The family law system is inherently controversial as it is dealing with emotional issues around children and property at a time when the parties are in conflict; and it is often not possible to sever a relationship with the other party, particularly where children are involved.
… the majority of family law matters do not engage with the Court. A minority of separating couples go to court. Of those who separate, 70 per cent manage to work out their arrangements (children and property) without lawyers, formal dispute resolution or court. Those who do need help of lawyers and who may end up at court, are more complex—family violence allegations, drug and alcohol problems, mental health concerns and sexual abuse allegations.
This chapter will firstly examine the complex legislative framework that applies to parenting and property proceedings under the Family Law Act 1975 (Family Law Act) before addressing the evidence and discussion of parenting and property matters that appeared in Chapters 8 and 9 of the committee’s first interim report.
Complex legislative framework
One of the key messages that the committee heard throughout this inquiry was that the Family Law Act was too voluminous and complex, making it very hard for individuals, lawyers and judges to navigate. As discussed in the first interim report, both submitters to this inquiry, and the ALRC, called for the simplification of the Family Law Act. As the Attorney-General’s Department (AGD) noted in its submission:
The complexity of the Family Law Act has contributed towards community misunderstanding of key elements of the law, which particularly affects self-represented litigants and those seeking to resolve their matters outside of the courts.
The Australian Bar Association highlighted an example of the complexity in parenting matters:
Through a succession of amendments, it now takes 42 separate steps to determine what is in a child's best interests. In turn, to cover each of these steps and to address the relevant considerations each requires makes for longer affidavits, longer cross-examination, longer submissions, longer judgment writing time and longer judgments: i.e., more time, more resources and more money. A simplified Part VII would go a long way to reducing the time, resources and money spent on each of these matters and would make the system far easier to understand and navigate.
Similarly, the committee heard that legislative provisions detailing the division of property in family law matters are highly discretionary, vague and unclear ‘which invites litigation and makes the resolution of disputes unnecessarily expensive’. This makes the ability to predict the outcome that would be achieved in court for the division of property difficult, especially for those who are not legally represented.
As noted in the first interim report, Victoria Legal Aid (VLA) stated that:
The current highly discretionary approach to property settlements is not affordable or useful for many Victorians, especially those who do not meet legal aid eligibility criteria and cannot afford the cost of private legal representation. Additional legislative guidance would help to clarify the decision-making process and provide parties with more confidence to negotiate in the shadow of the law.
As also discussed in the first interim report, the Australian Law Reform Commission (ALRC) report, An Inquiry into the Family Law System (ALRC 2019 Report), recommended a number of amendments to the parenting and property provisions in the Family Law Act, including reducing and simplifying the factors to be taken into account in determining which arrangements are most likely to promote a child's best interests; simplifying the list of matters that a court consider when considering whether to alter the property interests of the parties; and setting out a recommended approach to property division.
Notwithstanding the recommendations made in this chapter to specific sections of the Family Law Act, based on its own observations of evidence presented to the inquiry, the committee agrees with the ALRC’s statement in its report that ‘[t]he family law system, including its legal frameworks, should be designed to be as accessible and comprehensible as possible to all families who need to use it’. The committee also agrees with the ALRC’s observation that submissions to that inquiry ‘clearly indicated that the Family Law Act is currently not meeting this need’. The committee notes the ALRC’s recommendation that the Family Law Act and its subordinate legislation be redrafted, and considers that in the first instance the Australian Government (Government) consider simplifying Part VII of the Family Law Act.
The committee acknowledges that parenting orders, including those made by consent, are only made in approximately three per cent of all family law matters. As noted by the AGD in its submission, ‘the vast majority of parents agree parenting arrangements between themselves’.
The committee received little evidence about this vast majority of parents who do not require parenting orders—individual submitters to this inquiry, and the organisations that represented their interests, had many concerns about the family law system, particularly as it related to parenting matters such as custody, visitation and allegations of one parent turning their child against the child’s other parents.
The committee’s first interim report examined many of the issues that were raised with the committee with respect to parenting matters. While these are important issues for many of the submitters to this inquiry, this second interim report does not re-examine all of the issues raised in the first interim report.
The following discussion about parenting matters will therefore relate predominantly to what the committee considers to be the most pressing issue—assisting parties to those three per cent of highly complex family law matters that are expected to require resolution by the courts. It is the committee’s view that it is most beneficial to all parties to a dispute—including the children of disputing parties—to avoid protracted proceedings in the Family Court of Australia (Family Court) or Federal Circuit Court of Australia (Federal Circuit Court). It is also the committee’s view that there are a number of ways that the Government can facilitate a cheaper, timelier and fairer resolution of parenting disputes for the benefit of all parties. This section therefore examines areas for improvement with respect to parenting matters and sets out the committee’s views on:
shared parental responsibility;
independent children’s lawyers;
enforcement of parenting orders;
children’s contact services.
In making recommendations about parenting matters, the committee acknowledges the recommendations made by the ALRC 2019 Report with respect to Part VII of the Family Law Act. The committee encourages the Government to provide its considered response to the ALRC’s report, Family Law for the Future – An Inquiry into the Family Law System.
Shared parental responsibility
Section 61DA of the Family Law Act deals with shared parental responsibility, and 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.
The Family Law Act explains that this section ‘does not provide for a presumption about the amount of time the child spends with each of the parents’. Rather, as explained by Mr Iain Anderson, Deputy Secretary, Legal Services and Families Group, AGD:
It actually means both parents being involved in the important
decision-making about the significant events in the life of the children; you can have equal shared parental responsibility without having 50 per cent of the custody.
However, where an order is made for equal shared parental responsibility for a child, section 65DAA of the Family Law Act requires the court to then consider whether an order should be made for the child to spend equal time or substantial and significant time with each parent.
