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Legal and Constitutional Affairs Legislation Committee
23/02/2018

MATTHEWS, Ms Helen, Principal Lawyer and Director, Legal and Policy, Women's Legal Service Victoria, Women's Legal Services Australia

SNELL, Ms Liz, Convenor, Women's Legal Services Australia

[09:28]

Evidence from Ms Snell was taken via teleconference—

CHAIR: Thank you very much for joining us. We'll ask our witnesses to make a brief opening statement. I understand you've been given some written information about parliamentary privilege and the protection of witnesses. If there's anything that you particularly want to take in camera, please let us know. Over to you for a brief opening statement, and then we'll ask you some questions.

Ms Snell : Thanks very much, Chair. We thank the committee for the opportunity to appear today. I begin by acknowledging the traditional custodians of the land on which we all gather.

Women's Legal Services Australia is a national network of community legal centres specialising in women's legal issues. Some of our members have operated for over 30 years. Our legal services are directed to vulnerable and disadvantaged women, most of whom have experienced family violence. Therefore, our primary concern when considering any proposed legal amendment is whether they will make the legal system fairer and safer for victims survivors.

We will speak first about the Family Law Amendment (Parenting Management Hearings) Bill 2017 and then about the Family Law Amendment (Family Violence and Other Measures) Bill 2017. Our comments will primarily focus on the parent management hearings bill. The proposed parent management hearing model is a large shift away from any current approach to resolving family law disputes in Australia. Innovative practice, new ideas and a culture of continuous improvement should be encouraged in any court system. We recognise there are limitations to an adversarial system and that the current system is failing women and children who have experienced violence. However, when the outcomes of untested processes, such as the introduction of parent management hearings, can have enormous ramifications on the safety of women and children, we advocate that any new model should be based on research and evidence and informed every step of the way by domestic and family violence experts.

We note that the Commonwealth Attorney-General has commissioned the Australian Law Reform Commission to undertake the most comprehensive review of the family law system undertaken since the Family Law Act was introduced. We believe the parent management hearing model should be delayed and referred to the ALRC review. We note there is a term of reference in the ALRC review specific to opportunities for less adversarial resolution of parenting and property disputes. We welcome discussion about new ideas and support a more considered approach through the ALRC review that could identify the key components of any inquisitorial approach. We agree with the comments made by Ms Rathus that another benefit of referral to the ALRC is that rather than proceeding with a new process and using the same complicated legislation—namely, part VII of the Family Law Act is largely repeated in the parenting management hearings bill—the ALRC review may recommend changes to the law which could be incorporated into a new approach.

We acknowledge that the parent management hearings bill does propose some safeguards for those who have experienced family violence. However, when the safety of women and children is at stake, it requires the model to be informed at every level by the dynamics of violence, and we believe insufficient safeguards are included. It is important to understand the desperation of women in the family law system, as we know you are aware. Many victims of violence are not getting legal aid, despite being a priority category under the national partnership agreement. While the parent management hearing model is consent based, relying upon consent as a protection against unsuitable parties proceeding into the parent management hearing model needs to be questioned. We believe the panel, if established, will have to deal with the predicament that some women may downplay the violence deliberately as a means to get into the parent management model, as they may view this as better than other alternatives, such as self-representing in court or negotiating directly with the perpetrator.

We note the bill provides that the principal member may give written directions on risk assessment, and the explanatory memorandum envisages a comprehensive intake and risk assessment process. But practice directions are yet to be developed, and it is not clear whether there will be ongoing risk assessment or whether risk assessment will be limited to intake. Risk in family violence matters is dynamic, and risk assessment must be ongoing. The expertise of those undertaking risk assessment, as well as panel members, in family violence, child abuse and trauma informed practice, as well as being culturally competent and disability aware, is also crucially important.

The PMH bill proposes that leave be required for legal representation, and the panel is required to consider family violence and a party's capacity to effectively participate in a hearing without legal representation, having regard to any power imbalances of the parties. It should be mandated that leave be granted if either of these grounds is met. While the granting of leave for legal representation is important in the circumstances proposed, it may have little practical effect if parties cannot afford legal representation. If the parent management hearing model proceeds, legal assistance for parties must be funded, particularly for applications involving family violence and child abuse.

