This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Contact Officer and Copyright Details
Family Law Amendment Bill
Date Introduced: 22 September 1999
House: House of Representatives
Commencement: Generally 28 days
after Royal Assent
The Bill amends
the Family Law Act 1975 (Cth) (the Principal Act) in order
- set up new arrangements for the enforcement of Family Court
orders affecting children
- make financial agreements including pre-nuptial agreements
legally binding, and
- make miscellaneous changes regarding arbitration, child
maintenance orders, international child abduction and Rules of
Court for enforcing orders about property and money.
The Digest examines the provisions of the Bill
dealing with enforcement of child contact orders and the provisions
making financial agreements legally binding. In doing this it also
canvasses some of the submissions made to the Senate Legal and
Constitutional Legislation Committee which is inquiring into the
The Digest does not deal with Schedule 3 of the
Bill relating to miscellaneous matters to do with arbitration,
child maintenance orders and international child abduction.
Inquiries regarding Schedule 3 can be directed to the Parliamentary
Enforcement of child contact
The issue of enforcement of Family Court child
contact orders has been the subject of public debate and inquiry
for many years. The Family Law Council, a body established to
advise and make recommendations to the Attorney-General about
family law, examined the matter in its 1987 report Access: Some
Options for Reform. The Joint Select Committee on Certain
Aspects of the Operation and Interpretation of the Family Law Act,
('Joint Select Committee') in its report in November 1992, advised
that it had received a significant number of submissions relating
to difficulties with enforcement of contact orders of the Family
Court.(1) The Australian Law Reform Commission (ALRC) examined the
question of parent-child contact in complex or intractable cases in
an Issues Paper released in December 1994 and a subsequent report
in April 1995.(2) A number of recommendations relating to
enforcement of contact orders in the Family Court were made
following the ALRC inquiry.(3)
In June 1998 the Family Law Council completed a
report entitled Child Contact Orders: Enforcement and
Penalties. The Council had received a reference from the then
Government in 1993 to look into penalties for non-compliance with
orders and injunctions made by the Family Court of Australia. The
reference followed on from a recommendation of the 1992 report of
the Joint Select Committee. It was agreed that a long-term study be
established to collect data.
The data collected by the Council and presented
in its reports(4) show that most reported problems concerning
enforcement and penalties for non-compliance come from contact
parents and are about contact orders (formerly called access
orders). In particular, contact parents brought applications to the
Court complaining that contact was being obstructed or denied.(5)
However, the Family Law Council's report also refers to
difficulties with contact encountered by residence parents
(formerly called custodial parents).(6) Thus some applications for
the enforcement of contact orders are made by residence parents
seeking to enforce the terms of the contact orders because, for
the contact parent [is] not present during
contact hours, [or there is] inappropriate conduct during contact
hours such as dangerous activities, over indulgence in alcohol,
physical or emotional abuse(7).
The Family Law Council said it was also aware of
anecdotal evidence from lawyers and others that a recurring problem
for residence parents is children not being collected as arranged
or being collected late or not being returned within a reasonable
time following contact.(8)
In its study, the Family Law Council also
examined the hundreds of submissions to the 1992 Joint Select
Committee Inquiry. Major issues identified by submissions made to
that Committee and more recently to the Family Law Council
- If a court order is breached under existing processes, then the
person wanting the order enforced must make an application to the
court, wait for a court hearing and sometimes go to
The end result, often far removed in time from
the breach of the order, is quite often unsatisfactory from the
contact parent's viewpoint.(9)
- The cost of legal action may be beyond the means of the parent
who wants to enforce a Family Court order and therefore they cannot
take legal action to rectify the situation.
Some contact parents, because of the cost factor
or simply to avoid the conflict involved, are either rarely seeing
their children or are losing contact with them altogether.(10)
The Family Law Council in its final report in
June 1998 suggested amongst other things the need for a three
tiered approach in dealing with the contravention of contact
orders. The report defined these three tiers in the following
This would involve improving communication
between separated parents and educating parents about their
respective responsibilities in relation to their children at the
time the order is made.
There are some cases where the problem which
needs to be addressed is one where action of a remedial nature will
better resolve the issues between the parents and better serve the
interests of children.
In some cases the early adoption of a punitive
approach may be supportive of one parent whose main aim is to
punish his or her former partner. In Council's view this should be
avoided. It is Council's view that punishment should mainly be used
in the event of deliberate disregard for a court order or as a last
In a press release in February 1999, the
Attorney-General announced the Government's intention to introduce
legislation to implement the three tiered approach to the
enforcement of parenting orders as recommended in the Family Law
Council's report.(12) Schedule 1 of the Bill
implements this approach.
A financial agreement in the context of family
law is an agreement between two people who either intend to marry,
are married or have been married and relates to identified property
of either or both of them. The purpose of such an agreement is to
quarantine the property so identified and thus prevent it from
being the subject of any property or maintenance order made under
the Principal Act.
