Chapter 2Key Issues
2.1Almost all submitters and witnesses were supportive of the intent of the Family Law Amendment Bill 2024 (the Bill) and its proposed amendments. Several submitters and witnesses made suggestions aimed at improving and strengthening components of the Bill, some of which are canvassed below; others, particularly from the family services and legal assistance sectors, argued that more time to consult their stakeholders would have been beneficial.
2.2This chapter sets out some of the key issues raised by submitters and witnesses to the inquiry, such as:
the impacts of family violence;
the purpose of the Bill;
the codification of the property framework;
family violence related property reforms;
companion animals;
the Less Adversarial Trial approach;
duty of disclosure;
Children’s Contact Services regulation;
attendance at divorce proceedings;
disclosure protections for protected confidences;
cost provisions;
commencement timeframes;
impacts on funding and resources; and
education and training.
Impacts of family violence
2.3One of the Bill’s main reforms is to explicitly recognise family violence as a consideration to be taken into account in property and financial proceedings under the Family Law Act 1975 (Family Law Act). Against this backdrop, many submitters and witnesses discussed the prevalence of family violence and the devastating effects it can have on an individual personally and financially throughout their life.
2.4The Law Council of Australia (LCA) submitted that:
There is no doubt that family violence remains a significant and ongoing issue for the Australian community and courts, including in finance and property matters. In the 2022–23 financial year, more than four in five parenting, or parenting and property matters, involved allegations that a party had experienced family violence (83 per cent).It is incumbent upon governments, parliaments, the courts and members of the legal profession to continue to do all we can to promote laws and legal systems that best provide access to, and the administration of, justice for all in need of family law assistance.
2.5While the amendments are gender neutral, it is likely they will have a greater impact on women as ‘[f]amily and domestic violence disproportionately impacts women’. Gendered violence is ‘endemic’ in Australia according to the Australian Human Rights Commission (AHRC); it highlighted the high incidence of violence against women:
Violence against women, which can range from psychological, economic and emotional abuse through to physical and sexual violence, remains endemic in Australia:
2 in 5 women (39%) have experienced violence since the age of 15.
1 in 5 women (22%) experienced sexual violence
1 in 3 women (31%) experienced physical violence.
1 in 4 women (23%) have experienced intimate partner violence.
2.6The AHRC also submitted that gender intersects with other forms of inequality such as persons with disability, LGBTIQ+ persons and those from First Nations and culturally and racially diverse backgrounds and can lead to higher rates of violence for these groups and ‘additional barriers to support’.
2.7The Royal Australian and New Zealand College of Psychiatrists (RANZCP) also commented on the gendered nature of family violence, submitting it is ‘associated with serious health consequences and puts an enormous financial burden on the country, with estimates as high as $26B annually’.
2.8The National Women’s Safety Alliance (NWSA) explained the direct financial impacts of family violence on women:
The financial vulnerability faced by many women, especially single mothers, after leaving abusive relationships cannot be underestimated. Women who have experienced family violence suffer significant economic consequences, including a much steeper decline in income, compared to those who have not faced violence. This financial strain often leaves them at greater risk of poverty and homelessness.
2.9The impacts of family violence are far ranging. The Aboriginal Legal Rights Movement (ALRM) explained the impacts of family violence, particularly on Aboriginal people:
It is a complex issue, particularly for Aboriginal people who are impacted by colonisation, dispossession and the ongoing trauma effects. Family violence has a deep and ongoing impact including on physical, mental, psychological, spiritual and cultural health. It causes loss of self-belief and self-esteem and precipitates self-medication through alcohol and drugs. All of these consequences of family violence impact on our clients’ ability to contribute financially and non-financially during and after a relationship on their future needs.
2.10More generally, separation alone can have negative consequences for women. The 2022 report entitled, From partnered to single by Barbara Broadway and colleagues which analysed Household, Income and Labour Dynamics in Australia (HILDA) data showed that separation causes considerable economic disadvantage for women:
The analysis found that 32 per cent of single women with at least one child and one previous de facto relationship or marriage lived below the poverty line. That was compared to 10 percent of women with at least one child who were still in an intact relationship.
2.11Another study in 2022 conducted by the Australian Council of Social Service (ACOSS) found that:
For children in sole-parent families there’s a 44 per cent chance they will be living in poverty, which is more than three times that of children in coupled families, which is 13 per cent.
2.12Finally, research conducted in 2014 by David DeVoe and colleagues found that:
Women with dependent children experience a particularly steep decrease in their equivalised household income compared to men, who experience an increase after separation in their equivalised household income, and that the effects of that were being felt five years after separation.
Purpose of the bill
2.13According to the Attorney-General’s Department (AGD), the Bill:
…focusses on the property and financial aspects of relationship breakdown to help ensure those matters are resolved safely and fairly, including by better recognising the impact of family violence in property division. It also introduces amendments to safeguard sensitive information in family law proceedings, simplifies divorce for parties with children, recognises pets in property division, and improves case management and clarity in the family law system. It follows on from the Family Law Amendment Act 2023 (Cth) (Amendment Act), which addressed a number of recommendations in relation to children’s matters.
2.14Submitters and witnesses supported the purpose of the Bill and expressed that reform of the family law system is much overdue.
2.15The Family Law Council advised it was supportive of the reforms contained in the Bill and submitted that the Bill addresses various impacts of family violence on family law proceedings, which is of particular interest to the Council given its focus on family violence.
2.16The Australian Institute of Family Studies (AIFS) submitted the Bill would achieve its aims:
Drawing on insights from AIFS’ family law research program, the proposed provisions are identified as improving understanding of the decision-making framework applicable in family law property and financial matters. They better facilitate separated families to engage with safe, accessible and low-cost mechanisms for post-separation property/financial dispute resolution.
2.17Rainbow Families expressed its support for the Bill opining:
…the Bill would move the family law system closer to recognising the complex realities of families and protecting vulnerable parties from the impact of family violence. In particular, the proposed amendments would bring about a more equitable, safe and accessible framework for people seeking property settlements.
2.18Specifically in relation to family violence, First Nations Advocates Against Family Violence (FNAAFV) supported the amendments and said that it recognised ‘that these changes contribute to addressing the weaponisation of the Family Court proceedings against victim-survivors of family violence’.
2.19Submitters also commented on the current issues with accessing the family law system that the Bill seeks to address. The Queensland Family and Child Commission submitted:
Navigating the child support and family law system in its current form can unfortunately foster animosity between parents, making it harder for families to heal and move forward. For separating couples, especially those with children, clarity and accessibility of the family law process including the application of decision-making frameworks is imperative to providing a safe pathway to separation and resolution.
2.20Similarly, the Centre for Excellence in Child and Family Welfare considered that:
…family law has become complex to navigate and can cause distress and hardship for many due to the financial cost of litigation and often onerous and time-consuming legal proceedings. In particular, the system does not provide a supportive place for children and young people who are involved in litigation, and who often remain voiceless and lack autonomy over decisions made in their ‘best interests’.
2.21In contrast, while broadly supportive of the Bill, Associate Professor Miranda Kaye raised concerns that there was an insufficient evidence base for the Bill and that it could codify and entrench disadvantage:
The Bill is not based on any empirical evidence-based analysis of the current provisions or of outcomes of court orders. In particular, there is no evidence of the financial impacts of family violence on property outcomes in all forms of dispute resolution or of the attitudes of parties to property division.
…
This evidence base is so important because any empirical evidence that is available clearly demonstrates that, currently, women and children are at an economic disadvantage after separation.
2.22Women’s Legal Services Australia (WLSA) submitted that the amendments would need to be accompanied by sufficient resourcing for the family law sector:
While welcoming the proposed reforms in the Bill and providing recommendations for these reforms to be strengthened, these reforms must be underpinned by proper resourcing of the family law system. More work is required to ensure all professionals within the family law system are family violence informed, trauma-informed, culturally safe, child rights focused, disability aware and LGBTIQA+ aware.
Codification of the property framework
2.23The Bill would insert proposed subsection 79(3) into the Family Law Act to set out the decision-making framework for property settlements and codify the common law approach for determining property matters.Prior to making an order in property settlement proceedings, the codified approach would require the court to:
identify the existing legal and equitable rights and interests in any property;
identify the existing liabilities of the parties;
take into account the considerations relating to contributions; and
take into account the considerations relating to current and future circumstances.
2.24Submitters and witnesses were supportive of the codification of the property framework as it would increase the usability of the Family Law Act and ensure that those without legal qualifications are able to access and understand the law as it relates to their situation.
2.25Rainbow Families expressed that making the Family Law Act clearer will make the provisions more accessible to those who need to use them. It supported the codification of the decision-making process when determining property matters, set out in proposed subsection 79(3), as the current arrangement means those who are not legal practitioners find it very difficult to navigate the relevant provisions.
2.26Rainbow Families further submitted that accessing case law can be difficult for those without legal qualifications:
Relying on case law as a primary source of legal guidance places unrealistic expectations on people without legal training to find it or even know that it exists. Codifying the case law in legislation is an important step in making the law more accessible to parties and promoting consistency of understanding among the legal profession.
2.27The Queensland Indigenous Family Violence Legal Service (QIFVLS) also commented on the benefits of codification and submitted that principles contained in case law are ‘not readily or easily accessible to self-represented parties, regardless of their education’ which is made more difficult where parties identify as vulnerable ‘with limited exposure to legal matters’. Codification reduces the need for litigants to undertake their own, potentially extensive, research into case law principles.
2.28The benefits of codification would also extend to those who do not pursue proceedings in court:
…most families do not resolve their matters in a court context, so that accessibility to the principles as applied in case law is not available for many families. Having those principles clearly set out in the legislative amendments in the Family Law Act would be a very important step in the direction of accessibility to understanding and signalling, as you say as well, the anticipated means by which matters would be resolved.
2.29Professor Belinda Fehlberg and Associate Professor Lisa Sarmas supported the codification of the property framework as proposed subsection 79(3) and 90SM(3) clearly set out the decision-making steps but allow for them to be applied in a nuanced rather than mechanistic way. However, they recommended that consideration of current and future circumstances should appear first in the decision-making process and taking into account considerations related to contributions should appear second; a reversal of the order in which they appear in the Bill. They argued this would ‘more clearly signal the importance of addressing the post-separation economic disadvantage of women and their dependent children as an issue fundamental to the achievement of ‘just and equitable’ outcomes’. Associate Professor Kaye agreed with this recommendation, opining that this change would be more ‘important for dispute resolution outside court’.
2.30Relationships Australia echoed the recommendations of Professor Fehlberg, Associate Professor Sarmas and Associate Professor Kaye that current and further circumstances should be considered prior to contributions:
Our practitioners report that many couples, caught up in considering property and finances, focus on contributions that they have made, and do not turn their mind to children’s best interests (including future circumstances) in the context of resolving property matters.Explicit inclusion of the best interests of children as the paramount principle (where applicable) could assist in ensuring that children’s best interests remain front of mind, not only for parents, but also service providers, who should continue to attend to children’s needs as their parents and caregivers work through property matters.
2.31Additionally, Associate Professor Kaye argued that while supportive of the codification of the decision-making process, the best interests of children should be the first consideration in the principles.
2.32AGD advised that the order of considerations in the Bill reflects how they are applied in current case law.