I now turn briefly to the Family Law Amendment (Family Violence and Other Measures) Bill. WLSA supports most aspects of the bill and, in particular, the provision to criminalise the breaching of family law personal protection injunctions. WLSA also supports the broadening of state and territory courts' family law jurisdiction, contingent upon these courts receiving sufficient additional resources and training. We are concerned about expanding the court's power to dismiss proceedings that are frivolous, vexatious or an abuse of power and express strong support for the Family Law Council recommendation on research about systems abuse prior to any changes to the courts' power to dismiss matters. We'd be happy to take any questions.

CHAIR: Thanks very much. Ms Matthews, did you want to add anything?

Ms Matthews : No.

CHAIR: We very much appreciate you coming along. As you are probably aware, many submitters yesterday referred to your submission and supported it and adopted it as theirs, so we are very keen to have a talk to you. We do have a fair bit of time available, so hopefully we can address some things. I'm not going to ask too much about the violence thing. I appreciate your comment that, generally speaking, it's heading in the right direction.

With the parenting management bill and the ALRC review, which has been raised by a lot of people, I have a concern. But this is not about my concern; this is a question to you. Are you aware of how long these reviews take? There's a time limit on this one, but a major review of an act that's been around for a long, long period of time is going to take a lot of consultation. There'll be a lot of different views on the ALRC's view, whatever it is, and then governments have to draft legislation. My estimate is that it could be years before anything concrete comes out of that. I might be wrong, and I hope I am, but my long experience in the parliament tells me that that's how it will be. I'm just wondering if you might accept that the panel idea is an attempt, on advice, to do something immediately. We as parliamentarians keep on being approached by people to do something and do something now to fix the problem. This won't fix the problem, but it's an attempt to do something that might work. There's some good advice that it will work, but there's a lot of advice that it won't. Do you think it's worth trialling, bearing in mind that the ALRC will be able to review it?

Ms Matthews : With the ALRC report due in March 2019, I think that's a relatively short time, but I do appreciate what you say—it might take a longer time after that for there then to be legislative reform. One of the possibilities might be the ALRC identifying where the areas of need are. My question might be whether or not this is actually addressing the areas of need that might be otherwise prioritised. Certainly, as Liz said in the opening statement, we commend any sort of innovation that's looking to have better results and experiences for families. We appreciate the practical consequences of major law review and the time lag that necessarily happens.

CHAIR: I won't dwell on that. Recommendation 2, which Ms Snell mentioned as well, concerns practice directions. That's achievable, isn't it, by either regulation or instruction from the Attorney?

Ms Matthews : Yes, in relation to the risk assessment, certainly. It's just that the legislation as it is at the moment is not really very specific about that. And when we talk about risk assessment, as was said, that needs to be dynamic. We don't know what the time frames are necessarily going to be in the parenting management hearings, whether or not the intake happens and there is then a time lag between the collection of the material that people might be required to get and then the actual hearings. Situations can very much change as far as the family violence risk over that period of time is concerned.

CHAIR: That sounds to me to be a sensible recommendation, and we can perhaps talk with the department about that later on this afternoon when they appear again. In recommendation 3, you talk about access to legal assistance before entering into the process. We had evidence yesterday referring to your paper quite a bit, but people who are not familiar with the process need to know what they're getting into by agreeing to this panel.

Ms Matthews : Yes.

CHAIR: I take your point there.

Ms Matthews : I think there needs to be opportunity for the potential participant in the panel to be able to explore what their legal issues are. If people were to self assess whether their matter was a simple matter or a complex matter—because they'll probably have confidence that their view on how it should turn out is pretty much the right view—they may not recognise the complexity of the issues that they would be bringing before the panel. I would also be concerned if people were offered, 'You could go to court and wait 2½ years for a final determination in your matter or you could go to court and have a few hours before a panel' They really need to have a bit more information before them about that, where the adviser has the opportunity to learn more about the potential participant situation.

CHAIR: Recommendation 6 and 7 have been raised by others as well, about making sure that the panel is properly constituted. I'm sure the government will take that into account. Training for panel members and diversity are recommendations 8 and 9. Thank you for your comments about the issue of sensitive records, which others mentioned to us yesterday, again drawing on your submission as well as their own. I appreciate that. That seems sensible. I will mention recommendation 12, which others have raised as well, which seems to be uncontroversial and sensible. I very briefly refer to recommendation No. 6 in the family violence submission, which I said I wouldn't refer to. Recommendation 6 is:

That the Federal Government introduce legislative protections to stop a victim of family violence being directly cross-examined by their abuser in all family law proceedings.