Under the current Act such agreements are
neither enforceable nor binding. Although, the existence of a
pre-nuptial or post-nuptial agreement suggests that one or both of
the parties wishes to contract out of the property and maintenance
provisions of the Family Law Act, the Family Court takes the view
that while it may consider such agreements as evidence of the
parties' intentions, the existence of such an agreement cannot
restrict the exercise of the Court's discretion under sections 79
or 74 when it makes orders in relation to property or
Post-nuptial or post-divorce agreements may be
made binding by a consent order or an order approving an agreement
under section 89 of the Principal Act. In either case they can be
set aside under section 79A if, among other things, the court
considers that there has been a miscarriage of justice as a result
of fraud, duress, suppression of evidence, false evidence or any
By way of comparison, it is of note that under
the Property (Relationships) Act 1984 (NSW) de-facto
couples can enter into binding and enforceable contracts. Such
contracts must be evidenced in writing and can regulate the future
division of property, providing the parties obtain prior
independent legal advice regarding the effect of the agreement.(13)
Some other jurisdictions have similar legislation.(14)
The ALRC in its 1987 report on Matrimonial
Property(15) recommended that the law should take into
consideration a couple's intentions and that parties ought to be
able before or during marriage to enter into more effective general
agreements concerning their property and maintenance rights. In its
report the ALRC considered pre-nuptial agreements appropriate for
- seeking greater certainty and control over their financial
- entering a second marriage, and
- from cultural or religious backgrounds where marriage contracts
In 1991, the Law Society stated that it seemed
'illogical' that parties to a de facto relationship may have
contractual rights or entitlements enforceable by a court, whereas
agreements by parties who intend to marry will generally after
be recognised as binding or enforceable by the
The Society considered that this
discrimination in the law may militate against
parties entering into a marriage particularly a second
Family Law Reform Bill (No. 2)
In December 1995 the then Government introduced
the Family Law Reform Bill (No. 2) 1995 into Parliament. Amongst
other things this Bill addressed a major recommendation of the
Australian Law Reform Commission's report on matrimonial property
regarding the need for legislative recognition of pre-nuptial
If enacted the Family Law Reform Bill (No. 2)
1995 would have enabled parties to a proposed marriage to enter
into an agreement (a pre-nuptial agreement) which would quarantine
existing and future property from property orders of the Family
Court if the marriage broke down. If there was a property
agreement, the Court would be unable to make orders relating to the
quarantined property, unless it would be unjust and inequitable not
to do so and unless failure to take account of the quarantined
property would result in a serious injustice. In considering
whether a serious injustice would result the Court would consider
such matters as the circumstances surrounding the agreement, the
capacity of the parties and whether unforeseen changes in
circumstances had occurred.
Under this Bill, pre-nuptial agreements would
have had to meet certain requirements as to form and the Court
would have had the capacity to set aside agreements entered into
where fraud, duress or undue influence was involved. There were
also provisions enabling the parties to vary or revoke a
The Bill also provided for financial agreements
between parties after marriage and provided that these agreements
could be registered and enforceable as court orders. Once again
there were provisions as to form and provisions enabling the Court
to set aside or vary such an agreement on certain grounds.
This Bill lapsed when the former Government
called a General Election.
A major criticism of the 1995 Bill was its
failure to stipulate that the parties must obtain independent legal
or financial advice before entering financial agreements.(18) This
concern was noted in the Coalition's Law and Justice policy
released for the 1996 General election. Here the Coalition
The Liberal and National Parties support moves
to improve the legislative base for the division of matrimonial
property and the awarding of maintenance. There is well-founded
concern, however, that amendments proposed by the Government will
in practice significantly disadvantage the weaker party to the
marriage, usually the wife. We will:
Review matrimonial property reforms to both
ensure greater certainty and clarity in the allocation of
matrimonial property, and to protect the interests of all
The Attorney-General, in a Press Club address he
gave on family law in October 1996, further clarified the
Government's intentions regarding financial agreements when he
I will also be seeking to ensure that
pre-nuptial agreements will be recognised and given effect to.
There must be adequate safeguards to ensure that such agreements do
not operate where it would be inequitable or cause hardship. Such
agreement should be able to be changed or set aside where the
circumstances in which it was entered into have changed
significantly, or where it would be unjust to enforce the agreement
in its original form.(20)
In February 1999 the Attorney-General announced
his intention to introduce legislation relating to financial
Couples will have the freedom to choose to make
whatever arrangements they like, and in most cases the court will
not be able to overturn these agreements.(21)
Schedule 2 of the Bill gives
effect to this announcement.
Property and Family Law
In the context of the Bill it is also of note
that the Government has on several occasions announced its
intention to reform more generally matrimonial property law.(22) In
May 1998, the Government released a position paper entitled
Superannuation & Family Law. The paper set out the
Government's preferred approach to reform and invited public
comment. In March 1999 the Government released a further discussion
paper on reforming matrimonial property law and the
Attorney-General announced that the Government would legislate to
reform superannuation and family law saying:
This reform will supplement changes to the
Family Law Act 1975 the Government is already pursuing to allow
couples to make binding financial agreements about their property,
both before and during marriage and after separation.(23)
The discussion paper entitled Property &
Family Law: options for change invited comment on two options
for distributing matrimonial property on relationship breakdown.
