Chapter 1 - Introduction

Chapter 1Introduction

1.1On 12 September 2024, the Senate referred the Family Law Amendment Bill 2024 (the Bill) to the Legal and Constitutional Affairs Legislation Committee (the committee) for inquiry and report by 31 October 2024.[1]

1.2The Bill would primarily amend the Family Law Act 1975 (the Family Law Act), with consequential amendments to the Evidence Act 1995 (the Evidence Act), Federal Circuit and Family Court of Australia Act 2021 (the FCFCOA Act), Federal Proceedings (Costs) Act 1981 (the Federal Costs Act), Child Support (Registration and Collection) Act 1988 (the Child Support Registration Act) and Child Support (Assessment) Act 1989 (the Child Support Assessment Act).[2] The amendments seek to ‘make the family law system safer and simpler for separating couples to navigate, and ensure the property and financial aspects of relationship breakdown are resolved safely and fairly’.[3]

Conduct of the inquiry and acknowledgement

1.3In accordance with its usual practice, the committee advertised the inquiry on its website and wrote to organisations and individuals inviting submissions by 4 October 2024. The committee received 33 submissions, which are listed at Appendix 1.

1.4The committee held a public hearing in Canberra on 18 October 2024. A list of the witnesses who appeared at the hearing is at Appendix 2.

1.5The committee thanks those organisations and individuals who made submissions and who gave evidence at the public hearing.

Scope and structure of the report

1.6This report comprises two chapters:

Chapter 1 provides background information and outlines the Bill’s key proposals; and

Chapter 2 discusses the key issues raised in relation to the Bill before setting out the committee’s findings and recommendations.

Note on references

1.7In this report, references to the Committee Hansard are to the proof (that is, uncorrected) transcript. Page numbers may vary between the proof and the official transcript.

Purpose and background

1.8The Bill is the second tranche of a suite of reforms to Australia’s family law system that have been undertaken by the government following the 2022 Federal Election. The first tranche of reforms, the Family Law Amendment Act 2023 and Family Law Amendment (Information Sharing) Act 2023, came into full effect on 6May2024. While the first tranche of reforms addressed information sharing and parenting matters, the current reforms focus on property and financial matters.

1.9As stated in the Attorney-General’s, the Hon Mark Dreyfus KC MP, second reading speech, the Bill:

…builds on the landmark reforms to Australia’s family law system that were passed in 2023. Together these important reforms demonstrate the government’s ongoing commitment to ensuring that the Australian family law system is safer, more accessible and simpler to use and delivers justice and equity for all Australian families.

Where the family law reforms of 2023 focused primarily on safety and clarity in parenting orders, the key amendments in this bill make resolving property and financial aspects of relationship breakdown safer, simpler and fairer for separating families.[4]

1.10The Explanatory Memorandum (EM) further explains that the Bill addresses recommendations from the 2017 House of Representatives Standing Committee on Social Policy and Legal Affairs Inquiry: A better family law system to support and protect those affected by family violence, the 2019 Australian Law Reform Commission’s Final Report No. 135: Family Law for the Future – An Inquiry into the Family law System and the 2023 government response to the 2021 Joint Select Committee on Australia’s Family Law System final report:

These inquiries highlighted challenges facing the family law system, including extensive court delays, complex and confusing legislation and inadequate protection for people at risk of family violence. This Bill focuses on addressing aspects relating to family law property and financial matters in Australia.[5]

1.11Public consultation on an exposure draft of the Bill was undertaken by the Attorney-General’s Department (AGD) between September 2023 and November 2023. AGD received 86 submissions on the exposure draft from a range of stakeholders including: legal professionals, family law services, women’s safety organisations, academics, First Nations bodies and members of the public.[6] AGD also advised consultation was undertaken on the draft legislation through confidential pre-briefings, and further stakeholder meetings prior to the Bill’s introduction; changes to the draft legislation were made following this consultation process.[7]

Key proposals

1.12The Bill comprises five schedules that set out the proposed amendments to primarily the Family Law Act but also to the Evidence Act, FCFCOA Act, Federal Costs Act, Child Support Registration Act and Child Support Assessment Act. As explained in the EM, the key proposals would:

codify elements of the common law in relation to the property framework in Parts VIII and VIIIAB of the Family Law Act including the approach a court is to take when resolving property matters;[8]

clarify how family pets (companion animals) are to be considered when making property settlement orders;[9]

ensure family law courts take into account the economic effects of family violence in property and spousal maintenance proceedings;[10]

enhance courts’ ability to control and manage the conduct of property and other non-child-related proceedings through the less adversarial trial approach;[11]

codify the duty of disclosure relevant to financial information;[12]

provide a regulatory framework for Children’s Contact Services (CCS);[13]

safeguard against the disclosure and adducing of evidence relating to protected confidences;[14]

create a new power to make regulations requiring superannuation trustees to review actual formulas used to value superannuation interests for family law property matters;[15]

allow courts to determine exemptions to the family dispute resolution requirements prior to accepting the filing of a parenting order application;[16]

allow courts to determine sole applications for divorce where there are children of the marriage under the age of 18;[17]

clarify Commonwealth Information Orders and expand the categories of persons violence information that must be provided in child related proceedings;[18]

repeal and replace costs provisions;[19]

allow state courts to make their own rules of court in relation to their exercise of federal jurisdiction;[20] and

provide for a statutory review of the amendments.[21]

Consideration by other parliamentary committees

1.13When examining a bill, the committee takes into account any relevant comments published by the Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) and the Parliamentary Joint Committee on Human Rights (Human Rights Committee).

