Key points
- The Bill will amend the Family Law Act 1975, the stated purpose being to make the family law system safer and simper, and ensure the best interests of children are placed at its centre.
- The amendments implement a number of recommendations from the Australian Law Reform Commission’s 2019 report into the state of Australia’s family law system and elements of the Government Response to the 2021 Joint Select Committee inquiry into Australia’s Family Law System.
- There are 9 Schedules to the Bill which include:
- the redrafting of provisions to do with the enforcement of parenting orders and the protection of personal information in family court proceedings (Schedules 2 and 6)
- amendments aimed at acknowledging Aboriginal or Torres Strait Islander notions of family and kinship (Schedule 3)
- changes to the role of the Independent Children’s Lawyer (Schedule 4)
- the introduction of a new ‘harmful proceedings order’ power to prevent a vexatious litigant from filing and serving new applications without first obtaining leave (Schedule 5)
- a regulation making power with respect to family report writers (Schedule 7).
- The key amendments are in Schedule 1, which amends the legislative framework for making parenting orders, including changes to the section which covers the factors to be considered when making parenting arrangements in the best interests of the child. The Schedule also repeals the presumption of equal shared parental responsibility and the mandatory consideration of certain times arrangements for parents. There is a strong focus amongst stakeholders on these amendments, many supporting them, some suggesting improvements and some raising concerns about their impact.
- A number of stakeholders, including the Law Council of Australia, emphasised that proper resourcing must follow reform, particularly as several of the proposed reforms may have significant funding implications.
Introductory Info
Date introduced: 29 March 2023
House: House of Representatives
Portfolio: Attorney-General
Commencement: Sections 1—3 on Royal Assent. Schedules 1 and 4—7 commence six months from the day of Royal Assent unless an earlier date is fixed by Proclamation. Schedule 3 commences immediately after Schedule 1. Schedule 2 commences on a variety of dates as set out in clause 2 of the Bill. Schedules 8-9 commence on the day after Royal Assent.
Purpose of
the Bill
The Family
Law Amendment Bill 2023 (the Bill) will amend
the Family Law
Act 1975, with the stated purpose being to make the family law system
safer and simper, and ensure the best interests of children are placed at its
centre.[1]
The amendments implement a number of recommendations from the Australian Law
Reform Commission’s 2019 report into the state of Australia’s family law system
and elements of the Government Response to the 2021 Joint Select Committee inquiry
into Australia’s Family Law System.
The Bill also makes consequential
amendments and minor amendments to the Federal Circuit and
Family Court of Australia Act 2021 (FCFCOA
Act).
Structure
of the Bill
The Bill consists of 9 Schedules.
Schedule 1 contains amendments to the legislative
framework for making parenting orders, including changes which cover the
factors to be considered when making parenting arrangements in the best
interests of the child. The Schedule also repeals the presumption of equal
shared parental responsibility and the mandatory consideration of certain time
arrangements.
Schedule 2 contains a redraft of Division 13A of
Part VII of the Family Law Act, which provides for the enforcement of
parenting orders and other orders affecting children.
Schedule 3 contains amendments to provide
definitions related to the concept of ‘family’ in the Family Law Act
that are more inclusive of Aboriginal or Torres Strait Islander culture and
traditions.
Schedule 4 contains amendments to provisions about
Independent Children’s Lawyers (ICLs) aimed at enhancing the voice of children
in family law proceedings.
Schedule 5 contains amendments to the Family Law
Act and FCFCOA Act relating to family law case management and
procedure, specifically:
- introducing
new ‘harmful proceedings orders’ to prevent a vexatious litigant from filing
and serving new applications without first obtaining leave from the court, and
- broadening
and extending the ‘overarching purpose of family law practice and procedure’
and the accompanying duty, to all proceedings instituted under the Family
Law Act.
Schedule 6 contains a redraft of section 121 of the
Family Law Act to clarify restrictions around public communication of
family law proceedings.
Schedule 7 contains amendments to establish a new
power to make regulations that would provide standards and requirements to be
met by professionals who prepare family reports.
Schedules 8 and 9 make two minor amendments to the FCFCOA
Act which will:
- bring
forward the review of the FCFCOA Act by two years, and
- state
explicitly that a judge serving in the Family Court of Western Australia can be
dually appointed as a judge of Division 1 of the Federal Circuit and Family
Court of Australia (FCFCOA).
Background
The state
of family law
It is often suggested that the family law system is in
crisis, beset by a lack of resources and federal funding, with an exponentially
increasing workload leading to unacceptably long delays.[2]
Much of the controversy and debate about the family law
courts has focused on the courts’ handling of the complex problems of family
violence.[3]
As various studies have indicated, families with complex needs, including those
related to violence, are the predominant clients of the family law system.
Compounding these problems is the significant number of self-represented
litigants, many of whom cannot afford legal representation and are traumatised
as a result of family violence and the abuse of children and find it
challenging to navigate the family law system.
Reviews and
inquiries: ALRC Report and Joint Select Committee Report
The need for structural and systemic reform of family law
has been a consistent theme in the plethora of inquiries and reports produced
over the last 20 years.[4]
One of the recent and more significant of these inquiries
was conducted by the Australian Law Reform Commission (ALRC). The ALRC was
asked by the Turnbull Government to inquire into the state of Australia’s
family law system and report to the Government in March 2019. This inquiry
represented the first comprehensive review of the Family Law Act since
the legislation commenced in 1976. The ALRC report, Family Law for the
Future: An Inquiry into the Family Law System[5]
(ALRC Report) was tabled in Parliament by the Attorney-General, Christian
Porter, on 10 April 2019.[6]
The ALRC inquiry highlighted the challenges facing the
family law system and concluded there was a strong case for reform. It noted:
Ultimately, the case for reform is that the system is not
adequately assisting Australian separated couples to resolve disputes following
the breakdown of their relationship. Children are not consistently protected
from harm; nor are people experiencing family violence. Disputes are protracted
by delays occasioned by resource constraints in the courts but also by the
conduct of parties who are unable or unwilling to resolve their dispute quickly
and without acrimony. The substantive law, which has been subject to repeated
amendments, is no longer clear or comprehensible.
Public perceptions of the family law system are mixed. The
majority of those who contributed to this Inquiry were highly dissatisfied. […]
Contributions from women highlighted a range of concerns, particularly around
violence and abuse, but also in relation to poor disclosure regarding financial
resources. Men were often concerned about inadequate time with their children,
and not being able to see their children because of non-enforcement of
parenting orders. Both men and women often felt that the system failed to
address the conduct of the other litigant when it involved misuse of court
procedures and resources.[7]
The ALRC made 60 recommendations for reform which in very
general terms fall into the following areas:
- Close
the jurisdictional gap: Stop children falling through the gaps between the
federal family law courts, the state/territory child protection systems and the
state/territory responses to family violence. Family law disputes returned to
the states/territories and the federal family courts eventually abolished.
- Implement
simpler property division arrangements: reform the current property
division arrangements under the Family Law Act, including a starting
position that separated couples made equal contributions during the
relationship.
- Changes
to children’s orders: Simplify the factors to be considered when
determining living arrangements that promote a child’s best interests and
remove mandatory consideration of particular living arrangements.
- Improve
compliance with children’s orders: Improve understanding of orders through
greater engagement with family consultants and place limits on interim appeals.
- Impose
stricter case management and encourage amicable resolution: Have clearer
consequences for couples and their advisors if they don’t seek to resolve
disputes as quickly, inexpensively, and efficiently as possible, and with the
least acrimony.
- Greater
legislative clarity: Redraft the Family Law Act to make it easier to
understand the law.[8]
The Government responded to the ALRC report on 21 March
2021.[9]
The AGD advises that 15 of the 60 ALRC recommendations have been addressed in
the Bill.[10]
In addition to the ALRC recommendations, the Bill also includes
some elements of the Government response to the 2021 Joint Select Committee inquiry into Australia’s Family Law
System.[11]
The Joint Select Committee on Australia's Family Law
System (Joint Select Committee) was appointed by the Parliament in September
2019 and undertook a comprehensive two-year inquiry into the family law and the
child support systems. The Committee produced three interim reports and a final
report was tabled in the House of Representatives on 23 November 2021. These
reports are available on the Committee’s website.
