Federal Parliamentary Inquiry into the Family Law System

Tuesday 28 March 2017 @ 2.56 p.m. | Legal Research

On 16 March 2017 (and announced via Media Release on 23 March 2017), a Committee of the Australian Parliament adopted an inquiry into "How Australia’s federal family law system can better support and protect people affected by family violence" (The Inquiry). The inquiry was referred by the Attorney-General, Senator the Hon. George Brandis Q.C. The Inquiry aims to consider the effectiveness of the federal family law system in supporting and protecting those affected by family violence, especially those who are most at risk.

Principles Behind the Inquiry

The inquiry will have particular regard to:

  • the administration of family violence matters in comparable overseas jurisdictions, as they relate to the inquiry’s terms of reference;
  • the particular needs of, and supports required for, Aboriginal and Torres Strait Islander families, and disadvantaged and high risk groups, which need to access the family law system; and
  • ensuring that the inquiry processes are such that people who have been affected by family violence and who wish to contribute to the Committee can do so: 
      - in a manner which does not re-traumatise people who have been affected by family violence;from a safe and secure location, where necessary; 
      - confidentially; and 
      - in a manner which will not prejudice or compromise current or future family law or other civil or criminal proceedings.

The inquiry will also have regard to the initiatives currently being progressed by the Australian Government to implement recommendations of the Family Law Council's interim and final reports on Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems, including:

  • the publicly agreed review of the Family Law Act 1975, including the provisions in Part VII (provisions governing parenting arrangements), to ensure that the Act supports a family law system that meets the contemporary needs of families today and into the future, and effectively and appropriately addresses family violence and child protection issues;
  • the exposure draft of proposed amendments to the Family Law Act, released 9 December 2016, that would strengthen the powers of the courts to protect victims of family violence, and facilitate the resolution of family law matters by state and territory courts in appropriate cases;
  • the establishment of Family Advocacy and Support Services in family courts across Australia, to assist families moving between the federal family law system and the state family violence and child protection systems;
  • work being undertaken by the Attorney-General’s Department with stakeholders to progress measures to support vulnerable witnesses, and to assist the family law courts to manage the cross-examination of victims of family violence;
  • new funding to pilot legally-assisted family dispute resolution, which will be targeted at providing assistance to Indigenous or culturally and linguistically diverse families; and
  • the development of a National Domestic and Family Violence Bench Book for judicial officers, and a new government-funded training package for judicial officers on the nature and dynamics of family violence.

Terms of Reference

The Committee will inquire into and report on how the federal family law system should be improved to better protect people affected by family violence. The inquiry will consider:

  1. how the family law system can more quickly and effectively ensure the safety of people who are or may be affected by family violence, including by: 
     a. facilitating the early identification of and response to family violence; and 
     b. considering the legal and non-legal support services required to support the early identification of and response to family violence;
  2. the making of consent orders where there are allegations or findings of family violence, having regard to the legislative and regulatory frameworks, and whether these frameworks can be improved to better support the safety of family members, as well as other arrangements which may be put in place as alternative or complementary measures;
  3. the effectiveness of arrangements which are in place in the family courts, and the family law system more broadly, to support families before the courts where one or more party is self represented, and where there are allegations or findings of family violence;
  4. how the family law system can better support people who have been subjected to family violence recover financially, including the extent to which family violence should be taken into account in the making of property division orders;
  5. how the capacity of all family law professionals—including judges, lawyers, registrars, family dispute resolution practitioners and family report writers—can be strengthened in relation to matters concerning family violence; and
  6. the potential for a national approach for the administration and enforcement of intervention orders for personal protection, however described.

The Chair of the Committee, Ms Sarah Henderson MP, said:

“Due to the nature of family violence, and the close connection between family violence and family breakdown, the federal family law system has an important role in resolving cases which involve the victims of family violence and their children.”

The inquiry will also consider the capacity of family law professionals to respond to cases involving family violence, and the potential for a national approach to the enforcement of intervention or apprehended violence orders.

The closing date for written submissions on one or more of the terms of reference is 3 May 2017.

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