation of the rights of parties to those
orders.
1.24
Labor Senators note that this measure will not come into effect until
12 months after royal assent. With that in mind, and with the Australian
Law Reform Commission (ALRC) review of the family law system due to report to
the Attorney-General within twelve months, Labor Senators are of the view that
parliament should have the benefit of any relevant recommendations made by the
ALRC before this measure is implemented.
Recommendation 1
1.25
That appropriate funding for increased resources and continuing training
should accompany the measures to expand the jurisdiction of state and territory
courts.
Recommendation 2
1.26
That a review be undertaken after the summary dismissal provision
amendments have been in operation for a period of two years.
Recommendation 3
1.27
That the provisions criminalising breaches of personal protection
injunctions be excised from the Bill and the intent of those provisions
revisited as a matter of priority as soon as the Australian Law Reform
Commission review of the family law system has released their report.
Senator Louise Pratt
Deputy Chair
Navigation: Previous Page | Contents | Next Page