Urgent action needed now to put Safety First in Family Law

Article by Liz Snell (Law Reform and Policy Co-ordinator, Women's Legal Service NSW).

Despite a plethora of inquiries into family law over the past ten years, insufficient action has been taken to protect the safety of children, young people and adult survivors of family violence. With nearly 70% of cases in family courts involving allegations of family violence, the need for urgent action is greater than ever.

In this article, Liz Snell from Women’s Legal Service NSW (who is also a member of Women’s Legal Services Australia’s Co-ordinating Committee) reflects on recent inquiries into the family law system and the Government’s proposed family court merger.

She argues that we know what needs to be done to improve women and children’s safety in family law. And that the Government must take urgent action to:

Strengthen responses to family violence in the family law system
Provide effective legal help for the most disadvantaged
Ensure family law professionals have a real understanding of family violence
Increase access to safe dispute resolution models for victims-survivors
Address the gaps between the family law, family violence and child protection systems

How many inquiries before action prioritising safety is taken?

Within the past three years alone, there have been several major inquiries into Australia’s family law system.

In March 2017, the Standing Committee on Social Policy and Legal Affairs (SPLA) began an inquiry into how to better support and protect people affected by family violence in the family law system.
In September 2017, before the SPLA reported, the Government commissioned the Australian Law Reform Commission (ALRC) to undertake the ‘first comprehensive review of the family law system since the commencement of the Family Law in 1976'.
In September 2019, before issuing a response to the ALRC’s report, the Prime Minister announced a joint parliamentary committee would conduct another ‘wide-ranging inquiry into the family law system’ and report its findings in October 2020.

Over the years, some important reforms have been introduced. For example, the 2012 reforms to the Family Law Act broadened the definition of ‘family violence’ and ‘abuse’ to more clearly include exposing a child to family violence. More recent reforms include the ban on direct cross-examination of family violence victims-survivors by perpetrators (and vice versa) in certain circumstances so that both parties, if unrepresented, can apply for legal aid representation for final hearings. However many recommendations that would improve safety for children and women have not been implemented. And the Government has not yet responded to the ALRC’s most recent report.

The ALRC consulted widely. It received over 740 submissions and almost 800 responses from people with recent experience of the family law system through its Tell Us Your Story portal. The Commission also held consultations with over 100 people and organisations in all capital cities and in many regional and rural areas across the country.

Given the number of inquiries into the family law system, it was not surprising that so many responded to the Prime Minister’s announcement by calling for immediate action to ensure safety first in family law rather than holding yet another inquiry when we already know what needs to be done.

Many are also concerned that victims-survivors of family violence will not be able to participate safely in the parliamentary inquiry.

ALRC report welcome but falls short on ensuring safety in family law

Both the SPLA and ALRC reports acknowledge the chronic lack of funding for the family law system and the need for immediate additional investment. This includes funding for additional judges, family consultants, legal assistance services (including family violence and trauma informed culturally safe lawyer assisted dispute resolution), and specialist family violence support services.

The ALRC made 60 recommendations including about structural reform, children’s matters, property matters, increasing efficiencies, compliance with parenting orders, support services in the courts and increasing transparency and accountability in the family law system (including strengthening family violence competency). While family violence is considered, the ALRC report falls short in ensuring safety in family law is foundational.

Women’s Legal Service NSW’s response to the ALRC recommendations

Women’s Legal Service NSW welcomes recommendations that prioritise the safety of children and their carers and that recognise harm to an adult survivor is harm to the child. This includes proposed changes to the best interest factors that focus on ‘what arrangements best promote the safety of the child and the child’s carers, including safety from family violence, abuse, or other harm’.

Women’s Legal Service NSW also supports recommendations that would:

remove requirements for the court to consider equal or substantial time with each parent as each family is unique and decisions need to be made on a case-by-case basis;
increase resources for family violence and trauma informed, culturally safe, lawyer assisted family dispute resolution, including in property matters;
ensure greater transparency and disclosure requirements relating to property;
better protect sensitive records in family law proceedings and ensure the least intrusive forms of evidence are sought first (because improving responsiveness to victims-survivors of sexual and family violence includes preserving therapeutic relationships and protecting against misuse of court processes);
increase the family violence competency of all professionals working in family law, as well as cultural competency, disability and LGBT+ awareness;
provide greater accountability through the Family Law Council, including a requirement to appoint members.

