Parliament Updates

10 September 2024

I rise to speak on the Family Law Amendment Bill 2024. It's always incredibly difficult to deal with family breakdown and separation, and it's sadly a fact of life that currently about 40 per cent of marriages and relationships end in divorce and separation. Many of these separations are amicable and are done without conflict; they're the ones we don't hear about. Unfortunately, where there is breakdown and it's adversarial, there are those who need to rely on the family law system to settle their divorce or separation, divide up property and assets and decide custody of children. Sadly, all too often, domestic and family violence is a part of that process and a part of those marriage and relationship breakdowns.

Before I entered parliament, I was a family law barrister. I sadly had the opportunity to observe, all too often, how much domestic and family violence was a part of those situations. I know how distressing this area of law can be for those who have to engage with it. It's frustrating. It's incredibly confronting, because the family unit—your personal situation—goes to the core of people's lives: how and where we live and how we raise our children. Often, the family law system is one of the first points of contact that people have with the justice system. Many people won't have had any engagement with court processes until that breakdown of the family unit and not being able to resolve the dispute. The process of engaging with family law can be adversarial, confrontational, emotionally unsettling, financially crippling, life changing and abusive. It can be a continuation of the abuse that's all too often experienced, maybe in relationships as well.

Now, as a member for Warringah representing my community, unfortunately I still deal with many families—and unfortunately, too often, women—who still find this system not working in an equitable way and incredibly frustrating. I commend the government and the Attorney-General for this legislation. It is a step in the right direction in starting to assist. I will take the opportunity to raise that there are still many who raise with me their concerns that the Hague convention proceedings don't always mirror or reflect the kind of progress we're making in the family law system. That is an area in which I'd urge the government and the Attorney-General to make representations on behalf of Australia, to ensure domestic violence and safety are better reflected in the Hague convention proceedings as well.

On the family law front, after many inquiries and reports from this place, as well as the Australian Law Reform Commission, we have started to make real headway in reforming the system, and I absolutely welcome that. This legislation builds on recommendations made by the Joint Select Committee on Australia's Family Law System, of which I was a member. It is obvious to so many of us who have dealt with the family law system that consideration of family and domestic violence needs to be and is finally going to be a consideration when it comes to property settlements and other areas. It really should have been a consideration much before now.

We know we have a domestic and family violence epidemic in this country; it's a crisis. I have spoken about it on many opportunities. I think this opportunity, like others, is a good time to remind us that 64 women were killed by domestic violence in Australia in 2023. We note that the number for 2024 is horrendous. According to Destroy The Joint, 47 women have already allegedly been killed by domestic and family violence so far in 2024. We know that the time at which women are most at risk is in the breakdown of a relationship—the leaving of a relationship. That's why the right kind of protection and access to services is so incredibly important, as is making sure that the system works so they don't return to dangerous relationships. So we need to make more changes to ensure that those who suffer from violence don't see living safely and separately as insurmountable. That's why changes to the family law system are so incredibly important so that they feel there is a system that will better recognise, reflect and deal with their circumstances and situation.

I know the government has consulted with stakeholders in drafting the legislation, including allowing comment on an exposure draft, but I should say it's disappointing that many of us in the parliament, particularly on the crossbench, have had fairly limited time to review this legislation, which makes it difficult to fully interrogate the bill and get full feedback from interested parties such as law societies and others. I suspect that the bill may well go to inquiry in the other place, which I would welcome because there hasn't been that opportunity to interrogate it and potentially look to amendments in certain areas. But I absolutely acknowledge the Attorney-General has been focused on implementing long-overdue reform in this area, particularly the myriad of recommendations that we have had sitting on the shelf for much, much too long.

It's a complex area of law. It's very technical. But there has been a wide range of support for these changes. Women's Legal Services Australia rightly noted in their submission on the exposure draft:

Reform to the Family Law Act can significantly enhance women's economic wellbeing by ensuring that family violence is a factor taken into consideration in property settlements, both the impact on contributions to the asset pool and the current and future needs of victim-survivors.

I strongly agree with this.

At the core of this bill, it will allow magistrates and judges to consider the risk of violence and the economic impact of violence when it comes to dividing up property and finances. It was always such an incredibly frustrating situation, for me as a barrister working in this area, that a client might come to me with a tale that involved incidents of domestic violence or coercive control that clearly impacted their capacity to work, to pursue further education or to better their situation and that impacted their liberty, their access and their freedoms, but, under the Kennon principle, you simply couldn't establish that as a means to show how much that impacted a party's financial contribution to the marriage, which ultimately was what the court would take into account in dividing up the assets. For so many clients, it was incredibly heartbreaking. They still requested that I run the arguments in relation to the domestic and family violence, because for them it was very important to have it on the record and acknowledged, and it was often very important to have the judges actually acknowledge and accept the evidence in respect of domestic violence. But, unfortunately, you had to acknowledge that the threshold from Kennon wasn't met to show that it had a substantial impact on capacity to contribute financially. You essentially had to show someone was in hospital and couldn't attend their job to show that there was an impact on property proceedings. So I very much welcome the fact that we will now have, in legislation, a clear requirement for the court to consider the impact of domestic violence when it comes to dividing up property and finances, because it has a real impact on a victim's financial circumstances.

