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Legal and Constitutional Affairs Legislation Committee
22/02/2018
Family Law Amendment (Family Violence and Other Measures) Bill 2017 Family Law Amendment (Parenting Management Hearings) Bill 2017

McINTYRE, Ms Kajhal, Legal Researcher and Project Worker, Rape & Domestic Violence Services Australia

WILLIS, Ms Karen, Executive Officer, Rape & Domestic Violence Services Australia

[14:30]

CHAIR: It's a little bit late, for which I apologise. Ladies, thank you very much for joining us. I appreciate your attendance. Sorry to keep you waiting. We have your submission in relation to family violence, which we've labelled as submission No. 5, and, in relation to parenting, No. 8—that's our numbering. Could I ask both or either of you, whatever you choose, to make an opening statement, and then we'll ask you some questions. I think you've been given material about parliamentary privilege—

Ms McIntyre : Yes.

CHAIR: and the protection of witnesses. Over to you.

Ms Willis : Thank you very much, senators, for your time today. For over 45 years, we've been providing counselling and support services to those who've experienced sexual assault, family and domestic violence—mostly in the telephone environment, more recently online and certainly, throughout that period, in face-to-face work. We've worked with adults who've experienced sexual assault, domestic and family violence in childhood and adults who are currently experiencing that violence. About 80 per cent of the people that we speak with are women; the other 20 per cent are men.

We come today based on the voices of those 45 years of people telling us about their experiences of violence. We also come with information from organisations such as the Australian Bureau of Statistics, which tells us that one in four women and one in 22 men will experience sexual assault or domestic violence at some stage in their adult life. The same Personal Safety Survey also tells us that, overwhelmingly, those people will experience that violence at the hands of men. We also know that the impact of domestic violence and family violence on children is quite extreme and that in fact most estimates are that somewhere between 70 and 90 per cent of people who are in our mental health institutions, in our drug and alcohol rehab institutions and in our jails experienced sexual assault, domestic or family violence or neglect as a child.

So we're talking about an incredibly serious impact on our society more broadly and for the individuals and of course the ripple impact. For example, we know, with sexual assault, that over half the population, women, will do on a daily basis, or not do on a daily basis, things that will increase their own perceptions of safety. While we have half the population monitoring and changing their behaviours in such a way to increase perceptions of safety, we have a very serious problem.

What we also know is that, when families break down, that's always a terrible thing and very sad and very difficult for all of the members involved, but overwhelmingly, where that relationship has been relatively equal and where both parties have felt that they have agency within that relationship, yes, there might be tears and there might be anger and all sorts of things, but generally they'll sort it out for themselves. What we know, and what the statistics tell us, is that the matters that end up in the family law court are predominantly those where there is a power imbalance, where there's been power and control and where there's been domestic violence. And, unfortunately, those who use violence in their relationships will continue to use the systems that we have to continue to abuse and demean and humiliate those who they are well-practised at doing that to for, unfortunately, some very long periods of time. We are also very concerned about the impacts for children in that whole process.

For those reasons, we were very concerned with the parent management program that was being proposed. In the first instance, the evidence on which it was based, when we checked it, really isn't terribly robust. The evidence was based on some work done where basically six people, three judges and three magistrates, were interviewed. Unfortunately, with people who are in positions of doing things like that, often their view will be influenced by 'what is best for me and what I think'. There weren't actually any clients of those courts involved in that review of that particular model. And of course the model that was being reviewed and evaluated, on which this is based—well, the recommendation here is different. So we're a bit concerned about the evidence base and we do think that, if we're going to be doing anything in the family law area, it needs to be evidence based.

We also are concerned that the model tacked on concerns about domestic violence rather than being foundational. We are dealing overwhelmingly with domestic violence situations here; how are we going to work with parenting models? What we actually said with this model is, 'Let's figure out parenting models. Oh, yes, some might have domestic violence; we need to think about how we're going to manage that.' And I'm not sure that that was a good way of doing it.