In its second interim report, Improvements in family
law proceedings,[12]
the Joint Select Committee made 29 recommendations proposing a number of
reforms to the family law system. Three of those recommendations have been
addressed in the Bill to some degree. These relate to:
- clarifying
the presumption of shared parental responsibility (Recommendation 17)
- codifying
the requirements for Independent Children’s Lawyers, aimed at enhancing the
voice of children in family law proceedings (Recommendation 18), and
- simplifying
the provisions relating to compliance and enforcement of parenting orders (Recommendation
20).[13]
Exposure
Draft of the Bill
On 30 January 2023, the Government released an Exposure
Draft of the Bill and called for submissions on the Draft and the accompanying
Consultation Paper.[14]
After a short period of consultation, the Family
Law Amendment Bill 2023 was introduced to
the House of Representatives on 29 March to give effect to these proposed
reforms.
Committee
consideration
At the time of writing, the Bill has not been referred to a
committee for inquiry.
Senate
Standing Committee for the Scrutiny of Bills
At the time of writing, the Committee had not reported on
the Bill.
Policy
position of non-government parties/independents
In a media release on the day of the Bill’s introduction
into Parliament, the Australian Greens said they welcomed ‘the introduction of
family law amendments aimed at putting children’s welfare first in family law
matters.’[15]
Senator Larissa Waters said:
Finally, after years of wasted time and damaging
misinformation campaigns - including Pauline Hanson’s toxic family law inquiry
- we may start to see real improvements to the family law system.
Since the Howard government re-wrote Australia’s family laws
in 2006, we have seen the presumption of shared care weaponised, instead of the
best interests of kids coming first.
Gendered violence is at the core of many cases in the family
law system, and we know children frequently bear the brunt of violent
relationships and protracted legal matters.
We look forward to supporting amendments based on expert
advice, instead of the political grandstanding that has traumatised
victim-survivors, put children at risk, and provided a platform for hate and
misinformation.
[…]
While these reforms are welcome, without more funding to
courts and frontline family and domestic violence services, delays, unequal
representation and lack of support will continue to put women and children at
risk.[16]
Apart from the Greens, it appears that to date, there has
been no public comment about the position of non-government parties or
independents.
Position of
major interest groups
The Law Council of Australia has welcomed the Bill stating
that ‘the reforms will ensure that the best interests of the child should
remain the paramount consideration, including protecting children’s physical,
emotional and mental health’. In a media release the Law Council stated:
We must remember that matters which will come before a court
are the most complex and difficult matters involving the most vulnerable
children. The legislation must be able to appropriately respond to those cases,
as well as being as accessible as possible to members of the public.
To the extent that these intentions underpin the Bill and any
amendments made, we wholeheartedly support reform of Australia’s family law
system to improve outcomes for those who interact with it.
We remind the Commonwealth again though, that our family law
system, particularly the Federal Circuit and Family Court of Australia and the
legal assistance sector, needs a significant boost in funding, especially to
meet their increased obligations arising from the proposed reforms.[17]
Apart from the Law Council, there appears to be little public
comment on the Bill since its introduction into Parliament.
A large number of submissions on the Exposure Draft were
submitted to the Attorney-General’s Department (AGD) during consultations in
February 2023 with 273 of those currently available on the AGD website.[18]
The submissions came from a range of different stakeholders including the legal
profession, human rights advocates, women’s legal services, academics and
various advocates of children’s, women’s and men’s rights. As the Bill and
Exposure Draft are substantially the same,[19]
these submissions provide useful analysis on the Bill.
As a general observation, there is a strong focus in submissions
on the provisions in Schedule 1, the parenting framework provisions. Many of
the submitters, including the Australian Institute of Family Studies (AIFS), National
Children’s Commissioner, and the Family Law Council welcomed the proposals for reform.[20]
Some, such as former Family Court Judge, Professor Richard Chisholm,[21]
generally supported the amendments but made a number of suggestions for
improvements.[22]
The Law Council, in its 52-page submission,[23]
also suggested a number of possible improvements. Women’s Legal Services
Australia (WLSA) welcomed the ‘prioritising of children and
adult-victim-survivor's safety in the family law system’ that is ‘clearly
evident in the removal of the presumption of equal shared parental
responsibility and the removal of the requirement to consider particular forms
of time with each parent’. [24]
WLSA, like many submitters, also reiterated the importance of properly
resourcing the family law system.[25]
Professor Patrick Parkinson, a family law academic who was
heavily involved in the 2006 reforms,[26]
supports most aspects of this Bill, but argues:
Schedule 1, amending the core elements of the law on
parenting after separation, goes very far beyond what is necessary and
justified in order to remedy perceived deficiencies in the current law.[27]
Professor Parkinson argues against the removal of many of
the provisions that emphasise the importance of children’s relationship with
their parents, as this may send a message that parents are no longer to be
valued or valued as much as previously.[28]
While women’s legal groups generally welcomed the changes,
men’s groups expressed concerns that the amendments may significantly undermine
or permanently change the currently accepted rights of the family in
separation, including both children and parents. They noted a particular concern
about the sections framed around the presumption of shared responsibility for
the children of a relationship.[29]
Some Aboriginal legal groups were generally in favour of the
amendments specific to Indigenous people in Schedules 1 and 3, although the Aboriginal
Legal Rights Movement expressed a different view. It submitted that the proposed
definition of family ‘does not show a satisfactory attempt at addressing and
defining the intricacies of ATSI families’ and needs to be ‘more considered,
particularised and acknowledge cultural ways’. [30]
A small selection of submitters’ views, mainly from the
legal profession and family law academics, are included in the Keys issues
and provisions section below. Note that the selection does not represent
the full range of views.
Financial
implication
The Explanatory Memorandum states that the Bill will have
no financial impact.[31]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[32]
Parliamentary
Joint Committee on Human Rights
At the time of writing the Committee had not reported on
the Bill.
Key issues
and provisions
Schedule 1—Parenting framework and Schedule
3—Definition of member of the family
Schedule 1 of the Bill amends Part VII of the Family
Law Act which contains the provisions dealing with disputes between parties
concerning parenting arrangements for children.
Overview of Part VII and rationale for reform
Part VII of the Family Law Act provides a framework
for determining parenting arrangements after separation. Part VII provides the
family courts with a wide power to make orders about children’s care and living
arrangements, parental responsibility, and other matters relevant to a child’s
welfare (‘parenting orders’) as it thinks proper.[33]
In making parenting orders, Pt VII provides that the best
interests of the child must be the paramount consideration. However, as is so often
noted, the current law imposes a complex pathway for decision making by the
courts when determining what arrangements will best promote the child’s best
interests.[34]
Much of this framework for determining what is in the best
interests of a child was added to the Family Law Act by the Family Law
Amendment (Shared Parental Responsibility) Act 2006. Further
amendments made in 2011 prioritised the safety of the child in parenting
matters but were explicitly intended to retain the substance of the 2006
amendments.[35]
Currently, the Family Law Act provides a number of
steps that a court must follow in order to apply the principle that the best
interests of a child be paramount to the decision. These steps include:
- the
court must consider specified factors (comprising two ‘primary considerations’
about the child’s safety and meaningful relationships with both parents, and 13
‘additional considerations’) and make findings about them if possible
- the
court must decide if the legislative presumption of equal shared parental
responsibility applies or is rebutted
- if
the court makes or proposes to make an order for equal shared parental
responsibility, it must consider whether the child spending equal time with
each of the parents would be in the best interests of the child, and whether it
would be ‘reasonably practicable’
- if
the court does not make an order for equal time, it must then consider whether
the child spending ‘substantial and significant time’ with each parent would be
in the child’s best interests, and whether it is ‘reasonably practicable’. If
it is, the court must consider making such an order, and
- if
neither equal time nor substantial and significant time is considered to be in
the child’s best interests, the court may make such orders as the court decides
are in the best interests of the child.[36]
The ALRC Report states that submissions to its inquiry
expressed a number of concerns about this pathway, including that:
- it
is complex and repetitive, which has increased costs for clients and has
created productivity issues for the courts
- it
has created community confusion by having a presumption of equal shared
parental responsibility, which is commonly misunderstood as being a presumption
of equal shared time
- the
requirement that parents must jointly make decisions provides scope for
conflict in the absence of clear information about which decisions do not
require consultation
- insufficient
weight is given to the views of the child in decision making, and
- greater
emphasis should be placed on ensuring the safety of the child, and of the
child’s carers.[37]
The ALRC Report recommended a reshaped decision-making
framework for parenting orders. This would include:
- retaining
the paramountcy principle in its current form
- removing
the objects and principles provisions
- collapsing
the different tiers of considerations within the best interests factors
- clarifying,
simplifying, and amending the list of considerations for determining what is in
the child’s best interests
- amending
the presumption of equal shared parental responsibility to be a presumption of
joint decision making about major long-term issues[38],
and
- removing
mandatory consideration of particular arrangements including equal time.[39]
Many, but not all, of these recommendations have been adopted
in Schedule 1 to the Bill.
