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Tuesday, 23 June 2015
Page: 4196

Family Law

Senator MADIGAN (Victoria) (14:34): My question is to the Attorney-General, Senator Brandis. Attorney, in 2012 the Gillard government amended the Family Law Act in a number of ways, including expanding the definition of 'family violence' beyond its traditionally understood meaning of physical or sexual violence, requiring courts to prioritise the need to protect children from family violence, so defined, over the interest of the child having a meaningful relationship with both parents, while removing the requirement that parties found to have lied to the court pay the legal cost of the other party. While perhaps well-intentioned, there is gathering evidence that, in combination, the effect of these changes has been to provide an incentive to parents involved in Family Court disputes to make false allegations of parental abuse. Can the Attorney-General please inform the Senate of any plans his office has to reform the Family Court jurisdiction?

Senator BRANDIS (Queensland—Deputy Leader of the Government in the Senate, Vice-President of the Executive Council, Minister for Arts and Attorney-General) (14:35): Senator Madigan, that is an extremely important question. I want to thank you for it, and for your interest in it. I can tell you that the Australian Institute of Family Studies is currently evaluating the way in which the Family Law Act deals with family violence, as a result of the 2012 amendments. That report from the Australian Institute of Family Studies is due in August of this year, and the government will consider it with great care—in particular, considering whether any shortcomings in the 2012 amendments, having been identified, require legislative attention.

As well, in October of last year I made a reference to the Family Law Council. I asked the Family Law Council to consider the issues of the jurisdiction of the Family Court in the care and protection of children, and how the jurisdiction of the Family Court and state and territory children's courts intersect. This was with a view to changing the jurisdictional boundaries of those issues which, of course, in particular include family violence issues which affect the interests of children. I asked the Family Law Council to provide me with an interim report on that matter by 30 June—in other words, seven days hence. I expect to receive that interim report then, and I will brief you on it, Senator Madigan. Those are two very important inquiries that are shortly to report: the Australian Institute of Family Studies, which is looking specifically at the definition of 'family violence', the matter which is of concern to you; and the Family Law Council, which is looking at the jurisdictional issues bearing on the same issue.

Senator MADIGAN (Victoria) (14:37): Mr President, I ask a supplementary question. Attorney, while it is common for the Family Court to find that allegations of physical or sexual abuse made by one parent against another are unfounded, those who lie to the court in this way are almost never prosecuted for perjury. Given it is virtually impossible for a court to achieve a just outcome when one party goes to such lengths to mislead it, why is more not being done to deter this sort of behaviour?

Senator BRANDIS (Queensland—Deputy Leader of the Government in the Senate, Vice-President of the Executive Council, Minister for Arts and Attorney-General) (14:37): Senator Madigan, I know that this is also a very, very important and difficult issue. Of course, to state the obvious, perjury is a crime. But you are quite right when you say that very commonly—and not just, by the way, in proceedings in the family law jurisdiction—witnesses perjure themselves or they are found by the judge to have given unreliable or untruthful evidence, and very, very commonly they are not prosecuted. So the point I would make to you, Senator Madigan, is that this is not exclusively a problem for the Family Court. But, of course, if a witness does give unreliable evidence, if a witness does give evidence that the trial judge considers to have been untruthful, then that, of course, is likely to lead to findings against them, certainly findings against them in relation to any assertions of fact or allegations they might make in the course of giving that unreliable evidence.

Senator MADIGAN (Victoria) (14:38): Mr President, I ask a further supplementary question. One of my constituents, a family lawyer, recently said to me that he thinks that the Family Court is now among the most hated institutions in Australia. Others have shared harrowing tales of bitter disputes that run over many years, cost hundreds of thousands of dollars and leave all participants—that is, mothers, fathers and the children—seriously traumatised. Tragically, an all too common scenario involves these broken people going on to take their own lives. Attorney, can we stand by and allow this to continue? Is it not time we acted to reform the Family Court? (Time expired)

Senator BRANDIS (Queensland—Deputy Leader of the Government in the Senate, Vice-President of the Executive Council, Minister for Arts and Attorney-General) (14:39): Senator Madigan, in your ultimate question you asked me: is it not time to reform the Family Court? I think, because this is the jurisdiction that affects more Australians than any other jurisdiction and because, in this jurisdiction, every story is an unhappy one, at the end of the day, every story is an unhappy one. It is something that all governments must watch carefully and keep constantly under review. I might also say to you, Senator Madigan, that, of course, about 87 per cent of family law matters these days are not dealt with by the Family Court but by the Federal Circuit Court exercising a family law jurisdiction. So the Family Court does not do most of the family law cases these days. It does the more complex ones and the appeals. But I have indicated to you, Senator Madigan, two reports that the government is about to receive, and, of course, we note your interest, we acknowledge and respect your interest and we will keep the matter under review.