The Australian Greens strongly support efforts to strengthen the protections available to survivors of family violence. We support the objectives of the Family Law Amendment (Federal Family Violence Orders) Bill 2021 (the bill) and welcome efforts to facilitate survivors, primarily women and children, securing protective orders as part of family law proceedings, avoiding the trauma and potential confusion of separately seeking protection under state or territory laws and allowing enforcement in all jurisdictions.
We also welcome the recognition that children exposed to family violence can be the subject of protective orders, even if they are not at risk of direct physical violence. Too often, abusers claim that their violence against their partner should not impact on access to their children because they 'never hit the kids'. This bill acknowledges that children who witness family violence are deeply affected and need protection.
However, numerous witnesses to this inquiry raised concerns about how Federal Family Violence Orders (FFVOs) will operate in practice. While we acknowledge that the 12 month commencement period is intended to allow time for clarification of the process, training for police and judicial officers, and finalisation of the National Domestic Violence Orders Scheme, it remains concerning that the bill would be passed with so many open questions about its implementation.
The level of uncertainty amongst practitioners who will be tasked with working with the bill is not good practice. Comprehensive consultation should have been undertaken in developing the bill, but was not.
Given the systemic nature of many of the concerns, particularly procedural abuse and misidentification of perpetrators, it seems highly ambitious to assume that the concerns can be addressed adequately in 12 months. If that goal is to be achieved, the upcoming Women’s Safety Summit and the work being undertaken by the Councils of Attorneys-General on criminal justice responses to violence against women will be critical forums to progress these issues. The absence of that National Family Violence Prevention Legal Service from key advisory bodies should be immediately reconsidered.
While it is beyond the scope of the bill to resolve issues regarding the effectiveness of state and territory orders, there is potential for this bill to establish a two-tier system between those able to access FFVOs and those who cannot. Victims in rural areas without easy access to a Federal Court registry, victims in de facto relationships, and victims who need urgent protection will still primarily use the state and territory systems, while those with access to the Family Court will have both options available to them. Efforts should be made to ensure that those unable to access FFVOs are not disadvantaged against parties who can.
Resourcing
The Attorney-General's Department anticipates that most FFVO applications will be contested by the respondent, particularly in the absence of the option to agree without admission available for state and territory protective orders. Given the serious implications for breaches of a FFVO, it is appropriate that applications are tested.
The Law Council predicts a 'tsunami of applications' for FFVOs and the Legal Aid Commissions warned that the bill could place significant pressure on their resources as more parties seek assistance for contested applications and the cross-examination program under section 102NA of the Family Law Act 1975 is further strained. Funding would have to be 'rationed'. Police resources to enforce new orders may also be stretched.
Relationships Australia expressed the view that, without proper resourcing, there is a substantial risk that the FFVOs will not be enforced in practice, 'rendering illusory the protection they are intended to provide to vulnerable people. People are endangered by such illusions'.
The family law system is already under immense strain. Adequate resourcing will be essential to the success of the proposed FFVO system. We urge the government to commit significant additional resources to the court system, Legal Aid, Women’s Legal Services and Aboriginal Legal Services to support the implementation of the bill.
Recommendation
The Australian Greens recommend that the government commit to, at least, an additional $310 million a year in funding for legal assistance providers. Substantial funding must also be made available to the social and support services that families and survivors of family and domestic violence require.
Recommendation
The Australian Greens recommend that the government resources the Federal Circuit and Family Court to appoint sufficient, appropriately experienced judicial officers and other staff that they may require as well as to provide sufficient, culturally safe, wrap-around, and responsive support for parties before the court.
Systems abuse
Many witnesses raised concerns that establishing a new avenue to gain family violence orders could create confusion and inconsistency with existing state and territory processes, and provide an opportunity for perpetrators to abuse the new system to delay or undermine family law proceedings.
[T]he Bill may create opportunities for perpetrators of family violence to delay determination of family violence issues. A perpetrator adopting an adversarial approach may seek to increase the number, length and cost of family law or family violence proceedings through an additional FFVO pathway at the federal level.
[The Law Council] also notes the risk that cross-applications for FFVOs may be used to frustrate genuine applications for FVOs in the state or territory courts (if proceedings are commenced in each jurisdiction and if an order has not been made in the state or territory court at the relevant time).
Legal Aid NSW noted the potential impact on Aboriginal and Torres Strait Islander communities:
[We need to make sure] that this is a system that allows for federal family violence orders to be made in a culturally appropriate and safe manner for a community that is already over-policed. We're concerned also about the duplication of state based and Commonwealth offences and the impact that that will have on multiple communities—but, again, particularly on Aboriginal and Torres Strait Islander communities—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… But we also don't want to open the door for defendants who breach these orders to use the complexity, and often multiple overlapping orders that may arise with the introduction of federal family violence orders, as an excuse for breaches of orders.
The Attorney-General's Department responded that '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'. The fact remains that these are serious concerns that must be addressed if FFVOs are to deliver the protections they promise and safeguard against abuse.
While the bill provides some protection by preventing FFVOs from being issued where a state or territory order is in force, that does not prevent an abuser whose retaliatory application for an order against their victim has been unsuccessful at a state level from making a fresh application for an FFVO, with a view to delaying family law proceedings. Amending the bill to prevent an application in these circumstances, unless leave of the court is obtained, would minimise the risk of abuse. Allowing applications where leave is granted recognises that some victims may have been defeated in an earlier application but need the protection of an FFVO.
Specifically requiring judicial officers considering FFVO applications to have regard to the gendered nature of family violence could also reduce the risk of misidentification of a victim as a perpetrator. Any legislative amendment to that effect must be supported by comprehensive trauma-informed and culturally sensitive training for all judicial officers and police.
Ensuring that FFVO applications can be heard through the Indigenous List will also assist in ensuring cultural sensitivity in the assessment of applications. As part of the current reconfiguration of the court structure, the Federal government should facilitate expansion of the Indigenous List beyond the Sydney registry.
Family violence is a national crisis that must be addressed effectively. The concerns raised by practitioners regarding the potential impact of this bill if it is not well implemented must be taken seriously.
Recommendation
The Australian Greens recommend that the government and Federal Circuit and Family Court consider options to minimise systems abuse and misidentification of perpetrators, including:
preventing applications for FFVOs being made following an unsuccessful application under state and territory laws without leave of the court;
specifically including the gendered nature of family violence as a consideration in FFVO applications; and
expanding access to the Indigenous List for FFVO applications.
Senator Lidia ThorpeSenator Larissa Waters
Senator for VictoriaSenator for Queensland