Proposed amendments
Schedule 1 is divided into three parts:
- Part
1 makes amendments to do with the ‘best interests of the child’ provisions.
- Part
2 repeals provisions dealing with the presumption of equal shared parental
responsibility and the mandatory consideration of certain times arrangements.
- Part
3 makes amendments to clarify when a court can vary existing parenting orders.
The Digest discusses these parts in order.
Part 1: best interests of the child
As already noted, central to Part VII is the principle of
the ‘best interests of the child’.
Section 60CC deals with how a court determines what is in
the child's best interests. Currently section 60CC sets out a two-tiered
approach with 2 primary considerations and 14 additional considerations that a
court must consider in determining the best interests of children. The primary
considerations a court must have regard to are:
- the
benefit to the child of having a meaningful relationship with both of the
child’s parents, and
- the
need to protect the child from physical or psychological harm, from being
subjected to, or exposed to, abuse, neglect or family violence.
In applying these considerations, the court is required to
give greater consideration to the second of these.[40]
Item 6 repeals and replaces section 60CC.
The new section removes the two-tier hierarchical structure of ‘primary’ and ‘additional’
considerations and focuses on a core list of six considerations, with two
additional factors for Aboriginal or Torres Strait Islander children.
Proposed subsection 60CC(2) sets out the list of
six matters that the court must consider when determining what is in a child’s
best interests. These are:
- what
arrangements would promote the safety (including safety from family violence,
abuse, neglect, or other harm) of:
- the
child, and
- each
person who has care of the child (whether or not a person has parental
responsibility for the child)
- any
views expressed by the child
- the
developmental, psychological, emotional and cultural needs of the child
- the
capacity of each person who has or is proposed to have parental responsibility
for the child to provide for the child’s developmental, psychological,
emotional and cultural needs
- the
benefit to the child of being able to have a relationship with the child’s
parents, and other people who are significant to the child, where it is safe to
do so
- anything
else that is relevant to the particular circumstances of the child.
Additional considerations specific to Aboriginal or Torres
Strait Islander children
Proposed subsection 60CC(3) sets out additional
matters that must be considered by the court when determining what is in the
best interests of an Aboriginal or Torres Strait Islander child. These matters
are:
- the
child’s right to enjoy their Aboriginal or Torres Strait Islander culture,[41]
by having the opportunity to connect with, and maintain their connection with,
members of their family and with their community, culture, country and language
- the
likely impact of any proposed parenting order on the child’s right to enjoy
their Aboriginal or Torres Strait Islander culture.
Further amendments acknowledging Aboriginal or Torres
Strait Islander notions of family and kinship are made by Schedule 3 to
the Bill. The definition of ‘member of the family’ for Aboriginal or Torres
Strait Islander children is expanded by amending the definition of ‘relative’
to include persons who, in accordance with the child’s Aboriginal or Torres
Strait Islander culture, are related to the child (items 2 and 4, Schedule 3).
New objects provision
Related to the amendments discussed above, item 4
repeals the current objects and principles provision set out in section 60B and
substitutes a simplified objects provision for Part VII.
Existing section 60B is long and complex, containing a
list of 4 objects followed by a list of 5 principles. There is an emphasis
on the best interests of the child being met by ensuing the children have the
benefit of both of their parents having a meaningful involvement in their
lives.
Proposed section 60B provides that the objects of
Part VII are to:
- ensure
that the best interests of children are met, including by ensuring their safety,
and
- give
effect to the Convention
on the Rights of the Child (CRC) done at New York on 20 November
1989.
This provision does not have the
effect of incorporating the CRC into domestic law. Rather it may be considered
as an interpretive aid. To the extent that the Family Law Act
departs from the CRC, the Family Law Act prevails.[42]
The Explanatory Memorandum states the repeal and
substitution of section 60B does not indicate that the repealed objects and
principles are no longer relevant. Rather, the intention is to simplify the
objects to better assist with the interpretation of Part VII and avoid
duplication with section 60CC which sets out what the court must consider when
determining what is in the best interests of the child.[43]
The ALRC, noting the confusion the current objects and
principles provision has caused and the limited legal effect of the principles,
recommended instead that section 60B be repealed and not replaced.[44]
Part 2: Repeal of the presumption of equal shared parental
responsibility and associated equal time or significant time provisions
Section 61DA currently provides that when making a
parenting order in relation to a child, the court must apply a presumption that
it is in the best interests of the child for the child’s parents to have equal
shared parental responsibility for the child.
Along with the presumption of equal shared parental
responsibility, section 65DAA requires the court to
consider a child spending equal time, or substantial and significant time, with
each parent in certain circumstances. This section applies only when an order
of ‘equal shared parental responsibility’ is made under section 61DA.
These amendments were controversial at the time of
introduction and have remained so since then. Items 16 and 24 repeals
these provisions, the Explanatory Memorandum arguing:
Matters that end up in court often involve concerns about
family violence, health issues or substance abuse. These are complex matters
which the court must consider very carefully. In these matters, the court’s
primary focus should be on making arrangements that meet the best interests of
the children involved. Any presumptions about the allocation of parental
responsibility or consideration of specific time arrangements can detract from
a focus on the needs of the individual child.
Recent inquiries into the family law system have concluded
that the presumption of equal shared parental
responsibility is commonly misunderstood. An order for ‘equal shared
parental responsibility’ simply means that parents are required to make joint
decisions about major long-term decisions (for example, in relation to
education and health). However, the majority of parenting matters are settled
outside of court, and the ALRC Report and the JSC Inquiry as well as numerous
studies have found that this part of the law is commonly misinterpreted as
creating a right to equal shared time with children which has never been the
case. This means that parents can enter negotiations based on incorrect
assumptions about their entitlements. This can lead to inappropriate
arrangements for children and increased parental conflict.[45]
It is of note that the ALRC did not recommend the total
repeal of the presumption of joint responsibility, preferring instead that it
be replaced with a presumption of joint decision making about ‘major long-term
issues’.[46]
The ALRC argued that a presumption of shared parental
responsibility serves as a good starting point for negotiations between parents
and recommended that the concept be retained. However, the ALRC recommended the
wording of the presumption should be clarified to avoid conflating the term
‘equal shared parental responsibility’ with equal time. The ALRC therefore
recommended that, to reduce confusion, section 61DA be redrafted to refer to
‘joint decision making on major long-term issues’.[47]
Other related amendments in Part
2
Part 2 of Schedule 1 contains other amendments related to
the main amendments discussed above which include:
- Proposed
subsection 61D(3) (item 15): provides that a parenting order that
deals with the allocation of responsibility for making decisions about major
long‑term issues in relation to the child may provide for joint or sole
decision‑making in relation to all or specified major long‑term
issues. This is intended to make it clear that, with the removal of the
presumption of equal shared parental responsibility, the court may still make
orders providing for joint decision-making about major long-term issues, and
parties can continue to agree to such matters between themselves.[48]
- Proposed
section 61DAA: (previously found in section 65DAC) outlines the effect of a
parenting order that provides for joint decision-making about major long-term
issues.