The consultation process on this paper closed on 30 June 1999 and
as of 23 November the timetable for the resulting legislative
changes has not been announced.
Schedule 1 establishes a new
Division 13A within Part VII of the Principal Act to deal with
contraventions of orders affecting children. These are currently
dealt with under Part XIIIA.
Items 2 and 3 amend tables in
section 60C of the Principal Act to take account of the proposed
changes relating to enforcement of orders affecting children.
Item 4 inserts proposed
section 63D. It requires persons advising or assisting in
making a parenting plan to advise the parties of their obligations
under the plan, the consequences of non-compliance and the
assistance available for those experiencing difficulties with the
plan. The person must do so in language that the parties are likely
A parenting plan is a written agreement made by
a child's parents about any aspect of parental responsibility
including residence, contact or maintenance. A parenting plan will
be legally binding on the parties if it is registered. A parenting
order is an order made by a court relating to any aspect of
parental responsibility including residence, contact, maintenance
or what are called 'specific issues' (for example, schooling or
routine day-to- day matters).
Item 5 inserts proposed
section 65AA. It contains a statement of policy regarding
the three tiered parenting compliance regime set out in
proposed section 65DA and proposed
Item 6 inserts proposed
section 65DA which sets out stage 1 of the parenting
compliance regime. Under this section the Court, when making a
parenting order, has the duty to explain to the persons involved or
their legal representative all of the following:
- the obligations that the order creates
- the availability of programs explaining parenting orders
- the consequences of contravention of the parenting order,
- the availability and use of location and recovery orders to
ensure compliance with parenting orders.
If the court makes this explanation to a legal
practitioner then proposed subsection 65DA(2)
imposes on that practitioner a duty to make the same explanation to
the party concerned.
This is the preventative aspect of the program,
its objective being to ensure the parties are aware of their
Item 7 inserts proposed
Division 13A into the Act. Proposed Division
13A details stages 2 and 3 of the parenting compliance
program. Proposed Subdivision A deals with
preliminaries and contains provisions stipulating the objects of
the Division (proposed section 70NA) and
definitions relevant to the Division (proposed sections
Proposed subdivision B of Division
13A deals with stage 2 of the parenting compliance regime
and details the powers of the court where a person contravenes
orders under the Act affecting children. Such orders are defined in
proposed section 70NB.
A person bound by an order affecting children is
taken to have contravened that order for the purposes of Division
13A where he or she:
- intentionally fails to comply with the order
- makes no reasonable attempt to comply with it
- has intentionally prevented compliance with the order, or
- has aided or abetted a contravention of the order by a person
who is bound by it. (proposed section 79NC).
This section incorporates the definition of
'contravention' contained in existing section 112AB as a
consequence of establishing a separate regime for enforcement of
court orders affecting children.
Under proposed section 79NG
when a person contravenes an order under the Act affecting
children, the court may:
- make an order that the person participate in a specified
post-separation parenting program
- make a further parenting order that compensates for contact
forgone as a result of the contravention concerned, or
- do both.
A post separation parenting program is defined
in proposed section 79NB as a program designed to
help in the resolution of conflicts about parenting which is
included in a list compiled by the Attorney-General. It involves an
assessment of suitability to participate and participation in
lectures, discussions and other activities. To date, the selection
criteria for providers of these programs are not available.
A person is only to be ordered to participate in
a post-separation parenting program if the program is available
within a reasonable distance from the person's place of residence
[proposed subsection 70NG(2)]. The Explanatory
Memorandum to the Bill provides a guide to the meaning of
reasonable distance. For rural areas, a one way, one hour, car
journey from the person's residence is said to be a reasonable
distance.(24) This may imply that the implementation of this stage
of the new regime is very much dependent on the availability of
post separation parenting programs within 'a reasonable distance'
of the person's home. Given the documented shortage of relationship
services available in rural and remote areas,(25) the court may
experience difficulties ordering parties outside metropolitan areas
to participate in post separation programs. In those cases the
court would then move to the third stage of the compliance regime,
namely the imposition of mandatory sanctions.
When making an order that a person attend a
parenting program the court must also inform the provider of the
program of this order [proposed subsection
70NG(3)]. Proposed subsection 70NH
stipulates the duties of the provider of a post-separation
parenting program in relation to assessment of the suitability of
the person for such a program and that person's attendance record
at the program. The Bill does not specify how program providers are
to assess a person's suitability for attendance at a particular
parenting program, nor the method of determining a person's level
of participation in the program.
If it appears a person is contravening an order
to participate in a post-separation parenting program, the Court
may give further directions with regard to this program
(proposed section 70NI).