As noted in the committee’s first interim report, the presumption of equal shared responsibility (as opposed to equal time) does not apply in certain circumstances, including where:
… there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
As set out in the first interim report, the committee received evidence both in favour of and objecting to repealing the presumption for equal shared parental responsibility and the requirement to consider equal time. The committee also heard that there should be a mandatory starting point of 50:50 care in all parenting arrangements.
For those in favour of the removal of the presumption, objections to its continued use included that it misleads parties to think the law favours certain outcomes; that the presumption is not easily applicable in practice; and that such presumptions can lead to unsafe and unfair outcomes, and decisions should be made on a case-by-case basis. As noted in the first interim report, Women’s Safety NSW observed that removing the presumption:
… would be important in alleviating any confusion and ensuring that the safety of the child is not subjugated by a mistaken belief that the provision intends for both parents to spend an equal amount of time with their child.
Whereas those in favour of keeping the presumption argued that it was in the best interests of the child to have an equal amount of time with both parents, and that the consideration of a child having a meaningful relationship with both parents should be given greater weight than the need to protect a child from abuse or family violence in the event of inconsistency between these considerations.
50/50 care arrangements must be the default position of the Family Court. Unless by mutual consent and in the absence of any extenuating circumstances such as violence, health issues, drug or alcohol dependencies, both parents have an equal right to care for their children.
However, as discussed elsewhere in this report, the majority of matters before the Family Court involve one of the above extenuating circumstances. It also appears to the committee that, within the general community, 50/50 care arrangements are not always the norm. Based on the data provided by Services Australia, it appears the majority of child support payees (65 per cent) have more than 86 per cent care of their children, and the majority of payers (65 per cent) have less than 14 per cent care of their children.
The committee also noted in its first interim report that the ALRC 2019 Report and the House of Representatives Standing Committee on Social Policy and Legal Affairs (2017 Family Violence Report) both considered removing the presumption of equal shared parental responsibility.
In the 2017 Family Violence Report it was observed that:
… successive governments have sought to prioritise the safety of children when introducing amendments to the Family Law Act. Significantly however, independent evaluations of those amendments have found that they [have] not achieved their desired outcome. Indeed, despite amendments in 2006 and again in 2012, the safety of children is not prioritised either because of:
the structural design of a presumption, an exception, and a subsequent requirement for the Court to consider equal time; and/or
the skills and expertise of the Court with respect to family violence.
The 2017 Family Violence Report recommended that:
… the Australian Law Reform Commission, as part of its current review of the family law system, develops proposed amendments to Part VII of the Family Law Act 1975 (Cth), and specifically, that it consider removing the presumption of equal shared parental responsibility.
Subsequently, the ALRC observed that:
The 2006 amendments to Pt VII of the Family Law Act … introduced the presumption of ‘equal shared parental responsibility’, interpreted by many to be a presumption of ‘equal shared care.’ … as observed by O’Brien J, the widespread nature of that misunderstanding has a number of effects, including leading unrepresented parties to believe they have no choice but to agree to equal time and to enter into informal agreements based on a misapprehension of the law.
The ALRC therefore recommended that:
Section 61DA of the Family Law Act 1975 (Cth) should be amended to replace the presumption of ‘equal shared parental responsibility’ with a presumption of ‘joint decision making about major long-term issues’.
The ALRC 2019 report also recommended the repeal of section 65DAA which sets out the requirement to consider the possibility of the child spending equal, or substantial and significant, time with each parent, noting that it can be considered as part of the best interests of the child and does not require a separate provision.
Both the 2017 Family Violence Report and the ALRC 2019 Report referred to a 2009 evaluation of the 2006 amendments by the Australian Institute of Family Studies which ‘found that the provisions were not achieving their intended outcomes’.
The committee acknowledged in the first interim report that some organisations expressed concern with the ALRC recommendation. For example, the Lone Father’s Association stated:
There appears to be no evidence that the many separating parents who have gone down this pathway by consent have had their experiences considered, rather we suspect that the presumption for shared care is under attack for reasons considered in respect to parents who are unable to reach any parenting agreement and take the matter to the Federal Circuit Court or the Family Court as their first and only option. There appears to be little or no account for facts which apply to a significant number of successful shared care arrangements by consent.
The Australian Brotherhood of Fathers expressed the view that:
The proposal is regressive and, if implemented, would, we firmly believe, be highly detrimental to the best interests of children. The proposal fails to acknowledge that the overall interests of a child, including with respect to safety, are best served by promoting the active involvement of both parents in a child's life ...
However, as stated above, the committee is looking in this chapter at measures which will assist parties to those three per cent of highly complex family law matters that are expected to require resolution by the courts. The committee recognises the position of Professor Chisholm that presumptions:
… can be unhelpful and misleading when applied to the tiny minority of cases that require adjudication by the courts. Those cases are not typical of most families, and present acute difficulties when the court is trying to determine what outcome is best (or often the least damaging) for the child. The court needs to analyse the particular facts with great care, and generalisation based on the majority of less troubled families can distract from that task.
The committee acknowledges the support in favour of the equal shared parental responsibility provision at section 61DA of the Family Law Act, including by individual submitters who have been personally affected by this provision. It also acknowledges the evidence against the retention of this provision.
While the committee accepts that shared parental responsibility for, and shared time with a child may work for some disputing parties, and that some parties consider that such a presumption should be made mandatory, the committee recognises that the overwhelming evidence before it suggests that the current formulation of section 61DA of the Family Law Act may operate in a perverse manner, putting the lives of children at risk.
Indeed, as discussed in the first interim report the committee heard evidence that the presumption may be used against vulnerable parties who are manipulated to agree to arrangements based on the misrepresentation of the law by a more dominant partner. Women’s Legal Services Australia emphasised this point:
Women negotiating agreements without specialist legal advice often agree to unsafe parenting arrangements for their children and themselves because they believe the presumption of equal shared parental responsibility requires them to do so, even where there is family violence. This is a message that is often reinforced by the perpetrator of family violence.
