Bills Digest 33 1996-97 Family Law Amendment Bill 1996


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WARNING:
This Digest is prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest was available from 20 September 1996.

CONTENTS

Passage History

Family Law Amendment Bill 1996

Date Introduced: 11 September 1996
House: House of Representatives
Portfolio: Attorney-General
Commencement: Royal Assent

Purpose

To allow the Governor-General to make regulations imposing fees for voluntary counselling and mediation services provided by the Family Court of Australia. This is a Budget measure.

Background

The Family Court of Australia was established under the Family Law Act 1975. The Act introduced the concept of 'no-fault' divorce, and emphasised resolving disputes by conciliation and mediation rather than by litigation. According to the Court's Annual Report for 1994-95, only about 5%(1) of cases are litigated.

At the moment, all counselling is provided free by the Court. According to the Annual Report 1994-95, in that financial year, the Counselling Service dealt with 32,378 cases - an increase of 7,800 over the previous year.(2) About half of all counselling was voluntary and held before the parties filed for divorce.(3) According to the Family Court, most of the voluntary counselling was aimed at settling issues like property and maintenance rather than at reconciliation.

The imposition of a new fee for voluntary counselling was foreshadowed in the Budget. The Second Reading speech for the Family Law Amendment Bill 1996 confirms that the fee will be $40 an hour. It is important to note that this Bill does not impose the fee, it clears the way for the fee to be imposed by regulation. The Attorney-General's Portfolio Budget Statements 1996-97 said the fee would be charged from 1 January 1997(4). This is confirmed in the Bill's Explanatory Memorandum.(5)

The Government expects the fee will raise $0.835 million in 1996-97 rising to $1.9 million in 1998-99, the first full financial year in which the measure will take effect.(6) The Second Reading speech explains the rationale for levying the charge this way.

One of the major considerations favouring the imposition of fees in this area is the fact that the Commonwealth funds the Family Court to provide counselling and mediation services and also funds community based service providers which provide similar services. The community based sector provides these services for a fee to those who can afford to pay. Those who cannot afford to pay are exempt from fees.

The demand is such that it is not possible for all to have access to the Family Court's services, in these circumstances it is inequitable that a service is provided for a fee to some, often residents of rural and remote locations, but others, purely on the basis of geography, receive a similar service for free.

This voluntary counselling fee is just one of a number of cost-cutting, revenue-raising measures imposed on the Court in the Budget.

Cost cutting measures include:

  • a 2 per cent reduction in running costs - $1.2 million - due to the 2% increase in savings demanded through the efficiency dividend;
  • a cut to running costs of $2 million - to meet the Government's election commitments;
  • the Court's share of the portfolio savings imposts - $0.526 million; and
  • funding cuts of $1.65 million to programs initiated under the previous Government's Justice Statement.

The Bendigo and Mackay Counselling Sub-registries have already closed as a result of these financial measures.

Revenue raising measures include two new fees imposed from 1 September 1996:

  • a $250 fee for applications for matters other than divorce, eg maintenance, property or custody orders; and
  • a $400 one-off fee for setting down a matter for a full hearing in the Family Court.

The fee for filing for divorce has risen - from $368 to $460.

Other federal courts, too, have had their fees overhauled. According to the Attorney-General's Portfolio statement, the fee increases will bring cost recovery in Commonwealth courts and tribunals to approximately 30% - the average of the States and Territories.(7)

Main Provisions

Schedule one, item 2 adds a new section 125(ca). This allows the Governor-General to make regulations setting fees for voluntary counselling or mediation services. The new section says 'fees are to be payable in respect of the use of the counselling or mediation facilities of the Family Court in situations other than where a Court orders or directs a person to attend the counselling or mediation'. The Bill also extends the Court's existing power to grant exemption from fees to the proposed counselling and mediation fee [new section 125(1)(d)].

Remarks

Is there a loophole?

Lawyers and some of their clients may be able to avoid the fee by altering the procedural way in which they approach divorce. Instead of having voluntary counselling before filing for divorce, they may elect to postpone counselling until after the initial paperwork is done, and then rely on a judge or registrar to make the necessary order or directive. (Under the amendment, counselling is free if directed or ordered by the court.).