Family violence related property reforms
2.33The Bill would insert proposed subsection 79(5) which details 22 matters the family law courts are to take into account when assessing the current and future circumstances of the parties as part of determining property orders; one of which is family violence.
2.34The Bill would insert ‘economic and financial abuse’ as an example of family violence into section 4AB of the Family Law Act and proposed subsection 4AB(2A) would provide examples of behaviour that may constitute economic or financial abuse.
2.35The Bill would also insert ‘the effect of any family violence’ as a factor the court must consider when assessing an application for spousal maintenance, as part of the assessment of contributions, and as part of assessing the current and future circumstances of the parties.
2.36The LCA welcomed these changes and submitted:
We agree that it is critical that victim-survivors of family violence can readily understand how, and when, family violence considerations may be raised, and how these may be relevant during proceedings, including in respect of the division of property.
2.37National Legal Aid (NLA) stated:
We really support the distinct recognition of family violence as a factor in property disputes. These reforms will promote the safety of victim‑survivors of domestic and family violence, who are predominantly women and children, and they will recognise and address the impact of family violence on the economic wellbeing and housing security of victim‑survivors.
2.38Relationships Australia similarly welcomed the inclusion of family violence as a factor, submitting that:
The proposed changes acknowledge the extensive evidence demonstrating the serious and enduring adverse economic impacts of family violence, especially on women and children, and are consistent with the importance accorded to recovery from domestic and family violence in the National Plan to End Violence Against Women and Children 2022-2032.
2.39WLSA explained the positive impacts of including family violence as a factor to consider:
Importantly, this will contribute to greater community understanding of the relevance of family violence to property settlement proceedings, and the impacts that family violence can have on a parties’ contributions and current and future needs. It will also likely increase the number of legal practitioners and self-represented litigants who provide evidence of family violence to the court so that it can be given appropriate consideration.
2.40WLSA also commented on the broader impact this change would have on the community:
…changing legislation is also about increasing community awareness. We know that many people settle their property settlement matters outside of court, and it’s so important that the Family Law Act highlights domestic violence so that not only the court but also the community know that this is a relevant factor when dividing property.
2.41The AHRC supported the amendments to allow family violence to be considered in property settlements and spousal maintenance proceedings. It observed that 80 per cent of parenting matters that go through the family law process include allegations of family violence and thus considered that the instances of family violence in property settlement matters would be similar.
2.42Professor Fehlberg and Associate Professor Sarmas elaborated on the positives of these amendments but also suggested the legislation could go further:
Legislating to make clear that courts must consider family violence when making property settlement orders is an important first step in improving the current position. However, we also think there is much to be said for the view that, ‘The issue of family violence needs to be addressed without disguising it as being about contribution or future needs and without creating a problematic basis for the assessment of quantum. The issue is one of compensation for wrongdoing’.
2.43The RANZCP welcomed the provisions that would adjust property and support payments in light of family violence but recommended that the Bill explicitly include consideration for priority populations, such as women, persons with disability, First Nations people, those from culturally and linguistically diverse backgrounds, as these populations are more likely to experience family violence.
2.44On the increased likelihood of priority populations experiencing family violence, the QIFVLS submitted:
The Australian Institute of Health and Welfare (AIHW) has found that Aboriginal and Torres Strait Islander women are 34 times more likely to be hospitalised due to family violence than non-Indigenous women and 11 times more likely to die due to assault. The AIHW also found that family violence is the primary driver of children being placed into the child protection system with 88% of Aboriginal and Torres Strait Islander children in care having experienced family violence.
2.45Submitters raised issues with relying on current case law when seeking to have family violence considered in property matters, given the high threshold and limited range of circumstances in which it can be applied. As a result, there was broad support for these provisions to overcome these difficulties as the Bill broadens the case law approach.
2.46WLSA submitted:
Legal practitioners and self-represented parties who are not aware of the evolution of principles arising from Kennon cannot put forward the necessary arguments to strengthen their case. The legislative change now being proposed will hopefully circumvent this issue and make clear that an adjustment due to family violence can be applied broadly and not just to exceptional circumstances or a narrow band of cases.
2.47The LCA supported the inclusion of the broader ‘effect of any family violence’ as a consideration the court must take into account:
We are firmly supportive of measures that seek to eradicate family violence in society, and we strongly support the underlying intention of the proposed amendments to recognise the harmful, and often long-term impacts, of family violence on victim-survivors, and to ameliorate some of the difficulties currently associated with applying Kennon & Kennon.
2.48The AIFS submitted that empirical research supports the inclusion of family violence as a consideration in property settlements and in a way that revises the common law position:
AIFS research has demonstrated that FDV is a common experience among separated families (AIFS LSSF and AIFS ESPS). Under the principles set out in case law (Kennon & Kennon [1997] FamCA 27), courts assess whether there has been a course of violence conduct that has a significant adverse impact on a party’s contributions to a marriage, making them ‘significantly more arduous’. However, Kennon arguments are not commonly raised and post-separations property and financial adjustments relating to the experience of FDV occur infrequently and to limited extents (Easteal et al, 2014).
2.49As the AIFS discussed, codifying these principles in legislation ‘will mean the relevance of FDV to post-separation property division is evident on the face of the law even for people who do not engage with lawyers and courts’.
2.50The AIFS highlighted that the approach in the amendments is broader than that in case law and thus may lead to a higher number of cases where FDV is raised as the provisions cover, appropriately, a wider range of circumstances.
2.51The AHRC remained concerned that this would lead to greater legal costs, longer affidavits and trials, and the victim-survivor experiencing re‑traumatisation. Consequently, the AHRC recommended that ‘all legal support for parties in family law proceedings be trauma-informed and culturally safe’.
2.52Relationships Australia also cautioned that the amendments were not ‘risk free’:
It is probable that the proposed amendments may encourage perpetrators to make unfounded ‘cross claims’ of family violence and open new opportunities for coercive control through systems abuse.This is already a not uncommon occurrence, and the proposed changes lend additional urgency to work to equip all justice system professionals with the knowledge necessary to accurately identify the person most in need of protection and the primary aggressor across all types of abuse.
2.53The LCA raised similar concerns:
We are also concerned that introducing family violence as a contributions factor may embolden parties to engage in the strategic use of family violence intervention orders, or raise existing issues of family violence, in an attempt to influence the alteration of property interests, making matters increasingly litigious.
2.54The LCA was also concerned that these amendments would place strain on existing resources within the family law system. For example, it considered that the length and detail of affidavits would increase, cross-examination would be longer and more ‘arduous’ and there would be a need to determine whether individuals need to demonstrate family violence has occurred leading to longer preparation time for hearing, more evidence and thus greater expense. Nonetheless, the LCA also recognised the value in placing this consideration in the Family Law Act as it would make it more accessible.
2.55AGD recognised that the inclusion of family violence as a factor to be considered in property matters may increase the instances where it is raised in proceedings, but considered this was appropriately balanced with ‘the importance of ensuring property settlements account for the economic consequences of family violence’.
Burden of proof
2.56While submitters and witnesses welcomed the inclusion of family violence as an explicit consideration in property matters, many raised concerns about the standard to which a party would need to demonstrate family violence occurred.
2.57The Fitzroy Legal Service (FLS) was supportive of the inclusion of the ‘effect’ of family violence specifically because it does not require the court to determine fault and culpability to determine property settlement. That being said, a finding of fact that family violence occurred is still required; the FLS considered further guidance is needed as to the standard of proof and evidence needed to establish this, such as whether a finding on the balance of probabilities with evidence from the victim-survivor is enough or whether a Family Violence Intervention Order or equivalent is needed. However, the FLS explained that many do not seek family violence orders or report incidents to the police for fear of escalating the situation or because they do not feel safe interacting with police.
2.58The FLS further highlighted that proving family violence could cause ongoing trauma for victim-survivors, particularly if they are self-represented with limited knowledge about the affidavit or subpoena process, further necessitating the need for clarity about the type of evidence to be provided.
2.59The FLS also raised concerns about the ability for perpetrators of family violence to raise vexatious claims of family violence:
…the lack of clarity over the standard of proof may increase the ability of those who use violence to engage in systems abuse against victim-survivors by raising vexatious allegations of family violence that the victim-survivors must spend additional time and resources arguing against. This is in line with accounts of victim-survivors engaging with the family law system who repeatedly reported that former partners who used violence adopted legal strategies to deplete their limited funds and prolong contact.
2.60Consequently, the FLS recommended that family violence should be determined on the balance of probabilities based on evidence put before the court and, if there is a finding of such in a state court, that there be a presumption in favour of that finding unless evidence is put before the court to refute it.
2.61The AIFS also raised the issue of proving family violence in this context:
FDV often occurs in private and with limited opportunities for corroboration (Easteal et al, 2014). It is notable that in the AIFS ESPS study, 44% of participants who had reported experiencing FDV before, during or since separation had not disclosed the violence to any service or professionals (AIFS ESPS Table 5.1).
In the AIFS Evaluation of the LAC Trial, the main way FDV was identified in the vast majority of cases was through a LAC risk assessment process, with evidence of such an interim or final personal protection order being available in less than a third of cases (AIFS Evaluation of the LAC Trial, Table 19a). In this context, rigorous and finely tuned professional approaches to screening and assessing FDV are essential.
2.62Family and Relationship Services Australia (FRSA) similarly raised concerns about establishing that family violence has occurred. It submitted that providing clear guidance on this would assist in minimising the risk of re-traumatising victim-survivors.Relationships Australia voiced concerns about the lack of understanding and clarity as to how family violence would be established:
…we recommend that the Bill be as explicit as possible about what evidence the courts consider and what standard of proof is applied, and this should be supported by clear, accessible and up to date information in the public domain…
2.63The LCA stated that ‘[m]atters which are serious ought to be capable of being tested against a standard of proof that takes into account the seriousness of the issues’ and raised concerns about the less adversarial trial principles which do not sit as well with non-child related proceedings. The LCA did advise that the existence of family violence orders is something about which the court must be advised.
2.64AGD said that courts already go through fact-finding processes when allegations of family violence are raised in property proceedings and make findings on the balance of probabilities based on the information before it; the Bill does not intend to change this. In regard to a specific presumption:
The bill doesn’t include the presumption that a family violence order or a protection order of a state should be taken as proof. That’s also recognising that perpetrators can weaponise protection orders. They can allege family violence where it hasn’t occurred.
Wastage
2.65Wastage would be one of the matters the family law courts would be required to take into account when assessing the current and future circumstances of the parties as part of determining property orders under proposed subsection 79(5).
2.66The FLS supported the inclusion of wastage as a factor to be considered in the assessment of current and future circumstances. However, it considered that the definition should be amended so that it more closely reflects the common law test is Kowaliw & Kowaliw (1981) and include examples of wastage to further clarify its meaning. WLSA also recommended that examples of wastage should be included, as did the NWSA.
2.67The LCA commented on the aim of wastage provisions which highlighted the benefits of defining the term:
We need to distinguish from someone just making a poor financial decision in the course of a relationships versus someone who has perhaps excluded the other party from knowledge and participation and has engaged in conduct that would be considered to be reckless and, as a consequence of that, has diminished the asset pool.
2.68Similarly, the NWSA explained that wastage is the:
…intentional or reckless disregard in relation to reduction in the value of certain assets. You certainly see that in family violence with the running down of businesses and also the running down on the value of a property as well.