CHAIR: If there's violence involved, they won't go to the parenting panel. Violence, as I understand the legislation, specifically—

Senator HINCH: No, domestic violence will go to the panel. Sexual violence will not, but domestic violence will—that point was made.

CHAIR: Is that right? Okay.

Ms Willis : And I think the sexual violence was of children.

Senator HINCH: Yes, it is.

Ms Willis : We know, in the continuum of domestic violence that adults experience, that, overwhelmingly, sexual violence is part of that continuum. So there would be sexual violence of the adults involved but not the children—that is my understanding.

I suppose we agree with all of the other proposals that talk about including this in the law reform considerations. We understand and, actually, applaud the concept of, 'Let's do something now because we need to do something,' but what I do note is that the law reform report is due in March 2019. We're sitting today in February; I'm guessing your report will be due in a month or two's time. Then it will be a matter where, because any recommendations out of those agreements will be law, you're going to have to write legislation; there are going to have to be protocols; people are going to have to be employed; processes are going to have to be put in place. Even if we do that phenomenally quickly, that's going to take another three, four or five months. We're probably looking at October or November before we'll kickstart. Then there's the break over Christmas. We might get two or three months before the law reform report. Considering the concerns that we have, perhaps the idea of moving quickly will not get us there as quickly as we hope.

CHAIR: You're absolutely correct in your assessment, but can you imagine how long it's going to take to implement whatever the Law Reform Commission comes up with? And the legislation is here, it's drafted, we have to report soon and it will, hopefully, go through the parliament then. Again, I take what you say, except I just think that, once the Law Reform Commission comes down with a far wider review, it's going to take years before anything happens. That's the sad reality, but it's the practical reality. Anyhow, I shouldn't be interrupting you.

Ms Willis : That's okay. It's a great debate, really, isn't it.

CHAIR: We're not here to debate, actually; we're here to listen. I agree with what you say and it would be better, but, from my long experience in parliament, I know these major reviews just take so long to do anything. This is at least a stopgap, and the idea is we will see how it works.

Ms Willis : I suppose the other major concern that we have is—

CHAIR: In fact, not that I'm a deciding member, but it sounds like you're unwittingly lining yourself up for a job on panels in the future!

Ms Willis : I've spent over 40 years working with people who've experienced sexual assault and domestic and family violence; I have an idea of just how complicated and difficult those processes are and how hard it is for children. I think the people who do put up their hand for those panels should be awarded knighthoods and multiple praises before they step in the door, because they're taking on a massive job.

CHAIR: Unfortunately, someone's got to make a decision. As I understand it, the idea of the panel is that you have a lawyer doing the technical stuff up the front, but then you try and get people who understand it—as I say, you might be talking yourself into a job.

Ms Willis : I'm not trying to talk myself into a job, but that certainly brings me to the other concern that we have about those panel members. This comes into the impacts of trauma. What we do know is that, in sexual assault and family and domestic violence, the mental health impact is trauma, and that has all sorts of impacts on the individual in both the immediate and the long term, and, of course, also on the children.

In the first instance within the court environment there is quite a power imbalance. We have absolutely seen people who might be incredibly strong and capable and get all their legal advice and get all their knowledge and they walk in and are confronted with the offender, who can, with a few words that have been used in terrible ways to influence them emotionally and psychologically over a period of time, turn them into someone who's incapable of standing up for themselves or speaking for themselves or remembering what they needed to say—doing those sorts of things.

It's critical on that committee that two things occur. The first is that there is legal representation for people attending. If we can set up a way where it is the inquisitorial kind of idea rather than the 'whoever yells the loudest wins' kind of idea, that is certainly preferable. The other thing is that absolutely everyone—including the staff who do the initial assessments about who should be referred to this management scheme, everyone on the panel, the lawyers who are in there—should have quite intensive training around the impacts of trauma, around the power and control dynamics of domestic and family violence and around how to work constructively and compassionately with people who are experiencing those mental health impacts.