It thus appears that parties do not necessarily apply the exception to the presumption—that is, the presumption does not apply where there are ‘reasonable grounds to believe’ that a parent engaged in abuse of their child or another child living with the family, or family violence. Further, the committee observes that the family courts appear reluctant to apply the exception:
The Australian Institute of Family Studies (AIFS) Evaluation of the 2006 amendments showed that in 75.8% of cases where both family violence and child abuse were alleged, orders were still made for equal shared parental responsibility.
It is the committee’s position that an amendment to or the repeal of this provision will not prevent parties from meeting an arrangement of equal shared parental responsibility if indeed it is in the best interests of the child. However, the committee considers that it is its obligation to ensure that the best interests of the child are paramount with respect to custody disputes, and that section 61DA as it currently stands does not operate to achieve this end.
The committee notes that a removal of the presumption would not affect the requirement under subsection 60CC(3) of the Family Law Act that a primary consideration in determining a child’s best interest is the benefit to the child of having a meaningful relationship with both of the child’s parents or the additional considerations, such as:
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
to participate in making decisions about major long term issues in relation to the child; and
to spend time with the child; and
to communicate with the child.
The committee notes that under this provision, the court is required to consider where parental responsibility lies, but based on a case-by-case assessment determined by the child’s best interests. Until a court order is made, each parent would continue to have parental responsibility for the child under section 61C of the Family Law Act.
The committee has divided views on the best approach in relation to section 61DA of the Family Law Act. Some members of the committee (Mr Andrews, Senator Hanson, Senator Chandler, Dr Martin, Senator O’Sullivan, Ms Steggall and Mr Young) support the ALRC approach of replacing the presumption of ‘equal shared parental responsibility’ with a presumption of ‘joint decision making about major long-term issues’ or similar wording. However, other members (Dr Aly, Mr Perrett, and Senator Polley) favour the complete removal of section 61DA.
The committee also considered the ALRC recommendation to repeal section 65DAA and were not able to reach agreement. Dr Aly, Mr Perrett, Senator Polley and Ms Steggall supported the repeal whilst Mr Andrews, Senator Hanson, Senator Chandler, Dr Martin, Senator O’Sullivan, and Mr Young did not.
The committee recommends that the Australian Government urgently draft and release an exposure draft of legislation which would amend section 61DA of the Family Law Act 1975 to address the current misunderstanding of the provision that equal shared parental responsibility equates to equal time with the children.
When considering the child’s best interests, the family court is required to consider any views expressed by the child. Despite evidence that many children want to express their views regarding parenting arrangements, a number of submitters advised the committee that the views of children are not adequately put before the courts:
… there are numerous barriers that are inhibiting child participation in the family law system. This includes a lack of understanding and concerns about children's participation and how to facilitate it.
The first interim report also noted that that the views of children are often not adequately sought by family law professionals, are filtered as part of the professional's broader assessment of the circumstances, or are not given due weight by the court.
In the first interim report, the AGD suggested that there would be benefit in further exploration of opportunities to better support children's participation in family law proceedings.
In its 2019 Report, the ALRC recommended that the Family Law Council should establish a Children and Young People's Advisory Board, which would provide advice and information about children's experiences of the family law system to inform policy and practice, stating:
The ALRC supports children's participation in family law matters that affect them, as well as broader participation in system oversight and reform. Providing children and young people with a mechanism through which to participate in the governance of the family law system will assist future policy and practice development to be child-centred. An Advisory Board populated with children and young people will allow them to provide feedback, including on their experiences of the system, and to share ideas for its improvement.
The committee heard general support for the premise that children be provided with an opportunity to express a view in parenting proceedings relating to them. However, it was clear to the committee that a child should not be compelled to express a view; that the mechanism for expressing the view must be appropriate to their age and maturity; that it should be clear to the child that their views will be considered but are not necessarily determinative; and that their views are put in such a way that they are not exposed to harm or are traumatised.
The committee notes the position of the Caxton Legal Centre expressed in the first interim report that the adversarial process of family court proceedings has made the participation of children unsafe. The Caxton Legal Centre recommended that, unless there are exceptional circumstances, children should not directly participate in family court hearings. There were also concerns expressed regarding the ability of judges to engage appropriately with children.
The committee feels that this issue requires further consideration by appropriate experts. The committee supports the consideration by the Family Law Council (including experts in child development) of how the views of children can be more appropriately heard and considered in family law proceedings, within the context of their consideration of how to make the family law system less adversarial and more child–focused (see Recommendation 10).
The committee also recommends that judges and other family law professionals are provided with training to assist them to engage and communicate effectively with children. This is captured as part of the broader training recommendation at Recommendation 15.
Independent Children’s Lawyers
The committee received evidence that statutorily appointed Independent Children’s Lawyers (ICLs) do not operate effectively, and require more funding.
Sub-section 68L(2) of the Family Law Act provides for the following:
If it appears to the court that the child's interests in the proceedings ought to be independently represented by a lawyer, the court:
may order that the child's interests in the proceedings are to be independently represented by a lawyer; and
may make such other orders as it considers necessary to secure that independent representation of the child's interests.
The court’s order for an ICL may be made of the court’s own initiative, or on the application of the child, an organisation concerned with the welfare of children, or another person.
The Guidelines for Independent Children's Lawyers (the Guidelines)—endorsed by the Chief Justice of the Family Court, the Family Court of Western Australia and also by the Federal Circuit Court—‘provide guidance’ to ICLs in fulfilling their role. Further:
The Guidelines have also been issued for the purposes of providing practitioners, parties, children and other people in contact with the family law courts, with information about the courts' general expectations of ICLs. The Guidelines set out these expectations as they relate to children in circumstances where allegations of child abuse and/or family violence are made, children from culturally and linguistically diverse families and communities, children with disabilities, Aboriginal and Torres Strait Islander children, and where applications arise for the authorisation of special medical procedures and other orders relating to the welfare of children.
