Additional Comments by Senator Paul Scarr
1.1The Family Law Amendment Bill 2023 (the ‘Bill’) proposes amendments to the Family Law Act 1975 (Cth) (the ‘Family Law Act’) primarily in response to recommendations made by the Australian Law Reform Commission (the‘ALRC’) in relation to parenting and children. Some further issues are also dealt with in the Bill.
1.2The committee held a one-day public hearing on 11 August 2023. I acknowledge the efforts of those witnesses who provided answers to questions on notice within a very short period (three business days). Further, I acknowledge the efforts of the secretariat in producing the report within such a short period of time following the hearing date and the receipt of questions on notice.
1.3The matters dealt with in the Bill are of great importance to the Australian community.
1.4As the Law Council of Australia (‘Law Council’) noted, the law should be easier to understand for the many parties who do not come before the courts (or who do not even seek assistance from a legal professional). However, it must also be responsive to the ‘most complex and difficult matters involving vulnerable children’ that come before the courts.[1]
1.5I agree with the need for reform and the objective to make: ‘the family law system safer and simpler for separating families to navigate and to ensure the best interests of the children are placed at its centre’.[2] In particular, I agree that the case to reform Part VII of the Family Law Act has been made out (I provide further thoughts in relation to this below).
1.6As noted by several stakeholders who made submissions to the inquiry, it is important that adequate resourcing is provided to implement reforms. This was a recurring theme. Great care should be taken to ensure that there is sufficient resourcing to enable the discharge of obligations and duties imposed under the amendments to the Family Law Act. Without adequate funding to support implementation, the full benefit of the proposed initiatives will not be realised.Moreover, there could be negative unintended consequences.
1.7I agree with many of the recommendations contained in the majority report. Inparticular, I agree with:
Recommendation 1 (with respect to adding a history of family violence, abuse and neglect as a general consideration in determining what is in a child’s best interests and incorporating the language and concepts from subsection 60CC(6) to better protect the right of Aboriginal and Torres Strait Islander children to enjoy their culture);
Recommendation 2 (with respect to the commencement date of provisions);
Recommendation 3 (with respect to cost orders);
Recommendation 4 (with respect to incorporation of concepts of kinship and child rearing practices contained in section 61F of the Family Law Act);
Recommendation 5 (with respect to enhancement of the drafting to ensure that Aboriginal and Torres Strait Islander People are not subject to more onerous disclosure obligations);
Recommendation 6 (with respect to enabling the objections of the child to a return order to be taken into consideration under the Hague Convention on the Civil Aspects of International Child Abduction);
Recommendation 7 (with respect to the need to introduce safeguards against the disclosure of protected confidences in circumstances where there is no probative value in the material requested to be disclosed);
Recommendation 8 (with respect to an awareness and education campaign); and
Recommendation 9 (with respect to a review of the operation of amendments in conjunction with a review into the operation of the FamilyLaw Amendment (Information Sharing) Bill 2023).
1.8However, I do have material reservations with respect to some of the amendments to Part VII and have proposed what I hope will be considered to be constructive amendments. I also have additional comments with respect to other provisions of the Bill. I provide my additional comments in relation to each Schedule of the Bill below.
1.9The ALRC undertook an extensive inquiry into the family law system which culminated in the publication of its final report:Family Law for the Future – an Inquiry into the Family Law System published in March 2019 (the ‘ALRC Report’).
1.10The ALRC Report identified material issues with respect to Part VII of the Family Law Act with respect to children and parenting orders. The following excerpts from the ALRC Report evidence the need for reform:
5.3 The character of parenting matters in the courts has changed over the past two decades, with complex factors such as family violence becoming much more prominent.A survey of cases conducted by the Family Court in 2003 found that, in considering the best interests of children, factors relating to risk of harm were unlikely to be of high or medium importance.
5.4 In contrast, a 2014 AIFS Study found that 53.7% of parents who used the courts as their resolution pathway in 2014 reported physical violence was relevant to their situation prior to separation…
5.5 Parents who used other resolution pathways (for example intra-party discussions, lawyers, [Family Dispute Resolution] and mediation) reported a lower [number of complex factors]…
5.6 These findings suggest that the legislative framework needs to support agreement making and decision making in a variety of contexts and for families with diverse needs. The Court-based decision making applies to the smallest volume of families in each annual cohort, but these families also have the highest concentrations of complex psycho-social needs…
5.7 The legislation needs to provide a decision making framework for judicial decision making, and a guide for parenting decisions made outside the court.In doing so, the aim should always be that any decisions should safeguard the best interests of the child.