2.69WLSA recommended that wastage be included as a consideration for contributions in addition to current and future circumstances. It suggested this because:
Wastage concerns the dealings of one party in reducing or diminishing the asset pool and cannot appropriately be dealt with only at step 3 when considering current and future circumstances, as such dealings relate to prior actions taken by one party, and its impact on the asset pool.
2.70Associate Professor Kaye agreed that wastage should be considered in the contributions section as well. She argued that it would be beneficial to have examples of wastage in the legislation as ‘it might stop some of the frivolous claims that could otherwise occur from going ahead’.
Housing
2.71The housing needs of children would be another of the matters the family law courts would be required to take into account when assessing the current and future circumstances of the parties as part of determining property orders under proposed subsection 79(5).
2.72Relationships Australia opined that focusing on future circumstances, particularly housing, was central to the best interests of children and commented:
…we are increasingly aware that homelessness and housing precarity is a circumstance in our clients’ lives and that family separation and the costs attended in establishing two new households can push families into homelessness and housing precarity.
2.73WLSA supported the inclusion of this consideration but suggested it could go further to ‘consider the need to avoid parties becoming homeless where they have no financial or economic security, particularly where they are victim‑survivors of family violence’.
2.74The FLS commented on the need to guard against the risk of homelessness for mothers and dependent children, particularly victim-survivors of family violence, when determining property proceedings. It recommended that ‘the court should consider the need to avoid parties becoming homeless if they have no financial or economic security and the need to provide suitable housing for dependent children’ when assessing current and future circumstances. Consequently, the FLS recommended ‘the provision of suitable housing for dependent children and ‘material and economic well-being’ be included in proposed subsection 79(5).
2.75The Australian Child Rights Taskforce (the Taskforce) was concerned that this consideration was too narrow by expressly referencing housing:
…particularly in light of the well-established impacts of domestic and family violence upon children. Domestic and family violence is a leading cause of homelessness for children in Australia. Children may also directly experience the impacts of financial controlling and/or abusive behaviours by not having their basic living needs met, such as through poor nutrition.
2.76As such, the Taskforce recommended that this paragraph, and the corresponding paragraph for de facto couples, be amended to acknowledge ‘that ‘the conditions of living necessary for the child’s development’ are broader than the child’s housing situation’, in line with Article 27 of the Convention on the Rights of the Child.
2.77The NWSA argued there needs to be explicit consideration of victim-survivors becoming homeless when considering property settlements, particularly when there are children involved, ‘because we still have a reality where women and children are being asked to choose between violence, and poverty and homelessness’. The Council of Single Mothers and their Children agreed stating ‘one of the most distressing things we see is where women who have been severely disadvantaged after the property settlement do become homeless’.
Economic or financial abuse
2.78As mentioned above, the Bill includes a non-exhaustive list of behaviour that may constitute economic or financial abuse.
2.79The ways in which economic or financial abuse can manifest as a form of family violence are numerous, as explained by the Economic Abuse Reference Group:
It has significant and devastating impacts at an individual, community and societal level. Economic abuse in an intimate partner relationship can take various forms, including accruing debt or other liabilities in the other person’s name, not contributing to joint loans, controlling all finances, not making shared financial decision, withholding necessities, preventing someone from obtaining or remaining in employment, and stopping someone from accessing education or a means to be financially independent.
2.80The LCA supported the list of examples and considered they would ‘bring greater clarity to the definition of family violence under the Family Law Act, and will assist parties, including self-represented litigants, and the courts’. It raised some technical drafting considerations in relation to proposed subsection 4AB(2A) in relation to accumulating debt and dowry abuse.
2.81WLSA welcomed the inclusion of the specific consideration of economic or financial abuse as it ‘will ensure economic and financial abuse is given appropriate consideration by the Courts, and provides clarity to parties, legal professionals and self-represented litigants what it will be considered’. WLSA also specifically raised the inclusion of dowry abuse as a form of economic or financial abuse.
2.82The Centre for Excellence in Child and Family Welfare supported the inclusion of the unreasonable withholding of financial support in the definition of financial abuse as this has been found to be a way for perpetrators to control their ex-partners post-separation.
2.83NLA recommended that withholding child support be included as a behaviour in this list ‘noting the intensifying ways that non-payment of child support is used to perpetuate ongoing financial control and abuse’.
2.84The Non-Payment of Child Support as a Form of Economic Abuse Working Group (the Working Group) advised that Australia has a child support debt of nearly $2 billion and the ‘non-payment, underpayment, delayed payment of child support and failure to pay shared costs…is a common act of family violence post-separation’. The Working Group supported the Bill’s inclusion of non-payment of child support as a form of economic abuse, particularly, the inclusion of proposed paragraph 4AB(2A)(b) which sets out that ‘unreasonably withholding financial support needed to meet reasonable living expenses of the family member, or the family member’s child’ as a form of economic or financial abuse.
2.85As explained by the Working Group:
There are inherent and onerous complexities, administrative burdens and risk of harm for those who attempt to challenge various non-payment. The proof of failure to pay is mostly always their responsibility and often the methods or various non-payment are legal (e.g. reduction of taxable income, cash in hand work). This brings significant and often untenable risks to both mother and children, and leaves victim-survivors accepting long-term financial strain.
2.86Relationships Australia raised concerns with the drafting of particular sections of proposed section 4AB, suggesting the removal of ‘forcibly’ and ‘sabotaging’:
Relationships Australia is concerned that the use of ‘forcibly’ in subparagraphs 4AB(2A)(a)(i) and (iv) might support an argument that this requires physical abuse or physical force, which could undermine the intention of the amendment.Similarly we are also concerned that the use of ‘sabotage’ might be misused to require of the person alleging this form of financial abuse that they prove malicious (or at least deliberate) intent, in accordance with the ordinary meaning of the word.
2.87Associate Professor Kaye also had concerns about the inclusion of ‘sabotaging’ and recommended its removal.
Companion animals
2.88The Bill would amend section 79 of the Family Law Act to insert proposed subsections 79(6) and (7) which would permit the court to treat pets (called ‘companion animals’ in the Bill) as a distinct and separate category of property and make corresponding orders in regard to the ownership of companion animals in property settlement proceedings.
2.89The Bill would permit the making of two orders in relation to companion animals: that only one party to the marriage or de facto relationship is to have ownership of the companion animal, or the companion animal be sold.
2.90Submitters and witnesses broadly supported the separating out of companion animals from other types of property and allowing the court to make specific orders, given the evidence that perpetrators use companion animals as a way of perpetrating family violence.
2.91RSPCA Australia commented on the role that companion animals play in peoples’ lives:
Animals are commonly considered family members in Australian homes, providing emotional support, comfort, stability, unconditional companionship and adding to overall quality of people’s life. Australia has one of the highest rates of companion animal ownership in the world, with an estimated 28.7 million companion animals sharing the homes of around 69% of domestic households. Animals play a key role in the lives of people, especially children, those who are homeless and the elderly. Animals provide comfort, companionship, opportunities for social connection and stability.
2.92Rainbow Families submitted that issues around companion animals do not adequately fit within the current provisions of the Family Law Act, and that the proposed amendments are ‘a sensible approach to preventing protracted conflict between parties while prioritising animal welfare’. It considered the amendments would also assist those who may negotiate settlements outside of court.
2.93Regarding the use of companion animals in perpetrating family violence, ‘[r]esearch cited by Community Legal Centres NSW suggests that as many as seven in 10 cases of domestic and family violence involve animal abuse’. RSPCA Australia submitted that there ‘is an increasing body of evidence which demonstrate that animals are used by perpetrators to control and manipulate victims of [domestic and family violence]’. Lucy’s Project also raised this and stated that ‘[p]erpetrators of domestic and family violence often threaten, harm and kill animals to control and intimidate women and children’.
2.94The AIFS supported these amendments, given research indicating that threats against family animals is a form of family violence and individuals have reported delaying leaving or returning to partners due to safety fears for their family animals. This can be compounded when many emergency accommodations, that victim-survivors would otherwise access, do not allow pets and thus victim-survivors may stay in a violent situation.
2.95WLSA welcomed the changes for companion animals in the Bill but raised that individuals can already address issues about their pets through state and territory family violence courts where they are not involved in family law proceedings. It recommended, with which Lucy’s Project agreed, that in order to reduce costs, time and complexity from having two systems:
…the provisions concerning companion animals in the FLA and family violence legislation be consistent in allowing victim-survivors to address the care and safety of their pets in either jurisdiction without precluding their ability to have related issues addressed in the other.
2.96The LCA had broader concerns about the effect these provisions may have on proceedings, including substantial financial implications:
There is a very real risk that these provisions will exacerbate conflict and extend proceedings.Currently, animals are treated as any other item of property—this makes it straightforward for legal practitioners to advise parties on their entitlements.Treating animals separately will undoubtedly create complexity, and potentially prevent matters from settling (or, at least, create conflict on that single issue).
2.97AGD advised these amendments were included to ‘help ensure that pets are not used to continue the cycle of family violence following separation’.
Orders available
2.98As explained above, the Bill would restrict the orders a court could make in regard to the ownership of companion animals: that the animal be owned by one party, or that it be sold.
2.99Many submitters and witnesses considered this approach overly restrictive and not supported by evidence. As a consequence, they recommended that the court be empowered to make additional orders.
2.100A 2022 national survey found that where Australians could no longer look after their pet, only a very small percentage of those surveyed would sell them:
59% would give them to a family member, 40% would give them to a friend, 20% would give them to a charity, 15% would send them to a shelter, and only 8% would sell them (Animal Medicines Australia, 2022).
2.101In light of this evidence, Lucy’s Project recommended that the court should be able to order that a companion animal be surrendered to a family member, friend or charity. WLSA supported Lucy’s Project’s position and submitted that the:
…sale of companion animals should be a last resort, and the court should be empowered to consider alternatives to selling the companion animals before making such an order, such as orders for the party/ies to surrender the animal or transfer the animal to a family member or trusted friend.
2.102RSPCA Australia also recommended that a third option be included to allow for the animal to be surrendered to a family member/friend or an animal rescue/welfare organisation. It advised that in some instances, where animals have been abused or been in close proximity to violence, they require special care or rehabilitation.
2.103From a legal standpoint, the LCA queried why only a specified limited number of orders could be made in relation to companion animals given ‘there are no such restrictions on the type of orders that apply to other categories of ‘property’’.
2.104Submitters also raised concerns about whether the court would be empowered to make interim orders with respect to companion animals. They considered it was imperative for the court to be empowered to make interim orders, given the length of time it can take to progress to a final hearing in the family law courts where final orders can be made.
2.105The LCA considered it was unclear whether an interim order could be made based on the current drafting of the provisions. It submitted that the court not being able to make an interim order would be ‘problematic’ given the time between the commencement of proceedings and finalisation could be years. The LCA further stated that the care of companion animals is likely to be an urgent issue in these situations which necessitates the ability to issue interim orders.
2.106WLSA recommended that the provision be amended to clearly articulate that the court can make interim orders with respect to companion animals. It explained the issues that may arise should interim orders be unavailable:
If the court is unable to make interim orders regarding companion animals, the delay may undermine the claimant's position or lead to unsafe outcomes for the parties’ and the animal's welfare.
