Parliament Updates

Zali Steggall MP calls for the government to implement the second interim report into the Family Law System

16 March, 2021


I commend to the House the second interim report tabled on behalf of the Joint Select Committee on Australia's Family Law System, of which I was a member. I'd like to take this opportunity to thank my colleagues and fellow parliamentarians for the work on this inquiry, which was quite lengthy, over the period of time, with a substantial number of submissions. We also had robust discussions, which really can be seen through this report. I'd also like to thank the secretariat, who really had to do a lot of work in light of the volume of submissions and the highly emotional nature, in many instances, of the issues being the subject of submissions.

In commending to the House this second interim report, I also must call on the government to actually act on the report. Don't let it sit on the shelf like so many similar reports that have come before it. We have to actually note this. It should be noted that there have been 67 different inquiries into the Family Law Act since it came into effect in January 1976, and unfortunately there is a history of successive inquiries identifying similar systemic problems with our family law system and successive governments being unwilling or unable to make the necessary changes.

Out of respect for the people of Australia who are going through these highly distressing situations, I call on the government to enact the changes and the recommendations that are called for. The most recent inquiry led to the Australian Law Reform Commission report, which was handed down in March 2019, entitled, Family law for the future: an inquiry into the family law system. That report contains 60 different recommendations on how to improve the system, and, ironically, our inquiry looked at many of them and arrived at similar conclusions. Sadly, almost two years after that report was tabled, the government is yet to respond. Just recently, in Senate estimates, it was revealed that the Attorney-General had the government's response on his desk 17 months ago, but it is yet to see the light of day. I use this opportunity to again call on the government to publicly respond to the ALRC report and to urgently implement the full list of recommendations.

The reality of modern society is that, sadly, 40 per cent of marriages end in divorce. While many of those separations are conducted fairly and amicably, there are still many Australians who rely on the family law system to settle their divorce and resolve disputes over property and custody of children. Most of us know someone who has gone through the family law courts or have experienced it firsthand themselves. I should say that I have been through the system and my husband has also been through the system, so I do know, from a personal point of view, the experience of the Family Court system, but also from having practiced in the jurisdiction as a family law barrister for some 10 years before coming to this place. To various degrees, the process can be adversarial, confrontational, emotionally unsettling, financially crippling and life-changing. It's for those reasons that it is imperative that our family law system needs to be not only functional but also fair and well funded. It's for that reason that this inquiry and its recommendations are so important.

Over the course of the inquiry, we received more than 1,600 submissions. The majority were from individuals, detailing their very personal cases and experiences, and another 169 submissions were from organisations, academics and other professionals. Despite the various challenges of COVID-19 throughout 2020, the committee held 12 public hearings and 13 in camera hearings, so there was a very thorough hearing of the issue. At this stage, I would like to thank all the people who participated in the inquiry and made submissions. They often aired issues that were deeply personal and deeply emotional. It was often in the hope that others would have a better experience that they shared their experience. It was vitally important that we heard from those who have firsthand experience of the system and a desire to improve it. The terms of reference for the inquiry were far-ranging and, on the whole, I feel they are addressed in the interim report. I should say they are consistent with my own experience as a family law barrister.

There were a number of key issues identified through this inquiry: the costs associated with the family law system; the adversarial nature of the family law courts and whether we should move towards a more inquisitorial model; the issue of distressing delays in the court system, and that was a recurring complaint—the amount of time it took for highly sensitive issues of parties to come before a judicial officer for determination; and the role of family consultants, expert witnesses and the independent children's lawyer—the weight that is given to their opinion and advice, and maybe the inconsistent approach or experience of witnesses in their interactions with family consultants and independent children's lawyers. Enforcement of family law orders was a real question. What happens after you leave the courtroom? How are orders that are made put into practice? In fact, are they keeping families and children safe and delivering their stated purpose, especially when it comes to parenting, to ensure that decisions and arrangements in the best interests of the children are, in fact, continuing?

We also heard a lot around the interaction between the family law and domestic violence jurisdictions when it came to local courts interacting with the Family Court system.

The committee arrived at 29 recommendations. I won't go into all of them in detail but I would encourage everyone interested in this area to read the report. Broadly speaking, they cover: the funding and expansion of a number of pilot programs providing support and mediation to parties going through family separation; the resourcing of the Family Court of Australia and the Federal Circuit Court, which have now changed since the merger legislation passed this place; the harmonisation of processes between the Family Court of Australia and the Federal Circuit Court, which again are slightly outdated now; the levelling of certain costs and fees in family law proceedings; mandatory accreditation standards and monitoring processes for those involved in family law proceedings as well as professional development opportunities, and it's important that we recognise the stress that professionals who work in this system are under, especially judicial officers; the approaches to make Family Law courts less adversarial; the amplification of the voice of children in proceedings, where appropriate; the issue of perjury and wilfully misleading the court; and issues of domestic and family violence and the role of police, family violence orders and personal protection orders. We dealt with a number of issues in relation to allegations of false complaints. This is where the delay in the timeliness of the resolution of disputes came to the fore. The recommendations also include: improved information-sharing between various government agencies and various jurisdictions; increased funding for legal aid and community legal centres; a review of policies to allow for funding of both parties in appropriate circumstances; amending the Family Law Act 1975 to address a misunderstanding about shared parental responsibility; clarifying the requirements on independent children's lawyers; and addressing the issue of disclosure duties in regard to financial circumstances. In general, I agree with the majority of the recommendations.

In closing, there are two issues I want to discuss: the number of judges in the family law system and the recent merger of the Family Court of Australia with the Federal Circuit Court of Australia. As of 6 November 2020 two in three Federal Circuit Court judges had more than 300 matters on their dockets, 27 judges had more than 400 cases, five judges had more than 500 cases and one judge had 659 cases. In the Family Court, two-thirds of judges had more than 300 cases on their dockets and five judges had more than 500 cases. To put this into perspective, this just shows that there is a chronic under-resourcing of the court and an inability to deal with issues in a timely manner.

While this inquiry has come up with very important recommendations, they will be for nothing if the courts are not adequately resourced with judicial officers to hear the matters. The delays are real and have a huge emotional impact on the parties participating. Many, many people who participated in the inquiry urged the government to be mindful of domestic violence and the interrelation with the family law system. I encourage all of those people to contact, and get help from, the various services. Thank you.