Last week I had the
privilege of moderating a seminar in Brisbane about the future of family
law. The keynote speakers were two
authors of the recent Australian Law Reform Commission report into the family
law system – President of the Australian Law Reform Commission, Justice Sarah Derrington of the Federal Court, and retired Family Court judge Michelle May AM QC.
Those keynote speakers
were joined by Jo, a woman who had been subjected to domestic violence,
experienced Independent Children’s Lawyer, solicitor and mediator Rob Grant,
and barrister (and former solicitor, Adult Guardian and Family Court Registrar)
Dianne Pendergast.
Justice Derrington made
plain that the recommendation to have State Courts undertake family law has
complications (including all the Family Court and Federal Circuit Court judges
who have been appointed and have tenure until the age of 70 under the
Constitution). However, as she put it,
the splitting of the family law system between child protection and domestic
violence under the State systems and family law under the Federal system was a
failure or, in her words: “was not fit for purpose”.
The ALRC report is
enormous. It is comprehensive. There are clear differences of opinion about
some of the recommendations (as was set out by some of the comments from Rob
Grant and Dianne Pendergast) but in broad terms it contains many common sense
recommendations as to how to improve family law.
Her Honour went through
in painstaking detail as to each of the terms of reference that was given to
the Australian Law Reform Commission to undertake its report. She also did a compare and contrast to set
out each term of reference that the Kevin Andrews/Pauline Hanson family law
inquiry was required to consider. Every
last term of reference was the same, save two:
- The standard of evidence undertaken in State domestic violence proceedings. As her Honour noted, this is a State matter and therefore outside the terms of the Federal ALRC terms of refence.
- The interplay between the Family Law Act and the child support system.
Given what
her Honour described that these two facets were relatively minor, what is the
point of the Parliamentary Committee report? The obvious answer is
that some politicians may not like the answers in the ALRC report, and therefore seek to come up with a different outcome. Her Honour detailed eight cases of several
hundred ordinarily people who had gone through the family law system, voluntarily telling the ALRC of their story. The eight cases were of women who had been
subjected to domestic violence and, quite frankly, let down by their lawyers,
police and the courts. The stories they
tell are sad and disgusting, in which issues of domestic violence are sidelined. It seems as though the last 30 years of
action to deal with domestic violence - at least in these cases- have somehow passed by the family law
system. One must wonder therefore that
this failure to adequately deal with domestic violence in the family law system might in itself be one of the causes of such high rates of domestic violence
now. After all, if there are no real consequences for perpetrators of domestic violence, they can keep continuing their bad behaviour- influencing their next partners and their children.
Her Honour in undertaking
the inquiry was assisted by many family law veterans. Her Honour being a maritime lawyer looked at
the family law system with fresh eyes.
In Australia we have no unitary court system where a single set of courts (with the partial exception of Western Australia) deal
with domestic violence, child protection and family law – unlike our cousins
across the Tasman in New Zealand.
The
sooner that our Governments bite the bullet and enable the one set of courts to
deal with all the problems facing families, the better. After all, then Justice Dessau recommended
that course 30 years ago, but nothing has been done by Governments of both
sides since then – except fiddling on the sidelines. In Justice Derrington’s view, the sooner that
there is fundamental reform of the system, the better. At the least, our children deserve that.
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