2.107AGD advised that the limitation on the orders open to the court to make regarding companion animals is ‘[c]onsistent with the aim of property proceedings to bring finality to the financial relationship between parties’.
2.108AGD stated that the reason behind the restricted orders, particularly that the companion animal be sold was because ‘courts can only make orders about parties that are joined to proceedings’ and as such, it considered that:
…it might be outside of the Commonwealth’s legislative powers for them to order that a party surrender or place an animal in the care of another person or organisation that is not joined to proceedings.
2.109AGD advised that consistent with the approach to other types of property, the court would have the power to issue interim orders with respect to companion animals.
Considerations to be taken into account
2.110The Bill would insert a range of considerations the court is to take into account when determining orders in relation to companion animals in proposed subsection 79(7). These considerations include, but are not limited to:
the circumstances of the acquisition of the animal;
who has ownership and possession;
the extent to which each party cared for and paid for the maintenance of the animal;
instances of family violence;
any history of actual or threatened cruelty or abuse by a party to the animal;
the attachment by a party or a child to the animal; and
the demonstrated ability of a party to care for and maintain the animal into the future without support or involvement from the other party.
2.111Lucy’s Project recommended that the parties’, children’s and animal’s safety should be the paramount considerations when the court is considering what orders should be made in relation to companion animals.
2.112RSPCA Australia opined that the considerations set out in the Bill do not account for the ‘relationship and emotional bond between a companion animal and a member of a household affected by [domestic and family violence]’. It recommended that ownership should be ‘based on the human-animal bond as well as the safety and welfare of the animal’ not on possession or who paid for the care and maintenance of the animal. Where there is disagreement about the bond, RSPCA Australia suggested ownership could be determined through an independent behavioural assessment of the animal.
2.113Several submitters had specific concerns with the way some considerations may operate. Lucy’s Project raised concerns with proposed paragraph 79(7)(c) which requires consideration of the extent to which each party cared for and paid for the maintenance of the animal. It explained that the extent to which maintenance was paid for is problematic and thus should be removed:
Perpetrators of domestic and family violence will often use economic and financial abuse which can include controlling access to bank accounts and money for the payment of food and veterinary care for a companion animal.
2.114RSPCA Australia shared this view and recommended that the capacity to which parties can access bank accounts to pay for the care and maintenance of the animal should also be considered when assessing proposed paragraph 79(7)(c).
2.115In relation to proposed paragraph 79(7)(e), taking into account actual or threatened cruelty or abuse by a party towards the animal, Relationships Australia recommended this be expanded to any history of actual or threatened cruelty or abuse to any other animal regardless of whether it was a companion animal or not.
2.116The LCA raised issues with proposed paragraph 79(7)(g) which would require the consideration of the demonstrated ability to care for and maintain the companion animal in the future, without support or involvement from the other party. The LCA stated that it was unclear whether this paragraph would require the court to take the cost of maintaining the companion animal into account when considering current and future circumstances or as a spousal maintenance claim. The LCA also submitted that this paragraph ‘may also have the unintended consequences of adversely affecting victim-survivors of family violence, who are often in a weaker financial position than the perpetrator, and whom these provisions are intended to support’.
2.117More broadly, Lucy’s Project also recommended separating the considerations in proposed subsection 79(7) into primary and secondary considerations. It suggested that proposed paragraphs 79(7)(d)–(f) as well as an additional consideration of ‘any existing Apprehended Violence Order or Family Violence Order in relation to the parties or companion animal’ be primary considerations. Lucy’s Project recommended that proposed paragraphs 79(7)(a)–(c), (g) and (h) be made secondary considerations.
Less Adversarial Trial approach
2.118The Bill would amend the Family Law Act to extend the Less Adversarial Trial (LAT) approach to property and other non-child-related proceedings. Currently the LAT approach only applies to child-related matters. The LAT approach ‘empowers the family law courts to actively manage and control proceedings using duties, powers and obligations, including in respect to evidence and case management’. The Bill would co-locate provisions for child-related and property and non-child-related proceedings in a new division, proposed Division 4 in Part XI of the Family Law Act.
2.119The LCA discussed the range of considerations that come into play with extending the application of the LAT approach:
This is a complex area with a variety of considerations.On one hand, inconsistency in terms of whether the Evidence Act 1995 (Cth) applies, depending on if the proceedings relate to property or parenting matters, may lead to uncertainty and confusion for parties and the legal profession, especially where allegations of family violence are raised.There is a clear need to ensure predictability for litigants and practitioners navigating the family law system.It is also important that victim-survivors of family violence feel empowered, and supported, to participate in family law proceedings.
On the other hand, there is an argument that the less adversarial trial processes, as proposed, are neither appropriate, nor necessary, for property or other non-child related proceedings, given the necessarily adversarial nature of such matters, as they are not subject to the paramount consideration of the best interests of children.The rules of evidence, as prescribed by the Evidence Act, provide an important framework to judicial officers and litigants as to what evidence will be considered admissible, and why.This is critical, considering the type and complexity of evidence adduced in financial proceedings (involving, for instance, equity, trusts, corporate structures, inheritances, compensation payments and other complex financial circumstances).In addition to legislative safeguards, the courts have considerable experience in taking steps to ensure that proceedings are to be conducted in a way that safeguards parties to proceedings against family violence.
2.120The AIFS submitted that, based on its evaluations, there is a ‘strong uptake of the simple processes for the resolution of property matters, including by parties experiencing FDV’ and these supported vulnerable and/or disadvantaged parties accessing ‘timely and cost-effective resolutions’. The AIFS stated that its evaluations showed that:
…adding access to that simple, more accessible and more affordable process and the case managed engagement by the registrars also led to outcomes where parties who would ordinarily be disadvantaged has improved their financial wellbeing.
2.121Additionally, the AIFS suggested some improvements to the LAT approach:
The evaluation data identified ways in which a LAT process could better support disadvantaged parties. Professionals suggested the delegation of increased powers to enable registrars to manage and appropriately respond to non-compliance without referral to a judicial officer. Professionals also suggested additional resourcing in the registrar-led limb to provide court based support parties to navigate the PPP [Small Claims Property Pilot] process and to facilitate access to mediation or arbitration options.
2.122FRSA outlined its support for the LAT reforms but considered they may not be used frequently:
We do note, however, that the less adversarial trial provisions for child‑related proceedings periodically fall into disuse. As noted in the ALRC report, the Less Adversarial Trial process is rarely used despite the positive impacts of this process. This has been attributed, in part, to insufficient resourcing (including a scarcity of family consultants) and time. Therefore, we anticipate that the proposed provisions will only be used if the court feels it is sufficiently resourced.
2.123Relationships Australia, while supportive of the LAT amendments and co‑location of provisions, similarly commented on the frequency that LAT approaches are used:
We support co-location of all LAT mechanisms in Part XI, to support usability of the Act, while emphasising that, in the past, the LAT mechanisms in Part VII have periodically fallen into disuse, particularly when the family law courts are facing high workloads with diminished resources.
Application to proceedings and consent
2.124The powers under proposed Division 4 to conduct matters using the LAT approach would be able to be exercised on the court’s own initiative or at the request of one or more of the parties.
2.125The removal of the requirement for both parties to consent to the LAT approach being taken in their proceedings was welcomed by the QIFVLS, that submitted that would ‘provide parties who may be experiencing DFV with the choice to opt-in to the scheme where consent may not be forthcoming from the other party’.
2.126In contrast, WLSA was not supportive of the consent requirements to use the LAT approach in proceedings as it considered that this would ‘likely disadvantage victim-survivors in financial proceedings where there is often already a significant power imbalance’ and lead to systems abuse by perpetrators of family violence. WLSA elaborated:
…it is our submission that the removal of the automatic operation of the less adversarial proceedings provisions will lead to further complexity and argument for these matters which is something that, on our submission, goes directly against the purpose and point of these amendments to the Act.
2.127Instead, WLSA recommended that the LAT approach should apply to all proceedings unless the parties or court agree that it not be applied. It submitted that this approach:
…will overcome the issue of the parties’ initial evidence potentially being subject to different rules of evidence and a perpetrator withholding consent to control.This will also provide the court with discretion to order that the approach does not apply if it is not appropriate.
2.128The LCA raised concerns that the Bill as drafted appeared to provide that the LAT approach would apply automatically to proceedings wholly or partly under Part VII of the Family Law Act. It submitted that this would ‘undermine the stated approach that the provisions would apply only to property proceedings when consented to by the parties, or ordered by the court’. Instead, the LCA suggested the Bill be amended so that the LAT approach only be applied to proceedings ‘to the extent that they are proceedings under Part VII’. It agreed that any other application of the LAT approach to proceedings should be left to the court or by consent of the parties.
2.129The LCA also submitted that the provisions as drafted provide for an ‘all or nothing approach’. Instead, the LCA recommended that consideration be given to allowing the LAT approach to apply to a particular issue in a proceeding instead of the proceeding as a whole.
2.130Furthermore, the LCA considered that in regard to criteria for the application of the LAT approach, relevant sections should be amended to reflect the following recommendation:
We recommend that the matters to be considered by the court—in deciding whether to have the less adversarial provisions apply or re-apply to proceedings—should be the same as the matters to be considered by the court in deciding to have such provision not apply, and that this should be the case whether the issue is being considered for the first time, or the court is being asked to reverse an earlier decision.
2.131AGD advised:
This approach has been proposed because stakeholders raised particular concerns about automatically relaxing the rules of evidence in all property and financial matters, given the nature of those disputes is inherently adversarial and commonly involve complex evidence that may be best considered through the application of the rules of evidence.
2.132AGD further explained that:
Empowering the court with the discretion to apply the less adversarial approach to a property or other non-child-related proceeding is an important aspect of the measure given parties may withhold consent, particularly where a matter involves family violence.
It is intended that the court consider whether the less adversarial approach should apply, at the earliest practicable stage appropriate to the case, to give parties certainty about whether the approach will apply.
Application of rule of evidence
2.133Proposed Subdivision D of Division 4 sets out matters relating to evidence, clarifying how the LAT approach modifies parts of the Evidence Act.Subsection 102NL(1) proposes that certain provisions of the Evidence Act would not apply to these proceedings unless the court considers there to be exceptional circumstances.
2.134WLSA supported the expansion of the LAT approach to non-child-related proceedings and the consistency in approach this would bring. It considered that the relaxing of the evidence rules to be beneficial, but submitted that:
Even where the Evidence Act 1995 (Cth) (Evidence Act) has not been strictly applied, it is still overwhelmingly difficult for victim-survivors to establish they have been the victims of family violence. It is our experience that the court scrupulously examines the evidence of family violence and places limited or no weight on evidence that would not be admissible under the Evidence Act.
2.135As a result, the expansion of the LAT approach must be accompanied by greater access to legal representation as even when this approach is taken, WLSA submitted that its clients still find it difficult to participate in the proceedings. Further:
The strict application of rules of evidence in property matters overwhelmingly disadvantages self-represented parties who do not have the ability or means to present evidence in accordance with the Evidence Act.
2.136Fairness In Child Support was concerned that proposed section 102NL states that the rules of evidence would not apply to LAT approach proceedings unless otherwise decided by the court and, as such, alleged perpetrators would not be protected from ‘unsubstantiated and unfounded family violence allegations’.