As noted in the first interim report, there is no requirement for an ICL to meet the child the ICL is representing. However, the ICL has a specific duty to ensure that any views expressed by the child regarding the matters in the proceeding are fully put before the family court. The Guidelines provide that ‘[i]t is expected that the ICL will meet the child’ unless certain exemptions apply, and that ‘[t]he assessment about whether to meet with the child and the nature of that meeting is a matter for the ICL’. As previously outlined, some submitters to the inquiry were critical of the ICL’s discretion to meet with the child the ICL is representing, suggesting that meeting with the child is integral to an ICL advocating for a child’s best interests.
Ms Zoe Rathus AM informed the committee of research which had identified that children did not feel their interests were adequately represented by ICLs:
In the last few years significant research on children’s views and the family law system has been undertaken in Australia, particularly by AIFS, but also by other scholars. The main theme of much of this work is that the family law system must not be tokenistic when inviting children to participate. The research consistently finds that, although children speak to family report writer’s, and sometimes speak to ICLs, they do not necessarily feel that they have been listened to. They generally do not want to be the ultimate decision-makers, but they report a strong sense of their views being sidelined, particularly if they do not accord with the view which the child perceives is held by the professional engaging with them.
In examining the role of ICLs in the ALRC 2019 Report, the ALRC cited research which ‘suggested that there is wide variation in practice and perspectives about whether [ICLs] should have direct contact with children in the course of performing their function’, and that some stakeholders had advocated for greater consistency among and more direction for ICLs regarding the exercise of their role.
The ALRC therefore recommended:
Section 68LA(5) of the Family Law Act 1975 (Cth) should be amended to include a specific duty for Independent Children’s Lawyers to comply with the Guidelines for Independent Children’s Lawyers, as promulgated from time to time and as endorsed by the family courts.
The ALRC further noted that:
… it will be essential to the successful implementation of this Recommendation that the Australian Government provides sufficient funding to legal aid commissions to support the role of appropriately qualified [ICLs].
As set out in the first interim report, the AGD advised the committee that further funding had been provided for training ICLs:
The Government has provided funding for the redevelopment of the national training program for Independent Children’s Lawyers, to ensure they are receiving appropriate guidance on the role of Independent Children’s Lawyers and the necessary skills and competencies required to perform the role. This training was developed by Legal Aid New South Wales on behalf of National Legal Aid, and is a prerequisite for entry to the Independent Children’s Lawyer practitioner panel maintained by legal aid commissions in each state and territory.
The committee considers it imperative that ICLs adequately represent a child’s best interests in family law proceedings, as outlined in the Family Law Act. However, the committee is concerned that some ICLs may not be meeting the Family Law Act’s stated objective. It is the committee’s view that a legislative requirement for ICLs to comply with the Guidelines would go some way to addressing this issue, along with a requirement that ICLs should seek to provide a child with the opportunity to express a view in relation to the matter, and that ICLs should ordinarily meet with a child. Where appropriate, this meeting should take place in the absence of the child’s parents.
It is important that the requirement for the ICL to meet with a child is not absolute, in circumstances where it would not be in the best interests of the child. The committee considers the current exemptions in the Guidelines are acceptable.
Further, the committee considers that the Government should provide sufficient funding to legal aid commissions to support the role of appropriately qualified ICLs.
The committee recommends that the Australian Government consider amendments to the Family Law Act 1975 to require Independent Children’s Lawyers to:
comply with the Guidelines for Independent Children's Lawyers;
provide a child with the opportunity to express a view in relation to the matter; and
seek to meet with a child, unless there are extenuating circumstances.
Enforcement of parenting orders
As outlined in the committee’s first interim report, a number of submitters called for tougher penalties for contravention of parenting orders, while others called for dedicated lists at family court registries to enable the prompt resolution of such disputes.
The Family Law Act identifies that a contravention of a parenting order occurs:
where the person is bound by the order—he or she has:
intentionally failed to comply with the order; or
made no reasonable attempt to comply with the order; or
otherwise—he or she has:
intentionally prevented compliance with the order by a person who is bound by it; or
aided or abetted a contravention of the order by a person who is bound by it.
Division 13A of Part VII of the Act provides that if a contravention of a parenting order is established and there are no reasonable explanations for this contravention, the court has the power to make a number of orders penalising the contravening party. These orders include directing the person who contravened the order to attend a post‑separation parenting program; make an order requiring the person who committed the current contravention to enter into a bond; or make an order that the person who committed the current contravention pay some or all of the costs of another party, or other parties, to the contravention proceedings.
According to the AGD, contravention applications make up around 2.6 per cent of the total applications filed in family courts; however this may not reflect those matters where a variation of the orders is sought in place of a contravention application.
At present, applications for a contravention of a parenting order are heard by a judge and the committee heard it can take many months or years for these disputes to be resolved. As outlined in the first interim report, many witnesses and submitters raised the issue of delay in the family courts between the filing, hearing and resolution of an application for the contravention of a parenting order:
Contravention matters need urgent attention in the courts and any one that has lodged in the family court system that is not currently seeing child X should have a court hearing within a month. It's taken almost 2 years for my Contravention matter to have a final hearing date. In that time I am unable to see or have time with my daughter.
Further, these proceedings are also costly, and the penalties may not sufficiently deter the contravening party from engaging in this conduct. The Law Council highlighted some of the difficulties of the enforcement process as follows:
The current process of enforcing orders (particularly parenting orders) is time consuming, cumbersome and complicated. Parties that seek to enforce orders are at risk in relation to costs and establishing a contravention can often be complicated, costly and a lengthy process. Even if successful, the outcome can be less than satisfactory.
… there must be an improvement to the process of bringing such proceedings before the Court. Currently, if an application for contravention is filed, it is listed before a judicial officer in a busy list. It is time consuming and an expensive process. Even if the contravention is proved, the penalty (particularly in relation to a first stage of contravention of a parenting order) offers little deterrence. It is the view of many that it is often not worth the trouble in bringing the application.