I understand your reasoning for that. As lawyers, does that cause you some hesitation, in not allowing the accused, if it is the abuser, the right to test some of the allegations, which may not always be accurate and honest?

Ms Matthews : When we're talking about avoiding direct cross-examination, it's not to say that there shouldn't be a proper testing of the evidence. We have an example in the Victorian legislation for intervention orders under the Family Violence Protection Act, where parties are not allowed to directly cross-examine each other and an order can be made that there be legal representation for the purpose of cross-examination. That's one way of doing it. I think other things have been looked at with other reviews, including having counsel assist or something like that, just so that there is some appropriate intervention between the perpetrator and the victim in the cross-examination process. Yes, certainly as a lawyer I'd expect that evidence should be able to be tested, but what we currently experience is people who might say that they're going to withdraw from family law proceedings because they don't want to risk that or we have people who are using the opportunity to grill the other party in court as further abuse.

CHAIR: How does it work in Victoria? For people who are otherwise unrepresented, does the court or someone provide legal assistance just for the cross-examination?

Ms Matthews : The legislation sets out that it's just for the purpose of the cross-examination. What happens is that an order is made that the person have that legal representation. It goes via Victoria Legal Aid to assess whether means tests apply and so on, and a lawyer is allocated, either with the party contributing to the costs or not depending on their financial position. The idea is that the lawyer, usually a barrister, who is doing that is really just there for cross-examination purposes. I think in implementation it would vary a little bit as to whether or not they might broaden their brief out of a generous and practical approach to the problems, but that's looking at the family violence intervention order matter, which is rather less complex—even though it's very serious—than the number of issues that might be being dealt with in family law parenting matters.

CHAIR: So, an application is made, at some time before the hearing starts, for legal assistance to cross-examine the other party. The order is made by the court prior to the hearing and then legal aid assess and make the necessary arrangements?

Ms Matthews : There will be, in any intervention order matter that's not consented to at the beginning, a number of hearings before it gets to a final hearing. It could be just one initial return date where that order for representation at cross-examination would be made, and there could be one or two hearings before the actual final hearing would take place. That's partly to enable those procedural matters to be dealt with, but it's also because a lot of matters are actually managed by consent in the system, so matters don't initially go to a final hearing.

Senator PRATT: In your opening, Ms Snell, you talked about the idea, hypothetically, that women might downplay violence within these hearings. What specifically do you think it is about the inquisitorial process, as opposed to the court process, that would lead to that end?

Ms Snell : I think it's partly the fact that it's being presented as a two-hour hearing, where it will be relatively quick. They might think that that is a better process than having to wait, as Ms Matthews mentioned earlier, for several years to go through a court process. It may be that the alternative seems better in so far as they'll otherwise have to negotiate directly with a perpetrator or be unrepresented in court. We understand why it could be an attractive model, and certainly we're very interested in having further conversations about an inquisitorial model and further conversations about having a multidisciplinary approach as well, because we do think that there is value in having such an approach. I think for us it would be really helpful, given that the Australian Law Reform Commission review is currently looking at these kinds of things, to have a more considered discussion about these very issues so that we can come out with a solution that we can ensure prioritises the safety of women and children. As I said in our opening statement, we do acknowledge that there are some protections proposed in the parenting management hearings model, but we don't think that there are sufficient protections.

Senator PRATT: What extra protections do you think should be identified through the process of the ALRC, for example?

Ms Snell : I think when you're having a discussion with a whole range of people from diverse backgrounds, numerous domestic violence experts, the academics and the family law practitioners, and everyone is in having the discussion together, it may be that part of it is a process thing. But also we acknowledge that the Family Law Act is a very complicated piece of legislation. Not only is it incredibly confusing, particularly for the general public—and there seems to be a lot of misunderstanding about it—but there are sections in it, for example the equal shared parental responsibility presumption, which are very problematic and which we oppose. We know the recent House of Representatives committee has said that the ALRC consider amending and abolishing this presumption. If those kind of things happen, so that perhaps we have a more simplified piece of legislation, and if that can be incorporated into any new inquisitorial approach, we would see that as being very beneficial.