CHAIR: Ms McIntyre, did you want to add anything to that?

Ms McIntyre : I won't add anything to the opening statement. I'm happy to answer questions.

Senator PRATT: In your submission you've spoken about people being unable to disclose violence and how the inquisitorial process proposed will allow the panel to seek out evidence and to ask parties to give information. In what way are you concerned that the panel may not seek out evidence of violence if they're not made aware of it by the victim?

Ms Willis : There are some things we know about trauma. If you go home tonight and, in doing your normal things around your house, you bump something and it falls over and it happens to be your favourite thing and it's broken, the very first thing you will do is think, 'If only I had put it there,' or 'If only this,' or 'If only that'. That's human nature. The first thing we do when something goes wrong is think about what we could have done to prevent that. When it comes to domestic and family violence, multiply that by a million times. The first thing—and this is one of the very common cognitive impacts of experiencing domestic and family violence—is for the person to spend a lot of time thinking about what they could have done to avoid or change it. Then, because of, unfortunately, a lot of our increasingly historical attitudes to those experience sexual assault, family and domestic violence, there's a lot of blame and self-blame, with people thinking that, if she were a better wife, mother, lover, cook, cleaner—which is absolutely what I was told when I first started in this industry—then he wouldn't have to hit her. We don't hold those attitudes now, but there are those ideas that, if only she had done better or changed things, then the violence wouldn't have occurred. We're talking about people who are experiencing high levels of shame, high levels of self-doubt and high levels of cognitive change, resulting in them feeling like they are partially responsible, and of course the offender will zero in on that. Then you're expecting someone in a very strange, alien, formal and difficult environment, where they are worried like hell what's going to happen to their children, to be able to stand up and, in a cognisant and confident way, say, 'I have experienced domestic violence over the years and this happened, this happened, this happened and this happened,' and explain it and talk about the impacts.

Senator PRATT: Surely they're supposed to be asked questions about that rather than necessarily—

Ms Willis : When the offender is that far away and glaring at them, often people will just bow their heads, because they're incredibly afraid.

Senator PRATT: Your submission also recommends that the bill should provide for greater protections for the use of confidential counselling records. What effect might the forced production of confidential counselling records have on the party that is subject to the disclosure of those records?

Ms McIntyre : Thank you for your question. I would refer you to part 6 of our submission. We would say that the compulsory production of therapeutic counselling records can have incredibly negative effects for the client who was the subject of the records, for people who have experienced violence and sexual assault more broadly and for the community as a whole because of the public health impacts. We would say that having therapeutic records, which are not necessarily investigative in purpose, produced to a parent management hearing without consent could result in that client feeling incredibly violated, traumatised at having their trust with that therapeutic counsellor broken. And because of the anticipation that that trust could be broken, it means that people may be less willing to access those services in the first place or to disclose.

Senator PRATT: I wasn't aware that the legislation had the power to access such records.

Ms McIntyre : The legislation is quite brief from that point so we don't actually know exactly what the process will be. They won't be able to subpoena records in the same way that a court can but they will be able to issue notices to produce. I refer you to section 11ME. It gives the panel the power.

Senator PRATT: So if the court can subpoena them, what protection does someone have before a court in terms of how they are used?

Ms McIntyre : We would argue that actually there needs to be greater protection in courts as well for counselling records but, at the moment, you do have traditional protections related to subpoenas so you can object to the way that they were ordered or you can make objections related to confidentiality of professional relationships so it depends. There are different protections in different states, and we would say that in the family law system there needs to be greater protections all around. But at this stage, it is not even clear that there will be any ability to object whatsoever let alone on what grounds.

Senator PRATT: Both parties must consent to participate in one of these hearings. Is it possible that a victim of family violence could be pressured into participating even perhaps by a perpetrator of such violence?