Duty of disclosure
2.137The Bill would elevate the disclosure duties for separated married and de facto couples in relation to financial or property matters or proceedings from the Family Law Rules to the Family Law Act. It would also create new obligations for legal practitioners and Family Dispute Resolution Practitioners to inform clients of these duties, the consequences for non-compliance and encourage their clients to comply with the duties.The disclosure duties would require full and frank disclosure of relevant information and would apply during proceedings and in preparation for proceedings.
2.138AGD advised that the disclosure obligations would not apply to appeal proceedings or ‘to parties seeking a declaration about the existence of a de facto relationship’.
2.139Rainbow Families supported this amendment and submitted the location of the duty of disclosure in the Family Law Rules instead of the Family Law Act means that many people are unaware of the duty. It considered elevating the duty to the Family Law Act ‘will make these provisions more accessible and highlight their importance’.
2.140The QIFVLS commented that moving the duty to the Family Law Act ‘may strengthen the willingness of the Court to make presumptions where there is a lack of disclosure’.
2.141The AIFS submitted that the findings from several family law court trials:
…indicate that the introduction of a duty of disclosure in the context of less adversarial processes, is likely to support other measures aimed at encouraging the provision of financial information and documentation in a timely manner in circumstances involving disadvantaged parties.
2.142Submitters commented that they did not believe the duty went far enough and in some cases should be expanded to ensure it could meet its aims. The apparent lack of consequences for non-compliance with the duty was raised by several stakeholders.
2.143Rainbow Families recommended that the duty be extended to situations such as filing consent orders even where proceedings are not contemplated:
Lack of financial disclosure is a significant barrier to resolving property disputes in mediation without mechanisms available to the court to compel it. A clearer statement that the duty applies to parties attending mediation would help support the disclosure process.
2.144Regarding the imposition of a duty on lawyers and Family Dispute Resolution Practitioners, Relationships Australia questioned whether this would be a strong enough incentive to ensure compliance:
It is our experience that non-compliance is not driven by a lack of awareness of obligations or gaps in the courts’ powers to require compliance.Rather, non-compliance emerges from expectations that there will be no or few consequences.Relationships Australia recognises that change in this regard needs to be court-led to be effective and durable.In the absence of action of this kind from the family law courts, then imposition of the proposed duty on lawyers and FDRPs will not necessarily achieve the intended policy objective of encouraging disclosure.
2.145FRSA supported the amendments but similarly considered the ‘lack of consequences for non-disclosure is likely as much of a driver for non-disclosure than lack of awareness that the disclosure obligations exists’. It explained that non-disclosure is also an issue in the Family Dispute Resolution and mediation context and suggested there needs to be further consideration of mechanisms to facilitate disclosure in Family Dispute Resolution.
2.146WLSA also expressed support but did not believe the amendments went far enough to ensure compliance, arguing for an increased focus on the consequences of non-compliance with the duty. In its experience, WLSA submitted that ‘perpetrators of domestic and family violence refuse to disclose relevant documents as a tactic to intentionally delay the proceedings’. As such, WLSA recommended that the discretion for the court to exercise its powers under proposed subsections 71B(2) and 71B(6) should be made mandatory.
2.147The LCA made some technical comments on the amendments, one of which related to proposed subsection 90RI(8) which clarifies that disclosure is only required for information known to the party or documents in their possession or control. The LCA was concerned that the drafting of the provision would cause confusion for self-represented litigants and the public in determining what they need to do to comply with this subsection. The LCA recommended:
To enhance certainty for parties, we recommend that proposed subsection 90RI(8) be omitted.Alternatively, this subsection should be amended to clarify what a person who has formerly had relevant documents in their possession or control is required to do if they no longer have those documents, in order to comply with their duty of disclosure.
2.148The LCA also raised the importance of the law being available and known to those seeking to use it:
Given the significance of the duty of disclosure, the positive obligations it imposes on both clients and lawyers, and the consequences of a breach, it is imperative that the new financial disclosure provisions in the Bill clearly articulate the duty and how it is to be complied with.
2.149Relatedly, Relationships Australia recommended that AGD develop factsheets for lawyers and Family Dispute Resolution Practitioners to ensure they are aware of their obligations.
Children’s Contact Services regulation
2.150Schedule 2 of the Bill would amend the Family Law Act by inserting Division 3A into Part II to provide a framework and parameters for the regulation of Children’s Contact Services (CCS) as well as definitions to clarify the application of Accreditation Rules. The rules relating to the accreditation of CCS, known as the Accreditation Rules, would be in regulations. The Bill would expand the existing authority to prescribe Accreditation Rules to include individuals as CCS practitioners and accreditation of persons and other entities as CCS businesses. CCS practitioners and CCS businesses would be individuals and businesses who are accredited as such under the Accreditation Rules.
2.151CCS, as defined by the Bill, would be professional, commercial or charitable services that facilitate contact between a child and a child’s family member who is not living with the child and where family members may not be able to safely manage the contact. CCS would not include child welfare services provided by a state or territory, those who supervise contact between a child and a family member in a correctional institution, or services prescribed by regulations.
2.152There was broad support for regulating CCS, based on the disparate quality and cost of CCS based on whether it is provided through government means or independently, and a range of issues about the current delivery of CCS.
2.153For example, Ms Lisa McDonald explained her experience with CCS:
My experience with both unregulated and government-funded supervised contact centres highlights significant differences in professionalism and safety; government centres that are accountable for their funding and standards, provide a more regulated and secure environment for families.
2.154The AIFS recently completed an Evaluation of CCS Activity and, based on its findings, supported regulation of CCS:
Relevant findings include that there is a need for greater consistency across the CCS sector for the application of child-focused, child-centred, child inclusive, FDV-informed and trauma-informed practice in delivering services to families in the CCS context. The Evaluation concluded that this would be supported by an accreditation process that would require a consistent approach to training in relation to child safety, trauma-informed and child-inclusive practices.
2.155Rainbow Families submitted that the current lack of oversight of CCS and the absence of minimum standards ‘potentially places children and vulnerable parties at risk’. It welcomed the proposed introduction of a framework to regulate CSS due to the important role these services play in facilitating contact between children and family members that may not otherwise occur.
2.156The ALRM, while supportive of the proposed regulatory scheme, cautioned that such regulation should not be overly onerous on the services and needs to effectively balance the protection of children, families and the community.
2.157The ALRM further submitted that consideration is needed in this space to ensure the Closing the Gap priority reforms and targets are met:
ACCOs [Aboriginal Community Controlled Organisations] are best placed to provide a culturally safe and appropriate contact service for Aboriginal children and their families. ALRM have had experience of clients feeling uncomfortable, culturally unsafe and in fact being refused CCS. There are contact services that employ Aboriginal people and where this is the case, they should be the first point of contact as well as ongoing supervisor/case worker for the families.
ALRM notes that there is not specific mention of Aboriginal Community Controlled Organisations (ACCOs) within the proposed Part II, Division 3A.
2.158The QIFVLS similarly considered that accredited Aboriginal and Torres Strait Islander Community controlled CCS should be established, in line with the National Agreement on Closing the Gap, in order to have trauma-informed CCS, supported by funding. It also recommended that the Child Safe Standards and Reportable Conduct Scheme should be incorporated into CCS like Queensland has done via the Child Safe Organisations Act 2024 (Qld).
2.159The QIFVLS recommended introducing a cost cap for CCS to ensure those who are financially, socially and geographically disadvantaged can access CCS in an equitable way. Ms McDonald likewise recommended that a cap be imposed on the fees that CCS can charge given financial stress can be a barrier to utilising CCS. Ms McDonald pointed to the disparity in cost between government funded centres that charge $20/hour and private CCS providers that charge $150+/hour as reason for her recommendation.
2.160The QIFVLS and WLSA discussed the need to ensure that CCS are sufficiently resourced to provide high quality service in a trauma-informed and culturally safe way in rural, regional and remote locations.
2.161WLSA was concerned about the discretion afforded by the Bill in setting the regulations. Instead, WLSA recommended that the Bill should prescribe what the regulations must deal with:
In the experience of Women’s Legal Services, there can be a significant range in safety and quality of current services that provide for the supervision and oversight of contact with children and at handovers. This can vastly impact on the safety of the service and the contact or reporting notes that are developed. Women’s Legal Services have assisted clients whose children have been injured or exposed to further family violence during supervised visits in circumstances where the contact service was unregulated and should have done more to protect the child from exposure to risk.
Form of the accreditation scheme
2.162Most submitters and witnesses who discussed CCS argued that accreditation should be directed at the organisational level, not the individual level, notwithstanding sole practitioners.
2.163FRSA stated that the accreditation scheme should be established at the organisation (or service) level:
That is, the responsibility and risk associated with providing a CCS service is vested in the organisation/business rather than being vested in individuals working within a CCS. It would need to be a requirement of a service-based accreditation system that the standards incorporate human resource requirements that include staff training and qualifications.
2.164Relationships Australia expressed a similar opinion that it should be sufficient that the organisation providing CCS is accredited and that individual workers in those organisations do not themselves need to be accredited as well. Relationships Australia did, however, recommend that accreditation be open to individuals where they are sole traders.
2.165Relationships Australia and FRSA explained that their positions were primarily informed from a workforce perspective to ensure that CCS are able to be appropriately staffed and resourced to provide an effective service, particularly in rural and regional areas. They considered that the organisation should carry the regulatory burden, with responsibility for professional development and training of their staff; placing the risk on the individual would be a high burden and may reduce the available workforce.
2.166AGD stated that the form of the accreditation scheme and the level of accreditation imposed will require ‘consultation with the sector and the broader space’.
Scope of relationships maintained under CCS
2.167Stakeholders considered the need for latitude in the legislation to allow for relationships between children and significant others in their life, who may not be family members, to be maintained through CCS.
2.168Relationships Australia submitted that the scope of people covered by the definitions in these amendments is too narrow and should be changed to reflect a broader group of people:
Some of our members have also suggested that, in the context of Children’s Contact Services, the definitions of ‘member of the family’ and ‘relative’ in subsections 4(1), 4(1AB) and 4(1AC), may be inadequate.Orders can (and are) made, pursuant to paragraph 60CC(2)(e), to enable supervised contact between children and a range of people with whom they have a significant relationship; not only people who fall within the definitions in section 4.This reflects the fact that the Act is intended to accord paramountcy to children’s best interests, and necessitates a degree of flexibility to ensure that children in separating families are supported to retain the full breadth of relationships that are meaningful to them.
2.169FRSA similarly stated that significant and meaningful relationships that children have should be maintained and recommended that proposed paragraph 10KB(1)(a) be amended to include ‘and significant others’ to facilitate this contact.
2.170Relationships Australia explained that there is ‘not a definable, known class of persons’ but such relationships could include neighbours or teachers ‘and it is so significant that the court feels it’s in the child’s best interests to have the opportunity to maintain those significant relationships’.
Strict liability offences
2.171Proposed section 10KH would create six strict liability offences relating to the provision of CCS by CCS practitioners and CCS businesses without accreditation. These offences would carry a maximum penalty of 50 penalty units for individuals and 250 penalty units for body corporates.
2.172The Commonwealth Director of Public Prosecutions (CDPP) explained that based on these offences, prosecution of individuals may only be commenced within one year of the offence whereas prosecutions against a body corporate may be commenced at any time.