- Proposed
section 61DAB (which reflects previous section 65DAE) provides that, if a
child is spending time with a person under a parenting order, there is no
requirement for the person to consult a person with parental responsibility for
the child about issues that are not major long-term issues. Both this section
and proposed section 61DAA have been relocated to Division 2 – Parental
responsibility of Part VII, to ensure that the provisions relating to the
allocation of parental responsibility are collocated and are intended to make
the Family Law Act more user-friendly.[49]
- proposed
section 61CA (Item 14) provides that subject to court orders, and if
it is safe to do so, parents are encouraged to consult each other about major
long-term issues and, in doing so, to have regard to the best interests of the
child. The Explanatory Memorandum notes that this is ‘not enforceable but is
intended to signal to parents that, in the absence of court orders, decisions
about major long-term issues should be made in consultation, with the best
interests of the child being the paramount consideration’.[50]
Part 3: Reconsideration of final parenting orders
Under subsection 65D(2) of the Family Law Act the
court has a power to discharge, vary, suspend or revive earlier parenting
orders. However, the Act does not specify the circumstances in which parties
may return to the court to seek revision of an order. Item 26 inserts
proposed section 65DAAA, its purpose being to clarify when a court can reconsider
an existing parenting order.
New subsection 65DAAA(1) provides that if a final
parenting order is in place, the court must not reconsider it unless the court
has considered whether there has been a significant change in circumstances
since the final order was made and is satisfied that it is in the best interest
of the child for the order to be reconsidered.
Proposed subsection 65DAAA(2) includes a list of
matters that a court may have regard to in weighing up whether it would be in
the child’s best interests to reconsider a final parenting order.
Proposed subsection 65DAAA(3) confirms that the
court may reconsider a parenting order with the agreement or consent of all the
parties to the final parenting order even where there hasn’t been a change in
circumstances or the court is not satisfied it is in the best interests of the
child.
The Explanatory Memorandum states that this amendment:
… codifies the common law rule established by Rice and
Asplund (1979) FLC 90-725 and elaborated on in subsequent cases, that is,
where final parenting orders are in place the applicant must establish that
there has been a significant change of circumstance since the making of the
orders before those orders can be reconsidered. The rule is founded on the
notion that continuous litigation over a child or children is generally not in
their best interests. [footnotes omitted][51]
Comments on Schedule 1
The amendments proposed in Parts 1 and 2 of Schedule 1
were the main focus of many of the submissions received by AGD on the Exposure
Draft. The views of submitters varied: many welcoming the changes, others
suggesting improvements, and some voicing strong concerns about the impact of
the changes.
The National Children’s Commissioner welcomed all the
amendments, including:
- the
new simplified objects provision that gives acknowledgement of the CRC
- the
best interest factors which more clearly reflects how the best interest of the
child principle is interpreted under the CRC
- the
inclusion of the importance of an Aboriginal or Torres Strait Islander child’s
connection to culture, language, community and country, which is in line with
Article 30 of the CRC that ‘explicitly recognises the right of Indigenous
children to culture, language and religion’
- the
removal of the mandatory consideration of certain time arrangements under
section 65DAA, pointing out that there is no reference to equal time with both
parents in the CRC.[52]
The AIFS supports the amendments in Schedule 1, noting
that they are in alignment with AIFS research findings.[53]
It states that AIFS research demonstrates a persisting concern with the
presumption of equal shared parental responsibility and supports the proposed
removal.[54]
The submission argues:
Despite the strong policy intent of a non-universal
application of the presumption in matters involving family violence and safety
concerns, AIFS and other research evidence shows that orders for shared
parental responsibility are made in the majority of litigated matters and in
the presence of these concerns.[55]
In relation to the new objects provision, the Law Council
agreed with the ALRC recommendation,[56]
noting that ‘if simplification is the aim of the reforms… section 60B should be
removed in its entirety’.[57]
Alternatively, if section 60B is to remain, then the Law Council suggests the
new provision should have the following features:
- the
reference to the CRC should be removed as it could be a source of confusion and
may create unintended consequences
- consideration
ought to be given to retaining several features of existing section 60B:
- a
child’s best interests being met by both of their parents having a ‘meaningful’
involvement in their lives to the maximum extent consistent with the best
interests of a child (existing paragraph 60B(1)(a)), and
- the
safety of a child, particularly being protected from physical or psychological
harm, abuse or violence (existing paragraph 60B(1)(b)).
The Law Council considers that these key objects should
not be removed from the legislation just because a layperson may not understand
their legal operation at face value.[58]
In relation to the presumption of equal shared parental
responsibility, Professor Richard Chisholm argues that rather than removing
this provision, amendments should be considered. He states:
The problem with the existing provisions about equal shared
parental responsibility mainly arises from the way the existing Act links
orders for equal shared parental responsibility with the requirement that
courts consider the children spending equal time, or ‘substantial and
significant’ time, with both parents. The word “equal”, used in both
provisions, probably contributed to the earlier misunderstanding that the
current legislation creates a presumption favouring equal time.[59]
Professor Chisholm suggests that removing the link would
help remove this misunderstanding, even if the provision for equal shared
parental responsibility remained in the Family Law Act. His submission
includes a re-draft of the provision he had previously proposed and which he
still favours:
The court shall presume that it is in the child’s best
interests that both parents continue to have parental responsibility, unless it
considers that this would not be in the child’s best interests in the
circumstances of the case.[60]
Professor Chisholm’s submission also includes a survey of
family law legislation in six overseas jurisdictions which he says reveals that
none of the other jurisdiction’s legislation creates any presumption or
suggestion that any particular time allocation or other arrangement is to be
preferred or given special consideration. He states:
Australia is currently the only jurisdiction among these six
jurisdictions countries that requires the court in some circumstances to
“consider” parents having equal time, or “substantial and significant” time
with the child. In that respect, the proposed reforms would bring Australia
into line with the other jurisdictions examined.[61]
The Law Council notes that there are divergent views on
the removal of sections 61DA and 65DAA amongst its Constituent Bodies.[62]
Some of the Constituent Bodies, along with the Family Law Section, agreed that
the simplification of the legislative framework for making parenting orders may
assist in explaining the law to clients and clarifying misconceptions regarding
the expectation of equal time arrangements in some situations.[63]
Other Constituent Bodies hold a different view, submitting
that the existing presumption ‘provides a simplified framework for
practitioners to explain to their clients how the court can be expected to
determine shared time arrangements, and its removal may make it more difficult
to explain the law on parental responsibility to a client’.[64]
It is the Law Council’s overall view that the removal of
obligations on practitioners to encourage parents to consider equal time
arrangements will ultimately result in significantly less shared, or
substantially shared, care arrangements.[65]
The Law Council also notes that most of its Constituent
Bodies have submitted that the obligation on legal practitioners to focus
primarily on the best interests of children will enable practitioners to direct
parents’ attention away from what time they see as desirable or as an
entitlement for themselves. The Council adds:
The fact that parties are embroiled in disputes about time
arrangements for children, including court proceedings, in and of itself
indicates that they are having difficulty agreeing on issues relevant to the
best interests of the child and that their interactions may be defined by
conflict and a lack of trust’.[66]
Many submitters were generally supportive of the
amendments regarding special acknowledgement of Aboriginal and Torres Strait
Islander children’s rights and the amendments broadening the meaning of ‘member
of the family’. The Aboriginal Family Legal Services WA reiterated the
importance of connection to culture stating:
… consideration of connection to culture for Aboriginal
children as a key mechanism to ensure that a child’s Aboriginal and Torres
Strait Islander status, cultural rights and other cultural issues are brought
to the attention of judicial officers in determining the child’s best interests
at any stage, is paramount.[67]
Schedule 2—Enforcement of child-related orders
Schedule 2 of the Bill contains:
- a redraft of Division 13A of Part VII (compliance with parenting
orders) which is intended to make it simpler and easier to apply, and
- amendments to the FCFCOA Act to allow
registrars of the court to be delegated the power to make compensatory time
parenting orders (or ‘make-up’ time orders).
