2.1
Submitters and witnesses overwhelmingly supported the intent of the bill: to ensure 'greater protections for vulnerable Australian families experiencing family violence'.
2.2
For example, the Law Council of Australia (LCA) commended the intent of the bill while the Family Law Practitioners' Association of Queensland (FLPAQ) supported 'the idea of parties involved in family law proceedings being able to obtain a family violence order as part of those proceedings'.
2.3
The Victims of Crime Assistance League (Hunter) NSW (VOCAL) strongly supported the bill and 'its uniformity with the National Plan to Reduce Violence Against Women and Their Children 2010-2022'.
2.4
The National Council of Women Australia (NCWA) noted that the bill seeks to address a number of recommendations to improve the family law system and supported the bill 'as it reduces the need for families to interact with multiple courts across the federal family law and State and Territory family violence systems'.
2.5
While strongly supportive of the intent of the bill, submitters and witnesses did, however, raise a number of issues with the bill during the course of the inquiry. Key issues included:
the lack of interim federal family violence orders (FFVOs);
complexities and inconsistencies between state and territory and federal orders;
concerns about the misidentification of perpetrators and systems abuse;
the workload, resourcing and training implications of the bill;
the role of and resourcing for Independent Children's Lawyers (ICLs);
the accessibility of FFVOs for applicants based in regional and remote areas; and
consultation on the bill.
2.6
These issues are discussed in the following sections.
Interim protection orders
2.7
Both the LCA and FLPAQ were concerned about the lack of interim protection orders under the bill, given the urgency with which parties seeking a protection order require that protection. The LCA stated:
there are no interim orders; it is only a final federal family violence order. People need protection urgently; it's usually in the lead-up to separation, at separation or in the period after separation that people need protection. Given that this bill is only for final orders, we can see people still going to the states and the territories for that urgent relief.
it's likely that people will need to access the state system to obtain urgent protection, much as they do currently. The reality in Queensland is that you can file your application and obtain a temporary protection order the same day, and that's something that obviously isn't provided for in the current bill.
2.9
Dr Sarah Moulds and Ms Jennifer Jones stated:
there is the potential for delay in orders being made given that under the Federal legislation an application for a proposed federal family violence order will be conditional on current family law proceedings having commenced. This could result serious delays for victims in need of immediate assistance who may decide, for a range of carefully considered or misguided reasons, to seek orders under the proposed new Federal regime rather than seeking more immediate assistance from the South Australian Police.
2.10
The Attorney-General's Department explained that the purpose of FFVOs only being made as final orders is to 'enhance the efficiency of the order-making process for the applicant and the courts, saving time and money' by reducing 'the need for applicants to attend a family law court on multiple occasions in relation to interim orders to ultimately obtain a final order'.
2.11
In response to concerns about the lack of interim FFVOs, the Attorney-General's Department explained that the bill is intended to provide 'flexibility for the listed courts in terms of how the FFVO proceedings are heard, including in conjunction with the qualifying family law proceeding'. The department emphasised that 'flexibility will be important to ensure that case management processes can be adapted as the FFVO scheme is rolled out' and clarified that:
…the bill does not restrict the court in terms of when the court can make an FFVO…Under the bill, the court is able to make an FFVO at any time. There will be a number of practical considerations that will interact with when and at what point in proceedings the court considers it has sufficient evidence before it to make a federal family violence order. That will depend on the circumstances of the case, the evidence before the court, and also whether affected persons wish to test evidence by way of cross-examination as well. So it will be very much dependent on the circumstances of the case.
2.12
In circumstances where an interim order might be required, such as where urgent protection is needed, 'state and territory courts would continue to be the primary forum for the issue of family violence protection orders, including interim orders'. The department stated:
This reflects the position of expert reports and Commissions that considered state and territory courts should remain the primary jurisdiction for obtaining a protection order, particularly given the role of police in those courts, and the wider range of persons who may be protected by state and territory family violence legislation. State and territory police and courts remain best placed to support individuals who are seeking urgent protection from family violence.
Complexities and inconsistencies
2.13
The Director of Public Prosecutions (DPP) (South Australia) recognised that the 'scheme created by the Bill would necessarily sit alongside pre-existing schemes in States and Territories relating to the issuing of family violence intervention orders'; however, the DPP (SA) highlighted the potential for orders to be sought and granted in both jurisdictions which may in turn give rise to:
conflict in the making/content of orders by courts of both federal and State/Territory jurisdiction;
confusion on the part of persons the subject of such orders, particularly in circumstances where variations are made in one jurisdiction but not another;
confusion on the part of persons the orders are designed to protect;
confusion on the part of State and Territory police who will be charged with enforcing such orders.
2.14
These concerns about complexities and inconsistencies around the implementation and enforcement of FFVOs for the legal sector and law enforcement were shared by other submitters and witnesses.
2.15
The Office of the Director of Public Prosecutions (ODPP) New South Wales (NSW) discussed the overlap between federal and state family violence orders and the confusion bound to be created, as well as inconsistencies between the bill and NSW family violence orders in relation to the fault element of the offence and the difference in penalty.
2.16
The Office of Public Prosecutions Victoria raised concerns about consistencies with state legislation and queried which agency would be the prosecuting agency in circumstances where 'breach of a Federal order may also constitute an offence against the relevant State law'.