I also really welcome the consideration in the legislation to make allowance for housing needs, particularly in terms of which party has the care of a child. All too often, especially when domestic violence is involved, we see the victims and the children have to leave the family home, and they then find themselves in a housing crisis. We know we will never have enough crisis accommodation to assist victims of domestic violence, so we need to tilt the onus and change the situation so that there is more pressure on the courts, when divvying up assets, to consider the housing needs of those with the care of children more fully, especially if domestic violence has been there. I've talked with the Attorney-General about even reversing the presumption in relation to a right to occupy the family home, especially pending the resolution of proceedings, which, sadly, all too often takes several years and often leads to systems-induced poverty for victims.

This legislation also brings in changes when it comes to protecting sensitive information, and I think this bill strikes a fair balance. I'm satisfied that what's been proposed will give an additional ground of objection to a participant, the maker of a protected confidence or the judge. It's important that when a party to proceedings, for example, issues a subpoena in relation to documents—for example, counselling records—a party will always have the grounds to object to the documents being sought for discovery, and now the changes in the legislation mean there's an additional ground on which to object to that production. I think that's really important. It is also open to a judge and/or the person making the protected confidence or a person with a case guardian, for example, to exercise that.

So I think these are all positives, and I'm satisfied that they're good changes. Of course we can always go further, and I urge the Attorney-General to consider continuing to reform this sector, because it really does go to the core of so many families.

In terms of the changes to the children's contact services and how they operate, again this bill introduces much-needed regulation of the sector, and I strongly support it. The reality in parenting cases is that, when there are any risks of harm to the child, you have to have involvement of supervision and children's contact services. It means that often, for a period of up to two years, contact with a child for one or both parents will be really limited, particularly if there isn't access to children's contact services. So an area I would urge the Attorney-General to focus on is making sure there's equitable access to contact services, because I know regional communities do not have sufficient contact services and, if you can't get in or there's a long waitlist, the reality is that contact ceases between a parent and child, and that has a huge impact on that relationship. That's often before you've had a full working out of the allegations by a court, so it's really important that there is equitable access pending determination of proceedings so that you don't have irreparable damage made to relationships between parents and children and that relationship can continue in a safe and supervised environment. That is absolutely vital. Of course, the standards vary a lot, so I think it's really important to have that regulated.

Obviously, apart from the time limit, I feel that a key area for improvement outside of this bill is funding the community legal sector. I've spoken many times about the need for changes to sentencing and for having a much greater deterrent when it comes to the consequences of domestic and family violence, to protect women and children. But pending changes to our laws—and I acknowledge that, with our federated system, it means changes to state laws in terms of sentencing—we need to make sure people can access the law and can access advice. That is where it's so vital that we have funding for frontline legal services, including Indigenous services, especially in regional communities. At the moment, we know they are so pressed for resources they have to pick and choose which courts they may or may not be able to offer services at, which means a huge cohort go unassisted. I went through my law degree. I passed my bar exams. It is complex and it is hard. To expect people, unassisted, unaided and unadvised, to deal with the system leads to really bad outcomes. People misunderstand the law, they don't understand the requirements or the presumptions, and you end up with really bad outcomes and, I think, dangerous outcomes. So I very much urge the Attorney-General to continue focusing on that aspect.

I know stakeholders like the Law Council of Australia have noted that the exposure draft and the current draft of the bill may create unintended consequences of further litigation, so there is some concern there. Clarifying and simplifying areas of law in this bill may in fact complicate it, so that's where that inquiry process in the other place, I think, would be beneficial.

The community legal sector is facing chronic underfunding, as I said. If we want them to be able to assist participants in the family law system, they need to be funded. It's a basic aspect for this to work. So I urge the government to step up its funding through the National Access to Justice Partnership. We need accountability and transparency for how those funds are being spent and disbursed. I know there's been a recent announcement—I think last week—of $800 million. It's a start, but I argue that it's really only a down payment. Funding and detail need to be increased. The concern is also the delay in accessing it so that the lawyers in this sector can actually have some ongoing contracts and certainty of staying in the system.

This is an area that, obviously, will always require a lot of ongoing work. I urge the Attorney-General to stay focused on this and make sure our regional areas have access to the help, because we know that domestic and family violence and, unfortunately, fatalities overwhelmingly occur in the more remote and regional areas, so we have to make sure they have access to assistance as well.