Senator PRATT: In terms of an inquisitorial approach, if someone hasn't disclosed violence or they've downplayed it, which you say is a risk, what kind of training of a panel member would be required to enable them to detect and see if family violence is a factor?

Ms Snell : I think that's where the issue of making sure that at least one panel member has expertise in family violence, child abuse, trauma-informed practice, cultural competency and disability awareness—and, obviously, they'd need to understand the family law as well—would need to be a minimum.

Senator PRATT: In that context what kind of questions would they be asking? What do you mean by that kind of skill and experience?

Ms Snell : We would presume that there would be a risk assessment process that would be happening outside of the panel hearing itself, because the victim survivors aren't necessarily going to disclose the violence themselves and certainly would not want to do it in front of a perpetrator. That's why we're talking about the importance of having a risk assessment process and that it be ongoing.

Ms Matthews : I was also thinking: having a good understanding of what the breadth of family violence could be. In the Family Law Act the definition of family violence it offers is really very broad, but we still struggle to have people who have an understanding—

Senator PRATT: In terms of financial control, or verbal abuse and those kinds of things.

Ms Matthews : There are a range of different things. I think there will be some circumstances which might present themselves to a panel member where they might say, 'This doesn't seem right. I'm going to have to wonder why this person is going down this path or why the dispute is of this level of narrowness.' But there'll be other things where I think it would be very difficult in a short hearing for a panel member to necessarily make the right inquiries. As Liz suggested, the risk assessment done by somebody who has expertise in that is going to be beneficial.

Senator PRATT: As I understand it, clearly in the legislation both parties need to consent to participate in a hearing. How do you frame the risks around pressure to participate? How could that be prevented?

Ms Matthews : I think that those risks are quite significant. If we draw on the experience that we have in the intervention order courts that we have in the Magistrates Court, in those lists, we have many examples of women who are at risk not wanting to proceed with orders that might've been initiated by the police. I think it's quite a serious risk, and we need to be aware of this.

We also need to have a look at the sorts of issues that are in dispute. It's a parenting panel, but it may well be that you've got somebody who's agreed to something that on the face of it might not be reasonable. I say this from my own experience in practice where often, because of a misunderstanding of what the Family Law Act says, somebody's agreed to an equal time arrangement for a 10-month-old baby or something like that. If you're going before the parent management panel with a very simple issue about where the changeover happens, or something like that, maybe that should be alerting someone that the people are not being fully informed, that maybe there is pressure on somebody and that there are poor decisions being made. These are things that might be evidence of the sort of pressure that's being put on, but, apart from the risk assessment process—and, as we indicated before, that needs to be ongoing—how to check for consent is really difficult.

Senator PRATT: How is that more intrinsically risky in terms of the parenting management hearing versus dealing with those issues in the courts?

Ms Matthews : I think there are issues with that in the courts, and that's partly because of the delays that people experience. Sometimes it's a bit of a war of attrition and people will consent to orders rather than wait. I think that, particularly in the case of people who've experienced family violence, they may well consent to matters rather than go through the court process or run the risk of a court making a decision which they think is less safe than what they might be able to agree to. So I think those are real concerns and they're concerns that we've expressed in other situations, but with the parent management hearings what I understand is being envisaged is a relatively brief process, and so there is lesser observation of the process that the parties might be going through in making their decisions.

Senator PRATT: What kind of consent should be required of any participant in these family management hearings, noting that the parent management hearings will be adjudicating quite complex family law and their findings will be legally upheld?

Ms Matthews : Consent's always got to be informed consent.

Senator PRATT: And you have to go about getting that.

Ms Matthews : From my point of view, for that to be properly informed, the participants need to have had opportunity to provide their story to a lawyer who can then interpret that for what the legal outcomes might be and what the better forum might be for determining that. It could be going to court. It could be using the family dispute resolution process. It could be doing nothing, which is frequently the advice that we will give people, saying, 'No, you shouldn't be doing anything.' I think you need to be confident that the person's had access to that advice, that the adviser is competent and that the adviser has had the opportunity to get a reasonable picture of the circumstances of the parties before giving that advice. It's not simply process advice but designed to respond to that person's individual situation.

Senator PRATT: I want to ask briefly about the family violence bill. The amendment to the summary dismissal provisions is claimed to be for the benefit of family violence victims to prevent the use of its courtroom as a tool for perpetrators of family violence to perpetuate violence. Your submission asks that this not occur until further research is undertaken. Is your concern that, rather than preventing the courts being used to perpetuate abuse, this amendment may actually create another avenue for that abuse?