Background:
Part VII, Division 13A
Court powers in relation to non-compliance with parenting
orders are set out in Part VII, Division 13A. The broad framework of the
present contravention regime consists of a three-tier regime involving
preventative measures, remedial measures and sanctions.
Within this Division, Subdivision D deals with situations
where a contravention is established but the contravening party can establish
they had a reasonable excuse. Subdivision E deals with contraventions where
reasonable excuse is not established but the contraventions are ‘less serious’.
Subdivision F deals with contraventions without reasonable excuse that are ‘more
serious’. A greater range and severity of responses and penalties is available
under Subdivision F.[68]
Section 70NFB of the Family Law Act provides that
the powers of the court in relation to more serious contraventions range from
the enforcement of an order to the punishment of a person for failure to obey
an order. Orders that may be made in these proceedings include orders providing
for:
- a
further order to compensate a person for lost time with the child/children
(make-up time)
- placing
a person on notice that if the person does not comply with an order, the person
will be punished
- punishing
a person by way of a fine, community service order (section 70NFC), bond (for
example to attend counselling or family dispute resolution (section 70NFE)) or
imprisonment (section 70NFG).
Enforcement of family law parenting orders has been the
subject of longstanding concern,[69]
particularly in the context of family violence and child safety concerns. The
punishments that the courts may impose for non-compliance can operate as a
disincentive for parents with safety concerns to seek safer parenting orders
and may give rise to unsafe compliance. The regime potentially can also be part
of a tactic of aggression or coercion where non-compliance or contravention
proceedings may be part of ongoing abuse or coercive control.[70]
The ALRC Report examined Division 13A and observed that
stakeholders to the inquiry had expressed concern regarding the complexity of
the provisions, and the difficulties users have in understanding them.[71]
The Report states:
The Family Court observed that Division 13A was of a
‘labyrinthine nature’, highlighting the distinction between less serious and
more serious contraventions; the difference in the standard of proof necessary
depending on what penalty is imposed; and the difficulties in respect of
procedures when a party fails to enter a bond. Chisholm described the division
as ‘needlessly complex, difficult to understand, and impossible to defend’ and
argued that a ‘complete revision of this part of the Act is essential’. His
submission included a proposed redraft of Div 13A, which is intended to make
the division more concise and to provide clarity for lawyers and non-lawyers.[72]
The ALRC concluded that Division 13A is a particular area
of the Family Law Act which would benefit from simplification and it
recommended that it be redrafted to achieve simplification, and to provide for:
- a
power to order that a child spend additional time with a person
- a
power to order parties to attend relevant programs at any stage of proceedings,
and
- a
presumption that a costs order will be made against a person found to have
contravened an order.[73]
The Joint Select Committee also identified issues with non‑compliance
as a key theme arising during its inquiry. The Committee recommended that the
Government review Division 13A to simplify its operation and consider
additional penalties to deter contravention of orders.[74]
Part 1 of Schedule 2 to the Bill contains a redraft of
Division 13A and represents the Government’s response to these recommendations.
Redraft of Division 13A
Item 21 inserts proposed Division 13A–Orders
in proceedings relating to contraventions of child- related orders. It is
divided into 4 subdivisions (reduced from the current 6):
- Subdivision
A – Preliminary
- Subdivision
B – Orders relating to contraventions of child-related orders
- Subdivision
C – Further provisions relating to bonds and imprisonment
- Subdivision
D – Miscellaneous.
The redraft incorporates only minor policy changes and
does not significantly change the underlying principles of the current
compliance and enforcement provisions in Division 13A. For this reason, the
Bills Digest provides only a short overview of the new structure, which
includes a selection of the similarities and differences between the existing
and the redrafted regimes. Greater detail can be found in the Explanatory
Memorandum at pages 33–53.
New objects
provision
Proposed Subdivision A contains an objects
provision (proposed section 70NAB) which provides for five principal
objects of the Division. According to the Explanatory Memorandum this provision
was added to clarify that the compliance regime serves a number of different
objectives, including supporting parties to comply with parenting orders and to
resolve any difficulties that have contributed to non-compliance.[75]
Other objectives include upholding the authority of the court and imposing
appropriate sanctions on a person who seriously or repeatedly contravenes child‑related
orders without having a reasonable excuse. The overarching object of Division
13A is to meet the best interests of children.[76]
Contravention
of parenting orders
Sections 65M to 65P of the Family Law Act, which
set out general obligations created by parenting orders, are to be replaced by proposed
section 70NAC. This new section would perform an equivalent function in
describing the circumstances in which a person contravenes a child‑related
order, such as by hindering or preventing another person from spending time
with a child, or failing to return a child to the care of another person,
contrary to an order. Proposed section 70NDA in Proposed Subdivision
D (Miscellaneous) replaces existing section 65Q, which provides that the
court may issue a warrant for the arrest of an alleged offender.
Removal of
the hierarchy of seriousness
In order to simplify the structure of the Division, the
new provisions no longer separately provide for circumstances where the court
considers the contravention to be ‘less serious’ or
‘more serious’. Instead, the court would have discretion to tailor its response
to match the gravity of the contravention, while still being required to
consider a number of factors in weighing up the seriousness of any given contravention,
including the current and previous behaviour of the parties (proposed
subsections 70NBF(2) and (3)). The Explanatory Memorandum states the reason
for this approach is ‘to simplify the law, while retaining the court’s
discretion to consider the circumstances of each case’.[77]
Penalties
Under the Division’s new structure, the penalties and
costs provisions are to be centralised to improve readability.
Currently these provisions are repeated throughout the Division against the
different outcomes that can result from a contravention matter.
The court would still need to be satisfied beyond
reasonable doubt that the person contravened the child‑related order when
making an order for the most serious sanctions of fines and imprisonment (proposed
section 70NAE and paragraph 70NBF(1)(d)).
Cost orders
Currently there are powers concerning compensation for
reasonable expenses incurred as a result of a contravention. If a less serious
contravention application is upheld, the court may order that the contravening
party pay all or some of the costs of the other party (paragraph 70NEB(1)(f))
even if it makes no other orders in relation to the contravention (paragraph
70NEB(1)(g)). If a more serious contravention application is upheld, a
presumption applies that a court must make a costs order against the contravening
party unless the court concludes this would not be in the best interests of the
child concerned (paragraph 70NFB(1)(a)).
Proposed section 70NBE contains a central power to
order costs which can be made at any stage during proceedings.
This section is divided into two subheadings which
consolidate the existing costs provisions while retaining the existing
underlying policies, namely that the court should consider:
- a
costs order against the complainant where there are unsubstantiated allegations
of contravention, and
- a
costs order against the respondent where there has been a contravention without
reasonable excuse.
In the second case where there has been a contravention
without reasonable excuse, the court must make a costs order unless it
is satisfied it is not appropriate in the circumstances. The court must make
the costs order regardless of how serious the contravention is. Note that this
provision is slightly broader than existing section 70NFB where the court must
make a cost order only where a more serious contravention is established.
Removal of community
service orders as an enforcement
As noted above, under the existing scheme community
service orders (CSOs) are one of the more serious sanctions that the court may
impose. The proposed redraft of Division 13A would remove reference to CSOs from
Division 13A (including from existing sections 70NFC, 70NFD and 70NFF).
The Explanatory Memorandum argues CSOs have been rarely
used as a sanction and their removal ‘aids simplification of the Division’.[78]
The Family Law Council however questions the efficacy of removing the power to
impose CSOs in circumstances where the imposition of a fine, bond or term of
imprisonment is likely to impact a financially vulnerable parent more severely.[79]
Delegation
of the power to make ‘make-up’ parenting orders
Part 2 of Schedule 2 (items 37 and 38) amend the FCFCOA
Act so that registrars of the FCFCOA can be delegated the power to make a
further parenting order for a child to spend additional time with a person
(commonly referred to as a ‘make-up’ time or ‘compensatory time’ order).