Ms Willis : I think there is no question that that would be the case. What we do know from those who we speak to is that there is a number of very common threats: if you leave me, I will hunt you down and kill you—and we know 78 women died last year directly as a result of family and domestic violence; if you leave me, I'll make sure that I'll get the kids—I'll take you to court and you'll never see your children again; and there are also often threats to kill animals and do damage to family members. Those threats are often quite extreme. For people who are going through a family law matter, it may be the opportunity of seeing something happen a bit quicker, even if they are not considering what that might mean for them. There can certainly be pressure from the offender but also pressure from other members of the family. So it might be that the offender is no longer in contact, perhaps because there are protection orders in place, but other members of his family or the broader friend work may also kick in, particularly, I would have thought, in rural areas and particularly for Aboriginal and Torres Strait Islander families where pressures from family to get to court and agree and move on can actually be quite intense.

Senator PRATT: I want to ask you if either of you have had a chance to review the Eastern Domestic Violence Service submission.

Ms McIntyre : No, unfortunately I haven't.

Senator PRATT: They are advocates and they say that they are a lead family violence service in Melbourne's eastern metropolitan region. They are advocating very strongly that they want to participate in this program and that they would like it to take place within their region. They have raised many of the same kinds of issues around their understanding of the dynamics of family violence. They are really pointing to the failures of the adversarial system and to a preference for an inquisitorial one in terms of seeking to address the rights of victims. How do we go about testing that? They are arguing that, because the current adversarial system has failed to keep people safe and that only five per cent of matters reach a final hearing that parties don't get to the witness stand and have their evidence tested, judges are making decisions on the papers without listening to circumstances in any case. A lot does exhaust itself in the system and is done on the papers by orders or determinations. That can also gloss over situations of violence. Surely there is some merit in having a hearing where at least there is some chance of those issues being properly tested.

Ms Willis : I think, as we said in our submission, we agree with most of the other services. From our perspective, we should incorporate discussion about this into the law reform review. But what we have said is that, if that's not to be the case, we think what's currently proposed is basically minimum standard. If we're going to do a proper pilot, let's do it properly. If we have someone with a broken leg, yes, we can give them painkillers. That might make them feel a little bit okay for now, but that's not actually going to solve the problem. If we're going to have a pilot, let's have one that not only gives the painkillers but then does all of the necessary assistance to fix the broken leg, help with the rehab, give them nice crutches and get them doing all the things they need to do so that they can get on with their lives. I would argue the same for this. If we're going to have this system in place, ensure that every single staff member who's doing any sort of assessment right through to the panel who are sitting have a very solid understanding of the impacts, causes, consequences et cetera of domestic and family violence on both the individuals and children so they can make proper assessments in relation to that and have the capacity to ask the questions in a way that will elicit the sorts of information that will give the panel the capacity to make decisions that will ensure the safety and protection of the children.

Senator PRATT: If there are specialists in this field who are willing to participate and put themselves on these panels within these trial sites and who have that background in family and domestic violence, you'd support them in doing so?

Ms Willis : I think that's the next step. To go back to the broken leg: we've given the painkiller by having the panel and we've taken them in and patched up the leg by having people on the panel who have trauma knowledge. But I think that, if we're going to then make sure that they get through the physiotherapy and everything else to wellness, it actually needs to be broader than that. It's not just the people on the panel. We talk a lot in here about people making assessments about who will be forwarded. There will be people at both ends assisting. There needs to be legal advice and all of that so that we actually provide a holistic response that's completely and utterly trauma-informed that assists both parties through the process, always with a focus on the rights of the child and their safety and protection going forward. If we're going to do it—and I would still argue that we should leave it for the law reform process—let's actually make it the full, 100 per cent best practice model that we can. That might mean it will take a little bit longer to get off the ground, but, given your comments about how long the law reform processes might take to get off the ground, perhaps that's not such a bad thing. Then we can actually evaluate it. And set the evaluation from the start—don't wait till the end—so we know the questions, we can gather the data, we can have an independent, ethics-committee-approved, robust research piece around that. Let's do it really well, and then we might be able to hang our hats on it and say, 'Yes, this is how we should go forward.'