Ms Snell : Yes, I think that's fair to say. We do note that there are already some provisions. The Family Law Council has noted that as well. Under part 11B of the Family Law Act, since 2012 there's already been the power to dismiss vexatious proceedings, and under section 118 there's the power to make cost orders for frivolous or vexatious proceedings. Our concern is that, if there are even further amendments in this area, they may be used by perpetrators and/or their lawyers to threaten a family violence victim survivor with summary dismissal and associated legal costs, including by way of correspondence or prelitigation negotiations without good basis. We're concerned that this will lead to the withdrawal of meritorious claims.

Senator PRATT: Thank you.

Ms Snell : That's why we're really saying it'd be great if we could have some further research to better understand how those current provisions are being used and what the impact is before there are any further amendments.

Senator PRATT: Do you have any of that evidence yourself?

Ms Snell : As a network, that's always something that's a possibility in terms of perpetrators and lawyers threatening that kind of behaviour.

Senator PRATT: Thank you.

Senator HINCH: Ms Snell, in recommendation 9, you talk about diversity and cultural competency, et cetera. Yesterday ATSI's legal aid gave a lot of evidence along these lines, about diversity, but also made seven or eight dot points about what every panel member would have to know about family violence, LGBTIQ, et cetera. How diverse can you be when you've put all those restrictions on people? ATSI even thought we should have a Koori rep on virtually each panel.

Ms Snell : I think diversity is very important. We're also supportive of all panel members being culturally competent and disability aware. In terms of cultural competency, we're talking specifically in regards to working with Aboriginal and Torres Strait Islander people, as well as culturally diverse people and lesbian, gay, bisexual, transgender and queer families, and particularly understanding the dynamics of family violence in that situation. We, too, are supportive of diversity in terms of the selection of panel members. Whilst ideally we would like everyone to have expertise—for example, we've been talking about family violence. At a minimum, we were thinking at least one panel member should have expertise in family violence, child abuse and trauma informed practice, and that there would be ongoing training for all staff and all members with respect to cultural competency and disability awareness.

Senator HINCH: I'm not being flippant, but I mentioned yesterday—or a version of this—that if I say, 'I'm Muslim,' or, 'I'm an Orthodox Jew; you don't understand my cultural issues'—do you see where I'm coming from?

Ms Matthews : I think there is some level of cultural competency that can come from training. I think, also, that if you have diversity in the broad selection of panel members, that has the potential for informing the other panel members rather than having a presentation of a monoculture sitting on the panel. I think there's a way of managing it. I don't think that we are suggesting that for anybody who's identifying in any particular way that their panel members should directly reflect their cultural background.

Senator HINCH: This leads to something we hinted at yesterday. There are fears in groups like yours that lawyers who have absolutely no family court experience are being appointed to the Family Court. Am I right in saying you fear that that could happen on a panel in this pilot program?

Ms Matthews : I think there is a minimum requirement for the lawyer—

Senator HINCH: Five years.

Ms Matthews : to have five years experience. But only one panel member needs to have the family violence competency. Because family violence is often not apparent, not admitted to and is held quite secretly, it's really necessary that a panel member have that family violence competency. It is our experience that people frequently do not identify, even to services like our own, that they've experienced family violence. It might be that that's something we determine after asking them some questions. While we've got some minimal family law experience, that's an arbitrary thing—if five years is appropriate, that may well be right. But the understanding of family violence and the experience in working with family violence is another factor that should be present on each panel.

Senator HINCH: One more question, Ms Snell, and pardon my ignorance here. We're talking about competency training, et cetera, and you make the point—I think it's in recommendation 17—that there should be:

… particular training in the manifestations of family violence that are unique—

Your word, 'unique'—

to LGBTIQ+ communities.

I really don't know this: what is so unique about violence in gay communities?

Ms Snell : There may be specific barriers, for example, for disclosing domestic and family violence. For example, a person may not have come out, so there would be concerns about them reporting it to police and having to go through, for example, local court domestic violence order proceedings and that kind of thing. That would be one example of how that would be an issue specific to LGBTIQ communities.

Senator HINCH: I would like to go a little further with this. Is this the sort of thing where there might be a homophobic father that bashes a gay son? Is this the area you're talking about?

