So what is the point of the Kevin Andrews/Pauline Hanson inquiry?
Tuesday, November 12, 2019
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 Actand 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.