How many family law inquiries do we need to understand the significance of family violence, and the flaws in our family law system?
“There are people out there who are nothing but liars and who will use that in the court system…. I am hearing too many cases where parents are using domestic violence to stop the other parent from seeing their children.”
When Senator Pauline Hanson made comments in September 2019 suggesting that the family law system was biased against men, and with reference to a new family law inquiry initiated by the Federal Government, there was a collective outcry from those of us who work in the front line of domestic violence and those in the Family Court system.
It was a relief for most us to hear the comments of prominent campaigner Rosie Batty, when she said it was completely unacceptable for the government to be holding another inquiry into the flaws of our system.
In March this year, the Australian Law Reform Commission handed down findings from its review of the family law system, originally commissioned in 2017. There were 60 recommendations made as part of the ALRC review, with the aim of those reforms being to:
- promote an integrated court response to family law matters;
- provide better protection for litigants and children,
- improve dispute resolution processes and family violence services; and
- emphasise the need for specialist knowledge and experience of family violence, in the Court system generally.
It is otherwise important to formally object to the comments made by Senator Hanson, and to confirm that research from the Australian Institute of Family Studies shows that only 3% of Court ordered parenting agreements involve no contact between children and their father, compared with 9% of the general separated population[1]. The study further showed that whilst for the majority of parenting arrangements children spend the majority of their time with the mother, and have regular time with the father, arrangements where children spend most of their time with the father are more common in orders made where litigation occurs. This clearly contradicts Senator Hanson’s allegations that the family court system is biased against men.
Despite initially responding that he found most of the recommendations “very sensible” our Attorney-General Christian Porter announced in August that he would continue to push for the merger of our Family Law Court with the lower level Federal Circuit Court. It is expected that a bill seeking the merger, will be reintroduced to Parliament before the end of the year, a move that would reduce specialisation knowledge in family law cases, and the loss of a standalone specialist Court.
What has followed is, in my view, an unprecedent uproar from organisations including the Law Council of Australia. On 11 November 2019, an open letter from 60 frontline organisations (including Community Legal Centres, Legal Services, and Domestic Violence Services) was sent to the Attorney General, imploring that “Any reform should strengthen a system, not lead to the diminution of specialisation”. The letter goes on to say, quite powerfully:
“The safety of children and adult victims-survivors of family violence requires increased specialisation. The proposed merger serves only to undermine that important need. While we support just, quick and cheap access to justice and there is a role for increasing efficiencies within our court systems, this must not come at the cost of the safety of children and adult victims-survivors of family violence. These two important imperatives are not mutually exclusive, and one ought not be abandoned at the expense of the other. Safety must come first in family law.” [2]
How many family law inquiries are enough? The ALRC report recognises the important specialist nature of family law, and given the significant time, resources and funding that were invested in that review, it seems incomprehensible that those recommendations would now be ignored.
As a family lawyer working in the frontline of family violence, I agree that our system has considerable flaws. It is clear that whilst our court system remains critically underfunded, delays will continue to plague the system and place families in jeopardy.
On average, one woman a week is murdered in Australia by her current partner or former partner[3], and violence against women is estimated to cost the Australian economy $22 billion a year. [4] These are factors that cannot and should not be ignored, to fund a further family law inquiry.
KHQ Lawyers is a proud sponsor of the annual STOP Domestic Violence Conference.
[1] Australian Institute of Family Studies, “Parenting Arrangements after separation”. Research summary – October 2019
[2] Media Release, Law Council of Australia 11 November 2019 “Put safety first in family law, abandon flawed family court merger”
[3] Homicide in Australia 2012–13 to 2013–14: National Homicide Monitoring Program report Willow Bryant & Samantha Bricknell Published: 18/06/2017
[4] KPMG May 2016 Report “The cost of violence against women and their children in Australia”