2.173The CDPP commented on the mistake of fact defences for the offences where a person has someone else provide the service on their behalf or is running a CCS business, advising that these defences are consistent with the general mistake of fact test in section 9.2 of the Criminal Code Act 1995 (the Criminal Code). However, the CDPP did raise an issue where a body corporate relies on a mistake of fact defence under the offences:
Section 12.4 of the Criminal Code provides that for a body corporate to rely on s 9.2, the defendant also has to establish due diligence. However, the proposed s 10KH(4), (7) and (1), which could apply to bodies corporate, makes no mention of due diligence. This may cause confusion as to what a body corporate must establish to make out the defence of mistake of fact. The explanatory memorandum does not make reference to due diligence.
2.174Despite these comments, the CDPP advised that it did not consider there to be any unintended consequences that would arise from the insertion of the offences, ‘particularly if clarity is provided on the requirements to establish the specific defences available’.
2.175Relationships Australia queried the efficacy of the maximum penalties given they are below some of the penalties contained in the new Aged Care Bill 2024. It considered the effectiveness of the offences would depend on the level of enforcement.
2.176AGD advised that the strict liability offence penalties were developed to align with ‘similar regulatory framework aimed at protecting vulnerable individuals’.
Attendance at divorce proceedings
2.177The Bill would amend the Family Law Act by repealing paragraph 98A(1)(b), to remove the requirement for applicants and their legal representatives to attend divorce hearings where they have filed an Application for Divorce on a sole basis and there are children of the marriage under the age of 18 at the time of filing.
2.178The QIFVLS supported this change and submitted that the attendance requirement can be a barrier to justice for applicants who reside in rural and remote locations and who have to travel extensive distances to attend a court or registry.
2.179WLSA was also supportive of these amendments but considered there was still a need for further reform. It submitted that the requirement that the court consider the arrangements for children before it can make an order for divorce should be removed. WLSA explained that parenting arrangements are already considered under another part of the Family Law Act and that:
The purpose of a divorce is the legal end [of] the marriage after the irretrievable breakdown of the marriage.It is not the purpose of a divorce to consider the sufficiency of parenting arrangements.The inclusion of this wording with respect to divorce is confusing and, in our experience, causes victim-survivors to believe they must come to an agreement regarding the parenting arrangements before applying for divorce.This can result in women negotiating or entering into parenting agreements that are unsafe and/or not in the children’s best interests.
Counselling requirement
2.180The Family Law Act currently requires couples to undergo mandatory counselling if they have been married for less than two years before applying for divorce. The Bill does not propose to amend or remove this provision, but this provision was raised throughout the inquiry. No submitters or witnesses who raised this provision supported its retention.
2.181For example, WLSA remarked:
Whilst there is a requirement for the court to waive this requirement in special circumstances, this provision causes distress to victim-survivors, places them in positions which expose them to increased risk and poses an onerous obligation on parties, especially victim-survivors of family violence.It is also inconsistent with the right of a person to decide whether they wish to be in a marriage.
2.182Relationships Australia stated the provision could have unintended safety consequences but also that the law should acknowledge that adults in relationships should be able to decide for themselves what they want the outcome of that relationship to be. WLSA, FLS, FNAAFV and NLA similarly supported the removal of the requirement. WLSA particularly raised that ‘requiring a victim-survivor to attend counselling is a very traumatic process’. This was echoed by NLA which argued that ‘it’s completely inappropriate for victims of domestic and family violence to attend counselling without safety and other arrangements to ensure that it’s not contributing further to that violence’.
2.183More broadly, the AIFS stated that parties need to be able to access appropriate remedies through the court system without delay and particularly in this context, ‘the importance of accessing the court system without that delay and that potential for mechanisms to be used to further perpetrate domestic and family violence’ should be considered.
Disclosure protections for protected confidences
2.184The Bill would insert a new division, Division 1B, into Part XI of the Family Law Act to protect the disclosure and adducing of ‘protected confidences’ evidence in family law proceedings.
2.185Many submitters were supportive of the provisions that would shield protected confidences from disclosure in family law proceedings as they considered that the relationship between confidant and confider was one that requires protection in order to achieve therapeutic outcomes. However, several stakeholders also observed that the specific provisions were not in the exposure draft of the Bill and thus stakeholders had limited ability to undertake consultation and fully assess the impacts of the provisions.
2.186The Australian Psychological Society (APS) welcomed the introduction of the provisions particularly as ‘recognition of these confidences is critical in maintaining the trust and safety necessary for effective psychological interventions’. Individuals in family law matters have often experienced trauma and violence and as such, the APS submitted that ‘[i]t is critical that the legal framework acknowledges the unique needs and vulnerabilities of these individuals by providing robust protections for their confidential communications’. The APS opined that without such protections individuals may not disclose information that is needed for their treatment.
2.187RANZCP likewise supported the provisions as they would protect the relationship between client and clinician. It commented that ‘psychiatry involves developing a trusting relationship’ and clients and clinicians need to have confidence that they are in control of the disclosure of the information.
2.188FRSA also considered that the therapeutic relationship between children and those supporting them should be protected to ensure children feel confident in expressing their concerns and feelings without the risk that the information is shared with their parents without permission.
2.189Disclosing protected confidences in proceedings can cause negative impacts according to Rainbow Families. It stated that having such information discussed in family law proceedings can cause distress and re-traumatisation for individuals, particularly LGBTIQ+ individuals whose mental health outcomes are often poorer than those of the general population, or trans members of the community where the information ‘exacerbates the stigma and discrimination that they experience in family law proceedings’.
2.190Relationships Australia was supportive of shielding protected confidences from disclosure, but in contrast to other stakeholders, recommended these provisions be removed from the Bill until further consultation can be conducted, citing concerns that the reforms will not work as intended. Dr Susan Cochrane, National Policy Manger at Relationships Australia, stated that including these provisions without further consultation would be ‘too dangerous because we are dealing with a constituency of highly motivated systems perpetrators’. While not recommending their removal, FRSA also expressed discomfort with the current provisions and considered ‘safety should be the priority consideration here’.
Definition of protected confidence
2.191The Bill defines ‘protected confidence’ as communications made by one person to another in the course of a relationship in which one person is acting in a professional capacity to provide a professional service to the other and it is in circumstances in which the person acting in a professional capacity is under an obligation not to disclose the communications.
2.192Many stakeholders considered that this definition is too narrow. In their view, several relevant communications would not be captured, particularly medical certificates.
2.193The Law Institute of Victoria (LIV) supported the provisions relating to the protection of sensitive information but was concerned that the provisions in the Bill would not achieve its policy aims because the provisions do not cover all of a person’s sensitive information. The LIV submitted that the definition of ‘protected confidence’ in the Bill would not cover information given to a professional service by a third party such as a family member or a police officer, or for example, ‘a medical report created for clinical management purposes at a time when the person lacks the capacity or is practically unable to communicate’.
2.194The LIV argued that all medical or family violence records need to be capable of being protected in family law proceedings to afford adequate protection to victim-survivors, particularly as some records are not relevant to such proceedings. Consequently, the LIV recommended that the definition of ‘protected confidences’ (proposed section 102BA) be amended to remove the requirement that the communication be made by one person to another person and instead should turn on whether the communication was made in the course of ‘or in connection with’ the relationship between a confidant and a protected confider.
2.195WLSA similarly submitted that the definition is too narrow and should be broadened to include ‘any other document produced in connection with that professional relationship, including for example, correspondence or a medical certificate’. WLSA referenced Queensland and New South Wales definitions of protected confidences as examples.
2.196The ALRM suggested the definition should be expanded to include counselling for ‘intergenerational and ongoing trauma from the ongoing impacts of colonisation, dispossession and stolen generation as well as physical, emotional and psychological abuse whilst in care’.
2.197As an alternative, the NWSA suggested that professional services could provide a short report that provides the contextual information for the courts to use in their decision-making but that protects the raw notes, which are protected confidences, from being disclosed.
2.198AGD advised that the definition used in the Bill ‘is similar to the definitions used to protect professional confidential relationships in a number of the state and territory evidence acts’ and is intended to capture ‘other documents necessarily generated in the courts of a person’s care and treatment’ such as ‘records containing the observations and opinions of the confidant, or summary information’.
Definition of professional service
2.199The Bill would insert section 102BB into Part XI of the Family Law Act which would define ‘professional service’. A ‘professional service’ would be a health service (as defined by the Bill) or specialist sexual assault and family violence service.
2.200These support services play a key role in supporting survivors to recover from domestic, family or sexual violence. The NWSA supported specialist sexual assault and family violence services being included in the definition because ‘[t]rust between these service confidants and the clients who confide in them is inherent to a service’s ability to deliver the most qualified and appropriate assistance’.
2.201Similarly to the definition of protected confidence, stakeholders considered that the definition of professional services should be broadened. Relationships Australia suggested that the definition should ‘explicitly include alcohol and other drug services and gambling help services’. It acknowledged that these services may fall within the existing definition but that this would only emerge down the line in jurisprudence and explicitly including them would provide clarity to those accessing the provisions.
2.202WLSA considered that the Bill’s reliance on ‘specialist service’ in the definition was too limited and thus should be opened up to all sexual assault and family and domestic violence services regardless of whether it would fall within the interpretation of ‘specialist service’.
2.203FRSA also considered that the definition of professional services should be subject to more consultation to clarify limits of what is covered by the definition.
2.204Relationships Australia stated that expanding the definition of professional services would also decrease the Bill’s susceptibility to system abuse.
Applications to prevent disclosure
2.205The Bill would empower the court to make a direction that a document not be adduced in proceedings or disclosed despite a disclosure requirement if to do so would adduce or disclose a protected confidence. The court could exercise this power on its own initiative or on application by the confidant, the confider, a litigation guardian, or parent or independent children’s lawyer (if the confider is under 18 years of age).
2.206Several stakeholders were concerned about the Bill requiring a confider to object to the protected confidence’s disclosure, through applying to the court for a direction as above.
2.207Rainbow Families recommended that ‘the onus should not be on the protected confider to argue why their confidences should not be allowed into evidence’ as this would place additional burdens on persons in already vulnerable positions. Instead, it submitted that the onus should fall on the party wishing to adduce the information to ‘satisfy the court that the probative value and importance of the material outweighs potential distress and harm to the confider’.
2.208FRSA also commented on the onus in the Bill and argued that it should be on the party seeking the material:
Our view is that the legislation would be strengthened by placing the onus on the party seeking to have protected confidence records admitted as evidence, such that the party would be required to seek the leave of the court to issue a subpoena that relates to protected confidence records. Perpetrators are routinely misusing the evidence gathering process, and victim survivors are being advised not to, or choose not to, seek therapeutic supports for fear of their records being subpoenaed.
2.209This argument was likewise raised by Ms McDonald who explained the potential negative effects on the confider need to apply for a direction by the court:
Requiring requesters to justify the need for case notes would help deter and prevent threats for perpetrators both before and after separation, prevent “fishing” for irrelevant information, and reduce vexatious subpoenas.
…
Placing the burden on the confider (particularly where there is family violence) leads to several negative consequences, including increased legal costs or the pressure to represent themselves in stressful court proceedings. It forces them to dedicate significant time, energy, and resources to defending their case or proving potential harm. This situation can cause various harms, such as fear, uncertainty, emotional distress, and disruptions to their parenting.