The stated purpose of this amendment is to help achieve
more timely outcomes in contravention matters and support compliance with
parenting orders.[80]
Comments on
Schedule 2
The AIFS observes that the scope of the amendments to
Division 13A maintain ‘its quasi-criminal nature in the inclusion of criminal
penalties, with only limited reform proposed… with the removal of Community
Service orders’.[81]
The AIFS emphasised that the evidence from recent AIFS research
studies suggests that:
[I]t is in the interests of families for policy changes in
this area to be directed towards more therapeutic interventions as an
alternative to punitive approaches that are noted to be ineffective. In a
context where punitive responses are rarely applied – and are available to
courts through mechanisms such as contempt of court proceedings – further
consideration – in addition to the suggested amendments should be given to
reforming Division 13A in such a way as to provide an accessible means of
adjusting parenting orders or access to interventions that will support
compliance with safe and appropriate orders.[82]
In relation to the re-write of Division 13A, the Law
Council accepts ‘that this is a challenging and prescriptive part of the Family
Law Act and so simplification is difficult to achieve’.[83]
In its view, while the proposed amendments simplify current Division 13A in
part, it remains complex and challenging overall and 'consequently, where
further simplification cannot be achieved, education around this Schedule may
be necessary to improve general understanding’.[84]
The Law Council also points out that in ‘circumstances where the consequences
to litigants can be significant (including imprisonment), careful consideration
should be given to this Division’.[85]
A number of submitters expressed criticism of the costs
provision. The Family Law Section of the Law Council is of the strong view that
proposed section 70NBE continues to confuse unnecessarily the power to
order costs in any proceedings, which is already set out in section 117 of the Family
Law Act:
This would include making an order against a complainant in a
situation where no finding is made (provided that it is “just” to do so).
Consequently, there is no need to have this costs power specifically set out in
Division 13A.[86]
Schedule 4—Independents Children’s Lawyers
An Independent Children’s Lawyer (ICL) may be appointed
under section 68L of the Family Law Act where it appears to the court
that the child’s interests in the proceedings ought to be independently
represented.
The scope of the role is set out in section 68LA of the Family
Law Act. An ICL must form an independent view, based on the evidence
available, of what is in the best interests of the child and act in relation to
the proceedings in what the ICL believes to be the best interests of the child.[87]
An ICL is not the child’s legal representative and is not obliged to act on the
child’s instructions in relation to the proceedings.[88]
Guidelines
for Independent Children’s Lawyers (the Guidelines), prepared by National
Legal Aid and endorsed by the FCFCOA also set out the
expectations of the role.
An ICL is appointed to a case by the legal aid commission
in the relevant state or territory, either from their own in-house ICLs or from
a panel of private practitioners who can be appointed to this role after
completing a period of specialised training.[89]
Schedule 4 includes the following measures in
relation to ICLs.
Requirement for ICLs to meet with a child
Item 2 amends section 68LA of the Family Law Act
to require ICLs to meet with a child whose best interests they have been
appointed to represent and to provide the child with an opportunity to express
a view, unless:
- the
child is under 5 years of age
- the
child does not want to meet the ICL or express their views, or
- there
are exceptional circumstances that justify not performing that duty.
These exceptional circumstances include, but are not
limited to, if the ICL in performing the duty would expose the child to the
risk of physical or psychological harm that cannot be safely managed or would
have a significant adverse effect on the wellbeing of the child.
Where an ICL decides not to meet the child due to
exceptional circumstances, the court must, before making final orders either:
- determine
whether it is satisfied that exceptional circumstances exist that justify not
performing the duty, or
- if
the court determines that those circumstances do not exist, it must make an
order requiring the ICL to perform the relevant duty.[90]
The Explanatory Memorandum argues in support of this
amendment stating:
While an ICL is required by the Family Law Act (section
68LA(5)(b)) to convey the child’s views to the court if they have been
expressed, at present there is no legislative obligation for an ICL to meet
with or seek a child’s views unless this is ordered by a judge (section
68L(5)). Although many ICLs do meet with children and seek to facilitate
children’s participation where appropriate, new subsection 68L(5A) will require
all ICLs to do this. New subsections 68L(5B) and (5C) clarify the circumstances
where the ICL is not required to perform these duties, in order to safeguard
the safety and wellbeing of the child.[91]
Expansion of the use of ICLs in cases brought under the
Hague Convention
The Hague
Convention on the Civil Aspects of International Child Abduction (Hague
Convention) is the main international agreement that covers international
parental child abduction. It provides a process through which a parent can seek
to have their child returned to their home country. The Hague Convention also
deals with issues of international child access. When a parent or guardian
lives in a different country to the home country of their child, it may be hard
to work out access to them.[92]
Under subsection 68L(3) of the Family Law Act
judges are currently only permitted to appoint ICLs in cases brought under the Hague
Convention where there are exceptional circumstances that justify doing so.
Item 5 in Schedule 4 repeals subsection 68L(3), removing the
restriction on the appointment of ICLs in these cases. Subsection 68L(1)
will also be repealed and replaced (item 4) to express that section 68L
applies to proceedings where a child’s best interests are paramount or a
relevant consideration, including Hague Convention proceedings.
Comments on Schedule 4
Many stakeholders expressed support for the amendments requiring
ICLs to meet with the child, however some pointed to problems with their
practical application.
Victoria Legal Aid noted that while it supports the policy
intention of requiring ICLs to meet with a child, ‘in our view, it would be
preferable that the legislation state that the timing of the meeting, and who
is present, is a consideration for the ICL’.[93]
The submission argues:
This would, as the circumstances require, enable the ICL to
make submissions that they intend to meet with the child at a later, more
appropriate stage of the proceedings or in the company of another person.
Without affording ICLs the flexibility to determine the appropriate time to
meet the child without judicial determination, there will likely be additional
hearings and unnecessary delays, and consequent funding implications.[94]
The Family Law Council supported the amendments regarding
mandatory meetings with the child, but also raised concerns that ‘the
obligation for ICL’s to approach the court to obtain court acknowledgment that
exceptional circumstances exist may be impractical and absorb unnecessary
resources of the court litigants and ICLs’.[95]
The Law Council had a number of concerns with the
provisions in Schedule 4. It submits that while acknowledging that the proposed
reforms ‘may function as a safeguard to protect children, as well as acting as
a quality-control measure to ensure that ICLs are discharging their roles
suitably’, ‘implementing a mandatory requirement for an ICL to meet with a
child may have practical and costs implications which warrant examination’. The
submission states:
The Law Council wishes to emphasise, at the outset, that
increased funding for legal aid organisations is essential if the proposal to
introduce a mandatory requirement for ICLs to meet with the child is to be
successful.[96]
Schedule 5—Case management and procedure
Part 1: Harmful
proceedings orders and co-location of provisions
Part 1 of Schedule 5 amends Part XIB of the Family
Law Act, including re-naming it from ‘Vexatious proceedings’ to ‘Decrees
and orders relating to unmeritorious, harmful, and vexatious proceedings’.
The amendments consist of:
- proposed
Division 1A that brings together existing provisions that deal with decrees
and orders relating to unmeritorious, harmful and vexatious proceedings
- proposed
Division 1B that contains provisions relating to a new power for the court to
make a harmful proceedings order.
Harmful proceedings orders
Proposed section 102QAC provides the court with
power to make a ‘harmful proceedings order’. A harmful proceedings order is an
order restraining a party to the proceedings from making any further
applications and serving them on the respondent to the proceedings, without
first obtaining leave of the court.[97]
The person being restrained by the order is known as the ‘first party’.
In considering whether to make a harmful proceedings order,
the court should be satisfied there are reasonable grounds to believe that:
- the
other party would suffer harm if the first party instituted further proceedings
against the other party, or
- in
the case of child-related proceedings, the child who is the subject of the
proceedings would suffer harm if the first party instituted further proceedings
against the other party.
Harm may include but is not limited to psychological harm
or oppression, major mental distress or a detrimental effect on the other
party’s capacity to care for a child.[98]
Proposed subsection 102QAC(3) provides that in
determining whether to make a harmful proceedings order, the court may also
have regard to:
- the
history of the proceedings under the Act between the two parties
- whether
the first party has frequently instituted or conducted proceedings against the
other party in any Australian court or tribunal, and
- the
cumulative effect, or any potential cumulative effect, of any harm resulting
from these proceedings.
