Australian inquiry finds family law can fail to support and protect people experiencing violence

Thu 15 Mar 2018

The final report has been published from an inquiry into Australian family law. The Australian Parliament’s Social Policy and Legal Affairs ...

The final report has been published from an inquiry into Australian family law.

The Australian Parliament’s Social Policy and Legal Affairs Committee started the inquiry in March 2017. The inquiry looked at how the family law system could better support and protect people affected by family violence.

The committee has published the final report, A better family law system to support and protect those affected by family violence (2017).

The Committee is calling for "... swift and urgent improvements to the family law system to better support and protect those affected by family violence." The report includes 33 recommendations for reforming the family law system.

Committee Chair, Sarah Henderson MP, said "it is clear that the family law system is not providing adequate support to and protection of families experiencing family violence. In many cases, the safety of families, particularly children, is being compromised."

In the foreward to the report, Sarah Henderson MP, said:

"Whether it be in relation to parenting orders, property division or the protection and safety of children, many people affected by family violence turn to or are required to enter the family law system. However, rather than providing safety and resolution to these families, the journey through the family law system can be a very difficult one and result in increased risk, trauma, prohibitive costs, a lack of justice and unacceptable delays in resolving the issues in dispute. Abuse of the legal system, itself, can also be used to inflict family violence."

In particular the inquiry identified a number of issues with the Australian family law system's response to family violence (page 48):

  • "the adversarial system is inappropriate for resolving family law disputes;
  • it does not respond appropriately to reports of family violence;
  • it is inaccessible for most families;
  • it is open to abuse of process, including ongoing coercion and control of victims;
  • it does not respond sufficiently to perjury and false allegations; and
  • the structure and interaction with other jurisdictions including the state and territory family violence legislation and child protection systems is fragmented, leading to inconsistent approaches and exposing families to a greater risk of harm."

These are discussed in Chapter 3 of the report. Chapters 4 through 9 focus on specific areas of the family law system for reform which cover: a new family law system including the development of a national risk assessment tool; property division and financial recovery; matters involving children; families with additional needs; strengthening the capacity of family law professionals; and ongoing support services.

Some of the key recommendations include:

  • "establishing stronger early identification and response processes to family violence matters;
  • the adoption of a single point of entry to the federal family courts so that applications can be triaged and actively case managed to their resolution;
  • the establishment of formal and expedited referral pathways between state courts and the federal courts and improved information sharing between those jurisdictions;
  • the earliest possible determination of family violence allegations to enable the courts to make informed decisions about parenting and property matters;
  • trials of specialist state and territory family violence courts which exercise federal family law jurisdictions, including a trial in a location with a high Indigenous population;
  • the urgent introduction of legislation to prohibit perpetrators of family violence from cross examining the other party;
  • the removal of the presumption of equal shared parental responsibility in the Family Law Act;
  • the incorporation of a child safety service within the courts and the introduction of multi-disciplinary panels to interview children in child abuse cases;
  • the abolition of private family consultants, with these roles only being engaged and administered by the Court itself, and a new accreditation and monitoring regime to ensure professional standards are maintained;
  • legislative amendments enabling express consideration of family violence in property settlements when assessing both parties’ contributions, as well as early resolution of small claim property matters and superannuation splitting orders;
  • better support for families with additional needs;
  • improvements in training for family law professionals; and
  • additional resources be provided for the federal family courts to assist with addressing the increasing backlog of cases currently before those courts."

For more information see the Parliamentary inquiry webpages.

The Committee’s report focuses on shorter-term reforms as the Australian Law Reform Commission is currently reviewing the family law system with a broader analysis.

Related media

First act of the family law review should be using research we already have, The Conversation, 04.10.17

Upcoming panel discussion on “parental alienation” and family courts

NZFVC is hosting a panel discussion on “parental alienation” and family courts on 20 March 2018 in Auckland. Speakers are Professor Elizabeth Sheehy from the University of Ottawa, an international expert on violence against women and women’s use of violence and the author of the award-winning book Defending Battered Women on Trial: Lessons from the Transcripts; Ruth Herbert, co-founder of the Backbone Collective which was launched in 2017 to enable women who have experienced violence and abuse to have their voices heard; and Catriona MacLennan, barrister, journalist and researcher.

Related news in Aotearoa New Zealand

The Law Commission is currently reviewing and consulting on the Property (Relationships) Act 1976.

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