Review family law – We don’t need another family law review — we need to act on what we already know
So far today police in Australia would have dealt with on average 284 domestic violence matters.
Question: How many inquiries and reports does it take to change Australia’s family law system?
Answer: As many as possible, as long as you procrastinate and do not implement any recommendations.
The announcement this week of yet another inquiry into our family law system is the third such report in the past three years.
It is undeniably a waste of time, money and resources and reflects the Coalition-led federal government’s desperate attempt to curry favour with those who hold the balance of power in a tight Senate.
Children have rights, not parents
It is necessary to address the ill-informed claims about family violence made by those supporting an inquiry.
As the House of Representatives report noted, more than half of parenting cases that proceed to family law courts involve family violence. Some studies suggest this could be as high as 85 per cent. The data clearly shows that false allegations are made in a small minority of cases and mostly comprise perpetrators denying family violence. Those who claim otherwise are distorting the data and are often aggrieved by personal experiences and seek to drive their own agendas.
Children have rights. Parents do not have rights.
Parents have duties, responsibilities and obligations. Children have the right to be protected from physical, sexual and emotional harm and from exposure to family violence. The primary carers of those children are mostly mothers. This is often the result of private agreements between the parents and not because of any judicial determination. The caregivers too have the right to be protected.
These fundamental principles have been enshrined in the Family Law Act 1975 for years.
Read the reviews we already have
Many of the terms of reference for this latest inquiry have already been covered in previous reports. This includes alternative dispute resolution to reduce ‘acrimony, cost and delays’; children’s matters; property division; integrated court responses; closing the gap between State and federal child protection and family violence jurisdictions; support service for courts and simplifying legislation.
In December 2017, the House of Representatives Standing Committee on Social Policy and Legal Affairs published “A better family law system to support and protect those affected by family violence”.
It comprises 374 pages and 33 recommendations. Few if any of those recommendations have been implemented.
In April this year, the Australian Law Reform Commission tabled its long-awaited Family Law for the Future — An Inquiry into the Family Law System: Final Report comprising 574 pages and 60 recommendations. This was hailed by the former Attorney General George Brandis in 2017 as the most comprehensive review ever of the family law system. The Final Report was the product of a detailed Issues Paper, a comprehensive Discussion Paper, numerous consultations and over 426 submissions.
Most of those submissions were not from lawyers “having their say” as Prime Minister Morrison claimed but from community groups, support services, organisations representing diverse groups, academics and individuals.
The federal government has not even responded to those recommendations.
Confused and misguided
Some of the issues raised by the terms of reference are already in the legislation. For example, grandparents are already specifically mentioned in provisions in the Family Law Act 1975 pursuant to provisions introduced back in 2000.
In addition, many of the terms of reference are confused and misguided.
For example, apprehended violence orders are state protection orders and only available in NSW. These are not part of our federal family law system.
Indeed, we have a fragmented family violence system where we have eight different legislative schemes and each and every one has different provisions.
The Council of Attorneys-General has not looked at national family violence laws since 1999.
Resources would be better spent on introducing a unified national legislative framework and providing realistic funding for support services rather than duplicating the work of earlier inquiries.
We also need to see more judicial appointments, simplifying court processes, empowering family violence victims/survivors and community education rather than pandering to a vocal few who have vested interests and disproportionate levels of power.
The report for this latest inquiry is due in October 2020, but we already have the information we need to improve the system.
Dr Renata Alexander is a Victorian barrister and a senior lecturer in the faculty of law at Monash University.
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