Mary Anne Neilsen, Law and Bills Digest

Key Issue
Debate about family law has focused on how the system has dealt with the complex problems of family violence. The issues are challenging and are likely to remain a focus for the new Parliament.

Recent political debate about family law has focused on how the system has dealt with the complex problems of family violence. As various studies have indicated, families with complex needs, including violence, are the predominant clients of the family law system. The issues are challenging and important and will continue to keep family law reform on the political agenda during the 45th Parliament.

Legislative reform

The Australian Parliament has already paid considerable attention to proceedings relating to family violence in parenting under the Family Law Act 1975. Amendments in 2012 made under the then Labor Government were significant and intended to place family violence at the centre of parenting cases. Under the Family Law Act judges now have two primary considerations when assessing what is in the best interests of the child:

• the benefit to children of having a meaningful relationship with both of their parents and
• the need to protect them from physical or psychological harm, including being subjected or exposed to violence.

Furthermore, where there is a clash between these two interests, the safety of children is to be prioritised over the benefits of a meaningful relationship with both parents.

The effect of these reforms is as yet unclear. However, as Chief Justice Diana Bryant has frequently said, legislative amendment alone does not suffice and without resources these reforms are inadequate.

Reviews and inquiries

The last ten years have seen a plethora of reviews and inquiries into family law matters including the issue of family violence and child abuse. In one of the more recent inquiries the Coalition Government has tasked the Family Law Council to inquire into Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems. Due to be given to the Attorney-General in June 2016, this inquiry is a response to ‘the growing concerns about the separation of the federal family law and state and territory child protection and family violence systems and the risks to children’s safety associated with this situation’. One recommendation from the interim report relating to state and territory interim family violence protection orders and their interaction with parenting orders under the Family Law Act was implemented in 2015.

The Council of Australian Governments (COAG) has also been active. In recognition of the fact that a whole-of-government and community response is required to address family violence, COAG established an Advisory Panel on Reducing Violence against Women and their Children. The Panel delivered its final report to COAG on 1 April 2016.

The family courts

The recent history of the family courts has been marked by controversy and criticism about their handling of family violence matters (family courts, in this brief, generally refer to the Family Court of Australia and the Federal Circuit Court of Australia).

Professor Patrick Parkinson has described the courts as ‘almost dysfunctional’, noting that lack of resources and federal funding, plus their exponentially increasing workload, has led to unacceptably long delays. The courts have also angered fathers’ advocacy groups for a perceived bias against shared parenting. Criticism has also come from women’s legal serviceswho argue the courts are failing to protect women and children seeking protection from family violence.

In the weeks before the election Rosemary Batty, former Australian of the Year, addressed the issue of violence and family law with the major political parties. In conjunction with Women’s Legal Services Australia she presented a petition calling for reform and urging the political leaders to adopt the following five step plan to prioritise safety in the family law system:

• develop a specialist pathway for cases involving family violence
• reduce trauma and support victims, including legislative protections that prevent victims from being directly cross-examined by their abuser
• intervene early and provide legal help for the most disadvantaged
• support victims to recover financially
• strengthen the understanding of all family law professionals on family violence.

More recently the Family Court has received renewed publicity. Pauline Hanson and the One Nation party platform propose that the Family Court be abolished and replaced with a family tribunal made up of people from ‘mainstream Australia’. Respected members of local community, social and health groups would be invited to participate.

Chief Justice Diana Bryant has been drawn into this debate. While she can see some value in putting minor matters before a tribunal, the Chief Justice argues that the One Nation policy is simplistic. As she says, abolishing the court would raise constitutional issues. In a speech given in 2015 the Chief Justice articulates clearly the needs of the courts. On the subject of resourcing she commended the Government’s $100 million Women’s safety package aimed at addressing family violence but is concerned that the crucial role of the courts (and the corresponding necessity of resourcing them properly) has not to date been recognised as part of addressing family violence.