VLA advised the committee that a dedicated contravention list is currently being piloted in the Melbourne registry of the Federal Circuit Court of Australia. VLA advised that:
Early indications are that the list is working effectively to streamline contravention hearings and improving enforcement of orders. This pilot is supported by greater use of Registrars to supervise contravention matters, which frees up judicial resources and provides for greater efficiency. However, the matter must still go before a judge for determination because registrars do not currently have power under the Family Law Act to make orders regarding enforcement.
The committee was also advised by the Courts that:
The [Federal Circuit Court] has established Registrar-led Contravention Lists in Brisbane, Newcastle, Melbourne and Sydney. The Courts are in the process of establishing a National Contravention List with the aim of triaging contravention applications on a national basis within 14 days of filing. [The Courts] are currently analysing volumes of filings and contravention list arrangements in various registries and considering opportunities to extend the Registrar Contravention Lists.
The Family Court has advised that ‘contravention lists allow matters to be expedited, matters to be resolved in a non-litigious manner, the workload of judges to be alleviated, and further utilisation of highly effective Alternative Dispute Resolution (ADR)’. Furthermore:
… a national contravention list encourages compliance with Court orders by providing ramifications for parties breaching Court orders in timely way. Those cases which need to be dealt with by a Judge or Registrar can be dealt with quickly, establishing whether a breach of orders occurred, whether there was a reasonable excuse for any breach if it did occur and, if not, appropriate orders ensuring future compliance.
Notably, the family courts are currently ‘accelerating the harmonisation of two important aspects of the Courts’ practice and procedure that are currently divergent’, one of which is ‘the rules that delegate judicial power to registrars in the family law jurisdiction’. This step is ‘a precursor to formal rules harmonisation’, and is being taken in order to:
… allow registrars to provide greater support to judges by assisting with case management work and free up judicial time so that judges can focus on determining the most complex matters and hearing trials.
The committee also heard that the current contravention regime set out in Division 13A is repetitious and difficult to follow. One submitter advised that:
… the process of notifying the court of non-compliance is very complex and expensive, requiring a lawyer to submit the paperwork to the court.
The submitter recommended that:
… breaches of court orders should be capable of being reported without the involvement of lawyers and without expense, and – if a judge has made orders – then the Court should penalise any parent that breaches those orders, especially where the breaches are frequent and serious.
As highlighted in the first interim report, the ALRC recommended that Division 13A 'be redrafted to achieve simplification, and to provide for' the following:
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.
The Law Council stated that implementation of that recommendation alone would do much to improve the family court process and benefit those families in the system.
The committee considers the delay faced by parties who have filed an application for a contravention of a parenting order is not acceptable, and must be addressed in order to expeditiously resolve such disputes, reduce the cost to the disputing parties and relieve valuable court resources.
The committee notes the dedicated registrar-led contravention lists currently in operation in the Federal Circuit Court and is supportive of the Courts proposal to develop a National Contravention List which would triage contravention applications on a national basis within 14 days of filing. A National Contravention List could serve a number of purposes beyond enhancing compliance with court orders, such as providing an avenue to address any underlying issues that have led to the alleged contravention, including the presence of any risk factors. The committee notes that the process undertaken in the registrar-run lists could be designed to attempt to resolve the real issue in dispute, including through FDR or by consent where appropriate, or otherwise referring the matter for judicial determination as the particular case requires.
The committee notes that, in addition to the dedicated contravention lists, the Family Court and Federal Circuit Court are actively working to delegate judicial power to registrars so they can provide greater support to judges with case management work. The committee supports the delegation of judicial power for contravention of order matters to registrars such that they can make orders in relation to enforcement where they consider it appropriate, with the caveat that registrars preside over standard contravention of order applications, and that more complex matters are referred to judges. This will result in standard contravention matters being dealt with more swiftly.
To support the registrar-led contravention list, the committee supports Recommendation 42 of the ALRC 2019 Report discussed above at para 4.72 and recommends that Division 13A be reviewed and simplified so that a party is able to easily follow the steps in making an application without requiring legal advice and incurring significant expense. The committee agrees with the ALRC that, for those cases where non-compliance continues to be an issue, the Family Law Act should explicitly and clearly set out the penalties that may apply in cases of contravention so that parents know the powers courts have to deal with them should they not comply with orders. Recommendation 42 of the ALRC 2019 Report suggests additional powers that the court should have to deal with parties who do not comply with their orders. The committee recommends that, in reviewing Division 13A, the Government also review the ALRC recommendation and consider what additional penalties should be provided for in the Family Law Act, including for repeated non-compliance.
The additional registrar resources outlined in Recommendation 3 would also support the implementation of a contravention list on a national basis across both family courts.
The committee recommends that the Australian Government establish and provide funding for a registrar-driven National Contravention List to deal with parties breaching court orders in the family court, with formal delegation of power to registrars to preside over contravention of order applications.
The committee also recommends that this should include funding for the appointment of an additional seven registrars to deal with the 1600 applications annually and an anticipated increase once the list is established, as well as to ensure that all contravention applications can be triaged within 14 days.
The committee recommends that the Australian Government review Division 13A of Part VII of the Family Law Act 1975 with a view to:
simplifying the operation of this Part; and
considering whether additional penalties for non-compliance should be included to deter the contravention of orders, including specific penalties for repeated non-compliance.
As highlighted in the first interim report, the committee heard a diverse range of views on the extent to which a parent can be alienated from their children by another parent or family member. The committee acknowledges that parental alienation syndrome is not a recognised psychiatric disorder within the scientific community.
The committee has heard evidence of a number of instances where a parent has denied the other parent access to their children, for no apparent reason other than spite or to achieve greater financial outcomes. In contrast, the committee has also heard that there can be a perception that parental alienation is occurring when there are actually other factors in play, such as family violence.
The committee were also told by the Australian Institute of Family Studies that parental alienation was not something that was apparent in their research:
… I would say that it's not an issue that's emerged in the context of our very extensive research in the family law and family violence space.