Ms Snell : It might be that two partners are in a relationship, and it might possibly be a violent relationship, but the person who is the victim of the violence hasn't necessarily disclosed that violence to other family members, be it parents, sisters, siblings or friends and what have you. Then they may fear that if they do make a report to police it might then come out into the public in a way that isn't necessarily the time and the way in which they would have liked to have disclosed to their family members. This is a particular issue especially in regional, rural and remote areas where there are small communities, so by reporting to police it may be more likely that other family members or other people in the community become aware that they are in an LGBTIQ relationship.

Senator HINCH: I can understand that. My final question: I think you said that you think the pilot program in PMH should be delayed. Are you also saying that perhaps it should be rolled into the ALRC investigation?

Ms Snell : Absolutely. We think it would be really helpful to have these kinds of conversations and for there to be further consideration in the ALRC.

Senator HINCH: Thanks.

Senator WATT: Just one question from me. I hear what you're saying about the concerns you've got about the model being put forward. What do you say to the view that we've got to find some way to provide better access to justice for people going through these sorts of disputes? Do you think there are better things that we could be doing instead of this?

Ms Matthews : I'm really interested in trying different models; I think that's good. We've had a lot of success with the legally assisted family dispute resolution. That's a really good process, particularly for people who've experienced family violence and women who've experienced family violence. It's a safer environment for dealing with those disputes that recognises the reality of those families. It is rather more efficient than going through a court process. It doesn't commit people in writing to a statement of all the things that they might be complaining about of each other. I think that is a good model and it would be good to see that being more accessible and more available to families. As you heard from Victoria Legal Aid before, they have a high level of success with their FDRS model. So that's one thing.

I'm not saying that this is a model that shouldn't be considered, but if we're looking at the delays in court, the delays in court are for a lot of reasons, and one of those reasons is the very complexity of the matters that are going before the court. I'm not aware of simple matters clogging up the courts. I see that the parent management hearings are looking at dealing with more complex matters and not simply what was initially envisaged—the straightforward matters. I would be interested then to see how the parent management model will need to be amended along the way to cope with that complexity. I think there are a number of ways to look at how to deal with the current problems with the system; the complexity of the legislation; and the community misunderstanding about what the legislation says, which leads to some really poor and unsafe decision-making by parties before they enter the system and then trying to push those when they have entered the system. As I said, more access to legally assisted family dispute resolution and some simplified systems would certainly be welcome. The possibility of extending the jurisdiction in the magistrates courts would particularly assist people in regional and rural areas.

I think there are a lot of options, which is one of the reasons why we're saying: 'Put it in the mix. Refer it to the ALRC, and see where it comes.' While I do appreciate, Senator, your concern about the time delays, that's not to say that putting it in there means that you're guaranteed a time delay. There are other options that the parliament has for dealing with that. It would be good to see where the priority needs are and what might assist. Resourcing is a huge issue. I appreciate that. One of the things that adds to the delays in the current court process and that adds to the trauma for parties going through it is the difficulty in obtaining legal representation when you are of low or no income, and the complexity of problems that people with no or low income is equally severe as those of people who can afford legal representation.

Senator WATT: Thanks.

CHAIR: Ms Matthews, is there a simple way that people who appear before the forum can get preliminary advice on what the process is before they say, 'Yes, we'll go for it'?

Ms Matthews : I think it's not difficult to explain process in a way that satisfies the 'tick the box' thing—'Yes, I've told somebody how that works.' My long experience as a family lawyer is that I've thought I've explained things really well, and it's really only been after the client has gone through the complete experience that they've understood what I thought I was explaining to them, so I think it's really quite difficult. Also, as I indicated before, I think explaining process is insufficient. People need to actually have an assessment of what their legal needs are. And it's not just their legal needs. I like the multidisciplinary approach, because the legal response is not necessarily going to be the complete answer for families with complex needs. I think they need to be able to access advice where they're providing information about their situation which is not too pressured by time and there is some assessment made of what might be the best route for them. My experience and my service's experience is that we are not directing people to court unnecessarily. We're looking at alternative ways of dealing with people's issues.

CHAIR: I'm not arguing with you on a lot of submissions you and others have made. The way I look at this, if we waited till every stakeholder was 100 per cent in agreement with a proposal, it would never happen. Wheels turn slowly. From my limited experience, it seems worthwhile giving it a go, but I am attracted to your argument, which others have also used, about people voluntarily agreeing but sometimes not fully appreciating what they're agreeing to.