We also welcome the recommendation of a compensatory framework for family violence through a family violence tort. This would enable a victim-survivor to claim against the perpetrator for physical and psychological injury and any resulting economic loss due to family violence. This is one way of recognising and responding to family violence. Other ways also need to be pursued, such as better recognising the impact of family violence on contributions and future needs in property settlements as recommended in the SPLA report.

However, we are concerned that the ALRC’s position on the overarching purpose of family law (to provide ‘just’, ‘quick’ and ‘efficient’ resolutions ‘with the least acrimony’) does not include ensuring the safety of children and women affected by family violence.

We do not support a presumption of joint decision making about major long-term decisions relating to children. We believe families are unique and decisions are best made on a case-by-case basis. This is consistent with prioritising safety. Similarly, we do not support presumptions relating to property matters.

We also do not support changes to costs orders that would remove the general rule of each party bearing their own costs. We fear this could result in unintended consequences, such as adult victims-survivors of family violence being too fearful to disclose such violence. The court already has discretion to award costs, so the change is unnecessary.

Family court merger does not prioritise safety

The Government announced its plan to merge the Family Court of Australia and Federal Circuit Court of Australia into a single generalised court in May 2018, arguing it would ‘improve the efficiency of the family law system’. The proposal is that current Family Court Judges form Division 1 and current Federal Circuit Court Judges form Division 2 of the newly named Federal Circuit and Family Court of Australia.

While any reform should strengthen a system, this proposal would result in the diminution of specialisation through the loss of a stand-alone specialist superior family court.

Concerned by the lack of consultation, many advocated the ALRC should consider the merger proposal as part of its family law review.

While the ALRC did not consult on options for court restructure, its first recommendation was that the Government consider establishing state and territory family courts and abolishing first instance federal family courts. This sends a clear message that there are problems with the Government’s proposed family court merger.

The Government based its proposed family court merger on recommendations from a report by PwC on how to increase efficiencies in the federal court system, with a focus on family law. However, PwC themselves acknowledged that the report was prepared in just 6 weeks and they were unable to independently analyse key data or consider potential unintended consequences arising from their recommendations.

Even if the proposed family court merger was to have some efficiencies, these must not come at the cost of the safety of children and adult victims-survivors of family violence.

Inquiry after inquiry has highlighted the prevalence of family violence in family law matters and the need to strengthen family violence and family law specialisation. This is why we, along with over 100 individuals and organisations - Aboriginal and Torres Strait Islander community controlled organisations, sexual and family violence peaks and services, health peaks and services, disability peaks and services, community organisations and legal experts, prefer a model that ‘retains a stand-alone specialist superior family court and increases family law and family violence specialisation’.

The Government reintroduced the Federal Circuit and Family Court of Australia Bill 2019 into Parliament on 5 December 2019. The Bill has been referred to a committee for review which will report in November 2020.

The Bill again refers to Division 1 and Division 2 Judges. Division 1 Judges from the Family Law Court of Australia will only hear family law matters. Division 2 Judges within the proposed merged court would hear matters across many areas of law, such as bankruptcy, trade practices, migration, industrial relations, as well as family law.

While Division 1 Judges will be required to have experience in family law and family violence, there is no such requirement for Division 2 Judges. The Government has tried to acknowledge that Judges expected to hear family law matters in Division 2 should have experience in family law and family violence. But this falls short of the ALRC recommendation that requires all federal judicial officers appointed to make decisions in family law matters having experience in family law and family violence.

Immediate Action for Safety First in Family Law

We know that the core business of the family courts is family violence. Yet the system is not set up to adequately protect the safety of children and women.

Women’s Legal Services across Australia work on the frontline, helping or representing family violence victims-survivors in the family law system every day. We know what needs to be done to keep children and women safe in the family law system.

In response to the ALRC and SPLA reports, Women’s Legal Services Australia has developed a 5 step plan to put Safety First in Family Law.

This Safety First Plan outlines action the Government and the Family Court of Australia can take immediately.

Women’s Legal Services Australia calls on the Government and family courts to:

Strengthen the family violence response in the family law system
Provide effective legal help for the most disadvantaged
Ensure family law professionals have a real understanding of family violence
Increase access to safe dispute resolution models for victims-survivors
Overcome the gaps between the family law, family violence and child protection systems

Urgent action is needed now to put safety first in family law