5.8 Practitioners and judicial officers have indicated in consultations that there are a number of problems with the existing framework and that the legislative provisions can operate in a way that diverts attention from the best interests of children.In the matter of Zabini v Zabini, Warnick J described applying the best interests framework to interim matters as causing a ‘dilemma of labyrinthine complexity to arise’. JudgeRiethmuller outlined the complexities of the pathway in an article entitled ‘Deciding Parenting Cases under Part VII – 42 Easy Steps’…[3]
5.13 Part VII of the Family Law Act provides a framework for determining parenting arrangements after separation. Part VII provides the family courts with a wide power to make such orders about children’s care and living arrangements, parental responsibility, and other matters relevant to child’s welfare (‘parenting orders’) as it thinks proper.In making parenting orders, Part VII provides that the best interests of the child must be the paramount consideration.
5.14 However, the current law imposes a complex pathway for decision making by the courts when determining what arrangements will best promote the child’s best interests.The ALRC recommends a number of changes to simplify, clarify, and improve the pathway to ensure it best reflects the objective that the best interests of the child are paramount in parenting matters.[4]
1.11In addition to the ALRC report, an inquiry was undertaken by a JointSelect Committee during the last term of Parliament. It found:
Notwithstanding recommendations made in this chapter to specific sections of the Family Law Act, based on its own observations of evidence presented to the inquiry, the committee agrees with the ALRC’s statement in its report that ‘the family law system, including its legal frameworks, should be designed to be as accessible and comprehensible as possible to all families who need to use it’. The committee also agrees with the ALRC’s observation that submissions to that inquiry clearly indicated that the Family Law Act is currently not meeting this need. The committee notes the ALRC’s recommendation that the Family Law Act and its subordinate legislation be redrafted, and considers that in the first instance, the [Australian Government] consider simplifying Part VII of the FamilyLawAct.[5]
1.12A strong case for reform of Part VII has been made out. Hence, consideration of each amendment to the Bill (and consideration of the final version of the Bill once any amendments have been made) should be considered in that context.
1.13Prior to providing detailed comments on the proposed amendments to Part VII, I make a number of comments in relation to some preliminary matters. In my view, these matters are relevant in considering the proposed amendments to Part VII. In many respects, it is most helpful to consider the amendments to Part VII as a package, rather than on a piecemeal basis. (It is also helpful to consider my recommendations in relation to Part VII in that way - as a package with each buttressing the effect of the other).
1.14Concerns have been raised in relation to the policy intention underlying the deletion of many sections of the Family Law Act which were inserted in 2006. Inthis regard, I quote from a paper by Professor Patrick Parkinson AM in which he states:
What seems apparent enough from the text is that it reverses, in a wholesale way, almost all the changes that were made to the [Family Law Act] following the unanimous report of a parliamentary committee in 2003.This led in due course to the 2006 changes.
Those amendments were made after one of the biggest public inquiries in recent history.They passed the Parliament with almost unanimous support, and were amended in only relatively minor ways by a Labor government in 2011 to enhance the focus on the issue of family violence.Curiously though there are numerous indications in the explanatory materials to the effect that the Government does not disagree at all with the intentions of the earlier Parliaments and does not really want the law, which it has chosen to repeal, to change at the level of functional values or understanding of what is in the best interest of children.[6]
Every Picture Tells a Story – the 2003 Committee Report
1.15The inquiry that Professor Parkinson is referring to is that undertaken by the House of Representatives Standing Committee on Family and Community Affairs chaired by Kay Hull AO. It reported in December 2003. Therecommendations of that committee were made on a unanimous basis. Inpreparing these Additional Comments and reflecting on the issues raised in relation to Part VII, I have read the relevant parts of the ‘Every Picture Tells a Story’ report. I commend all previous Members of Parliament who participated in the preparation of that report.
1.16It is instructive to consider some of the observations made by the committee in the ‘Every Picture Tells a Story’ report. There is deep consideration of issues which arise for this committee’s deliberations in relation to Part VII of the Family Law Act.
Another young boy, Jack, who we were unable to meet with, told us his story through his four drawings. We are so grateful to Jack for the pictures which we have used on the cover and inside cover of our report. Jack's story is a simple and complex one at the same time. It is a story we can all identify with in some way. ‘Every picture tells a story’.
Jack's pictures tell us: Jack shares his time between mum's house and dad's house. He loves his mum and he loves his dad. He doesn't like it when his mum and dad argue. He's happy when they talk to each other. It is a tough story because dad lives in one city and mum lives somewhere else. He likes to see them both all the time but he can't because the distance makes it too hard.
Jack's pictures encapsulate the most important voice of all - the voice of the children. It has been the committee's task to find a way to make the family law system better for all the children and young adults who find themselves, through no choice of their own, in a situation where their parents cannot live together anymore and must separate. Despite this, their parents are still their parents and should continue to share responsibility for them. We are convinced that sharing responsibility is the best way to ensure as many children as possible grow up in a caring environment.[7]
Is time the real issue?