2.17
The Police Federation of Australia (PFA) called for there to be 'clarification of the procedures and processes'. The PFA explained that, while police are accustomed to using federal and state and territory legislation, 'sometimes we're not skilled or trained, or we don't have the resources to actually be aware of the full capabilities of that legislation or how to implement it'. For that reason, the PFA argued that:
if state police officers have to go out and actually execute and serve these notices, we want appropriate training and resourcing to do it so that we do it correctly the first time and there's not that breakdown in communication. There are always teething problems, and that's why I'd suggest maybe a couple of trial sites first or a trial state.
2.18
Other submitters and witnesses focussed on the impact on clients and litigants when seeking the protection of or being subject to FFVOs, particularly given the existing complexities of the family law system.
2.19
Dr Moulds and Ms Jones described the intersection between FFVOs and state and territory intervention orders as 'complex' and evidence of 'the challenges associated with providing survivors of family violence with clear, accessible, and affordable pathways to obtain legal protections'. Dr Moulds and Ms Jones argued that:
There is an urgent need to set out very clearly how the proposed new federal regime will interact with state and territory intervention order regimes, and how the rights and interests of those seeking protection will be preserved in the event of potentially overlapping applications or orders being made.
2.20
Legal Aid NSW raised the complexity and confusion potentially facing a victim and the need to ensure that, 'where there are overlapping federal and state based orders and, potentially, injunctive relief made pursuant to the family law orders', it is clear to a victim which order is there for their protection.
2.21
No to Violence suggested that:
the Bill will exacerbate the amount of confusion for clients in Family Court resulting in an experience that is overwhelming and frustrating. [No to Violence] suggests a better option would be to improve information sharing practices between the family law system and state and territory child protection systems, and family and domestic violence jurisdictions.
2.22
Some submitters were concerned that risks may arise for people who are not legally represented. For example, National Legal Aid stated that parties without legal representation 'may become confused about the best pathway to quick protection, to the detriment of their safety and/or that of their children'. Dr Moulds and Ms Jones shared this concern, arguing '[c]onsideration must be given to ensuring that those most at risk of family and domestic violence are able to understand the risks and benefits of applying to Federal Courts for the orders contemplated in this Bill, compared to seeking intervention orders directly from the South Australian Police'.
2.23
Resolution Institute flagged the risk of parties "court shopping" as a result of inconsistencies between federal and state and territory definitions of family violence behaviours, including coercive-controlling behaviours. The South Australian Bar Association (SABA) similarly argued that there is a need for consistent definitions of the offences created under the bill to avoid 'forum shopping for the best outcome between…the State or Federal Court'.
2.24
Legal Aid NSW discussed 'the duplication of state based and Commonwealth offences and the impact that that will have…where a litigant may find themselves subject to a breach of a state based order and also a federal family violence order and faced with a duplication of criminal offences'.
2.25
The Attorney-General's Department told the committee that the bill is 'designed to manage interaction with state and territory family violence orders as appropriate' and that 'FFVOs are intended to operate alongside, and complement the protections afforded by, state and territory family violence order schemes'. The department clarified that FFVOs could be sought by 'those who have a family law matter before a listed family law court, and who do not wish to navigate a separate state or territory system to obtain criminally-enforceable protection'.
2.26
The Attorney-General's Department reiterated that:
State and territory police and courts remain best placed to support individuals who do not have current family law proceedings on foot, or who are seeking urgent protection from family violence even if they have current family law proceedings on foot.
2.27
In relation to a party being subject to 'both a state and territory family violence order and a FFVO in force at the same time in relation to the same matter', the department advised that the bill:
provides that a listed court must not issue a FFVO where there is a state or territory family violence order in force for the protection of the protected person and directed against the person against whom the FFVO would be directed. The Bill also provides state and territory courts with a power to revoke or suspend a FFVO in proceedings for a family violence order, to avoid inconsistent orders.
2.28
The department also highlighted that '[t]he federal family law court would be required to search the National Police Reference System (NPRS) before making a FFVO'.
2.29
The Attorney-General's Department noted that there may be circumstances in which a FFVO and a state or territory family violence order are in place at the same time. In that circumstance:
The Bill clarifies that to the extent that a family violence order is not able to operate concurrently with a FFVO because the terms of those orders are directly inconsistent, section 109 of the Constitution would operate to invalidate the state order to the extent of that inconsistency. A FFVO would also invalidate conflicting territory orders. There would be a direct inconsistency if it would not be possible to comply with a condition of the family violence order without breaching a condition of the FFVO, or vice versa.
Where some of the terms of a family violence order are directly inconsistent with the terms of a FFVO, but other terms are not directly inconsistent, the family violence order would continue to be valid to the extent that it is not inconsistent. The conditions of the family violence order that are not inconsistent with the FFVO would remain enforceable.
2.30
In relation to concerns about the enforcement of FFVOs, the department submitted:
to support state and territory police in their FFVO enforcement roles, the Commonwealth is funding development of a training module for police about the new orders, including how they would interact with state and territory orders.
Information sharing
2.31
Some submitters and witnesses raised the importance of information sharing, given the intersection between FFVOs and state and territory protection orders.
2.32
The LCA was concerned about the accessibility of information to the courts, arguing that the bill 'should only be implemented once there is a national electronic database of FVOs…in effective operation, with appropriate funding' and recommended that:
consideration should be given to trialling the scheme in one or two registries, or for a limited time, and evaluating the impact before legislating to make changes on a permanent basis.