Senator PRATT: I've got a witness here who's from the eastern region family and domestic violence service, where they're expressing the concern that, currently, the majority of judicial officers in the family law system have no formal qualifications or experience in child development, psychology or family violence. As a result of that, they're really saying that what's in the legislation before us right now, rather than waiting for a perfect system, is better than what they're already working within.

Ms Willis : I'd argue that that might be the case but let's make it better than just a little bit better. Let's make it really good. If we're going to do it, let's make it excellent. I agree with their comments about current judges—that's not their job; their job is the law. Yes, they certainly don't have that knowledge. They also don't have the knowledge around trauma. Also, within our courts, we don't have it infiltrated with understandings about vicarious trauma. If you have people sitting in a court, day in and day out, listening to horror stories, there will be an impact on them and that will influence the way they can manage their courts and make decisions as well. We actually don't even look at that. I've had the incredibly unfortunate experience to sit in any number of court matters where I can see the damage that these stories are doing to the judiciary and other staff in the court. I can see the pain that the stories are causing for them, let alone for my clients. I go home at night knowing that probably what they are going to do is knock down half a bottle of scotch, which doesn't solve anything.

CHAIR: But how do you overcome that? It doesn't matter what system you have, that's not going to change.

Ms Willis : Vicarious trauma is the No. 1 health and safety issue in our industry. We can manage it.

CHAIR: I appreciate that, but this legislation is not going to make it worse or better. It might be better because it will—

Ms Willis : You're absolutely correct, Senator. I don't think that we could ever operate in a more difficult area than an area where there is sexual assault, domestic and family violence, and family breakdown. You're talking about incredible pain for a whole range of individuals and all sorts of emotional and mental health impacts. This is not an easy area of law. We're never going to get it 100 per cent right. Of course, the biggest problem that we have is so often the little ones, who have no choice and no say, are so badly impacted by this.

CHAIR: I keep refocusing us that this legislation is about parental management. The domestic violence and the disputes between the parties are very germane, but the main focus is parental management. Again along the lines of, 'I'll kill your dog if you don't do it,' or, 'I'll kill you,' is this legislation going to make that any worse or better? I suggest that it's not going to change.

Ms Willis : I don't think there's any one piece of legislation or any one thing that's going to change the death and injury that's inflicted.

CHAIR: Would you accept that at least in this there is an attempt to have no lawyers there and to have the parties and experienced people like you perhaps there who can hear both parties and say, 'I know she's only saying that because he's in the room,' or, 'He's threatened her beforehand'? Don't you think that this panel, if it's properly constituted, will have people on it who can perhaps address that? Perhaps a judge could address that in a single court as well, but they don't—well, you're saying they don't—because it's impossible. Just looking at this legislation, is it going to make it any worse or better?

Ms McIntyre : I completely agree that the current system is not working. I think there are some really valuable points in this proposal. We're completely in support of the multidisciplinary nature of the panel. We're completely in support of the inquisitorial format. What we do have a significant issue with is the lack of legal representation, and I think that that is an incredible difference from the current system. That's not to say that legal representation is going to fix violence or to mean that none of those issues exist anymore—we know that that's not the case—but at the same time, when you put somebody in a room without an advocate and you have only two hours to deal with incredibly complex issues, there's just no way that you can guarantee that those issues will be aired appropriately to ensure that the determination takes into account safety concerns adequately.

CHAIR: But the parties have to agree—

Ms McIntyre : They do have to agree.

CHAIR: This is not the right terminology, but in my understanding it's more of the relatively simple things, if there are any such things, that are clogging up the courts and that cannot get in before the courts for years. This is an attempt to fix it—it's a pilot, I must say. I've said before—and my colleagues will be sick of hearing this—that I am old enough to have been involved when the Matrimonial Causes Act was around—

Ms Willis : Yes, that was a shocker.