What has become apparent to the committee during its inquiry process is that many separated parents – mostly fathers but also mothers – feel excluded from their children’s lives following separation. What parents want is to be more involved and for many the equal time argument has become the vehicle for pursuing the connection that their children are entitled to. This has turned the debate away from the benefits for children of a positive and caring relationship with both parents to all the arguments about why equal time will or will not work. The committee believes that the focus must be turned back to the primary issue of how to ensure both parents can, and will, remain involved in caring for their children after separation.[8]
Care needed to ensure families and children subject to violence are not exposed to further risk
The committee firmly believes that violence is totally unacceptable behaviour, especially within families. Children should not be exposed to violence either directly or indirectly. The negative impact of family violence on children’s emotional stability and future development is widely accepted. In developing a new approach, the emphasis should be on enabling the majority of families and children to grow up with meaningful and positive relationships. In so doing, care needs to be taken to ensure that families and children subject to abuse are not exposed to further risk.[9]
Community perceptions and need for education campaign
The committee has also concluded that community perception of legislation is as critical to its success as its actual content. Any legislative change which the government decides to implement may therefore need to be accompanied by community and professional education.[10]
1.17Professor Parkinson in his article quoted above referred to: ‘numerous indications in the explanatory materials to the effect that the Government does not disagree at all with the intentions of the earlier Parliaments and does not really want the law, which it has chosen to repeal, to change at the level of functional values or understanding of what is in the best interest of children’.
1.18I agree. I refer to the following extract from the Explanatory Memorandum:
44. New paragraph 60CC(2)(e) provides that the court must consider the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so.
45. This consideration recognises the importance of parental relationships, and relationships with other people who are significant to the child (such as grandparents or members of a broader kinship group) to a child’s wellbeing.Where appropriate and safe, parenting orders that ensure children benefit from a close and nurturing relationship with their parents should be made.
46. No one particular arrangement will work for all children or all families, whose needs are diverse and will change over time.However, where safe and appropriate, most children benefit from spending time with their parents not only at weekends and in school holidays, but also during the school week, and will also benefit from allowing each parent to be involved in the daily routine and occasions and events that are of particular significance to the child.[11]
1.19I agree on all counts. However, it is important that the drafting of the Bill align with the Explanatory Memorandum (and is perceived by the community to align with the Explanatory Memorandum). I believe that this can be achieved in accordance with the objective of the bill. My recommendations are made in that spirit.
1.20Both existing section 60B of the Family Law Act and the proposed amended section 60B refer to the Family Law Act giving effect to the UN Convention on the Rights of the Child adopted on 20 November 1989 (‘CRC’). The existing and proposed amended section 60B refer to the objective of giving effect to the provisions of the CRC.
1.21The Statement of Compatibility with Human Rights prepared in relation to the Bill refers to the relevant articles of the CRC which are engaged by the Bill. Forthe purposes of my comments which follow, these include the following:
Article 3(1) (Best interests of the child)
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration…
Article 9(3) (Relationship with parents)
States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.
Article 12(1) & (2) (Views of the child)
States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
Article 18(1) (Upbringing of child)
States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child…
Article 19(1) (Protection of the child)
States Parties shall take all appropriate legislative administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in care of parent(s), legal guardian(s) or any other person who has care of the child.
Article 30 (Right to benefit from culture)
In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.
1.22I note this statement in the Explanatory Memorandum:
14. The repeal and substitution of section 60B does not indicate that the repealed objects and principles are no longer relevant. Rather, the intention is to simplify the objects and principles to better assist with the interpretation of Part VII and avoid duplication with section 60CC which sets out what the court must consider when determining what is in the best interests of the child.[12]
1.23However, I am strongly of the view that retention of the objects and principles would provide comfort with respect to the policy intention underlying the Bill and would provide assistance to the wider community in understanding the effect and context of the amendments. As a corollary, I am concerned that failing to retain the objects and principles would send the wrong message. In my view, this would be counterproductive.
1.24The objects and principles are entirely consistent with the Articles of the CRC referred to above. It does not make any sense to me, on the one hand, to refer the layperson to access the CRC (with its legalese) through AustLII, and then, on the other hand, to delete the existing objects and principles which are drafted in a manner far more accessible to the layperson.
1.25To put it another way, by incorporating the CRC into the objects and principles (by reference), the objects and principles clause is already (from a legal viewpoint) extensive. Surely it is preferable to have language within the objects and principles which is readily accessible to the layperson?
Recommendation 1:
1.26The objects and principles within the current section 60B be retained.
1.27With the retention of the objects and principles, there should be more comfort with respect to the policy intention underpinning the simplification of the best interest factors in the new section 60CC. However, in order to ensure alignment between the intention evinced in the excerpts from the Explanatory Memorandum referred to above and the wording of the legislation, further refinements are necessary.