The committee acknowledges that there are instances where one parent will deny access to and seek to turn a child against the other parent after the relationship breaks down. In many cases, there will be a substantive reason for this behaviour, though that may not always be the case. The committee considers that better education around family dynamics and family violence for professionals in the family court system will assist the court to identify cases where parental alienation is occurring or where a parent is legitimately seeking to protect their child from harm. The committee has recommended that family law professionals undertake training in a number of areas, including family violence, complex trauma, family systems and the dynamics of parental alienation at Recommendation 15.
Children’s Contact Services
Children’s Contact Services (CCSs) are independent services that ‘assist children of separated parents to establish and maintain a relationship with their other parent and family members through supervised visits or changeover services’. They can be privately or government-funded. Government-funded CCSs must comply with the Children’s Contact Service Guiding Principles Framework for Good Practice (Guiding Principles), but this is not a requirement for private CCSs. As outlined in the first interim report, families that utilise the CCSs usually experience complex issues, such as family violence or drug abuse.
As discussed in the first interim report, both individuals and organisations have called for the regulation of private CCSs. Indeed, it was the submission of the Department of Social Services that:
Various parts of the family law sector have expressed support for establishing an accreditation system for Children’s Contact Services, to help ensure the quality and safety of services across all Children’s Contact Services (whether government funded or privately operated).
The committee heard that a lack of government-funded CCSs creates space for the establishment of private, unregulated CCSs. The first interim report sets out a number of issues that submitters have experienced with private CCSs, including lack of protection from an ex-partner, the high costs and the lack of complaint mechanisms. Relationships Australia highlighted the importance of all CCSs meeting regulatory requirements in order to safeguard children, including holding valid Working with Children Checks and appropriate qualifications.
The AGD informed the committee that ‘with the private sector centres, there's a real question as to whether they should, in fact, be regulated in some way’. The committee was also advised that AGD had ‘been doing some thinking about children's contact services, and that's a matter that is caught up in the government's potential response to the ALRC’.
The ALRC was unequivocal in its position regarding CCSs, recommending that:
The Family Law Act 1975 (Cth) should be amended to:
require any organisation offering a Children’s Contact Service to be accredited; and
make it an offence to provide a Children’s Contact Service without accreditation.
The committee also received evidence from individuals regarding the wait times to access government-funded CCSs. For example:
In South Australia (where I am from and have worked in family law), it is then absolutely typical for there to be a 5–6 month wait to access a children's contact service for supervised visits (private supervision services are almost non-existent and family member supervisors are often not suitable or agreed).
The concerns regarding wait terms were also brought up by organisations, with some advising that this was largely due to government-funded CCSs being underfunded such that they cannot meet the current demand. Interrelate Limited advised that:
The children's contact services is a very small funding bucket. To give you a sense of what it funds, it would fund about one day of contact on a Saturday for a number of families, so we're able to deliver a Saturday service; we can't afford to deliver any Sunday services. For parents who work during the week, the only option we can offer them is a Saturday service, and the maximum we would be delivering would be one or two afternoons a week of a couple of hours. That's the maximum that that funding buys. And they're very intensive in terms of services because you need to have sites—you need to have a location for that to happen—and you need to have high security arrangements, so they're very costly to set up.
The committee accepts the evidence from a range of submitters and witnesses to the inquiry that all CCSs must be regulated to ensure compliance with the Guiding Principles, and ultimately the safety of children and other vulnerable parties engaging these services.
Previously in Chapter 2, the committee has made a recommendation with regard to accreditation, standards and monitoring of family report writers and CCSs in the family law system and refers to this earlier recommendation (Recommendation 9) in the context of this discussion.
The committee is also concerned by the significant delays parents experience in getting access to CCSs when supervised arrangements are required for them to spend time with their children. The committee recommends that the Government explore additional funding for existing CCSs to expand the capacity of their services and to establish new CCSs in areas of high demand.
The first interim report highlighted the issues impacting grandparents in the family law system. The committee is conscious of the need for children to be able to maintain a relationship with people significant to the child, such as grandparents and other extended family members, where appropriate.
The Family Law Act already specifically recognises grandparents in a number of provisions. As provided in the first interim report, 'grandparents are included as a category of person with whom, as a general principle, children have the right to spend time, and communicate on a regular basis'. When determining the best interests of a child, the court must consider the nature of the child's relationships with other persons, including grandparents, and the likely effect of separation from other persons, such as grandparents, with whom they have been living. The Family Law Act also provides standing for grandparents to apply for parenting orders.
The committee notes the view of the Australian Bar Association that it is difficult to conceive of what further, if anything, could be done in the legislation to provide for grandparents. However, the ALRC has recommended the simplification of section 60CC regarding the factors to be considered when determining parenting arrangements that promote a child’s best interest. These amendments refer to the child’s carers instead of parents in a number of the proposed provisions. The ALRC noted that:
The consideration of the benefit to the child of being able to maintain significant relationships with each of the child’s parents and with others with whom the child has a relationship that is significant to the child is intended to replace the existing consideration of the benefit to the child of having a meaningful relationship with both of the child’s parents.
…As compared with the existing s 60CC(2A), the recommended wording reflects that there are other meaningful relationships that may be relevant considerations. For example, relationships with grandparents or siblings may be particularly relevant in some cases. The new wording is also intended to remove the presumption that a relationship with a parent is necessarily in the child’s interest even when the child has had no relationship with the parent to that point. The maintenance of significant relationships will likely be a factor in all cases, and is a relatively common factor in judicially determined cases.
The ALRC 2019 report also recommended that the definition of member of the family be amended so that it is inclusive of any Aboriginal and Torres Strait Islander concept of family that is relevant in the particular circumstances of the case. The committee is of the view that the Australian Government should give careful consideration to implementing these two recommendations of the ALRC report and consider whether these reforms will provide for appropriate access by grandparents to their grandchildren.