The court may make a harmful proceedings order on its own
initiative or on application by a party to the proceedings (proposed
subsection 102QAC(4)).
The court must not make a harmful proceedings order in
relation to a person without hearing the person or giving the person an
opportunity to be heard on the merits of their application.[99]
Proposed subsection 102QAC(7) provides that when a
court is making a harmful proceedings order, it must also make a determination
on whether the other party should be notified of any applications under proposed
section 102QAE for leave to institute proceedings against the other party.
This notification includes that the application was made, and/or if applicable,
that the application has been dismissed. The court must have regard to the
wishes of the other party when determining whether the respondent should be
notified (proposed subsection 102QAC(8)).[100]
Consequences of a harmful proceedings order
Proposed subsection 102QAD(1) provides that a
person subject to a harmful proceedings order must not institute proceedings,
or act in concert with another person to institute proceedings, without leave
of the court under proposed section 102QAG.
Proposed section 102QAE sets out the requirements
for the party who is subject to a harmful proceedings order to make an
application for leave to institute proceedings. The applicant must file an
affidavit with the application which lists all occasions on which the applicant
has applied for leave as well as disclosing all relevant facts about the
application.
Applications for leave made under section 102QAE would be
made ex parte (that is without serving documents on the respondent) –
unless an order is made under proposed section 102QAG granting an
application for leave.
Proposed section 102QAF provides that the court may
dismiss an application for leave under proposed section 102QAE if the
court considers that the affidavit does not substantially comply with that section.
If the court considers the proceedings to be vexatious proceedings, then it must
dismiss the application.
Proposed section 102QAG provides that a court may
only grant an application for leave to institute proceedings if it is satisfied
that the proceedings are not frivolous, vexatious or an abuse of process, and
have reasonable prospects of success.
Comments on Schedule 5, Part 1
The harmful proceedings provisions respond to the ALRC
Report recommendation 32.[101]
The Explanatory Memorandum states that the amendments ‘address a gap in the
court’s powers to scrutinise the institution of further proceedings, cited in
the case of Marsden & Winch (2013) 50 FamLR 409.’[102]
It notes also that ‘the ALRC Report found that the court’s existing vexatious
proceedings and summary dismissal powers do not provide sufficient scope for
courts to make appropriate orders in cases where one party oppresses the other
by repetitive filing of applications and the serving of those applications on
the other party’.[103]
The Explanatory Memorandum also explains that harmful
proceedings order powers are different from the court’s current vexatious
proceedings orders powers[104]
in that they ‘require the court to consider the impact that the repetitive and
litigious nature of the applicant’s filings would have on the respondent’.[105]
On the other hand, vexatious proceedings orders powers focus on the applicant’s
intent to institute or conduct proceedings in a way so as to harass or annoy,
cause delay or detriment, or achieve another wrongful purpose.[106]
Legal professional bodies and family law academics
generally support these new measures. Victoria Legal Aid is broadly supportive
of this new power stating it will help to ‘minimise a party’s ability to use
the court as a means of inflicting family violence and other forms of harm’.[107]
Similarly the AIFS supports the proposed introduction of
harmful proceedings orders noting it may address concerns raised by
professionals and parties in the AIFS Compliance and Enforcement Project
‘regarding the limitations of the current vexatious litigant provisions to
address the misuse of litigation, including as a means of perpetrating family
violence, and the trauma for children and parties this can cause’.[108]
Both Victoria Legal Aid and the AIFS suggest that the grounds for making a
harmful proceedings order should be widened to refer additionally to the misuse
of other systems and processes in addition to court-based ones.[109]
Part 2: Overarching purpose of the family law practice and
procedure provisions
Part 2 of Schedule 5 makes amendments that would insert proposed
Division 1A into Part XI of the Family Law Act in order to broaden
the overarching purpose provisions that currently exist in the FCFCOA Act,
as well as to extend the overarching purpose to cover all proceedings
instituted under the Family Law Act.
The Explanatory Memorandum explains that this includes
proceedings heard by other courts, such as the Family Court of Western
Australia (when exercising its federal family law jurisdiction) and courts of
summary jurisdiction exercising jurisdiction under the Family Law Act.[110]
Proposed subsection 95(1) provides that the
overarching purpose of the family law practice and procedure provisions is to
facilitate the just resolution of disputes:
- in
a way that ensures the safety of families and children
- in
relation to proceedings under the Family Law Act in which the best
interests of a child are the paramount consideration – in a way that
promotes the best interests of the child
- according
to law, and
- as
quickly, inexpensively and efficiently as possible.
Proposed subsection 95(2) states that the
objectives of the overarching purpose include:
- the
just determination of all proceedings
- the
efficient use of the judicial and administrative resources available to the
courts exercising jurisdiction
- the
efficient disposal of the overall caseload of courts exercising jurisdiction in
proceedings
- the
disposal of all proceedings in a timely manner, and
- the
resolution of disputes at a cost that is proportionate to the importance and
complexity of the matters in dispute.
Proposed subsection 95(4) defines the ‘family law
practice and procedure provisions’ as the applicable Rules of Court and any
other provision made by or under the Family Law Act, or any other Act,
with respect to the practice and procedure of the FCFCOA or any other court.
Proposed section 96 imposes duties on parties to
proceedings and their lawyers. These include:
- a
party must conduct proceedings in a way that is consistent with the overarching
purpose of the family law practice and procedure provisions
- a
party’s lawyer must take account of the party’s duties and assist the party to
comply with those duties
- a
court may require a party’s lawyer to give the party an estimate of the likely
duration of the proceedings and the likely amount of costs the party will have
to pay in connection with the proceedings
- when
awarding costs, a court is required to take into account any failure by parties
and their lawyers to comply with their duties
- a
court may order a party’s lawyer to bear costs personally and these costs
cannot be passed on to the party.
Amendments to the FCFCOA Act
Currently the FCFCOA Act also includes overarching purpose
and duty provisions that apply to the Family Law Act. In order to avoid
overlap with the proposed amendments in Schedule 5, items 19‑35 make
consequential amendments to the FCFCOA Act that will limit the
application of the existing provisions in the FCFCOA Act to civil
proceedings other than those under the Family Law Act.
Comments on Schedule 5, Part 2
The provisions in Part 2 of Schedule 5 respond to the ALRC
recommendations 30 and 31.[111]
Submissions were broadly supportive of these provisions.[112]
Schedule 6—Communications
of details of family law proceedings
Schedule 6 of the Bill inserts new Part XIVB into
the Family Law Act. It consists of a redraft of section 121 of the Act,
the current provision that deals with protection of the privacy of families and
other persons connected with family law proceedings. The new Part aims to
clarify the law in this area and improve readability. It does not introduce any
significant changes to the existing law, but rather is intended to ‘address
misconceptions about its operation’.[113]
Background
Section 121 of the Family Law Act criminalises the
publication or dissemination of an account of a family law proceeding that
could identify a party, witness or other person associated with the
proceedings. A number of exceptions to the offence are provided, including for
publication of case reports, legal professional regulation, and other purposes.
The ALRC inquiry examined section 121 as part of its brief
to look at the complexity and accessibility of the Family Law Act. In
its report the ALRC noted that aspects of section 121 cause significant
confusion, citing the following examples:
For example, doubts have been expressed about whether s 121
prevents communication of details of proceedings to professional regulators as
part of a complaint, or communications between family law service providers
about safety concerns for clients, or even private conversations between
individuals. There is a perception that the provision prevents scrutiny of
family law decision making, reporting on the deficiencies of the family law
system, and victims of family violence from speaking out about their experiences.[114]
The ALRC therefore recommended that section 121 be
redrafted[115]
and that a number of changes should be made to ‘improve the clarity of the
provision and ensure that it does not discourage communications about family
law proceedings beyond its intended scope’.[116]
The provisions in Schedule 6 represent the Government’s
response to this recommendation.
New Part
XIVB—Restriction on communication of accounts and lists of proceedings
The redraft creates a new Part XIVB.[117]
Section 121 has been separated into a number of sections within Part XIVB. This
is intended to make the provision clearer by separating the offence provisions
and creating shorter sections that are easier to read.[118]
Proposed section 114N
contains a simplified outline of the two offences contained in Part XIVB and
summarises when communications do not constitute communications to the public
for the purposes of the new Part.