2.33
With regard to conflicting or inconsistent federal and state or territory orders being made relevant to the same party(ies), the Queensland Police Union of Employees (QPU) discussed the importance of both federal and state or territory jurisdictions having access to the same information:
If there are two different orders being made, it's really important that those orders are consistent and not in conflict with each other, because issues will arise with enforcement if they are inconsistent with each other. That's why it's vitally important that, for instance, the second judicial officer who's making the order, when one's already in place, should have timely access to all of the information from that other jurisdiction.
…
As a matter of law, the federal order would take precedence, but, from a practical sense, we're dealing with people from numerous different socioeconomic backgrounds, and they're given these orders that are inconsistent with each other. That just opens up Pandora's box in regard to issues before the court when enforcement action's trying to be taken. The first port of call—and there are a lot of logistical issues around this—is to have one court deal with both issues. But, as we understand at the moment, family law proceedings are before the federal court, while domestic violence issues are before the individual state's courts. In a perfect world, if we could somehow one day arrive at a position where one judicial officer is considering all of those issues, rather than separately in a silo, that would be the best-case scenario, but we're not anywhere near that position as yet. So the second position is that visibility around access to the court orders that each court has made—what those orders say and whether or not those orders have been served—is vital when the second court is determining what orders to make.
2.34
Women's Legal Services Australia acknowledged that the National Police Reference System (NPRS) would be made available to the courts but queried:
if orders will be available to the courts in real time. This is important to ensure an application for a FFVO cannot be made when a state/territory based order is in place. We understand that a permanent information-sharing mechanism is under development and that it is hoped orders will be available in real time. The timeframe for completion of this is not clear.
2.35
The Police Federation of Australia (PFA) emphasised the importance of harmonisation of information for the purpose of police serving protection orders, stating:
it means police officers, if they have to be the people who serve these orders, have up-to-date information and can do a risk assessment to make sure, when they do serve those orders, that the other parties involved are aware of it, that it's updated straightaway in the system and, on top of that, that the police are safe when they are serving it to some of these offenders who are quite violent.
2.36
Relationships Australia and National Legal Aid similarly called for permanent, real time access to '"records, data bases, and registers" containing information about family violence orders' so as to avoid 'complications in connection with enforcement and breach if dates of births and deaths, and potentially also changes in parental responsibility, are not readily accessible'. Relationships Australia was, however, 'really optimistic about the opportunities' for information-sharing and considered that the 'bill addresses some of the core requirements for the courts to ensure that they interrogate databases and understand where information is available' as well as providing 'further impetus for moving towards another national standards database'.
2.37
The Centre for Excellence in Child and Family Welfare called for the FFVO scheme to align:
with some of the states and territories' work that responds to family violence…in Victoria we have two schemes. We have an information-sharing scheme for children and one around family violence. Again, the harmonisation of some of these pieces of work is going to be critical. If we don't do it, we'll add more complexity.
2.38
If enacted, the provisions of the bill would not come into force until 12 months after Royal Assent, to allow—amongst other things—'the implementation of information sharing'. The Attorney-General's Department advised that '[f]unding has been allocated for the development of an automated system which would provision the FFVOs using the [National Police Reference System (NPRS)], and enable state and territory police to access the orders'. The Australian Federal Police (AFP) would be responsible for developing the automated system and populating it with FFVO information on behalf of the family courts.
…state and territory firearms registries will also be notified when a FFVO is issued, to ensure they apply all relevant restrictions under their legislation.
Funding has also been allocated to the Australian Criminal Intelligence Commission, which administers the NPRS, to provide Court Portal read-only access to the NPRS to the family law courts. Before a family court can issue a FFVO, they must be satisfied that there are no state or territory family violence orders in force for the protection of the protected person and directed against the person against whom the FFVO would be directed. It is intended that the key method by which this obligation would be satisfied is by the courts checking the NPRS.
2.40
The Attorney-General's Department acknowledged calls for a trial of the FFVO scheme but argued that such an approach would risk 'complexity and confusion', as well as have 'implications for delaying the availability of the framework to all who may need it, and challenges for implementation of the scheme'.
Misidentification of perpetrators and systems abuse
2.41
The misidentification of perpetrators and "gaming" of the family law system were discussed during the course of the inquiry.
2.42
The Women's Legal Services Australia stated:
Misidentification is where victims of family violence are claimed to be perpetrators of family violence. Sometimes the availability of a court process can encourage those actual perpetrators of family violence to try to use that system against their victims.
2.43
VOCAL observed that perpetrators are known to use the Family Courts as a 'weapon in order to continue abuse and control their victim'. In this context, No to Violence argued that the bill may facilitate:
misidentification as a result of vexatious claims or misuse of family violence protection order[s] by perpetrators of [intimate partner violence (IPV)], known as "systems abuse". This kind of abuse has been systematically assessed in New South Wales and can be defined as a perpetrator's intentional misuse of judicial processes to avoid responsibility for their own behaviour as well as in an attempt to further coerce and control a victim.
2.44
The LCA similarly reflected that:
Another unintended consequence to which the Bill may give rise is creating for perpetrators of family violence an avenue to delay determination of family violence issues. In the experience of the Law Council's members, perpetrators may adopt an adversarial approach by seeking to increase the number, length and cost of family law or family violence proceedings, with the intent of driving the victim to the point of exhaustion or despair.
2.45
The Centre for Excellence in Child and Family Welfare advised that the misidentification of perpetrators 'is a very live debate in Victoria at the moment'. Ms Deborah Tsorbaris, Chief Executive Officer, Centre for Excellence in Child and Family Welfare, explained that:
we've yet to really identify the extent of this, but we are hearing from women that this is happening quite often. So this is a piece of work that the state needs to do and continue to think about in line with implementing this piece of legislation.