Proposed Subdivision C sets out
the Court's punitive powers in regard to stage 3 of the parenting
Within this subdivision proposed
subsection 70NJ(1) provides the framework for the
imposition of mandatory punitive sanctions. These sanctions are to
be imposed on a person who fails to comply with an order made under
stage 2 of the parenting compliance regime without establishing, on
the balance of probabilities, a reasonable excuse for failing to
The meaning of reasonable excuse for
contravening an order is defined in proposed section
70NE and includes a belief on the part of the respondent
that it was necessary to contravene the order to protect the health
or safety of either the respondent or the child. This would appear
to provide some safeguard for those who fail to obey parenting
orders because of a fear of domestic violence or abuse. It is of
note that under proposed section 70NE it is the respondent who is
required to give reasons for non-compliance. This reversal of the
onus of proof was recommended in the 1992 Joint Standing Committee
report, the rationale being that it would assist non-custodial
parents in preserving contact with their children.(26) As the
Explanatory Memorandum explains, proposed section
70NE will incorporate with only minor drafting changes
existing subsections 112AC(3), (4) and (5) into Division 13A, as a
consequence of the establishment of a separate sanctions regime for
children's matters and their removal from existing Part XIIIA.
Proposed subsection 70NJ(2)
stipulates that the court may in exceptional circumstances impose a
sanction in respect of a person without having previously ordered
that person to participate in stage 2 of the parenting compliance
regime. These exceptional circumstances are:
- where a post-separation parenting program is not available
- when it would not be appropriate in the court's opinion for the
person to participate in such a program, or
- when the court considers that it would not be appropriate to
make an order for compensatory contact.
Proposed subsection 70NJ(3)
lists the sanctions the court can impose for failure to comply with
an order made under stage 2 of the parenting compliance regime. The
- a community service order
- a bond
- an order to vary a parenting order
- a fine of not more than 60 penalty units (i.e. $6600),(27)
- a sentence of imprisonment.
In relation to an order varying a parenting
order, proposed subsection 70NJ(5) stipulates the
matters the court must take into account. In addition to regarding
the best interests of the child as paramount, the court must also
consider the level of participation of the party in relevant
elements of the parenting compliance regime. The level of
participation of the party is determined by the provider of the
program, although the Bill does not specify the criteria to be
As the Explanatory Memorandum points out, these
sanctions are all currently available in existing Part XIIIA of the
Act. The major difference is that in Part XIIIA the court currently
has a discretion in determining whether to apply sanctions. Under
proposed subsection 70NJ(3) the imposition of the
specified sanctions by the court is mandatory. Note that
item 20 of the Bill will insert a new
subsection 112AD(1) so that punitive sanctions for failure
to comply with court orders in relation to matters other than
children will also be mandatory (see below).
Under the current law, a sentence of
imprisonment for non payment of maintenance is not available.
Proposed subsection 70NJ(6) will provide that a
sanction of imprisonment may be imposed for the contravention of a
child maintenance order where the contravention is wilful or
fraudulent. The Explanatory Memorandum states this gives effect to
a recommendation of the Joint Select Committee 1992 report.(28)
There have been media reports indicating community concern about
this change,(29) although note that the provision should be read
with proposed section 70NO(2) which stipulates
that the penalty of imprisonment should only be used as a penalty
of last resort.
Proposed sections 70NK-NO
establish the mechanisms for imposing the sanctions of community
service orders, bonds and imprisonment under proposed
Proposed section 70NK relates
to community service orders and is based on existing section 112AG.
Whereas section 112AG allows the court to use a range of
alternative sentencing options, proposed section
70NK relates only to community service orders. The
Government has expressed a hope that in future the court will use
the penalty of community service orders more frequently than it has
used the penalty options found in existing section 112AG.(30) The
maximum number of hours specified in a community service order
cannot be more than 500 hours or a shorter period if prescribed
[proposed subsection 70NK(2)].
Proposed subsection 70NK(1)
provides that community service orders can be imposed by the Court
where there is a system of community service orders available in a
particular jurisdiction and there is an agreement with that State
or Territory that the Commonwealth can use the system for the
purposes of family law sanctions under proposed Division
13A of Part VII.
Proposed section 70NM details
the court's powers in relation to bonds. It is based on existing
section 112AF, although that section currently uses the term
'recognizances' rather than 'bonds'. Note that the Bill makes
consequential amendments to replace all references to
'recognizances' with the term 'bonds' in the Principal Act.
Proposed section 70NN sets out
the procedures for enforcing community service orders and bonds.
The procedures are similar to those stipulated in existing section
Proposed section 70NO sets out
the procedures for imposing sentences of imprisonment.
Proposed subsections NO(1)-(7) replicate existing
subsections 112AE(1)-(6) with minor drafting differences.
Proposed subsection 70NO(2) reiterates subsection
112AE(2) that a court must not sentence a person to imprisonment
unless satisfied that, in all the circumstances of the case, it
would not be appropriate for the court to apply an alternative
sanction. Proposed subsection 70NO(8) stipulates
child maintenance liabilities are not altered by a sentence of
Items 10 - 31 generally insert
amendments that are consequential to the creation of a new
Division 13A in Part VII and the removal of provisions
relating to enforcement of court orders affecting children from
existing Part XIIIA.
Item 20 replaces subsections
112AD(1), (1A), (2) and (2A), which relate to sanctions for failure
to comply with orders. New subsection 112AD(1)
will remove the current discretion in the court to impose a penalty
for failing to comply with a court order and make it mandatory for
a sanction to be imposed where the court is satisfied that there
has been a failure to comply with a court order. This is consistent
with proposed subsection 70NJ(3).
