I have recently prepared my submission to the Parliamentary Joint Committee regarding Australia's Family Law System. It summarises a number of issues concerning the operation of the family law system. I consider it important that my recommendation to this inquiry is taken into proper consideration.
In this submission, however, I first remind this parliamentary committee what Prime Minister Scott Morrison has explicitly stated:
This inquiry will allow the parliament to hear directly from families and listen to them as they give their accounts of how the family law system has been impacting them and how it interacts with the child support system.
As also noted by our Prime Minister:
This isn't about picking sides, it's about listening to Australians. The lawyers have had their say through the Law Reform Commission… But as we consider that, I think it's very important that we go and hear from people directly.
I served as a Law Reform Commissioner in Western Australia, from 2012 to 2017. During this time we conducted a comprehensive review process that ultimately led to the enactment of the Restraining Orders and Related Legislation Amendment (Family Violence) Act 2016 (WA).
Published in June 2014 and entitled 'Enhancing Family and Domestic Violence Laws', our Final Report comprehensively addressed the effects of legislation dealing with family violence. Our report recommended, inter alia, that such laws must necessarily provide a fair and just legal response to family violence. It explicitly informed that:
[A]s Legal Aid confirmed, this does 'not mean that fairness and the protection of individual rights are not important considerations.' In this context, it is vital to acknowledge that not every person who applies for a violence restraining order is a victim of family and domestic violence and not every respondent is a perpetrator.
As noted in the Discussion Paper, the current restraining order system is not without its critics in terms of its overuse or abuse. Although it is true that most applications for violence restraining orders are properly made, sometimes they are unmeritorious or otherwise used for tactical purposes in family law litigation. And yet, many lawyers consider that violence restraining orders, in particular, those applied for after proceedings have been instituted in a family law dispute, may actually exacerbate conflict and decrease the prospects of the parties reaching agreement, with a consequent impact upon legal costs.
Because an interim violence restraining order can be made on the uncorroborated evidence of the applicant, the potential for abuse is very real. One example repeatedly mentioned to the Commission during its consultations is where the person protected by a violence restraining order is the perpetrator and the person bound is the victim. Further, it is important to acknowledge, from the respondent's perspective, the potential consequences of a violence restraining order: exclusion from the family home; prohibition of contact with children; inability to work; and general restrictions on day-to-day activities. Additionally, a respondent is liable to serious consequences under the criminal law for failure to comply with the order (including an interim order).
For these reasons, the justice system must ensure that the legal rights of all parties are respected and, in particular, that respondents to violence restraining order applications have a right to be heard within a reasonable time. Additionally, the importance of ensuring that the legal system responds to family and domestic violence in a fair and just manner supports the provision of better and more reliable information to decision-makers at the outset, thus enabling more accurate and effective decisions to be made.
I only refer to this matter because the Joint Select Committee on Australia's Family Law System has been explicitly established to inquire into and report, inter alia:
i. on the process, and evidential and legal standards and onuses of proof, in relation to the granting of domestic violence orders and apprehended violence orders, and
ii. on the visibility of, and consideration given to, domestic violence orders and apprehended violence orders in family law proceedings.
So I have explicitly requested members of this committee to take a most careful consideration to my expert recommendation with respect to these important matters.
There is an undeniable correlation between apprehended orders, false claims of domestic violence, and parental alienation. According to David Collier, a retired judge from the Parramatta Family Court, such orders have become a "major weapon" in the war between parents willing to secure the sole custody of children.
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