2.46
The Legal Services Commission of South Australia stated that:
There is also concern that the inclusion of these provisions as part of existing disputes, usually around parenting matters, will add another dimension to the complexity of those proceedings. There is concern that a perpetrator of family violence will take the opportunity of broadening the dispute thus exacerbating the issues, making them less likely to resolve, and adding to the delays and costs of both legal representation and to the court system.
2.47
In relation to family law proceedings involving its members, the QPU suggested that 'there seems to be a perception that having a State based domestic and family violence order will benefit a party to federal litigation'. It explained:
The view is that advice is given that that's an advantage in family law court proceedings in regard to access to the children. That's one specific example of where there's a view that there's a strategic advantage in having domestic violence proceedings on foot when there are current family law proceedings as well.
2.48
The National Family Violence Prevention and Legal Services Forum and Women's Legal Services Australia raised concerns about the heightened risk facing Aboriginal women:
There is a view amongst our member organisations that there is a likelihood that Aboriginal women may well be among those women who are misidentified as perpetrators of family violence and be less able to challenge that misrepresentation, because of a level of disengagement with the family law system. We don't have a high number of Aboriginal people engaged in the family law system, which of itself is something of a concern, because it may not be as friendly a jurisdiction for their needs as it could be. I know that there have been some steps—somewhat interrupted by COVID—to really improve that. So, without wanting to overstate our knowledge on this, we're certainly aware that there's likely to be a disproportionate experience of those adverse consequences amongst Aboriginal women, as they are representative of a significantly marginalised group.
2.49
When asked how misidentification of perpetrators might be addressed in the legislation, Women's Legal Services Australia responded:
it is really challenging, despite some real improvements in the understanding by judicial decision-makers of the nature of family violence and the likelihood of this happening. I think one of the things that we need to do is to make sure that there is a fairly quick turnaround, so that there is the opportunity to undo any damage done by the accusation. What we ask our police to do when we are talking with them is—if a woman is identified as a perpetrator of family violence—that they immediately think twice about it, because the evidence is such that family violence is very gendered. It is most likely that it is an incident of violence against a woman, being perpetrated by a man. That's not the exclusive way that family violence occurs, but that is likely to be the case. And it is quite possible in legislation to actually make reference to that gendered nature of family violence.
As an advocate in court, being able to refer to legislation that identifies that really does give you some opportunity to overcome any inherent dismissiveness that might sometimes be present in decision-makers, for example, when you might be wanting to introduce the notion of the likelihood of the violence not having been committed by a woman.
2.50
The FLPAQ suggested that the potential to review a FFVO was an important safety mechanism, to ameliorate the risks of a FFVO being "weaponised". Ms Clare Dart, Executive Committee Member, FLPAQ explained:
the orders could potentially be in place for up to, effectively, 18 years. There is a lot that can happen, in effect, for a family or for parties in a particular matter within that time period. Certainly, we're not opposing it being longer than five years, but we're suggesting or recommending that there be something incorporated into the bill so it's clear as to what considerations were taken into account in relation to that. There is also always the capacity for orders to be extended if they need to be.
2.51
The LCA recommended that:
Consideration should be given as to possible safeguards against the risk that cross-applications for federal FVOs in the federal system are utilised to frustrate genuine applications for FVOs in the state or territory courts, in consultation with relevant stakeholders.
2.52
The Attorney-General's Department highlighted that '[j]udges routinely deal with matters involving allegations of family violence and make determinations based on the evidence available in the context of parenting and financial proceedings'. As such, 'courts are well placed to consider FFVO applications, weigh and assess the evidence, and make a determination'.
2.53
In considering FFVO applications, the courts would need to take various factors into account in addition to the statutory test, including—as the primary consideration—'the safety and welfare of the child, or the safety and welfare of the protected person, including the need to protect the person from being subjected to family violence'. The Attorney-General's Department stated that 'the court would also be required to take into account, as relevant, a number of other matters relevant to the applicant's protection needs'.
2.54
The department outlined a number of other measures that:
are designed to support the courts in the identification of family violence and victims, including:
funding committed by the Government as part of the 2020-21 Budget to develop on-line training modules on FFVOs, including for the listed courts
work underway to enhance access to information through finalisation of the National Strategic Framework for Information Sharing between the Family Law and Family Violence and Child Protection Systems
conducting a pilot of a significantly enhanced approach to identifying and managing family safety risk in the family law courts ('the Lighthouse Project')
co-funding with the states and territories measures to improve the family safety competency of judicial officers, such as the development and maintenance of a National Domestic and Family Violence Bench Book and the delivery of the Family Violence in the Court training program
engagement of the Safe & Together Institute by the Family Court and Federal Circuit Court to deliver an additional training program on family violence in the context of family law disputes, for family consultants, registrars and judicial officers.
2.55
In addition, the Attorney-General's Department pointed to the 'extensive case management powers' of courts, which include:
a broad power to summarily dismiss proceedings or applications that the court considers to be frivolous, vexatious or an abuse of process. The court is also able to make vexatious proceedings orders where a person has frequently instituted or conducted vexatious proceedings, to restrain them from initiating further litigation.
2.56
The department concluded:
There is always the potential for malicious persons to seek to abuse processes, particularly where there are different systems at play. The Bill does not create a vulnerability in this respect, instead, the Bill includes a number of deliberate measures designed to manage interactions between the orders in the different systems. It is not appropriate that new tools and initiatives that support victims are withheld on this basis.
