Controversial family law inquiry tables report

By Shannon Jenkins

Wednesday March 17, 2021

The family law inquiry was largely pushed by One Nation leader Pauline Hanson.
The family law inquiry was largely pushed by One Nation leader Pauline Hanson. (AAP Image/Mick Tsikas)

The latest report from the controversial inquiry into the family law system has made 29 recommendations to the government, including for the commonwealth to fund the appointment of around 30 additional registrars to reduce the backlog of cases.

The Joint Select Committee on Australia’s Family Law System tabled its second interim report on Monday, a month after the government passed legislation to merge the Family Court into the Federal Circuit Court. The merger has been opposed by more than 155 stakeholders, as well as Labor and the Greens.

The establishment of the inquiry in 2019 was largely pushed by One Nation leader Pauline Hanson, who had claimed mothers would lie about domestic violence to disadvantage fathers during custody battles. Hanson is deputy chair of the committee.

The inquiry was opposed by Labor and the Greens due to the extensive number of probes into the family courts system which have been held in recent years, and concerns over the impact of Hanson’s comments.

Among the recommendations in the new report — which have been supported by most committee members — the federal government has been urged to:

  • Lead the development of an appropriate technology platform for information-sharing between family law, child protection, and family violence systems at a commonwealth, state and territory level,
  • Expand the current information-sharing mechanism between the Australian Taxation Office and the Family and Circuit courts to include all financial information held by the ATO,
  • Fund the appointment of up to 30 additional registrars and staff to help the Family and Circuit courts address backlogs and delays,
  • Increase funding to Legal Aid and community legal centres, including to enable Legal Aid Commissions to relax their means tests so as to increase legal assistance to vulnerable families,
  • Work closely with state and territory governments to develop workforce planning initiatives which will encourage a more gender-balanced workforce in professions that service family violence and family law systems,
  • Request the Productivity Commission to investigate the costs to individuals and Australia of family dysfunction, and marriage and relationship breakdown and the adequacy of preventive measures, including measures to prevent family violence.

The committee has also recommended a number of amendments to the Family Law Act 1975, and for the Council of Attorneys-General to review the definitions of domestic violence to ensure a uniform approach by commonwealth, state and territory governments.

The Council of Attorneys-General should also review the state and territory family violence order framework to consider a range of concerns raised during the inquiry, such as how police respond to requests for family violence orders or enforce breaches of existing orders “where a family law matter is on foot”.

The Law Council has voiced support for a number of the recommendations, particularly the calls for extra funding to Legal Aid Commissions and community legal centres, a greater focus on mediation and arbitration, and additional registrars.

“The second interim report also makes welcomed and important recommendations designed to address the current misunderstanding of the provision that equal shared parental responsibility equates to equal time with the children,” the Law Council said in a statement.

However, there is a “critical need for an increase in the number of family law judges to hear and determine complex family law matters”, the council noted.

“This can only occur with significant investment in the family law jurisdiction, for both judicial and non-judicial decision-makers,” it said.

The council wants substantive changes to the Family Law Act as it relates to children in family law matters, and “would welcome the opportunity to work with the Parliament to achieve this”.

It has also rejected the committee’s findings in relation to the need to further regulate legal fees in family law proceedings, including its proposal that legal fees in property matters be capped at either $50,000 or 10% of the parties’ identified property and superannuation (whichever is higher).

“If a cap is invoked, litigants who reach any capped cost limit could become self-represented in the family law courts system and take up more judicial time, only increasing the delays that already exist,” the council said.

“There are already a number of important protections in place for consumers in the legal system, with the profession subject to strong regulation in respect of costs and charges by various professional and regulatory bodies. Gross overcharging is a matter that is characterised as professional misconduct.”

In their additional comments, both Labor and the Greens reiterated that they didn’t believe the inquiry was necessary, since the government had not acted on a large number of past inquiries into family law.

“This politically-motivated inquiry sought to re-litigate those issues, delaying implementation of previous recommendations, emboldening domestic violence offenders, and re-traumatising victim-survivors and their children,” Greens senator Larissa Waters wrote.

Labor committee members Graham Perrett, Helen Polley, and Anne Aly, said the government shouldn’t undertake any more inquiries into family law “until they have responded to, and implemented where appropriate, recommendations made in this and in previous reports”.

“Labor members consider that merely instituting inquiries, without an intention to act on any recommendations, will not fix the multiplying problems in the family law system,” they wrote.

They noted that Hanson’s claims that women lie about domestic violence in family court disputes had “understandably caused some stakeholders to be worried about giving evidence to the committee”.

“Labor members welcome that the committee has accepted the evidence provided by former Family Court judges including former chief justice, the Hon Diana Bryant AO QC, that parties do not frequently set out to deliberately misrepresent or invent the facts and false allegations are not prevalent within the family law system,” they wrote.


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