Under the current law, imprisonment for failure
to pay maintenance is not available. Proposed subsection
112AD(2A) will provide that a sanction of imprisonment may
be imposed for the non payment of a maintenance order where the
contravention was wilful or fraudulent. This is consistent with
proposed subsection 70NJ(6) that deals with child
maintenance orders. In relation to a sentence of imprisonment, note
section 112AE(2) that a court must not sentence a person to
imprisonment unless satisfied that in all the circumstances of the
case, it would not be appropriate for the court to apply an
Schedule 2 deals with legally
binding financial agreements.
Item 1 inserts into subsection
4(1) of the Principal Act a definition of financial agreement as
stipulated in proposed sections 90B, 90C and
Item 4 inserts into Part VIII
proposed section 71A. The effect is that Part
VIII, that deals generally with property and maintenance, will not
apply to legally binding financial agreements as defined in
Clause 10 inserts Part
VIIIA into the Principal Act. Part VIIIA
will provide for financial agreements about some or all property,
maintenance and financial resources and will provide the mechanism
to make such agreements binding.
Proposed sections 90B-90D set
out the meaning of financial agreement in terms of agreements made
before marriage, during marriage and after dissolution of
Before marriage, parties may make a financial
agreement for the purposes of the Act if that agreement is
expressed in writing as an agreement made under section 90B and
relates to any of the matters mentioned in proposed
subsection 90B(2). These are matters relating to:
- how the property or financial resources owned by the parties at
the time of the agreement or acquired at a later time and before
dissolution of the marriage are to be dealt with
- matters relating to the maintenance of either party during
and/or after the dissolution of the marriage.
Such financial agreements may also deal with any
other matters (proposed subsection 90B(3)).
Financial agreements made according to
proposed subsection 90B(1) may vary or terminate
previous financial agreements (proposed subsection
Proposed section 90C provides
for the making of written financial agreements during marriage in
similar terms and about similar matters as financial agreements
made before marriage.
Proposed section 90D provides
for the making of financial agreements after a decree nisi
dissolving a marriage is made in similar terms and about similar
matters as financial agreements made before or during marriage.
A financial agreement relating to the
maintenance of a party or to a child or children will be void
unless it specifies the particular party or particular child and
the amount or value of the maintenance to be provided to each
(proposed section 90E).
Proposed subsection 90F(1) will
provide that if a provision in a financial agreement about
maintenance would have the effect of making a person reliant on
social security payments rather than on maintenance payments, the
court will retain its jurisdiction under the Act to make a
maintenance order. According to the Explanatory Memorandum this is
to ensure that people can not agree away their obligations to
maintain the other party, with the effect of increasing the burden
on the social security system.(31)
Proposed section 90G sets out
the requirements for legally binding financial agreements. To be
binding on the parties the agreement must:
- be signed by both parties (although there is no requirement
that the agreement be signed in the presence of independent
- not be terminated nor set aside by a court, and
- contain an annexure with certificates indicating that each
party has received either or both independent financial or legal
advice as to the effect of the agreement. The legal advice must
have been provided by a legal practitioner and the financial advice
must have been provided by a prescribed financial adviser. The
certificates must be signed by the persons providing such
Unlike the Property (Relationships) Act
1984 (NSW), that deals with financial agreements between
defacto couples, proposed section 90G does not
stipulate the actual content of the advice to be given by the
financial or legal adviser. Further the Bill does not stipulate the
qualification requirements of financial advisers.
After signing a financial agreement, the
original must be given to one party and a copy of the agreement to
the other party [proposed paragraph 90G(1)(e)].
There is no requirement that the agreement be registered with the
Proposed subsection 90G(2) will
provide that a court may make such orders for the enforcement of a
binding financial agreement as it thinks necessary.
Proposed section 90H provides
that upon death of a party to the agreement, the agreement will be
binding on the legal personal representative of the deceased
Proposed section 90J enables
parties to vary or revoke a financial agreement by either including
a provision to that effect in another agreement according to
proposed subsections 90B(4), 90C(4) or 90D(4) or
by making a written termination agreement. To be legally binding a
termination agreement must fulfil similar requirements to those set
out in proposed section 90G.
Proposed section 90K sets out
the circumstances in which a financial agreement may be set aside
by a court. The court may only set aside an agreement if it is
- the agreement was obtained by fraud
- the agreement is void, voidable or unenforceable, or
- it is impracticable for the agreement, or part of it, to be
carried out in the circumstances that have arisen since the
agreement was entered into.
In addition the court may set aside an agreement
in circumstances that have arisen since the agreement was entered
into that are of an exceptional nature relating to the care,
welfare and development of a child and in which the child or a
party to the agreement would suffer hardship.
Enforcement of parenting orders
The Shadow Attorney-General, Robert McClelland
MP, has given broad support to the proposed changes relating to the
enforcement of parenting orders noting:
These changes come out of a process established
by the previous Labor Government and the reviews conducted by the
Joint Select Committee on Certain Aspects of the Operation and
Interpretation of the Family Law Act 1975 (1995) and the Family Law
The Law Council of Australia has expressed some
reservations about the Bill's introduction of a three-tiered
approach to the enforcement of parenting orders. In particular the
Council has taken issue with the second tier, namely the post
separation parenting programs. It argues that the enforcement of
attendance at these programs will in fact, discourage the
enforcement of orders by parties:
because the only result that can be achieved is
attendance at a parenting program.