Workload, resourcing and training
2.57
Numerous submitters and witnesses indicated that enactment of the bill would increase the workload for listed courts and make significant demands of their resources and staff. For that reason, concerns were raised about the adequacy of resources available to listed courts and the skills and training required of judicial staff to appropriately manage FFVO matters. Others observed that the demand for and complexity of FFVO matters would be a resourcing impost on legal aid and community legal services.
2.58
The LCA suggested that the bill would result in 'a "tsunami of additional matters"', while Relationships Australia observed that 'the family courts are courts with very heavy workloads'. Relationships Australia submitted that the bill:
may well increase that workload, so we would support calls made by other submitters to ensure that the courts, police, prosecutors and legal assistance providers are all appropriately resourced. One of the worst things that could happen after implementation of this bill would be for its protections to become illusory because no-one who was charged with responsibilities under it had the resources to enable that to be given effect to.
2.59
Relationships Australia highlighted the very serious implications of an under-resourced and poorly enforced family law system:
if you are feeling safe because you have an order, and then there is no-one in a position to enforce that order if the perpetrator is breaching, then the consequences, I think, could be very serious, in terms of the danger which a protected person faces. That will include the person in whose favour the order is taken, as well as children. I don't want to be gratuitous or overly dramatic in forecasting what may occur, but we have seen in this country a series of tragic and terrible, terrible events, where people have lost their lives—children have lost their lives. If you don't resource these systems properly, then there is a risk that people would be relying on something that wasn't there when they needed it, to put it in its most basic terms.
2.60
Resolution Institute supported the intent of the bill, especially the introduction of a criminal offence for breaching a FFVO, but was concerned 'that judicial staff will have to deal with an even greater case load in an already overloaded family law system'. Resolution Institute suggested that the introduction of FFVOs could 'provide an incentive to enter the family court system earlier' because FFVOs 'can be enforced in a manner that Family Violence Orders [at] the state level cannot' therefore 'there will be greater demand for FFVOs than for state Family Violence Orders'.
2.61
The LCA also reflected on the nature of family law matters before the courts, the quantum of self-represented parties and the impacts of those things on the resources available to the courts and legal aid:
We know that about 70 per cent of matters before the court involve allegations of family violence. Add to that what we know about self-represented parties. Add to that what we know has happened with respect to the section 102NA cross-examination scheme. That raises a separate issue. One would think that people participating in these hearings would need the protections of section 102NA. So there will be further resourcing demands that will flow from that.
2.62
Victorian Women Lawyers suggested that:
the application of the FFVO process in Listed Courts could cause further delays in the resolution of family law matters…The Family Court and Federal Circuit Court already have limited capacity to manage their workloads…VWL considers that strategies are needed to expedite the process of applying for FFVOs in Listed Courts, such as the creation of a unique list for FFVOs…
2.63
The question of whether listed courts would create a new list in order to manage the FFVO process was raised by other witnesses. The LCA told the committee 'it may be that the court does intend to respond to…[the] need with respect to urgent remedies by effectively carving out a new list or a new process'.
2.64
In the context of First Nations communities, Legal Aid NSW suggested:
Ms Baltins: One of the options available may be an expansion of the Indigenous list in the Federal Circuit Court. That's currently in New South Wales, only based out of the Sydney registry. That provides a culturally safe and appropriate pathway through the court for Aboriginal and Torres Strait Islander litigants and their extended families. The benefit of the Indigenous list is that it not only provides a specialist pathway but it is also brings in the wraparound services that make sure that victims of violence are provided with the wraparound holistic, legal and social supports available through, for example, the Family Advocacy and Support Service, duty lawyers, and specialist Aboriginal and Torres Strait Islander support services.
Senator WATERS: Just to clarify, that list would be in usage if there was a breach of the federal family violence order, and the enforcement of that happens, my understanding is, through the state system. You're saying that the enforcement of that through the state system would be managed best through rolling it into the Indigenous list?
Ms Baltins: One of the advantages would also be that the order could in the first instance be made in the Indigenous list. A specialist judge would be able to look at the family in the Indigenous list, and be able to look at their family law, parenting, property or other matters, but also their federal family violence order would be streamlined through that pathway.
2.65
Submitters and witnesses consistently argued that the courts' capacity to adequately manage FFVOs and family violence matters more broadly necessitated additional training for judicial staff.
2.66
For example, No to Violence stated that 'additional training will likely be required to sufficiently prepare the Courts to address the complex and highly specialised nature of family violence matters'. VOCAL similarly remarked that 'urgent family violence training' is required for federal court professionals on the basis they are 'not familiar with family violence dynamics and therefore may not apply for or even grant an FFVO'.
2.67
VWL argued that the bill 'must be accompanied by adequate training and support for Registrars in identifying and addressing family violence, and to prevent collusion with perpetrators'. The National Family Violence Prevention and Legal Services Forum emphasised the particular need for:
cultural competency training for family law practitioners (judicial officers, lawyers, independent children's lawyers, court counsellors and expert witnesses) and other specific training relevant to the unique needs and barriers of Aboriginal and Torres Strait Islander victim/survivors of family violence. Corresponding training must also be provided for child protection agencies and police.
2.68
Community Legal WA welcomed the investment of $140 million in the 2021-22 Federal Budget for implementation of the changes outlined in the bill. However, Community Legal WA opined:
with respect to all proposed changes that Legal Aid Commissions, Aboriginal Legal Services, Family Violence Prevention Legal Services and Community Legal Centres are critical stakeholders in the family law system and that legal assistance - in the form of advice, advocacy and representation - will be crucial to making any new regime a success.
