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What is the parliamentary inquiry into the family law system and family violence revealing?

By September 11, 2017No Comments

By Gianna Huesch

The ongoing parliamentary inquiry into “how to create a better family law system for those experiencing family violence” has been making headlines lately because of the attorney-general’s cancellation of personal appearances before the inquiry by family court chief justices, with some interest groups now arguing this diminishes the inquiry’s potential to be useful.

However the inquiry’s chair, Liberal MP Sarah Henderson has defended both Brandis’ action and the inquiry and outlined some of the valuable evidence already emerging from the 118 submissions received to date. Speaking to the ABC Ms Henderson said it was clear that major reform would be required because deficiencies in the system were putting vulnerable families at risk.

In particular there was a need for better processes to be put in place to enable “early and urgent” identification of family violence issues in proceedings because of the effect on orders that were made regarding children.  Better triaging was needed in order to prioritise child safety, said Ms Henderson.

Submissions have raised questions over whether the family courts were prioritising the rights of parents over those of the children. Despite the Family Law Act making clear that courts must act in the best interests of the children, not the parents, there are lingering fears over whether perpetrators of family violence are routinely being given unsupervised access to children.

The inquiry was also uncovering concerns over the interaction between state and territory courts and family courts and jurisdictional barriers:

“For instance, at the moment, an intervention order or an AVO can be granted in state court and then someone can walk away and be left to fall through the cracks and there was a great suggestion I think made yesterday by the Central Australian Aboriginal Family Legal unit which proposed giving powers to magistrates to case manage or refer family violence matters directly to family courts. “

Another issue flagged by Ms Henderson is systems abuse, “where partners are actually using the Family Court system, bringing on endless applications and proceedings and that actually imposes greater abuse on their former partner.”

The “prohibitive” expense of proceedings and the time it takes for matters to reach resolution are also seen as putting vulnerable parents and children at greater risk and impeding their access to justice.

Ms Henderson mentions concerns over the evidence of family report writers which is relied on by the family courts when making determinations about many facts in disputes involving kids, yet family report writers “are not accredited, they are not trained”.  Not only that, but their costs can be as high as $9,000 per day, which she describes as “absolutely outrageous”.  The inquiry, she says, will canvas solutions including better training and processes, particularly in establishing the truth when family violence allegations are made.

In response to the criticism over the attorney-general’s actions in preventing the chief justices from appearing before the inquiry, Henderson argues that their voices will in effect still be heard:

“We are taking evidence from all courts and all judges if they so wish, by way of submission, and we have received a comprehensive submission from the Family Court.”

While the chief justices cannot be personally questioned face to face, Henderson says “we can certainly follow up by way of questions to the court in writing”.

She applauded the attorney-general’s move, saying that “subjecting judges to questioning and interrogation by Members of Parliament crossed the very important principle of separation of powers…a fundamental tenet of our democracy.  What we can’t do is undermine the judiciary.”

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Do you need assistance with a family law matter?  Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.

Please note our blogs are not legal advice.  For information on how to obtain the correct legal advice for your circumstances, please contact Alliance.


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