The Council also believes that the three tiered
scheme will result in a greater cost both in time and in resources
for both the Family Court and parents coming before it.
Additionally, the Council is concerned that there will be an
increased demand upon already limited legal aid funds.(33)
For these reasons, the Council has indicated
that the Court should be given a general discretion to apply the
various tiers only where they are appropriate to each individual
The question of court discretion has been raised
in the numerous reports relating to enforcement of child contact
orders. It should be noted that the court already has discretion to
apply a range of approaches in relation to contact orders. There is
provision in the Principal Act that where an application in
relation to non-compliance with an access order is made, the
parties are referred to counselling in the first instance
[subsection 112AD(5)]. Evidence before the Senate Legal and
Constitutional Legislation Committee during its examination of the
Family Law Reform Bill 1994(34) was that counselling commonly takes
place before consent orders are made.(35)
Part of the dilemma lies with the fact that on
the one hand the Court is seen as a place that encourages
conciliation but on the other hand in theory it has draconian
powers to punish contempt. At present there is a range of sanctions
available under the Family Law Act. These include imprisonment,
fines, community service orders, and reversal of custody orders and
cessation of access.
However as the Joint Select Committee concluded
in its 1992 report:
It appears obvious that the Family Court has not
used the powers available to it under the Act to enforce its
orders. This fact is particularly evident in cases where the
non-custodial father has been denied or been frustrated in access
to his children by the custodial mother.
The dilemma is magnified by the court's
overriding duty to take the interests of the child of a marriage as
the paramount consideration. As the ALRC indicated in its Issue
The merits of a case may point toward the
imposition of a severe penalty but concern for the children
suggests a more lenient approach. For example, the imposition of
imprisonment on a custodial parent is clearly likely to have
serious consequences for the well-being of a child. Severe fines on
a parent may affect the material comfort of the child.(36)
Regardless of this dilemma, the ALRC Issues
Paper and the Family Law Council Report also state that it is
reasonable to expect that at least some spouses will be deterred
from breaching orders by a fear of punishment. The ALRC paper
suggests that while the Court's discretion as to the appropriate
penalty should be maintained, the Court should give greater
consideration to the circumstances where penalties such as
community service orders and periodic detention may be
A counter argument put by groups such as the
National Network of Women's Legal Services, is that punitive
sanctions fail to take account of the fact that non compliance with
a parenting order may be due to a fear of violence and abuse. This
organisation suggests that contact orders are in certain
circumstances inappropriate and such inappropriate orders are often
made when the parties have no legal representation. A lack of legal
representation, it is argued, may put pressure on parties to agree
to contact when there are concerns about domestic violence. In this
context it is argued that the Bill will only entrench the problems
with the current system in dealing with contact orders and domestic
Undoubtedly Schedule 1 of the Bill deals with an
extremely contentious issue. However, significantly, it is the
result of a long process of consultation and it has received
bipartisan support within the Parliament. While its intention is to
encourage compliance with contact orders it would seem that its
success will depend on two factors. Firstly, that the post
separation parenting programs will assist in educating parents in
their responsibilities after separation and secondly, that the
threat of mandatory sanctions for failure to comply with court
orders will act as a deterrent for those parents who now breach
contact orders. If the Bill fails to achieve these goals then the
Family Court, which aims to be perceived as a court of
conciliation, will have the task of imposing mandatory sentences on
those who still fail to comply with contact orders.
There has been a mixed response to the Bill's
provisions regarding legally binding financial agreements.
The Law Council of Australia has for many years
supported proposals making financial agreements legally binding. It
is therefore of note that the Council has indicated it cannot
support the Bill in its current form.
The President of the Law Council, Mr Fabian
Dixon, in a Press Release in September 1999 said that the Law
Council 'fully supports' making financial agreements binding.
However he noted:
it is fundamental that parties should only be
able to contract out of their rights under the Family Law Act by
entering into a binding financial agreement after first having
obtained independent legal advice as to their rights under the law,
and the possible legal ramifications of entering into a binding
We commend the Federal Government for moving to
introduce legislation which makes financial agreements legally
However we are concerned that these agreements
which, if binding will play a determinative role in any family law
settlement - could become binding only after financial, and not
legal, advice is obtained.
Therefore, if the legislation proceeds in its
current form, the Law Council will regrettably have to withdraw its
support for this aspect of the legislation. (39)
Similarly National Legal Aid and Legal Aid New
South Wales, while expressing broad support for legislation to
provide for legally enforceable financial agreements, are concerned
that the Bill does not contain a mandatory requirement for the
provision of legal advice as a precursor to enforcing an
Several groups also have concerns that the
provisions for setting aside agreements are too limited. The
requirement to prove 'exceptional circumstances' in proposed
section 90K is an onerous one and further there is no requirement
in the Bill that a financial agreement be fair and equitable. This
is in contrast to the duty of the court under section 79(2) of the
Principal Act not to make an order unless it is satisfied that is
just and equitable to do so. It has been suggested that the
addition of circumstances such as misrepresentation, unconscionable
conduct and significant or wilful non disclosure for setting aside
would provide a greater sense of protection for a party who may
otherwise be seriously disadvantaged under the proposed
Chief Justice Alastair Nicholson of the Family
Court in an address on matrimonial property law reform, given prior
to the tabling of the Bill, expressed strong concerns about the
impending Government Bill relating to financial agreements.
