Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018

25 September 2018

House of Representatives - 10 September 2018

Watch Matt's Speech here

Mr KEOGH(Burt) (18:07): As many of you know, I came to this place as a lawyer with a history in prosecution work in corporate lawI was working in a corporate law firm and working on international disputesbut what many don't know is that I started my legal career working in a small, suburban practice that was started by my grandfather and then carried on by my mother. The majority of the work done in that legal practice was in the area of family law. In addition to that, I also spent time as a board member for Starick, which is a local community service in my electorate that runs refuges for victims of domestic violence.

From my experience of working in the law, and from many other experiences, I got to work, as my mother and my grandfather did, firsthand with many victims of domestic violence who were trying to work their way through the Family Court system. Since that point, in many different guises, I have met people in that situation. If there's one thing that is continually reinforced to me from my conversations with them and from working with them, it is not only the degree of trauma that they have been through but indeed also the degree of trauma that they continue to go through and the way in which the Family Court system allows further violence to be perpetrated against victims of family and domestic violence through its processes and, for somein fact, for way too many peoplefor an extended period of time.

This bill seeks to address but one aspect of the Family Court system, which is a system that should be there to allow people to get on with their lives. It addresses one part of that system to try and make it a system that is a bit easier for victims of family and domestic violence, because having to suffer through a legal process is difficult and it's difficult for anybody. It's part of why I went into the legal profession, because I knew that I was very fortunate to receive a good education and I saw from my grandfather and from my mother the use of a skill to help other people. I chose to use that in many different ways in the legal profession and I now find myself in this parliament. What I think is typical for lawyers working in family law all over Australia is that people at their most vulnerable are using the system to try to find justice. It is a system, in effect, that they cannot avoid and they need the assistance of, but unfortunately it presents retraumatisation time and time again for the people using it.

When we think about family and domestic violence, in the state of Western Australia it is a scourge. Over the past decade, we have seen increasing numbers, unfortunately. As I said, I was a board member of Starick services from 2005 to 2007. Back in 2007, in Kelmscott, where I'm from, 38 people were reported to have suffered from family violence. Last year, that number was 125. In Armadale, in 2007 it was 104. Last year, it was 321.

Since joining the official campaign trail in 2015, I've campaigned around many issues, but one which was particularly dear to my electorate was making the Armadale Police Station open 24 hours a day. There are many reasons for that, but one of those reasons was that it provides a safe haven that people know they can go to when they need safety and security. That's very important. I'd like to say at this point to those who criticise a 24-hour police station as a waste of police resources that, if they're worried about that, they should talk about the resources, not talk about the station being open for 24 hours a day, because it is so important for those who need to find a safe haven when they feel under threat. It is but a step, though, in helping those in our community who need it and need it quickly. We're moving in the right direction to help the people who are suffering at the hands of those they thought love them, but what about the individuals who have already encountered violence? What about the individuals who have had to impose trust in our legal system, as I mentioned before, in the hope that it will also keep them safe?

This bill allows the Family Court to prevent the direct cross-examination of a victim by a perpetrator in family law hearings or in situations of family and domestic violence. It will apply where there is an allegation of family violence between the parties or if there's been a conviction related to violence between the parties. It also applies for those who have sought personal protection orders. It is, of course, still open to the court, even in its discretion without those matters, to prevent such cross-examination. Reports and inquiries have been calling on the government to help better protect victims of family and domestic violence in our courts for many years. It goes back many years indeed. Various agencies, inquiries and reports have been calling for this annuallyin fact, sometimes even more than once a yearsince 2014. There are countless examples of cross-examination of domestic abuse survivors by their perpetrators causing more harm and more trauma to them. There are huge numbers of women who say that they settled for imperfect outcomes just to avoid cross-examination by their perpetrator or that they went through the experience and suffered horrible consequences as a result. Our court system, especially our Family Court system, should be a system of solutions, protection and assistance. It should not be a system that allows for further traumatisation and, effectively, further violence against those who have suffered. This practice needs to stop.

On White Ribbon Day in 2016, the Leader of the Opposition pledged $43 million for legal aid to facilitate the representation of unrepresented litigants in order to allow for family law cases to continue in a situation where lack of representation would prevent such cross-examination. Unfortunately, this government, in its many iterations, has refused to meet that pledge in the two years since it was made by Labor. In fact, the Attorney-General has indicated that he has no intention at all to give that funding to legal aid, and that's despite the fact that, when the Attorney-General was the Attorney General of Western Australia, he continued to rail against the fact that there was insufficient funding from the Commonwealth for legal aid. Now that he finds himself in a position to do something about it, what does he do? Nothing.