2.210The FLS similarly raised issues with parties needing to object to a subpoena for protected confidences document, submitting that this can place victims at increased risk of family violence or can lead to vexatious subpoenas. Instead, the FLS recommended:
The primary considerations in determining whether such evidence should be adduced should be the best interests of the child and the need to protect the safety of victim-survivors from further violence. In order for this to be the case, a threshold test must be introduced where, in the absence of informed consent of the victim-survivor, a party seeking to issue a subpoena to access protected confidences must show the information is relevant and the probative value of the records would outweigh any risk of harm to the party whose records are being accessed.
2.211WLSA was concerned that the onus being on the confider to object to the adducing or disclosure of protected confidences would mean that the confider would not be aware they have the right to object or able to exercise their rights effectively. It recommended that the onus be reversed:
Having the onus on the person seeking to rely on the information would be a trigger for the confider to be aware of the issue and seek legal advice. If the Bill passes as currently drafted, the confider will be unlikely to know of their right to seek an objection or other direction.
2.212Whether subpoenaed protected confidence information is vetted prior to disclosure was also discussed. The NWSA advised that in their experience, there is no or very limited vetting that takes place prior to the information being disclosed to potentially, a perpetrator of family violence.
2.213In contrast, the LCA stated that in these circumstances, it would ‘err towards ensuring that the court has material rather than placing additional impediments on the receipt of that material’ particularly as the court is making orders in the best interests of children and needs to have all relevant evidence. However, the LCA did consider that expanding the definition of professional services as another measure could be sensible.
2.214AGD advised that the onus to make an application relating to protected confidences is placed on the person seeking to exclude the evidence because ‘[t]his ensures that important evidence will not be excluded where no application for leave is made’. The department explained that in earlier iterations of this legislation, it was drafted in such a way that it made a presumption against adducing or disclosing the evidence unless an individual had leave of the court. AGD advised that it heard strong concerns about this approach from stakeholders. Some of the concerns were:
…it didn’t initially address the harm caused by inspection of subpoena material, it would prevent the court from considering critical information relating to children’s safety and best interests by creating the presumption of admissibility and it could lead to substantial delays in resolving matters in the best interests of the child, increasing costs for parties and requiring substantial costs for implementation.
2.215AGD further stated that it considered a presumption against disclosure was impractical given the significant numbers of matters that allege family violence and that the Federal Circuit and Family Court of Australia issued 61 500 subpoenas last year. AGD acknowledged that:
It is a very difficult balancing act, and there is not a perfect scenario to ensure there is no distress caused to an individual in cases where this information might be relevant and where you have to consider the best interests of the child…While it may be very distressing to a person to have that information revealed, it could be relevant, so we need to have the mechanism to consider whether it can be.
Grounds and considerations for directions
2.216The Bill would allow a court to make a direction that evidence of protected confidences not be adduced where it is likely that harm would or might be caused to the protected confider or to a child of the proceedings, and the nature and extent of the harm outweighs the desirability of adducing the evidence.
2.217Stakeholders such as the AHRC and the NWSA submitted that the balancing of these considerations and making the directions should reside with the court as the Bill purports to do. The NWSA considered that while the protected confidence provisions are necessary, adducing protected confidences can support the objectives of proceedings as they can bring to light instances where perpetrators have abused or manipulated professional services and family court systems.
2.218The AHRC further opined that ‘this is also a time when the need for a deep understanding of domestic violence escalation is essential for the Court’.
2.219The APS was concerned by the discretion given to the court about whether to make a direction regarding a protected confidence. It submitted that this discretion would reduce clients’ and psychologists’ confidence in the protectability of the information and that a stronger safeguard is required. The APS instead recommended that there should be a presumption against the adducing or disclosure of protected confidences, thus placing the onus on the party seeking to rely on the protected confidences to demonstrate why they should be allowed to be disclosed or adduced. It explained that this approach would preserve the ‘integrity of the therapeutic relationship’ and allow protected confidences to only be disclosed in exceptional circumstances.
2.220AGD advised that the test for excluding protected confidences, which focuses on harm, was devised based on stakeholder feedback that this was the appropriate test and ‘to make it easier for litigants to identify and provide relevant evidence’.
Systems abuse
2.221In the context of the protected confidence provisions, stakeholders cautioned that the amendments if enacted could be open to systems abuse and expressed the need for appropriate safeguards.
2.222The NWSA raised the potential for perpetrators of domestic, family or sexual violence to abuse professional services. As an example, it explained that perpetrators, or their legal counsel, have used family law proceedings to subpoena documents that have then been used to support their claims in adjacent court proceedings. Rainbow Families similarly raised concerns that perpetrators can abuse court processes to further their abuse if there are not adequate safeguards in place.
2.223The LIV advised that its members have experienced several instances in their practices where a family violence perpetrator has used current legal processes to access the medical history of a victim-survivor. The LIV stated that ‘[a] person’s medical records contain sensitive information that can cause significant, irretrievable trauma if disclosed’.
2.224The Australian Child Rights Taskforce also commented on the potential for systems abuse:
…recent research has highlighted that family court proceedings are often used as a tool for continued abuse by people who use violence, who may seek the disclosure of private and sensitive records of family violence victims-survivors and their children. Such systems abuse may prevent victim-survivors and their children from accessing professional support for their family violence response and recovery needs.
2.225While receiving subpoena applications is a standard responsibility of professional services, the NWSA advised that responding to these applications represents a significant workload. The NWSA was concerned that the professional services may not have the resources to object to a subpoena and will comply with it not knowing that there are exemptions.
2.226Relationships Australia also linked systems abuse to resourcing:
The amendments will require that our clients (who may well be self‑represented and potentially unaware of the option) or our services will need to apply for the proposed directions in relation to adducing evidence.We are not currently resourced to undertake this on behalf of our clients.Further, our services will still face subpoenae filed for fishing expeditions and to test the amendments, with the associated imposts of time and cost borne by our members who must file the objection and attend court.
2.227If the onus were to remain as drafted in the Bill, WLSA suggested that a positive obligation could be imposed on the court to raise the issue with the confider and ensure they are aware of their right to object. WLSA did not believe that notices on court forms or factsheets would go far enough to ensure that victim-survivors know they have a right to object. NLA also recommended that the Bill be amended to require the court to advise parties of protected confidences issues where one or both of the parties are self-represented as did Relationships Australia, as an example of a trauma-informed approach.
2.228Other proposed additional safeguards that could be incorporated into the legislation included: broadening the definition of ‘protected confidence’ so that it captures records associated with counselling, clarifying what constitutes a specialist service under the definition of professional service and expanding the related consent provisions to make it clear consent can be given in relation to all or part of the records, as well as including a suggestion that the victim-survivor receive legal advice.
Costs provisions
2.229The Bill would insert a new part, Part XIVC, into the Family Law Act to remake the costs provisions and incorporate costs details which are in the Family Law Rules and Family Court Rules 2021 (WA).
2.230Relationships Australia stated:
Including provisions in the Act, rather than the Rules, assists users.We acknowledge the key disadvantage is that locating matters in the Act makes amendments, when necessary, more difficult and time-consuming.We do not consider, in this instance, that this disadvantage outweighs the likely benefits to users.
Relationships Australia supports proposals to clarify that legal aid commissions can seek financial contribution towards the cost of ICLs [Independent Children’s Lawyers] and that family law courts can make such orders, subject to a financial hardship exception.
2.231The LCA raised some technical concerns about the operation of proposed section 114UB, one of which the LCA considered ‘could encourage the making of unmeritorious claims for costs’.
Definition of legal aid
2.232The proposed new costs provisions would allow the court to consider the provisions of legal aid assistance to a party when considering what costs order to make. Submitters raised concerns about the new costs provisions referring only to ‘legal aid’ and the potentially narrow way this could be interpreted to the exclusion of other legal assistance providers such as community legal centres.
2.233The ALRM explained that Aboriginal and Torres Strait Islander Legal Services and Community Legal Services are understood to be included in the definition of ‘legal aid’ in other legislation, but it recommended for clarity that this be extended to state ‘a legal aid scheme or service under the National legal Assistance Partnership or its successor’.
2.234The FLS similarly agreed that the use of ‘legal aid’ could be confusing due to differences between Legal Aid Commissions and Community Legal Centres (CLCs) as service providers. CLCs, such as the FLS, assist a wide range of clients. As such, the FLS recommended that the costs provisions be amended to include clients of CLCs and Aboriginal and Torres Strait Islander Legal Services.
2.235WLSA was concerned that the use and definition of ‘legal aid’ is too narrow. WLSA argued that CLCs, including Women’s Legal Services, are distinct from legal aid and thus would not be covered by the definition. This would mean WLSA clients would not benefit from these costs provisions.
2.236AGD advised that the Bill is intended to capture those who receive assistance from legal aid in these provisions but encountered practical issues with extending the provisions further:
The issue that was raised with us was that many CLCs don’t actually have formal means testing process in place and that that can be really labour intensive. So, if we did want to capture them explicitly, that would mean we’d have to place pressure on them to create that labour-intensive means test in practice.
2.237AGD also stated that it is the intention of the Bill that those who can contribute to costs for Independent Children’s Lawyers, do so.
Commencement timeframes
2.238As explained by the LCA, the provisions of the Bill would commence at various different times after royal assent:
Clause 2 of the Bill currently provides for a variety of commencement dates relating to each Schedule (including the Parts and Divisions within each), including:
the day that Royal Assent is received;
the day after Royal Assent is received;
immediately after the commencement of other provisions; and
the day after the period of six months beginning on the day that Royal Assent is received.
2.239The LCA considered that the amendments should have a single commencement date and that the current fragmentation whereby amendments commence at different times, sometimes six months apart, may be confusing to parties and the courts resulting ‘in the inadvertent failure to comply with the amendments, and an increase in the number of appeals’.
2.240The LCA cautioned against long commencement timeframes as it:
…may have the unintended consequence that, in matters where family violence is alleged, the alleged perpetrator may be incentivised to file proceedings with undue haste, so as to avoid the operation of new section 79.
2.241The LCA considered that the amendments in the Bill do not require a lengthy lead time to ensure legal professionals and the public would have sufficient education. However, the LCA commented that this would need to be balanced with ensuring there is enough time for regulations for CCS to be developed and those to attain accreditation.
2.242The NWSA argued there should be immediate commencement of the amendments following the passage of the Bill ‘to ensure swift protection for those affected’.
2.243AGD stated that the staggering of commencement times was to allow straightforward amendments to commence immediately and for the more substantive measures to commence later to ensure sufficient time to undertake education, awareness raising, training and updating court forms.
Impacts on funding and resources
2.244Many submitters considered these amendments could have significant financial implications and put strain on the family law sector.
2.245The AHRC recommended that front-line services such as women’s legal services, community legal services, housing and counselling services be appropriately funded by governments to ensure they are able to meet the needs of victim-survivors and provide them with the ‘tools and support to leave a violent situation, take action against a perpetrator and understand their legal rights and options’.
2.246The LCA considered that the Bill would need to be supported by appropriate resourcing for the family law sector given many measures would have ‘significant resourcing implications’. The LCA reflected on Dr Warren Mundy’s National Legal Assistance Partnership (NLAP) Review Final Report and the funding required by the legal sector in order to deliver services, which the Commonwealth’s funding commitments fall short of. In the absence of additional funding, the LCA was concerned that ‘the measures proposed in this Bill will further increase unmet demand, and will place such pressure on the existing family law ecosystem that they will fail to achieve the Government’s aims’. As such, it recommended that ‘urgent additional resourcing and funding to the family law system and legal assistance sector’ be provided consistent with the recommendations in Dr Warren Mundy’s NLAP Review Report.