I see everyone's call for more money for legal aid, and that's another question. In the 27 or 28 years I've been in parliament, I've heard that every month, I'd say. It's real and valid, but it's 'pressures on budget, blah, blah, blah'. Bearing in mind that legal aid has a finite limit, whatever that is, is there a way where, before going into this process, people can get a quick, perhaps half an hour, overview: 'If you agree to this, this is what you're doing, so make sure when you agree you know what you're agreeing to. And this is what you're agreeing to.' Is there a way that that could be done administratively, simply? I don't understand how the process works at the court doors these days. I did 30 years ago.

Ms Matthews : Educated people in good health with housing, modest pressures on them and a level of competence and understanding, whose sole issue is the need to understand what certain legal expressions or arrangements like 'this is a binding agreement' might mean, may well be referred to a website and look it up and understand it themselves, but our services are not looking at people who have that level of understanding. When you go through a family dispute resolution process, you usually might speak to the person beforehand for an hour, 40 minutes or so, and then that process will go for about four hours when you're exploring ideas and learning new stuff along the way. When you are preparing a matter for a court hearing, you would spend some hours with the client getting their story, exploring ideas with them and then preparing documents. I know this is to replace that; I appreciate that, but I'm anxious about thinking that is an easy way to say, 'Here is the outcome.' We currently have people who have agreed to orders and think they've understood what they're doing, who then they might come to a service like ours to say, 'I didn't realise this was how it was going to work.' Those orders might have been made by a judicial officer or a magistrate on a consent basis but still are not serving the family well.

CHAIR: Again, you're saying you can't advise on the outcome. I'm more or less thinking that, if someone's going into this voluntarily, someone could say to them, 'You realise you don't have to do this? You realise you'll be facing your partner and there could be some unpleasant things? You realise that this is a final order; once this happens, that's it? I'm not going to tell you how it's going to turn out, but do you understand, in agreeing to this process, that's what happens?' The easiest case was in some evidence we were given yesterday. If they're arguing over access to the child, and the father wants six days, the mother wants four days, but they can't agree on five days, the suggestion was they need an independent party to say, 'It's going to be five days; like it or lump it.'

Ms Matthews : If the dispute were not marked by any issues of coercion, violence or other safety concerns then it would not be difficult to advise somebody, 'You're going to go into court, the decision is going to be made and, even though we might not be advising on the outcome, it could be what's being asked for by the other party.' I don't think that's a difficult thing to explain. I agree with that. The range of issues that come before us are generally more complex than that.

CHAIR: That may not be the case for the forum. Should it be made mandatory that the presiding officer, before he or she starts, says what I'm suggesting: 'Do you understand that this is final and you can't be bullied by the other party et cetera?'

Ms Matthews : There is a great benefit in hearing things from the person in authority; however, even with a different model that might try to be less formal, people can be overwhelmed and not necessarily absorb it. It would excellent to have that expression of the outcome, the appropriate behaviour and so on come from the panel, but people need to have that explained to them before they go in there, so that it will land, if you like.

CHAIR: As I've mentioned a few times before, in my early days of practice we were told that the Family Law Act was going to be a simple process with no lawyers, that everyone would sit around the kitchen table and everything would be resolved. Forty years later it has turned into one of the most complex legal processes ever. I think this is an attempt to get back to what Mr Whitlam was talking about back in those days.

Ms Matthews : We should also acknowledge—and I think the Australian Institute of Family Studies have looked at this—that a great number of people with children, when they separate, don't engage with the system at all, and make their own arrangements. There are people sitting around the kitchen table and resolving things. The complexity of the legislation also reflects the complexity of people's problems.

Senator HINCH: You talked about how it's very beneficial to hear from people in authority sometimes. That was the argument for why they shouldn't have taken wigs off judges in the Family Court, because some people, particularly ethnic people, didn't like being told by a man in a suit what they should do with the lives of their children. That led to the Family Court bombings in Sydney, so there is a downside to that.

CHAIR: If there's nothing else, thank you very much for your submissions on the two bills, Ms Snell and Ms Matthews. We appreciate that, and the committee will make its recommendations later on.

Proceedings suspended from 10:31 to 10 : 45