[Community legal centres] in particular are facing an increase in demand for services on tight budgets. It is important, therefore, that the extra work which will be associated with the need to accommodate new arrangements attracts a full assessment of need, evaluation and adequate allocation of legal assistance resources.
2.69
The Legal Services Commission of South Australia similarly told the committee that:
this new way of obtaining an intervention order through the family courts will put quite a substantial demand on our budgets, because there will be more events on a file which will cost us more, there could well be more applicants than we're seeing at the moment, and, of course, it adds a level of complexity that we'll be required to fund. We often fund both sides in a family law dispute, both the father and the mother, and sometimes, of course, there are other parties, like the grandparents. So we are very concerned about that impact on our budgets, and we haven't been consulted as to what that impact might look like.
2.70
The LCA shared the concerns about resourcing for legal aid, and recommended that the bill be accompanied by additional 'resourcing for duty lawyer services and other legal assistance sector providers' as well as:
adequate further resourcing at state and territory level, as well as federally, to ensure that victims of family violence are able to access the applicable processes and obtain legal representation via legal aid bodies.
2.71
With regard to other resourcing and capacity constraints, the LCA recommended (amongst other things):
'the prompt appointment of appropriately experienced and skilled judges to meet the potential increase in workload brought about by the reforms';
'continued training and education to support safe decision making, so that judicial officers and other court staff receive regular and ongoing education on such decision-making, as well as family violence more generally'; and
'adequate funding and resources… so that state and territory police receive thorough and ongoing training, particularly in relation to recognising and enforcing federal FVOs'.
2.72
The Attorney-General's Department told the committee that a:
key additional [piece] of resourcing provided to the courts is to support the implementation of the Federal Circuit and Family Court of Australia, and there was $60.8 million over the forward estimates to support that reform.
…
consistent with the bringing-together of the two courts, a significant resourcing input of registrars, both senior registrars and registrars. I think in the order of 25 have been funded. It's really to allow the court to have a new case management system which will actually free up judges to be able to do more judicial kind of work and allow registrars to do some triaging but also do some other lower-level matters that don't need judges.
…
I think it's also the case that, because this is new funding for the courts and they're only just recruiting the registrars now, it's going to take some time for the court to see how everything plays out both with the new legislation and in just getting the registrars and working through the new processes. Then, when that is bedded down a little bit, I think government will have a better assessment of what are the resourcing needs of the court, if any, depending on resourcing already provided.
2.73
The committee was also informed that funding has been allocated by the federal government for 'the development of on-line training modules for state and territory police, state and territory courts, and federal courts on the new FFVOs and their enforcement'. The Attorney-General's Department also advised that:
Family law judges will receive training on the new tests for issuing a FFVO, its interaction with other orders and injunctions under the Family Law Act, and the stand-alone template for recording FFVOs.
State and territory police, who will enforce FFVOs, will receive information on the nature and scope of the orders, how they are to be enforced, and how they interact with state and territory family violence orders.
State and territory magistrates, who will hear breach proceedings for FFVOs, will receive information on what law will apply to those criminal matters, and what scope they have to suspend or revoke FFVOs. Training on how FFVOs and state and territory family violence orders interact with other family law orders will also be provided.
2.74
In relation to funding for legal assistance, the Attorney-General's Department stated:
funding for legal aid commissions, it's a joint responsibility of the Commonwealth and the states and territories. The Commonwealth is providing over $2.3 billion of quarantined funding over five years, and it is a matter for legal aid commissions to determine, within current resourcing, how they then allocate that funding…we intend to closely monitor the implementation of the FFVO scheme both in terms of its delivery against the stated policy objectives and in terms of its broader implementation and how funding and other resourcing are stacking up against usage. That will be quite closely monitored, and we expect that, if resourcing shortfalls are identified, the government would consider any shortfall and how to address that.
Independent Children's Lawyers
2.75
Some submitters and witnesses discussed the role of and resourcing for Independent Children's Lawyers (ICLs) in FFVO proceedings.
2.76
The LCA argued that the role of ICLs in FFVOs should be clarified, 'particularly whether the alleged perpetrator could be cross-examined about the same incident by both the applicant for the FVO and also by the ICL'. The LCA also called for:
the role of children as witnesses should be clarified, recognising that children are regularly called as witnesses in proceedings at the state and territory level but not in proceedings under the Family Law Act.
2.77
According to the LCA, 'depending on the role anticipated for an ICL in the proceedings', additional funding for ICLs should be provided.
2.78
The Legal Services Commission of South Australia was similarly concerned about the role of ICLs under the bill. Mr Ashley Kent, Manager, Family Law Division, Legal Services Commission of South Australia, stated:
It doesn't make it clear in the legislation whether the independent children's lawyer could be expected to bring an application for an intervention order if one of the parties were in a situation where they were not able to obtain legal aid. Frequently, legal aid is not granted in state intervention orders, and the current policy of the commission is that it's not granted. Whether that would increase the responsibility for legal aid down the track is a matter that concerns us greatly. But, if an independent children's lawyer is to bring an application, that puts in significant doubt the independence of the independent children's lawyer. They're supposed to be seen to be independent of the parties and not taking sides. If the independent children's lawyer is put into a situation where they feel they have to make the application for the intervention order, that certainly is going to throw into doubt the independence of that lawyer.