Subjecting victims to hostile questioning by their perpetrators in court inflicts new and fresh trauma, and, as I said, it is deterring those victims from taking legal action where they should or from being able to pursue Family Court matters to their just conclusion, settling instead for a situation that they are not happy with and sometimes settling for a situation which they feel leaves their children more unsafe. The government have long promised to address this situation, but so far, until now, they have failed to act on the legislation. This bill is a start, but, without the legal assistance funding to go with it, the injustice will not be properly addressed. So I implore the Attorney-General to re-evaluate this situation and to think seriously about the fact that additional funding is going to be needed for legal aid to make this work.

As an aside, when it comes to dealing with these matters of family law, I'd like to make a point in respect of the Western Australian Family Court. While the Attorney-General's thinking about funding and resourcing for family law here in Australia, he might like to think about the factof which I know he is very well awarethat, at the moment in Western Australia, we have but five Family Court judges. The interesting thing about that number of five Family Court judges is that that's exactly the same number that Western Australia had in 1975 when the Family Court was created.

It probably won't surprise members of this House to know that there's been a little bit of an increase in the population of Western Australia since 1975. It might be a small mercy to think that at least we're back up to five, because there was a period of time where we didn't even have our full complement of just five Family Court judges in Western Australia. We have seen commentary by members leaving the judiciary in Western Australia about how perilous a situation this leaves our Family Court justice in in that state.

Again, when we think about the cumulative impact, when we talk about the risks that are perpetrated and the trauma that is perpetrated on victims of domestic violence by being cross-examined by the person who inflicted that violence on them, we have a situation in our courts because of this lack of resourcing, whether it's in Western Australia or in other states, where that trauma is not just revisited within a short time frame. Because of the way in which these cases are dragged out, we have a situation where, years later, that trauma is revisited on these victims of family and domestic violence, and in the intervening period they are continually traumatised because they know this is coming. They know, as they progress towards trial, that they will have to sit in a witness box and have the person who inflicted violence upon them re-inflict it in the aggressive way in which they can cross-examine, in the way in which they can push buttons in a witness box against them, and cause deep psychological trauma and damage to them through a system that is supposed to deliver them justice.

Instead, we couldand by this law we willprevent that cross-examination. We will remove a stress for those victims of domestic violence going through the courts. But, as I say, we only remove that stress if we properly fund legal aid in the process. Otherwise, we reach a situation where courts will be forced to prevent the cross-examinations from occurring, which may result in an even more significant injustice where those Family Court matters can't properly be resolved, because legal aid won't be afforded to those perpetrators so that a lawyer can cross-examine properly so that cases can reach resolution. We now have a problem that will exist on both sideswhich really already existswhere part of the delays in our family law processes is because we have self-represented litigants trying to deal with a complicated process of law to resolve very complex issues, whether they are related to property or related to who will have primary custody and support of children. Those issues are very important, but these matters can also be matters of life and death, so it is appropriate that the state and the Commonwealth afford the proper supports to those parties by making sure that legal aid is provided to them so that the system can move as swiftly as possible and in the most just manner possible. This law will help with that. It will make a difference. We absolutely support it for that reason. But in order for it to function properlyindeed, like for our courts to merely function properlyappropriate legal aid must be made available and the government must stand up to do that.

Finally, I would like to make this observation. It's probably lost on many members of this chamber and on those in the other place. Western Australia, being the exceptional place that it is, has its own family court system. What that means is that, when this legislation passes, it won't provide protections to those going through the Family Court of Western Australia, because this law will not automatically apply in Western Australia. I also call on the West Australian governmentand in particular the WA Attorney-Generalto promptly move to amend the WA Family Court Act 1997 to pick up and adopt similar provisions as contained in this bill to ensure the protections awarded to family violence victims outside of Western Australia are also afforded to those within Western Australia.

To that end, I note positively that the now Attorney-General has made comments to exactly this effect in the state parliament back when he was in opposition in 2016. I have no doubt that the government will go down that path once this decision is passed. Of course, it, along with the Commonwealth, will still need to find the additional funding and resources that are required to support legal aid, to support the operation of these laws to ensure that justice is actually done by the passing of these laws to protect victims of family and domestic violence. These victims, these families, have waited long enough.

I was calling in 2015 for this government to get on with the job of proper support for victims of family and domestic violence. Three prime ministers laterand indeed three years laterwe now get around to debating this bill in this chamber. It still has to work its way through that other place as well, so I say this to the Attorney-General and to the government: you still have time to find that $43 million; I suggest that you do your absolute best in finding that money to make sure that, by the time this legislation passes the Senate, there is proper legal aid funding and resources to support this much-needed and unfortunately much-delayed legislation.