In relation to premarital agreements, the great
difficulty about them is that the bargaining power may not be
equal, and in many cases the parties may not have the same degree
of objectivity as would a party considering entering into a
commercial transaction. A premarital agreement is an open ended
contract that may extend for fifty years or more and it is
impossible for the parties to envisage what may happen over that
It seems unlikely that many couples will avail
themselves of the option of entering into an agreement during the
marriage while their relationship remains a happy one. In the case
of violent or abusive marriages there may be extreme pressure to
enter into such an agreement and I doubt that the provision for
independent advice is likely to overcome such pressure. At the same
time, proof of duress in such cases is notoriously
His Honour noted that while the proposed
legislation provides that parties must be separately advised about
the effects of the agreement, he expressed doubt about the extent
of the protection that this involves.
Many lawyers are not expert in family law and
the same is even more likely to be the case in relation to
In defence of the current arrangements His
[...]I believe that the knowledge that the
agreement reached will be scrutinised by the Court does act as a
substantial deterrent to unreasonable behaviour [...] the measure
will not reduce litigation in the area and will in all probability
increase it. There will be countless arguments about: the meaning
of contracts, whether there was full disclosure at the time that
they were made, whether or not this constituted fraud, and whether
there has been a change of circumstances since the agreement was
His Honour concluded that in relation to
proposed reforms to do with financial agreements and more generally
the options for reform in the Government's discussion paper,
Property & Family Law: options for change:
[I]t is unrealistic to expect that these
property proposals will reduce the current small percentage of
disputes which end up requiring judicial determination. These
options have the capacity to introduce greater predictability but
if such certainty is at the cost of justice, then Australians will
pay dearly for so-called reform.'(45)
Recent data from an Institute of Family Studies
project sheds some light on the use of pre-marital agreements in
Australia and the attitudes of divorced Australians to such
agreements. The data are drawn from the Australian Divorce
Transitions Project, a random national telephone survey of 650
divorced Australians. The data suggests that
- pre-marital agreements are rarely used
- there is a general perception that such agreements are not, or
would not, be useful in reaching fairer outcomes for divorcing
- if binding pre-marital agreements are introduced, they should
be alterable on the basis of children's interests.(46)
As Belinda Fehlberg(47) acknowledges, this
pessimism about the usefulness of agreements could well be a
reflection of the current non-binding legal status of pre-marital
agreements in Australia. They do not necessarily indicate that the
introduction of binding agreements would not be welcomed. In fact,
respondents' views regarding the circumstances in which agreements
should be altered suggest a general support (albeit hypothetical)
for legally effective pre-marital agreements - with the proviso
that such agreements should be alterable in the interests of
The issue of children's interests is a
legitimate one. The Bill does prevent couples contracting out of
financial obligations to their children and each other to the
extent that it would result in reliance on social security. There
is also provision to terminate the agreement if exceptional
circumstances arise relating to the care, welfare and development
of a child affected by the agreement and the child or a party to
the agreement will suffer hardship.
It could be argued that based on the United
States experience,(49) such a provision that provides grounds for
relieving parties from their promises under such contracts may only
serve to shift conflict to a new forum, rather than reducing
disputation and cost associated with separation and divorce. Unless
the parties agree, it will only be the courts who will be able to
vary or set aside an agreement and this assumes that the parties
have the resources to seek legal assistance necessary to challenge
the terms of the financial agreement.
- There were 943 published submissions to the 1992 Joint Standing
Committee. Of these, 359 dealt with the issue of enforcement of
Family Court orders. See Family Law Council, Interim Report:
Penalties and Enforcement, March 1998, p. 14.
- Australian Law Reform Commission, For the sake of the kids:
Complex contact cases and the Family Court, 1995.
- The Family Law Council produced an Interim Report:
Penalties and Enforcement in March 1998 and then a final
report, Child Contact Orders: Enforcement and Penalties,
in June 1998.
- Family Law Council, Interim Report: Penalties and
Enforcement, 1994, p. 9.
- These changes in terminology came about as a result of the
Family Law Reform Act 1995 (Cth).
- Family Law Council, Interim Report: Penalties and
Enforcement, 1994, pp. 56-63.
- ibid, p. 9.
- Family Law Council, Interim Report: Penalties and
Enforcement, p. 22.
- ibid, p viii.
- Attorney-General, Press Release, Improved Enforcement of
Parenting Orders, 26 February 1999.
- Part IV of the Property (Relationships) Act 1984
- For example: Domestic Relationships Act 1994 (ACT) Pt
IV, and De Facto Relationships Act 1996 (SA), Pt
- Law Reform Commission, Matrimonial Property, 1987,
Report No. 39.