The committee heard conflicting evidence from individual witnesses about which party to a dispute receives the larger division of property. The AIFS provided the committee with the following details regarding property separation, from its 2014 report Post-separation parenting, property and relationship dynamics after five years:
four in ten separated parents … reported that 50–65% of net assets went to the mother;
one-quarter of separated parents said that the mother received less than one half of the net assets at their property division settlements;
more than one-third reported that the mother’s share of property pool was higher than 65%.
The first interim report identified a number of issues in relation to property matters raised in evidence to the committee in the context of family law disputes, such as the disclosure of financial interests, family violence, and the lack of legal assistance for parties to property disputes. As noted in the first interim report, the Government is currently undertaking a number of reforms in this area, such as the expansion of dispute resolution as a means by which to resolve property disputes. This particular measure will be discussed further in Chapter 5.
The focus of this section will therefore be on the practical measures that can be taken—in addition to those new measures already being pursued by the Government—to more efficiently and fairly resolve the financial side of family law disputes. In particular, this section will focus on the disclosure of financial interests, and the relevance of family violence in property settlements.
Disclosure of financial interests
The Family Court Rules 2004 and Federal Circuit Court Rules 2001 (together, ‘the Rules’) set out the obligation on parties to a financial dispute to ‘make full and frank disclosure of the party's financial circumstances’. However, as outlined in the committee’s first interim report, it is not uncommon for parties to a dispute to delay the disclosure of their financial interests or fail to make a full and frank disclosure. The committee heard that such tactics could lead to the commencement of lengthy and costly court proceedings and a power imbalance between disputing parties.
... there is currently insufficient emphasis placed on compliance with the requirement to make full, frank and timely disclosure. It is quite often to the strategic advantage of one of the parties to delay making full and early disclosure, which can result in overly prolonged proceedings and increased costs. It is further submitted that the implications of such behaviour in circumstances where family violence is a feature of the matter can be even greater.
Indeed, the committee heard that the family court’s power—vested in a judge—to impose punishment on a non-disclosing party is not a sufficient deterrent to non-disclosing parties, and suggestions for improvement included the greater use of registrar’s powers, greater use of costs orders, and the relocation of the disclosure requirement from the Rules to the Family Law Act.
The Family Law Act 1975 (Cth) should set out the duties of parties involved in family dispute resolution or court proceedings for property and financial matters to provide early, full and continuing disclosure of all information relevant to the case. It is our experience (and we note that is the experience of various other submitters to the ALRC inquiry) that non‑disclosure, or tactical protracted non-disclosure, are associated with financial abuse and misuse of systems and processes.
In its report, the ALRC also recommended that the Family Law Act include express reference to the costs consequences for failure to disclose and to reflect that non-disclosure of financial information may be taken into account in apportioning the property pool.
To address the failure by parties to a property dispute disclosing their financial interests, the Government has funded the Australian Taxation Office (ATO) to develop an information sharing mechanism with the family courts ‘to allow the superannuation assets held by parties to family law proceedings to be identified swiftly, more accurately and at a lower cost to parties’. This measure was welcomed by some submitters to the inquiry, with others suggesting that other financial information held by the ATO could also be shared with the courts.
It was also noted in the committee’s first interim report that parties who seek to resolve their financial dispute externally to the family court by the use of other means—such as mediation—are not required to disclose their assets. As Better Place Australia told the committee:
This can create a power imbalance where the nonfinancial party may not have any understanding about the overall financial situation, but the financial party does, and uses their knowledge to manipulate evidence about the true financial situation.
Victoria Legal Aid advised that their Family Dispute Resolution Service also sees a lack of financial disclosure prior to mediation, which pushes parties to litigation where otherwise they may have been able to resolve the dispute without court proceedings.
The committee is concerned by evidence to the inquiry which suggests some parties to a family law dispute may withhold information about their financial interests to the detriment of the opposing party.
The committee acknowledges the Government’s initiative with respect to information sharing between the ATO and the family courts, and considers that this initiative has the potential to encourage disputing parties to comply with the financial disclosure requirement in the Rules. The committee looks forward to an evaluation of the effect this measure has on parties to a financial dispute, and considers that the information shared with the courts should not only relate to superannuation assets, but to all assets known by the ATO.
The committee recommends that the Australian Government consider expanding the current information-sharing mechanism between the Australian Taxation Office (ATO) and the Family Court of Australia and the Federal Circuit Court of Australia to include all financial information held by the ATO.
The committee also welcomes the many suggestions from submitters to encourage compliance with the Family Law Rules 2004. The committee considers that it is imperative that parties disclose their financial interests as soon as possible in order to avoid costly and lengthy litigation. This will have a beneficial effect on not only the parties to a dispute, but also the courts’ resources.
The committee supports the statement in the ALRC 2019 Report that:
Consistent with the principles that the law should be clear, coherent and enforceable, and drafted in manner that is accessible to the parties, the ALRC recommends that the disclosure obligations, and the consequences for breach of those obligations, should be set out transparently and accessibly in the Family Law Act. The provisions should make it clear that the obligations apply to FDR, arbitration and other facilitative dispute resolution processes, as well as court proceedings.
The committee therefore recommends an amendment to the Family Law Act that would entrench disclosure duties in legislation, and to further include in the Family Law Act an express reference to:
the cost consequences for a failure to disclose financial information, including in respect to the apportionment of property pool; and
an application of this provision beyond court proceedings to include alternative dispute resolution.
The committee has also made Recommendation 2 in Chapter 2 regarding the expanded role of registrars in family law matters. In that context, the committee considers that the Government should consider the Women’s Legal Services Victoria suggestion that the role of registrars be broadened to ‘increase interim case oversight to check compliance with disclosure and encourage greater use of registrar powers to make orders for disclosure’.
The committee recommends that the Australian Government consider amendments to the Family Law Act 1975 to relocate disclosure duties regarding financial circumstances from the Family Court Rules 2004 and Federal Circuit Court Rules 2001 to the Family Law Act 1975, and to further include:
the cost consequences for a failure to disclose financial information, and reflect that non-disclosure of financial information may be taken into account in apportioning the property pool; and
an application of this provision beyond court proceedings to include alternative dispute resolution.