2.79
Relationships Australia considered that there could be a role for ICLs in FFVO proceedings:
as a representative of the children…it is entirely appropriate for an independent children's lawyer to have a role to play in applying for FFVOs on behalf of the children who, yes, can be and often are victims in their own right.
2.80
Relationships Australia continued, informing the committee that:
An evaluation of ICLs by AIFS in 2012 showed that the people who most appreciated ICLs were judges, because sometimes the ICL was the only lawyer in the room and the judge could turn to the ICL and rely on them to get evidence into court, get it filed and make sure that procedural things were happening…the role of the ICL does need some attention at a conceptual level, as well as a resourcing level, in terms of what responsibilities and expectations are placed on them and their role in relation to representing the best interests of the child.
2.81
National Legal Aid envisaged that ICLs would be the applicant in some circumstances and suggested that ICLs should be granted immunity:
given the potential for the ICL to be the applicant for the federal family violence order, that orders can be made in a person's absence, the criminality attaching to any breach, the potential for imprisonment and mandatory sentencing regimes.
2.82
The Attorney-General's Department clarified that:
The role of independent children's lawyers within the bill is really designed to align with their duties to prioritise the welfare of the child, and so, in the context of applications for federal family violence orders in relation to children, independent children's lawyers will have the ability to apply for an FFVO on behalf of a child, and, if that application is accepted, the ICLs will also have a role in supporting the child through that process.
2.83
The Attorney-General's Department explained that the circumstances in which an ICL might apply for an FFVO include:
situations in which the dynamics of power and control in a violent relationship have affected a party's willingness or ability to apply for a FFVO to protect a child. The ability of ICLs to apply for a FFVO that lists a child as a protected person is consistent with their ICL duties concerning the child's welfare and best interests, and applying for an FFVO would be at their discretion, subject to other evidence and considerations.
Accessibility of federal family violence orders
2.84
The extent to which FFVOs would be readily accessible for applicants in regional and remote areas, where federal courts may not be located or visit on circuit, was discussed by some submitters and witnesses.
2.85
The Legal Services Commission of South Australia told the committee:
In South Australia, we only have one Federal Circuit Court and Family Court in Adelaide, whereas there are numerous state magistrates courts throughout the state that are able to provide the services of intervention orders. So, unless the Federal Circuit Court were on circuit more often and in various areas, I just can't see how the Federal Circuit Court can cope with the rural aspect of these issues. The state courts are far better positioned to do that.
2.86
Legal Aid NSW agreed, remarking:
we are concerned about the access that our clients in regional and rural areas would have to these protections. We would also like to make the comment that the need for the state system to continue to operate in its current form is important to ensure that those families don't fall through the cracks.
2.87
Women's Legal Services Australia stated that 'postcode-justice' is an existing issue and observed that moves by federal courts to undertake certain activities remotely, on account of the COVID-19 pandemic, presented an opportunity to address the urban-regional/remote divide:
…the Federal Circuit Court and Family Court when it introduced its COVID list and was looking at doing things remotely in that way it was a very good move. We did have some consultations with the Chief Justice about that. Women's Legal Services Australia was really quite keen to see that family violence matters could be dealt with with the convenience and efficiency of a remote hearing. One of the advantages of that is that it certainly does alleviate the problems of circuit courts, which are a very pressured environment for anybody to be seeking assistance in. If you're traumatised, that's not the environment for you to be in. Also, there are some great efficiencies in that the court can divert people to less busy registries to deal with matters, regardless of where they may live. So I would be hopeful that anything that occurs takes advantage of the technology that has been embraced as a result of the unfortunate pandemic. I think that there are ways to be able to alleviate that. We just have to change the thinking to make sure that people recognise that this online hearing is a serious judicial process; it's not just googling.
The other thing that you mentioned before was the gaps in the multiple different systems. Again, when you are looking at resourcing and at differences in geographic areas, I think that sharing data and information between the child protection system, the state family violence system and the family law system really does need some attention and improvement. While there's an intention to address this, I think we really need to look very carefully at it if we're going to have a successful implementation of any family violence legislation at a federal level.
2.88
To remedy the urban-regional/remote divide, the South Australian Law Reform Institute (SALRI) recommended that the definition of 'listed court' be expanded to include any court exercising jurisdiction under the Family Law Act 1975, given the intended merger of the Family Court and Federal Circuit Court, so that applicants throughout a state—including those in rural areas—could access FFVOs.
Consultation on the bill
2.89
A number of submitters and witnesses advised the committee that they had not been consulted on the bill and considered that further consultation is necessary.
2.90
For example, Women's Legal Services Australia stated that it was not confident about the operation of the regime proposed under the bill and queried whether 'there is sufficient time and consultation for this to happen effectively in the time frame envisaged'. Ms Helen Matthews, Director, Women's Legal Services Australia continued, '[a]lso, in this process, while certainly we've had the opportunity because of this inquiry to make comment on the legislation, it's not something that we were consulted about previously…'.
2.91
Similarly, the LCA, Relationships Australia, and the Centre for Excellence in Child and Family Welfare told the committee that they had not been consulted on the bill prior to its introduction to the parliament.
2.92
The Legal Services Commission of South Australia urged the federal government to consult with 'legal aid commissions and any other relevant stakeholders in the state system…about the potential costs [sic] implications, and the operation of the amendment in general'.
2.93
Domestic Violence NSW had a similar view, stating 'the Australian Government needs to conduct a broad consultation with the non-government sector, specialist domestic and family violence frontline workers, and lawyers in order to develop comprehensive family law orders'.