CHAIR: When the Family Law Act came in it was lauded—

Ms Willis : It was a great relief.

CHAIR: because it didn't require lawyers. In fact, as a lawyer at the time, I thought this was no good for the profession. I thought that with no lawyers it would be simple and uncomplicated.

Ms Willis : No fault divorce.

CHAIR: Of course, now it's become the most complicated. Although a former lawyer, I sometimes think that keeping lawyers out of it, in relatively non-complex cases—

Ms Willis : I suppose that's why we'd say yes, certainly keeping the lawyers in there, but part two is also having absolutely everybody in there—and the people who are doing the prior assessments—having a very good knowledge of trauma and domestic and family violence, and the impacts and so on. So that you've got both of those pieces of knowledge working in a really solid way in that process, to achieve the outcomes that we're trying to achieve. I have no doubt that it doesn't matter how well we do it, we'll never get it 100 per cent right, just because of the nature of the horror—

CHAIR: Because we're dealing with human beings.

Ms Willis : Yes, exactly.

Senator HINCH: Ms Willis and Ms McIntyre, you've both heard a lot of the evidence here today, so you will have heard the earlier evidence of the Aboriginal and Torres Strait Islander Legal Service from Queensland. They expressed great concerns that the panel would not include Indigenous experts. You touch on that in your submission at some length. Partly, you say, there should be diversity in the composition of the panel. But I wonder, how diverse can you be when you're saying in recommendation 5 that 'all panel members must demonstrate a thorough understanding of sexual assault, domestic and family violence,' and then, in recommendation 6, you've got nine dot points of all the things they should be experts in. How diverse can a panel be? These people will all have to be experts—aren't we dreaming here?

Ms Willis : I think cultural competency is not something that you just do once. You don't just go off and do a five-minute course and you've got it all—tick a box, and go away. Cultural competency is something that is an ongoing professional development practice for absolutely every practitioner. In our organisation, we need to ensure that we're as culturally competent as we can be, so there needs to be ongoing professional development around that. You were right in your comments, Senator, that you're never going to get on the panel someone who can completely reflect the culture of the person. And even if they might be from the same country, that doesn't necessarily mean they're from the same religion or the same socioeconomic group or whatever. There are always those challenges, but it is about having people on the panel who have that cultural competency knowledge and are constantly developing that—and also, from that basis, have the capacity to understand that the people in front of them are the experts in their culture, and to respect that and ask, in respectful ways, questions about, 'How does this work for you?' And to learn from that and keep developing that process. So we're not actually just: 'I'm an expert and you'll do as you're told.' It's: 'Let's have a conversation.' And that's one of the reasons why the inquisitorial approach is preferable here, because it is then about having a conversation where there is agency by the people who are participating in the process and are seeking to have the parental management plans put in place. There's agency for them to be able to state what they think and feel as well.

Senator HINCH: I admire your goals. Going back to what Senator Pratt was saying, I've had information from people and one of the major complaints these days is that judges are being appointed to the Family Court who have absolutely no experience in those fields at all, and are absolute rubes. That is scary and that possibly is helping slow down and make the delays get even longer because, you know: when in doubt, stall! Or as they say in Canberra: delay, delay, delete! I have one final question, having read all this, and it's quite a serious question: is there anything in these bills that you support? That you think is okay. My feeling is that you don't like it at all.

Ms Willis : Yes, there is a list of things that we have said that we do support, and the inquisitorial style was the first one.

Ms McIntyre : Yes, Senator, there are several things we support. As I mentioned briefly, we support the inquisitorial and multidisciplinary nature of the panel. We are very open to exploring other alternatives such as that, and I note, having heard the Hon. Peter Rose's evidence earlier today, that there are other possible mechanisms which are multidisciplinary and inquisitorial but have more protections, perhaps, for victims of domestic violence. And on that note, I refer you to the recent report by the Senate Standing Committee on Social Policy and Legal Affairs, the inquiry into A better family law system to support and protect those affected by family violence. That discusses a whole range of other types of models of legally-assisted dispute resolution. So we do support those general principles, but we don't support this particular model.