Family violence and property settlement
According to research conducted by AIFS:
Separated parents who resolved property arrangements through the courts were the most likely … to report experiences of family violence inflicted by the other parent before/during separation, in particular, physical hurt, while those who resolved through discussion were the least likely to report experiences of family violence.
As outlined in the committee’s first interim report, the Family Law Act does not include family violence as a relevant consideration when dealing with the alteration of property interests. However, the decision of In the Marriage of Kennon has meant that family violence may be considered by the family court in apportioning property where a party can establish that family violence occurred and made that party's contributions more onerous. However, empirical evidence demonstrates that the case law is infrequently applied and parties who have experienced family violence receive less favourable outcomes in property apportionment. For example, research by the Australian Institute of Family Studies demonstrated that family violence has a negative impact on property settlement outcomes, noting that '[i]n one study, women who reported experiencing severe abuse were approximately three times more likely to receive less than 40 per cent of the property pool'.
The ALRC in its 2019 Report noted that there are infrequent adjustments for family violence under the Kennon principle, while the Law Council noted that many consider the test in Kennon too high a hurdle to overcome.
The ALRC agreed that the economic impact of family violence is not adequately addressed under the Family Law Act and recommended the inclusion of a statutory tort of violence which would give rise to the ability to claim compensation for both physical and psychiatric injury and any consequent economic loss. However, this issue was not raised during the committee’s inquiry.
As discussed in the first interim report, the Law Council has put forth an alternative recommendation:
… that the matter is best addressed by a legislative amendment to what is presently subsection 75(2) and subsection 90SF(3) by the insertion of an additional factor namely 'the effect of family violence on a party to [the marriage/the relationship] or a child [of the marriage/the relationship/the household]'. By including the amendment in subsection 75(2) and subsection 90SF(3) it applies in respect of both property and maintenance cases, it is not a contributions factor, and there will not be an additional requirement in the statute that requires a causal link between a contribution being made more arduous and the conduct in question.
Professor the Hon. Nahum Mushin AM, retired Justice of the Family Court, also advised the committee in relation to Kennon that:
The requirements of a course of violent conduct and significant adverse impact have had a significantly restrictive consequence on recognising the role of family violence in property proceedings. While our understanding of family violence and its significance have increased exponentially since Kennon, the law has not kept pace with those developments.
It is clear that family violence affects different people in different ways. It discounts the actuality that one incident can, and often does, change a victim for the rest of their life. I submit that those restrictions should be removed and it be open to the Courts to assess its significance on a case by case basis without restriction in accordance with the discretionary requirement in s.79(2) of the Act.
The Courts’ consideration of family violence in property proceedings has been variously considered under the headings of contribution and what are known as the s.75(2) factors. Kennon refers to it as being relevant to contribution but it has also often been considered under s.75(2)(o) of the Act. In my submission, it is appropriate to consider it under the heading of contribution. Section 79(4) of the Act should be amended to add a provision worded as follows or in like wording:
Any family violence by one party to the other party and the consequences thereof on the victim.
Family violence is defined in s.4AB of the Act. That definition is much wider than that which was considered in Kennon. An amendment in accordance with the above submission would appropriately widen the consideration of family violence in property proceedings.
The committee agrees that there needs to be better recognition of family violence in property matters. Furthermore, the committee recognises that the ALRC raised concerns regarding the decision in Kennon, noting that the precise way in which the text was framed has made it difficult for later courts to apply.
The committee notes the Law Council’s proposal that a specific provision reflecting the effect of the violence should be included within sections 75 and 90SF of the Family Law Act. These amendments would ensure that family violence is considered both in the alteration of property interests, as well as for spousal maintenance applications. However, as Professor Mushin’s submission stated, there are other ways in which family violence can be appropriately recognised, including by specific reference within section 79 of the Family Law Act, which would clearly identify its relevance to property matters. The committee considers that further consideration in relation to the method of recognition of family violence in property proceedings is warranted.
It is therefore the committee’s position that the Family Law Act should be amended—following further consideration and consultation by the Government—to reflect the adverse impact that family violence has on parties who have experienced family violence, by requiring the court to take family violence into account when making determinations about the apportionment of property.
The committee recommends that the Australian Government amend the Family Law Act 1975 to better reflect the impact of family violence on property settlements.
Binding Financial Agreements
The first interim report explored in detail the pros and cons of parties entering binding financial agreements. For example, they can provide for an amicable resolution to the parties financial matters in the event of separation and can, with certain exceptions, remove the jurisdiction of the family court to determine the division of those matters covered by the agreement. However, they are also complex and difficult documents to draw correctly and effectively.
The interim report noted that these agreements are typically more suited to parties where:
there is a large disparity in financial positions as between the parties at the commencement of the relationship;
either or both parties have had previous relationships (i.e. have had 2nd or 3rd marriages) and/or with children from such relationships; or
there is high net wealth.
However, concerns were expressed that these agreements are often negotiated in circumstances where one party is in a significantly disadvantaged bargaining position, for example there are significant power imbalances between the parties. Parties also cannot predict future contributions, health, care of children or other factors which would be taken into account during standard property division negotiations and therefore run the risk of forcing parties to sign away future rights and entitlements, unaware of what the future holds. It was also suggested that questions with respect of the validity and interpretation of pre-nuptial agreements are more complicated and lengthy than an average case.
The committee notes the above considerations but considers that binding financial agreements can be effectively used in appropriate circumstances. As such, it is of the view that parties to a marriage should be advised prior to marriage of the option to enter into a binding financial agreement, as an alternative to utilising the family law system, to determine their family law matters should they separate in the future.
The committee recommends that the Family Law Council be asked to examine and report on enhancing the use of binding financial agreements, and how parties can be encouraged to consider entering into pre-nuptial agreements.