2.94
The Attorney-General's Department stated that feedback on the Family Law Amendment (Family Violence and Other Measures) Bill 2017 directly informed the development of the current bill. Further consultation was also undertaken with the National Personal Protection Injunction Working Group and its Legislative, Business and Technology advisory groups, which comprise:
police, justice and courts senior officials from all jurisdictions, and had the expertise required to devise legally and operationally sound arrangements for the enforcement of the orders, to which all jurisdictions could agree.
2.95
The Attorney-General's Department further explained that the bill was informed by other inquiries:
One of the drivers of this reform was the Victorian Royal Commission into Family Violence, and also the Australian and New South Wales law reform commission inquiries into family violence and improving legal frameworks. The recommendations arising out of both of those inquiries included that the federal family law system includes a criminally enforceable protection order. Both of those inquiry processes informed significant consultation with the public and with key stakeholders. We are aware that sectoral stakeholders, including members of the legal profession and also family violence service providers, contributed to those inquiries…
More recently, the Joint Select Committee on Australia's Family Law System held public hearings and received submissions from a wide range of stakeholders. The recommendations arising out of that committee's second interim report included that federal protection orders be able to be effectively enforced by state and territory police. Since that time, and in response to a COAG tasking, a national working group has been established that has been working together on the development of these reforms. The working group and its legislative, business and technology advisory groups have brought together expertise across police and court operations, information-sharing technology, and legal and business frameworks that currently support the enforcement of domestic violence orders nationally.
Committee comment
2.96
Family violence is abhorrent and has no place in Australian society. Victims of family violence should have available to them strong and enforceable protections; perpetrators should be held to account for their behaviour.
2.97
The committee welcomes the bill as part of the federal government's commitment to improve safety within the family law system, and recognises that submitters and witnesses overwhelmingly supported the intent of the bill.
2.98
It is critical that reform such as that proposed in the bill is correctly implemented; the safety of victims, including children, demands it, as does the efficient and just functioning of the family law system. However, it is also important that this bill is passed so that those affected by family violence can benefit as soon as possible from the FFVO regime.
2.99
The committee acknowledges concerns raised by some submitters about the manner in which FFVO applications would be listed and heard by the Federal Circuit and Family Court of Australia (the Court), as it will become known on 1 September 2021, and the speed by which FFVO applications would be finalised (given interim FFVOs are not available). However, the committee notes that the Court would have broad discretion to administer the FFVO regime in accordance with its existing powers and rules. The committee also notes that the Federal Circuit and Family Court of Australia Act 2021 provides the Chief Justice and Chief Judge of Divisions 1 and 2 with the power to make court rules about practices and procedures to be followed in proceedings within 18 months of the Court's commencement. After this time, the judges, or a majority thereof, will retain this power.
2.100
It is clear that the intersection between FFVOs and existing state and territory orders is a source of complexity. The committee acknowledges that FFVOs are intended to operate alongside state and territory protection orders, and that the reform proposed in the bill has been, and continues to be, the subject of consultation between the Commonwealth and state and territory governments. The committee also recognises that the provisions of the bill would not come into force for 12 months after receiving Royal Assent, with the intention that this time be used to finalise 'the amendment of state and territory legislation and the implementation of information sharing and other mechanisms to support enforcement of the new orders'.
2.101
The committee appreciates the ongoing work by the Attorney-General's Department in this regard. The committee notes that protocols between the federal government and the states and territories have been finalised to address some of these complexities. However, given state public prosecutors, legal assistance providers and law enforcement alike have voiced concerns about the complexities likely to face them and parties to a FFVO with the introduction of the scheme, the committee recommends that the federal government works with stakeholders to ensure that those issues are fully addressed and resolved after the bill is passed but prior to the relevant provisions of the Act coming into force.
2.102
The committee recommends that the federal government works with stakeholders, in particular state and territory public prosecutors, legal assistance providers, and state and territory law enforcement agencies, to ensure that anticipated complexities and potential inconsistencies arising from the concurrent operation of federal family violence orders (FFVOs) and state and territory protection orders are resolved prior to implementation of the FFVO scheme, that is, after the bill is passed but before the relevant provisions of the Act come into force.
2.103
The committee agrees that courts are well placed to consider FFVO applications, weigh and assess evidence, and make determinations, given their expertise and experience. Irrespective, the committee is keen to ensure that listed courts are alive to misidentification of perpetrators and systems abuse, so that they do not facilitate the ongoing abuse of victims. On that basis, the committee agrees with the calls by the FLPAQ and LCA for consideration to be given to safeguards against systems abuse.
2.104
The committee recommends that the federal government considers explicit safeguards or other implementation measures against systems abuse through the use of federal family violence orders.
2.105
The committee is sympathetic to the concern raised during the course of the inquiry about the ability of applicants in regional or remote areas to readily access FFVOs. The committee therefore calls on the federal government to consider the question of accessibility for regional and remote applicants, and possible remedies such as the South Australian Law Reform Institute's recommendation to expand the definition of a 'listed court'.
2.106
The committee recommends that the federal government considers the accessibility of federal family violence orders for applicants located in regional and remote areas, and possible remedies where accessibility is difficult.
2.107
Subject to these recommendations, the committee recommends that the Senate passes the bill.
2.108
Subject to the preceding recommendations, the committee recommends that the Senate passes the bill.
Senator the Hon Sarah Henderson
Chair