1.14The Scrutiny of Bills Committee considered the Bill and sought further information in relation to two matters: the immunity from civil and criminal liability given to the Commonwealth or its officers for actions in performance of a power or authority conferred by the Accreditation Rules, and the reversal of the evidential burden of proof and the strict liability for offences relating to CCS.[22]

1.15The Scrutiny of Bills Committee questioned why immunity for civil and criminal liability needed to be extended to the Commonwealth itself in addition to its officers and considered there to be insufficient explanation in the EM for both this provision and any alternative remedies.[23]

1.16It welcomed the ‘generally positive nature’ of the protections for the disclosure of safety-related information by CCS but commented that who information could be disclosed to, and the limits of disclosure, were unclear.[24]

1.17The Scrutiny of Bills Committee also raised the offences for failure to hold accreditation in relation to CCS. It commented that while the reversed burden and strict liability is likely appropriate in these circumstances due to the nature of the offences, given this deviates from fundamental common law principles and thus should be imposed in limited circumstances, further explanation is needed to justify the approach.[25]

1.18The Attorney-General responded to the Scrutiny of Bills Committee’s concerns in relation to the immunity from civil liability, and the protections for certain safety-related information and the strict liability offences relating to CCS.[26] However, the Scrutiny of Bills Committee still remained concerned about the immunity from civil liability and additional remedies available, and leaving issues of privacy and disclosure of information in relation to CCS to delegated legislation.[27]

1.19The Human Rights Committee considered the Bill and sought further information from the Attorney-General in relation to the use and disclosure of safety-related information by CCS and the immunity from civil and criminal liability as discussed above.

1.20The Human Rights Committee commented that use and disclosure of safety‑related information by CCS engages and limits the right to privacy and thus sought a range of information regarding the measure’s compatibility with the right to privacy.[28] It also considered that the measure promoted the rights of the child and the right to protection of the family.[29]

1.21In regard to the immunity from civil and criminal liability for the Commonwealth or officer of the Commonwealth in performance of an action or power conferred by the Accreditation Rules, the Human Rights Committee considered that this measure engages the right to an effective remedy, yet raised this was not identified in the statement of compatibility.[30] It sought information regarding the measure’s compatibility with the right to an effective remedy.[31]

1.22The Attorney-General also provided a response to the Human Rights Committee addressing the issues it raised. However, the Human Rights Committee remained concerned about some aspects of the CCS regulatory scheme and suggested amendments to the training and qualification requirements under the Accreditation Rules for entrusted persons, CCS contractors and volunteers, the disclosure of safety-related information and oversight and review of the sharing of security-related information by CCS.[32] It also recommended that the statement of compatibility be amended to reflect information provided by the Attorney-General in relation to the use and disclosure of safety-related information by CCS and the immunity from criminal and civil proceedings.[33]

Footnotes

[1]Journals of the Senate, No. 131, 12 September 2024, p. 3983.

[2]Family Law Amendment Bill 2024, Explanatory Memorandum (EM), p. 4.

[3]Family Law Amendment Bill 2024, EM, p. 4.

[4]The Hon Mark Dreyfus KC MP, Attorney-General, House of Representatives Hansard, 22 August 2024, p. 7.

[5]Family Law Amendment Bill 2024, EM, p. 4.

[6]Attorney-General’s Department, Exposure Draft: Family Law Amendment Bill (No. 2) 2023, 22 August 2024, https://consultations.ag.gov.au/families-and-marriage/exposure-draft-family-law-amendment-bill-no-2/ (accessed 1 October 2024).

[7]Attorney-General’s Department, Submission 19, pp. [11]–[12].

[8]Family Law Amendment Bill 2024, schedule 1, part 1, div. 1.

[9]Family Law Amendment Bill 2024, schedule 1, part 1, items 24 and 43.

[10]Family Law Amendment Bill 2024, schedule 1, part 1, div. 1.

[11]Family Law Amendment Bill 2024, schedule 1, part 2.

[12]Family Law Amendment Bill 2024, schedule 1, part 3.

[13]Family Law Amendment Bill 2024, schedule 2, item 15.

[14]Family Law Amendment Bill 2024, schedule 3, part 5.

[15]Family Law Amendment Bill 2024, schedule 4, part 3.

[16]Family Law Amendment Bill 2024, schedule 3, part 1.

[17]Family Law Amendment Bill 2024, schedule 3, part 2.

[18]Family Law Amendment Bill 2024, schedule 3, part 3.

[19]Family Law Amendment Bill 2024, schedule 4, part 1.

[20]Family Law Amendment Bill 2024, schedule 4, part 2.

[21]Family Law Amendment Bill 2024, schedule 5, item 1.

[22]Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 11 of 2024, 11 September 2024, pp. 3–9.

[23]Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 11 of 2024, 11 September 2024, p. 4.

[24]Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 11 of 2024, 11 September 2024, pp. 5–6.

[25]Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 11 of 2024, 11 September 2024, pp. 7–8.

[26]Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 13 of 2024, 11 October 2024, pp.52–58.

[27]Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 13 of 2024, 11 October 2024, pp.54, 57.

[28]Parliamentary Joint Committee on Human Rights, Report 8 of 2024, 11 September 2024, pp. 33–34.

[29]Parliamentary Joint Committee on Human Rights, Report 8 of 2024, 11 September 2024, p. 30.

[30]Parliamentary Joint Committee on Human Rights, Report 8 of 2024, 11 September 2024, p. 35.

[31]Parliamentary Joint Committee on Human Rights, Report 8 of 2024, 11 September 2024, p. 36.

[32]Parliamentary Joint Committee on Human Rights, Report 9 of 2024, 10 October 2024, pp. 154–167.

[33]Parliamentary Joint Committee on Human Rights, Report 9 of 2024, 10 October 2024, pp. 154–171.