We do note, of course, that there are several protections in this bill for people with family violence, but we suggest that they just don't go far enough. Because the model was originally designed not to deal with family violence and it was only at the last minute that the department made the determination that it would, in fact, cover family violence matters, the protections have been added on as an afterthought. We would say that what we've ended up with is an uncomfortable compromise where there's a large amount of discretion in the panel as to whether or not they do hear family violence matters. We've heard a lot about what a complex versus a non-complex family violence matter looks like. We would say that almost all family violence matters are incredibly complex and it's not clear from the bill which matters are too complex for them to hear or how they'll be making that determination, so that's of great concern to us.

The other thing is that we have this essential protection that suggests that legal representation can be given to people who have experienced family violence where the panel decides to give leave for that legal representation. But again, even where they make a finding of family violence, they retain enormous discretion about whether to give that leave or not. So you have these sorts of protections in there, but because of the nature of them having been thrown in at the last minute they sort of rest in this ambiguous position where it's unclear whether or not family violence matters will in fact be heard and whether or not there will be leave for legal representation. We think that it just doesn't go far enough in that respect.

Senator HINCH: To use an awful American word 'druthers', would you rather have this new pilot scheme postponed until after the Law Reform Commission comes down or would you like to see it rolled into the Law Reform Commission?

Ms Willis : Rolled into the Law Reform Commission review, so it's part of their recommendations. That gives more time for consideration of incorporating concepts around responding to families where there is domestic violence so that we can be more assured that there will be that trauma knowledge and that domestic knowledge. I take the senator's comments earlier that it could take a couple of years, but the recommendations are often staged. For example, the Royal Commission into Institutional Responses to Child Sexual Abuse is a five-year staged program of implementation, and stage 1 of that will be 1 July this year. Perhaps it could be that if it's rolled in—

Senator HINCH: I am the chair of that committee, so you are not telling me anything!

Ms Willis : You know exactly what I'm saying there. It is a staged process. Perhaps the recommendations could be a staged process, and it might be, 'Yes, we recommend this model with these changes as per the information that you've gathered and we recommend that that be a stage 1 and it be functional within 2019', which I guess is only going six or eight months post what you'd be able to achieve now anyway.

CHAIR: Your recommendation 2 states:

… that the Panel be required to grant leave wherever any of the mandatory considerations in proposed section 11U are met.

What is section 11U?

Ms McIntyre : What I'm referring to is in section 11NB, the discretionary determination for the panel to dismiss the application if it considers it appropriate in all circumstances to do so, and that requires them to consider whether there has been family violence.

CHAIR: If one party has legal representation the others would be—

Ms McIntyre : No, sorry. This is not related to Professor Parkinson's recommendation about where one party has been granted representation. Rather this is where one party who has experienced violence applies for leave to have legal representation. The panel has to consider that factor in determining whether to give leave or not. But it doesn't dictate what decision they have to make where there is a finding of family violence. It's perfectly possible that the panel might determine that there was, in fact, family violence and then still use their discretion to decide not to give leave to that person.

CHAIR: Your recommendation 4 states:

At least one Panel Member on each Panel should have extensive knowledge of, and experience in dealing with, matters relating to sexual assault, domestic and family violence.

Is that required even if there's no suggestion at all between the parties of sexual assault and domestic and family violence?

Ms McIntyre : Yes, it is. That is because we know that family violence is not always disclosed at the earliest opportunity. It's perfectly possible that it could emerge throughout the hearing. The panel members need to be equipped to be able to recognise those risks and identify the changing risk throughout the hearing.

Senator HINCH: We covered that a bit in your absence, Chair.

CHAIR: I'm sorry. I'll read the Hansard. I agree entirely with recommendation 10. Thanks very much for your help. It's been very useful and we very much appreciate your time.