2.247NLA similarly argued that increases in workload for legal services resulting from the Bill should be met with increased funding for Legal Aid Commissions to recognise their role in providing legal services for family law matters. In its view:
…the best way to make sure victim-survivors are kept safe and able to access what they should be accessing is when the service system is adequately resourced to provide that support.
2.248The FLS agreed that more funding is needed for both court services, such as duty lawyers, and for general legal assistance to support organisations to support a client throughout the duration of their matter, not just at the beginning.
2.249Caxton Legal Centre highlighted that it is nearly impossible to obtain legal aid funding for property matters, which leads to many self-represented litigants in cases where family violence is a factor.
2.250FRSA advised that funding issues extend beyond providing legal services to accessing funding for family violence training:
Despite our sector working daily with clients affected by family violence and connecting those clients to specialist supports when needed, the unhelpful sharp distinction between the specialist family violence sector and the family and relationship services sector, which is compounded by the State-Commonwealth division of responsibilities, continues. This means family violence training is not viewed, from a funder's perspective, as a core requirement for the Family Relationship Services Program in meeting client needs, placing pressure on existing program budgets and at times requiring service providers to justify their spending on family violence training to the funding body.
2.251In response, AGD said that ‘funding in legal assistance is an ongoing and significant issue for government’, and brought the announcement of the National Access to Justice Partnership to replace the National Legal Assistance Partnership to the committee’s attention.
Education and training
2.252Many submitters and witnesses suggested that should these amendments to the Family Law Act pass, they need to be accompanied by appropriate education and training to ensure that the community and legal professionals are aware of the new legislation. The need for specialist family violence training and improved trauma-informed training and court processes was also highlighted by most.
2.253Those such as the RANZCP and the AHRC highlighted the ability for victim‑survivors to be re-traumatised through the court process and the lack of trauma‑informed proceedings and conduct from judges and legal professionals. The AHRC considered significant training by subject matter and lived‑experience experts is needed for the legal profession in regard to ‘coercive control, the impacts of trauma on memory and response to violence, as well as what acts of resistance by victim-survivors can look like’. The AHRC supported calls from WLSA for ‘all professionals within the family law system to be family violence informed, trauma-informed, culturally safe, child rights focused, disability aware and LGBTIQA+ aware’.
2.254Similarly, FRSA recommended that:
…all family law professionals are adequately trained to identify and understand family violence and its impacts on family members, including patterns of coercive control and the potential for legal systems abuse.
2.255The AIFS submitted that training for lawyers who work with clients who have experienced family violence will be important to support these amendments:
It will be important for lawyers to develop culturally informed, FDV‑informed and trauma informed communication and investigation skills to ask their clients probative questions relating to FDV, so that they can incorporate evidence of any FDV into case planning from the outset. The empirical evidence has reflected negative perceptions of lawyers’ practices with respect to FDV by parties who have experienced FDV, and as a result, this is an area of professional development that requires particular focus (see most recently Carson et al., 2022, Douglas, 2020).
2.256The AIFS further stated that this training could be crucial to ensuring that clients can engage with the system in a ‘safe and effective’ way.
2.257FRSA raised the importance of extending training beyond those who operate in a court context:
…the court deals with only a minority of cases, and many separating couples work out their property matters through family dispute resolution or with legal advice or simply on their own. So it will be important that guidance and information material about the changes are developed and targeted to different audiences across the family law system.
2.258Relationships Australia also recommended public education to accompany the introduction of the amendments in addition to training for legal professionals.
2.259FRSA opined that there may be some unintended consequences from the Bill in terms of increased vexatious applications for and contested family violence orders, and broader systems abuse which necessitates greater awareness and understanding of the ‘nuances and characteristics of family violence':
Therefore, we would like to see strengthened training across the family law system. Our evolving understanding of coercive control and the evolving nature of technology-facilitated abuse and systems abuse means that professional development must be ongoing.
2.260AGD advised that it will be undertaking a range of activities directed at education and awareness raising should the Bill pass, as it did for the first tranche of reforms last year in the Family Law Amendment Act 2023.
Committee view
2.261The Family Law Amendment Bill 2024 is the second tranche of significant reforms to the family law system undertaken by the Commonwealth government since the 2022 Federal Election. The Bill would implement recommendations from several inquiries into the family law system, including of this committee, with the aim of making the family law system simpler and safer for couples negotiating property and other financial settlements after relationship breakdowns.
2.262The committee welcomes these reforms, particularly the explicit recognition in the Family Law Act of the impacts of family violence in property and other financial proceedings. The codification of this consideration is long overdue. The committee believes that requiring the courts to consider the impacts of family violence in this way will lead to fairer settlements and better outcomes for victim-survivors.
2.263The broader codification of the decision-making framework for property matters is another important aspect of this suite of reforms which the committee considers improves access to family law and signals to the community the expectations and considerations for determining property matters.
2.264The concept of wastage was discussed during the course of the inquiry. Wastage is one of the considerations a court would be required to take into account when assessing the current and future circumstances of the parties when determining property orders under proposed subsection 79(5). The committee welcomes the inclusion of this factor, given the actions of some perpetrators of family violence to intentionally reduce assets of the relationship, and the examples of wastage provided in the Explanatory Memorandum.
2.265The committee welcomes the provisions that allow companion animals to be treated as a specific type of property and dealt with separately from other property. This will allow for better outcomes for parties and their companion animals, who are often used as a way to perpetrate family violence by harming or threatening to harm the animal. However, the committee is concerned that the Bill would only allow the court to make two orders relating to companion animals: that one party be given ownership, or the animal be sold. Based on the evidence before it, the committee considers that the Bill should allow the court to make an order that allows for alternatives to selling the animal. The committee therefore recommends that proposed subsections 79(6) and 90SM(6) be amended to replace ‘sold’ with ‘rehome’.
2.266Further, while the Attorney-General’s Department confirmed that the court is able to make interim orders with respect to companion animals under the proposed provisions, numerous stakeholders, including the Law Council of Australia, remarked that it is unclear on the face of the legislation whether this would be possible. The committee considers it imperative that it is clear on the face of the legislation that the court has the power to make interim orders. Issues around companion animals are often urgent in nature and the Bill should reflect this in a way that is clear to all. As such, the committee recommends that proposed subsections 79(6) and 90SM(6) be amended to state that the court can make interim orders with respect to companion animals.
2.267The committee recommends that:
proposed paragraphs 79(6)(b) and 90SM(6)(b) are amended to replace ‘sold’ with ‘rehome’, and
proposed subsections 79(6) and 90SM(6) are amended to clearly state that the court has the power to make interim orders with respect to companion animals.
2.268The committee is supportive of the establishment of a regulatory scheme in Schedule 2 for Children’s Contact Services. The committee heard that regulation is crucial to ensuring that provision of these services is consistent and high quality, something which is currently lacking in the sector due to disparity between government provided and independently provided services. Children’s Contact Services play an important role in facilitating contact between children and their family members and significant others following a relationship breakdown. Concerns were raised about whether accreditation would be imposed at the organisational level or at the individual level. Witnesses recommended that in order to ensure an appropriate and sustainable workforce for these services, introducing accreditation on organisations is the preferred model. In light of this, the committee recommends that the Commonwealth government, when developing the Accreditation Rules, consults with the relevant stakeholders and gives serious consideration to introducing accreditation at the organisational level, consistent with evidence to this inquiry.
2.269The committee recommends that in developing the Accreditation Rules for Children’s Contact Services, the Commonwealth government consults with relevant stakeholders and gives serious consideration to introducing accreditation obligations at the organisational level.
2.270While not part of the Bill before the committee, throughout the inquiry witnesses voiced strong concerns about the requirement in the Family law Act that couples undergo counselling before being able to apply for divorce if they have been married for less than two years. The committee considers that this requirement is an historical artefact that is no longer relevant or appropriate in modern Australia. Adults should be able to choose the outcomes of their relationships without outside interference. The committee is also deeply concerned about the potential impacts of this requirement on victim-survivors of family violence: it is manifestly unsafe for anyone to be required to undertake counselling with a perpetrator of abuse. The committee does not consider there to be any utility in retaining the provision and recommends that subsection 44(1B) is repealed from the Family Law Act.
2.271The committee recommends that subsection 44(1B) of the Family Law Act 1975 is repealed thereby removing the requirement that couples must undergo counselling before applying for divorce if they have been married for less than two years.
2.272 The committee considers that protecting sensitive information, such as counselling notes, from disclosure during proceedings is of the utmost importance to ensure victim-survivors of family violence are not re-traumatised when interacting with the court system. The committee welcomes the protected confidence provisions as a great step forward in achieving this goal. However, the committee remains concerned about the process requiring the protected confider to object to disclosure of a protected confidence. As currently drafted, the Bill places the onus to object to the disclosure of a protected confidence on the protected confider, many of whom are likely to be victim-survivors of family violence and self-represented. The committee heard from numerous stakeholders that this approach would place an unacceptable burden on the protected confider and subject already vulnerable individuals to potentially harmful court processes that they may not understand. The committee is similarly alarmed about the risk of systems abuse where perpetrators misuse the evidence gathering process for use in other court proceedings.
2.273The committee considers that concerns about the chilling effect of placing the onus on the protected confider may have on victim-survivors seeking the counselling support they need are well-founded. If a victim-survivor is fearful that their discussions with counselling services and medical professionals could be disclosed in court, they may well withhold information and self-censor to the detriment of their therapy and recovery. Creating a trauma-informed approach which protects the best interests of children and supports victim-survivors to attain fair and safe outcomes should be paramount. For this reason, the committee recommends that Schedule 3, Part 5 of the Bill, which deals with protected confidences, is amended to require that the party seeking access to a protected confidence is required to show they are relevant to, and necessary for, the proceedings prior to their production. If this amendment is not made,the committee recommends that additional safeguards must be introduced to ensure information is only released where absolutely necessary.
2.274The committee recommends that Schedule 3, Part 5 of the Bill, which deals with protected confidences, is amended to require that the party seeking access to a protected confidence is required to show they are relevant to, and necessary for, the proceedings prior to their production.
2.275The committee recommends that in relation to Schedule 3, Part 5 of the Bill, the following safeguards in relation to seeking access to a protected confidence be developed:
having the Attorney-General’s Department work with courts to ensure appropriate awareness of the measure is achieved through education and information given to parties;
having the Explanatory Memorandum clarify what constitutes a specialist service; and
expanding the consent provision to make it clear consent can be given in relation to all or part of the records.
2.276The committee welcomes the inclusion of a statutory review of the amendments in the Bill, which align with the statutory review included in the Family Law Amendment Act 2023. Submitters and witnesses were supportive of this mechanism although some expressed a desire to see real-time monitoring of the amendments once in force.
2.277The committee also draws to the Attorney-General’s Department’s attention technical drafting comments made by some submitters and witnesses, such as the Law Council of Australia, which have not been discussed here.
2.278Subject to the proceeding recommendations, the committee recommends that the Senate passes the Bill.
Senator Nita Green
Chair