Proposed section 114P provides the meaning
of key terms ‘communicate’, ‘proceedings’ and ‘public’ used in new Part XIVB. The
redraft uses the phrase ‘communicates to the public’ in place of ‘publishes or
otherwise disseminates to the public’. This is intended
to better articulate that the restrictions apply to public communications
beyond what might be traditionally understood by the term ‘publication’.[119]
The definition of communicate includes communicate ‘by
means of the internet’ and uses social media as an example.
Proposed subsection 114Q(1) establishes that it is
an indictable offence if a person:
- communicates
to the public an account of family law proceedings under the Family Law Act,
and
- the
account identifies a party to the proceedings, a witness in the proceedings, a
person related to, or associated with, a party to the proceedings, or a person
who is, or alleged to be, in any other way concerned in the matter to which the
proceedings relate.
Proposed subsection 114Q(2) permits a court
to approve or direct communication that would otherwise be in breach of this
section. Proposed subsection 114Q(3) provides examples of
information that may be considered sufficient to identify a person to a member
of the public. These examples substantially replicate the existing law
contained in subsection 121(3).
Proposed subsection 114R(1) establishes that it is
an indictable offence for a person to communicate to the public a list of
proceedings under the Family Law Act that identifies the parties to the
proceedings by reference to their names. Proposed subsection 114R(2) excludes
from this offence court lists of proceedings that identify the parties to the
proceedings. It is also not a breach of this section if the court directs,
approves or otherwise states in its Rules of Court that the communication is
permitted.
Proposed subsections 114Q(1)
and 114R(1) retain the existing penalty for the two
offences under current section 121 (a maximum of one year imprisonment).
Proposed section 114S sets out the
circumstances whereby a communication to a person or body is not considered a
communication to the public. Proposed subsection 114S(1) provides
that a communication to a person or body is not a communication to the public if
the person or body has a significant and legitimate interest in the subject
matter of the communication and that interest is substantially greater than, or
different from, the interests of members of the public generally.
The Explanatory Memorandum explains:
This subsection is intended to apply to a range of
circumstances, including in relation to communications with professional
regulators and Government agencies or other organisations who provide services
to families who are involved in family law proceedings. It only applies where
there is a significant and legitimate interest in the subject matter of the
communication and that interest is substantially greater than, or different
from, the interests of members of the public generally. For example, a party may
communicate with a child welfare organisation and include information that
identifies the other party to proceedings. Subsection 114S(1) is not intended
to exclude media reporting from being subject to the offences under the new
Part.[120]
Proposed subsection 114S(2) provides a
non-exhaustive list of other circumstances where a communication will not be
considered a communication to the public. These include:
- private
communication between a party to proceedings and a person who is a family
member or friend of the party
- communication
to a prescribed state or territory child welfare authority
- communication
to a body responsible for disciplining members of a profession in a state or
territory, such as a law society
- communications
for legal aid grant purposes, and
- other
forms of communication as set out in the provision.
Proposed subsection 114S(2) largely reflects the
permitted communications currently contained in subsection 121(9) of the Family
Law Act.
Comments on
Schedule 6
Submitters were generally supportive of the provisions in
this Schedule. For example, the AIFS states:
AIFS supports this amendment which is of particular relevance
to AIFS’ evaluation and research activities. The amendments articulate the
position in case law differentiating communications to persons who have a
significant and legitimate interest that is substantially greater than or
different from the general public.[121]
Schedule 7—Family
report writers
The Family Law Council states that family reports provide a
vitally important role in parenting proceedings, including amongst other
things:
- assisting
judges, lawyers, and families by providing expert opinion regarding the level
parental conflict, parent functioning, child-parent relationships, and the
children's developmental, social, emotional, and educational needs post
separation and divorce
- often
providing the only social science evidence available in parenting matters
- are
important to pre-trial negotiations and family dispute resolution processes, as
they are acknowledged to be a very powerful settlement tool
- assisting
the court’s inquisitorial function with family report writers being able to
observe parties, review court documents and consult with extended family,
teachers, therapists, child protection workers, police, general practitioners
and other significant people in the child’s life.[122]
Given this important role, the Family Law Council argues it
is important that they are appropriately accredited and regulated.[123]
The ALRC also recommended that AGD should develop a
mandatory national accreditation scheme for private family report writers,[124]
and Schedule 7 responds in part to that recommendation.[125]
Regulation
making power for standards and requirements for family report writers
The proposed amendments in Schedule 7 create a framework
to enable the Government to make regulations setting standards for family
report writers. The extent and nature of these regulations will be developed
after further consultation with stakeholders.[126]
Item 4 inserts a new Part IIIAA in relation
to family report writers. Part IIIAA consists of:
- a
power to make regulations about family report writers
- a
framework and parameters for the regulation of family report writers and
- definitions
to clarify the application of the regulations.
Proposed section 11K introduces a power to make regulations in relation
to the standards and requirements that family report writers or a class or
classes of family report writers must comply with in connection with their role
of preparing designated family reports.
A ‘family report writer’ is defined as
any individual who prepares a designated family report (proposed section 11H).
A ‘designated family report’ is defined in proposed section 11J as a report
prepared following a family assessment which sets out the advice and the views
of the report’s preparer on parenting arrangements for the purposes of
parenting orders being made by the court. In addition, in order to fit within
the definition, a report must be one that fits into certain categories of
reports that can be prepared or ordered under the Act. The regulations can
exclude certain types of reports from the definition.
The regulations may establish and provide consequences for
non-compliance with regulated standards and requirements. The consequence of
non-compliance may include offences and civil penalty provisions with pecuniary
penalties not exceeding 30 penalty units, and other administrative sanctions
such as suspension or cancellation of recognition of compliance.[127]
The regulations may deal with any, or all, of the
following matters:
- recognition,
monitoring and enforcement of compliance with prescribed standards and
requirements
- the
person or persons responsible for that recognition, monitoring and enforcement
(that is the regulator(s))
- the
duties of family report writers
- circumstances
in which a regulator may collect, use and share information and documents for
the purposes of meeting the regulator’s responsibilities
- review
of decisions that affect recognition of a family report writer’s compliance
- processes
for dealing with persons who make false or misleading representations about a
family report writer’s compliance
- processes
for handling complaints involving family report writers
- training
for family report writers
- the
charging of fees, to family report writers, for services provided to them in
connection with recognition, and maintenance of recognition, of their
compliance
- publication
of information about named family report writers regarding personal details
about qualifications, availability amongst others, and
- standards
and requirements in relation to the content of designated family reports.
Comments on
Schedule 7
Competency training and standards for family report
writers were generally welcomed in submissions, although with some caveats. As
several submitters noted, it is difficult to assess the impact of Schedule 7 as
the detail will be in the Regulations.[128]
The Law Council and others stressed that it will therefore be important to
consult widely on the content of the regulations, particularly with existing
report writers and professional organisations representing those report
writers.[129]
While many submitters argued in favour of measures that
would improve standards for family report writers, some expressed caution about
the possible consequences of obligatory training.
The ALRC recommended a mandatory accreditation scheme for
private family report writers,[130]
and the provisions in the Bill also allude to the possibility of mandatory
accreditation. The Law Council is opposed to any mandatory accreditation scheme
for family report writers for the following reasons:
The Law Council observes that the consequences of mandatory
accreditation (or something akin to that) may impact upon those qualified
social scientists who are willing to undertake this important work, due to the
costs and compliance burdens such a scheme may impose. That will place
attendant pressure upon the court system and may lead to obvious delay and cost
increases for families who must enter the system, where there is a scarcity of
private report writers. The Law Council recognises that the challenges in
building a system of regulations to guide and provide for minimum standards for
report writers is made more fraught by the different professional expectations
and applicable eligibility criteria of various social science fields of
expertise. Any costs consequences for compliance may create a further
disincentive to participation and compliance (barriers to access) and lead to
the further attrition of experts willing to perform this role.[131]