- ibid, pp. 190-191.
- Law Society 'Binding and Enforceable Pre-marital Agreements',
1991 Law Society Journal, 29, p. 27.
- M. Hyland, 'Pre-Nuptial Agreements: Is there a need for
legislative change', 1996 Law Society Journal, 34, August
1996, p. 73.
- pp. 23-24.
- Attorney-General, Family law: future directions.
Address to the National Press Club, 15 October 1996, p. 5.
- Attorney-General, Press Release, Greater Certainty in
Family Law Property Settlements, 26 February 1999.
- For example: Attorney-General, Family law: future
directions. Address to the National Press Club, 15 October
- Attorney-General, Press Release, Superannuation and Family
Law, 30 March 1999.
- p. 12.
- The House of Representatives Standing Committee on Legal and
Constitutional Affairs in its inquiry into aspects of family
services received considerable evidence indicating a shortage of
relationship services in rural and remote areas of Australia. See
To Have and to Hold: Strategies to Strengthen Marriage and
Relationships, June 1998, pp. 232-233.
- Joint Select Committee on Certain Aspects of the Operation and
Interpretation of the Family Law Act, The Family Law Act:
Aspects of its Operation and Interpretation, 1992, Rec 48.
- Section 4AA, Crimes Act 1914 (Cth).
- Explanatory Memorandum, p. 13.
- 'Child-support evaders risk jail: Men's groups label new
family-law powers "police-state tactics''', Canberra
Times, 11 October 1999, p 14.
- Explanatory Memorandum, p. 14.
- p. 22.
- Robert McClelland, MP, Press Release: Family Law Amendment
Bill 1999, 22 September 1999.
- Law Council of Australia, Family Law Amendment Bill 1999:
Law Council Supports Binding Financial Agreements, But Not As
Currently Proposed, 23 September 1999.
- This Bill became the Family Law Reform Act 1995. It
made certain amendments to the Family Law Act as a first stage in
implementing the then Government's response to the Report of the
Joint Select Committee on Certain Aspects of the Operation and
Interpretation of the Family Law Act. Amongst other things the 1995
Act addressed the Joint Select Committee's recommendations
affecting Part VII of the Principal Act which deal with children
and also with alternative dispute resolution mechanisms available
in Family Law.
- Senate Legal and Constitutional Legislation Committee, The
Family Law Reform Bill 1994 and the Family Law Reform Bill (No.2)
1994, March 1995, p. 35.
- Australian Law Reform Commission, Parent Child Contact and
the Family Court: Issues Paper, 14 Dec 1994, p. 69.
- ibid, rec 5.4
- Representatives of the National Network of Women's Legal
Services and the Women's Legal Service, Brisbane gave evidence to
the Senate Legal and Constitutional Legislation Committee which is
currently inquiring into the Family Law Amendment Bill 1999. See
Senate Legal and Constitutional Legislation Committee,
Hansard, 15 November 1999.
- Law Council of Australia, Press Release: Family Law
Amendment Bill 1999, Law Council Supports Binding Financial
Agreements, But Not as Currently Proposed, 23 September 1999.
- Representatives from these organisations gave evidence to
Senate Legal and Constitutional Legislation Committee which is
currently inquiring into the Family Law Amendment Bill 1999.
Hansard, 15 November 1999.
- Family Court of Australia, Submission to the Senate Legal
and Constitutional Legislation Committee inquiry into the
provisions of the Family Law Amendment Bill 1999, p 10;
Professor Patrick Parkinson, Pro-Dean and Associate Professor of
Law, University of Sydney, also gave evidence to the Senate
Committee in which he expressed concern that the proposed
provisions relating to setting aside financial agreements do not
give adequate safeguards to children. See Hansard, 15
- Alastair Nicholson, Proposed Changes to Property Matters
under the Family Law Act: an Address, Bar Association of NSW,
20 May 1999, p. 15.
- ibid, pp. 15-16.
- ibid, p. 18.
- Belinda Fehlberg and Bruce Smyth, 'Binding pre-marital
agreements: will they help?' 1999 Family Matters, 53, p.
- Belinda Fehlberg is a Senior Lecturer in the Faculty of Law at
the University of Melbourne and joint author of 'Binding
pre-marital agreements: will they help?', op. cit.
- ibid, p. 58.
- The United States experience suggests that couples entering
binding pre-marital agreements now argue more frequently about the
interpretation of their agreements. Thus one basis for conflict
appears to have been replaced by another. There is also some
empirical evidence suggesting that pre-marital agreements usually
work to women's disadvantage due to their economically weaker
position compared with men and there is further evidence to suggest
that significantly more women than men have challenged the terms of
pre-nuptial agreements. See Hedieh Nasheri, 'Prenuptial agreements
in the United States: a need for closed control', 1998
International Journal of Law, Policy and the Family, 12 p
318; Sanford Katz, 'Marriage as Partnership', 1998 Notre Dame
Law Review,73, pp. 1251-1274.
Mary Anne Neilsen
29 November 1999
Bills Digest Service
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