The court has the power in a number of situations to order or direct counselling. There are at least two which may provide a loophole.

Section 62F

The section which may provide the widest avenue for those seeking a loophole is probably section 62F. Under 62F(2), a court may, at any stage of proceedings involving a child under the age of 18, order the parties to attend a conference with a counsellor:

(a) to discuss the care, welfare and development of the child; and

(b) to try to resolve any difference between the parties affecting the care, welfare and development of the child.

This section is drafted very broadly. Arguably any issue between a divorcing couple with a child could impact on the care, welfare and development of the child. Furthermore, an order to attend could be made right at the start of the divorce process, once the divorce application for divorce was filed.

According to figures being prepared for the Family Court's annual report for 1995-96, 59.1% of divorces involve children. Therefore, more than half of the couples seeking a divorce could use this avenue if they chose.

Section 19B(1)

Section 19B(1) empowers the Family Court, with the consent of the parties, to send any or all matters in dispute to a mediator.

For many couples, mediation may achieve the same outcome as counselling or conciliation. However, the process is difference. It is less interventionist than a conciliation conference, and some couples, for example if domestic violence is an issue, would be screened out as unsuitable.

Order 24 rules 1(1) and 1(1A).

Until recently, Order 24 rules 1(1) and 1(1A) may also have provided an escape hatch.

Order 24 rule 1(1) says the Court or a registrar may order parties to attend a conciliation conference if, in the opinion of the court or the registrar, it would be advantageous to do so.

Order 24 rule 1(1A) says that if an order under section 79 of the Act (that is, an order in relation to property) is being sought, the Court or a registrar must order the parties to attend a conciliation conference.

However, following the High Court's decision in Harrington v. Lowe on April 24 1996, confidentiality is no longer guaranteed at those conferences. Therefore, less use may be made of Order 24 conferences.

The Court

Whether lawyers and clients will be able to use these sections to avoid paying for voluntary counselling may depend to a certain extent on the judges. A judge's attitude may depend on whether he or she believes the provision of free counselling services is essential to fulfilling one of the court's basic aims - solving disputes by conciliation and mediation rather than litigation.

Section 14 of the Act could provide some support for that view. It sets outs the Act's objects in relation to primary dispute resolution:

The object of this Part:

(a) to encourage people to use primary dispute resolution mechanisms (such as counselling, mediation, arbitration or other means of conciliation or reconciliation) to resolve matters in which a court order might otherwise be made under this Act, provided the mechanisms are appropriate in the circumstances and proper procedures are followed; and

(b) to ensure that people have access to counselling:

(i) to improve relationships covered by this Act; and

(ii) to help them adjust to court orders under this Act.

Who pays?

The Second Reading speech says no decision has yet been made on how the fee would be imposed - whether it would be upfront or collected at an hourly rate. Nor is there any indication as to who - one or both of the parties - would pay the fee. It could become just another financial issue - albeit a comparatively small one - for the parties to wrangle over before the Family Court.

Endnotes

  1. Family Court of Australia Annual Report 1994-95, p3.
  2. ibid, p48.
  3. ibid, p48.
  4. The Attorney-General's Portfolio Budget Statements 1996-97, p108.
  5. Family Law Amendment Bill 1996 Explanatory Memorandum, p1.
  6. The Explanatory Memorandum.
  7. op cit, Attorney-General's Portfolio Budget Statements, p108.

Contact Officer and Copyright Details

Bronwyn Young Ph. 06 277 2699
18 September 1996
Bills Digest Service
Parliamentary Research Service

This Digest does not have any official legal status. Other sources should be consulted to determine whether the Bill has been enacted and, if so, whether the subsequent Act reflects further amendments.

PRS staff are available to discuss the paper's contents with Senators and Members and their staff but not with members of the public.

ISSN 1323-9032
© Commonwealth of Australia 1996

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, without the prior written consent of the Parliamentary Library, other than by Members of the Australian Parliament in the course of their official duties.

Published by the Department of the Parliamentary Library, 1996.

This page was prepared by the Parliamentary Library, Commonwealth of Australia
Last updated: 19 September 1996

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