Bills Digest No. 88  1999-2000 Family Law Amendment Bill 1999


Numerical Index | Alphabetical Index

WARNING:
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 Bill.

CONTENTS

Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer and Copyright Details

Passage History

Family Law Amendment Bill 1999

Date Introduced: 22 September 1999

House: House of Representatives

Portfolio: Attorney-General

Commencement: Generally 28 days after Royal Assent

Purpose

The Bill amends the Family Law Act 1975 (Cth) (the Principal Act) in order to:

  • 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.

Background

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 Bill.

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 Library.

Enforcement of child contact orders

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 example:

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 included:

  • 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 counselling.

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 way.

Preventative measures

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.

Remedial measures

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.

Punitive action

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 resort. (11)

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.

Financial agreements

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 maintenance.

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 other circumstance.

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 couples:

  • seeking greater certainty and control over their financial affairs
  • entering a second marriage, and
  • from cultural or religious backgrounds where marriage contracts are traditional.(16)

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 marriage not

be recognised as binding or enforceable by the Family Court.

The Society considered that this

discrimination in the law may militate against parties entering into a marriage particularly a second marriage.(17)

Family Law Reform Bill (No. 2) 1995

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 agreements.

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 pre-nuptial agreement.

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 stated:

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 parties.(19)

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 said:

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 agreements stating:

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.

Main Provisions

Schedule 1

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 to understand.

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 Division 13A.

Stage 1

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, and
  • 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 obligations.

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 70NB-70NE).

Stage 2

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).

Stage 3

Proposed Subdivision C sets out the Court's punitive powers in regard to stage 3 of the parenting compliance program.

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 comply.

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 sanctions are:

  • 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) or
  • 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 used.

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 Subdivision C.

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 112AH.

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 imprisonment.

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 alternative sanction.

Schedule 2

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 90D.

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 subsection 4(1).

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 marriage.

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 90B(4)).

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 witnesses)
  • 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 advice.

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 court.

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 party.

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 satisfied that:

  • 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.

Concluding Comments

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 Council (1998).(32)

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 case.

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 Paper:

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 appropriate.(37)

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 violence.(38)

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.

Financial agreements

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 financial agreement.

We commend the Federal Government for moving to introduce legislation which makes financial agreements legally binding.

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 agreement.(40)

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 provisions.(41)

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.

He said:

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 period.

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 difficulty.(42)

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 financial advisers.(43)

In defence of the current arrangements His Honour said:

[...]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 made.(44)

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 couples, and
  • 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 children.(48)

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.

Endnotes

  1. 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.

  2. Australian Law Reform Commission, For the sake of the kids: Complex contact cases and the Family Court, 1995.

  3. ibid.

  4. 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.

  5. Family Law Council, Interim Report: Penalties and Enforcement, 1994, p. 9.

  6. These changes in terminology came about as a result of the Family Law Reform Act 1995 (Cth).

  7. Family Law Council, Interim Report: Penalties and Enforcement, 1994, pp. 56-63.

  8. ibid, p. 9.

  9. Family Law Council, Interim Report: Penalties and Enforcement, p. 22.

  10. ibid.

  11. ibid, p viii.

  12. Attorney-General, Press Release, Improved Enforcement of Parenting Orders, 26 February 1999.

  13. Part IV of the Property (Relationships) Act 1984 (NSW).

  14. For example: Domestic Relationships Act 1994 (ACT) Pt IV, and De Facto Relationships Act 1996 (SA), Pt 2.

  15. Law Reform Commission, Matrimonial Property, 1987, Report No. 39.

  16. ibid, pp. 190-191.

  17. Law Society 'Binding and Enforceable Pre-marital Agreements', 1991 Law Society Journal, 29, p. 27.

  18. M. Hyland, 'Pre-Nuptial Agreements: Is there a need for legislative change', 1996 Law Society Journal, 34, August 1996, p. 73.

  19. pp. 23-24.

  20. Attorney-General, Family law: future directions. Address to the National Press Club, 15 October 1996, p. 5.

  21. Attorney-General, Press Release, Greater Certainty in Family Law Property Settlements, 26 February 1999.

  22. For example: Attorney-General, Family law: future directions. Address to the National Press Club, 15 October 1996.

  23. Attorney-General, Press Release, Superannuation and Family Law, 30 March 1999.

  24. p. 12.

  25. 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.

  26. 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.

  27. Section 4AA, Crimes Act 1914 (Cth).

  28. Explanatory Memorandum, p. 13.

  29. 'Child-support evaders risk jail: Men's groups label new family-law powers "police-state tactics''', Canberra Times, 11 October 1999, p 14.

  30. Explanatory Memorandum, p. 14.

  31. p. 22.

  32. Robert McClelland, MP, Press Release: Family Law Amendment Bill 1999, 22 September 1999.

  33. Law Council of Australia, Family Law Amendment Bill 1999: Law Council Supports Binding Financial Agreements, But Not As Currently Proposed, 23 September 1999.

  34. 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.

  35. 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.

  36. Australian Law Reform Commission, Parent Child Contact and the Family Court: Issues Paper, 14 Dec 1994, p. 69.

  37. ibid, rec 5.4

  38. 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.

  39. 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.

  40. 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.

  41. 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 November 1999.

  42. Alastair Nicholson, Proposed Changes to Property Matters under the Family Law Act: an Address, Bar Association of NSW, 20 May 1999, p. 15.

  43. ibid.

  44. ibid, pp. 15-16.

  45. ibid, p. 18.

  46. Belinda Fehlberg and Bruce Smyth, 'Binding pre-marital agreements: will they help?' 1999 Family Matters, 53, p. 56.

  47. 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.

  48. ibid, p. 58.

  49. 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.

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