1.28I have already expressed my strong agreement with respect to Recommendation1 in the majority report; namely, adding a history of family violence, abuse and neglect as a general consideration in determining what is in a child’s best interests and incorporating the language and concepts from subsection 60CC(6) to better protect the right of Aboriginal and Torres Strait Islander children to enjoy their culture.
1.29In relation to paragraph 60CC(2)(a), the Law Council makes a strong case for inserting a definition of ‘neglect’ into the Bill. I note the suggestion to use the definition of ‘neglect’ under the Children’s Guardian Act 2019 (NSW).[13]
1.30In this regard, I note the comment in the Explanatory Memorandum that: ‘theterm should…be applied by reference to its meaning in accordance with state and territory child protection legislation’.[14] Does this mean that the term is intended to have a different meaning in different states and territories? Oris it intended to provide for a consistent definition across all of Australia (as I expect).
Recommendation 2:
1.31That the term: ‘neglect’ used in paragraph 60CC(2)(a) be defined in the Bill in accordance with the recommendation of the Law Council of Australia.
1.32In relation to paragraph 60CC(2)(b), I note the Law Council’s observation that:
…the Law Council is concerned that, as currently expressed, new paragraph 60CC(2)(b) may be read by a layperson as an explicit and determining factor.This could result in parents placing undue pressure on children, coaching children, or engaging in behaviour to alienate a child from the other parent.[15]
1.33This is a serious issue which should be carefully considered.
1.34In my view, there is considerable merit in the Law Council’s recommendation that the nominated words within the existing paragraph 60CC(3)(a) should be retained. I also observe that those words are entirely consistent with Article 12 of the CRC which is referred to above.
Recommendation 3:
1.35That paragraph 60CC(2)(b) be amended by retaining the existing words within paragraph 60CC(3)(a) in accordance with the recommendation of the Law Council of Australia.
1.36 In addition, I am strongly of the view that the word: ‘meaningful’ should be reinstated as a qualifier to the word: ‘relationship’ in paragraph 60CC(e) such that it would read:
The benefit to the child of being able to have a meaningful relationship with the child’s parents…
1.37Such an amendment would be consistent with:
Article 9(3) of the CRC which refers to: ‘direct contact with both parents on a regular basis’;
the excerpts from the Explanatory Memorandum referred to above; and
submissions made by the Law Council and Professor Parkinson.
1.38I note the response issued by the Attorney-General’s Department with respect to the inclusion of the word: ‘meaningful’.[16] However, in response, I refer to the Law Council’s submission:
…as it has been the product of considerable jurisprudence over the last two decades which is available to guide the Court’s consideration of the child’s relationship with their parents and other people significant to them, it would be undesirable for the Bill to abandon the concept.[17]
1.39Moreover, what message does it send to a layperson that the word: ‘meaningful’ is being omitted? As the Law Council says in its submission:
…the Law Council’s Family Law Section and the majority of its Constituent Bodies have expressed concerns that to remove consideration of a ‘meaningful’ relationship may lead the court to possibly consider that any relationship may be acceptable, with a consequent reduction in time and communication arrangements as being sufficient to meet that lower threshold.[18]
1.40Hence, this is both an important point of law as well as one of community perception. I genuinely believe there is considerable merit in retaining the phrase ‘meaningful relationship’. It is hard to see how the retention of one additional word would defeat the objective of the Bill given the other changes being made to simplify the best factor considerations. On the other hand, refusal to re-insert the word would, in my view, send the wrong message to the community.
Recommendation 4:
1.41Proposed paragraph 60CC(2)(e) be amended by inserting the word: ‘meaningful’ before relationship.
1.42Having considered the ALRC report and submissions to both the Bill and the Exposure Draft of the Bill, in my view, there is a strong case for following the recommendation in the ALRC report that the presumption of ‘equal shared parental responsibility’ should be replaced with a ‘presumption of joint decision making about major long- term issues’.
1.43This would deal with the well documented issue of equal shared parental responsibility being incorrectly conflated with equal time. In addition to implementing the considered recommendation of the ALRC, it would be consistent with the relevant Articles of the CRC and submissions received from experts. Again, as is the case with respect to the recommendations I have made above, it would also send a positive message to the community that the intention is not to deviate from the values underpinning the existing legislation.
1.44With respect to submissions received in relation to the Bill and the Exposure Draft of the Bill, I note that a number of experts referred to the merits of following the ALRC recommendation.
1.45In his submission on the Exposure Draft of the Bill, Professor Bruce Smyth stated:
Is there still a role for law to send out a radiating message that both parents matter, and that children need both their parents to be involved in their lives after separation providing children are safe? On its face, this seems axiomatic. Children themselves are clear on the importance of having at least a safe and loving home after parental separation – or ideally two such homes (see e.g., Fehlberg et al, 2021; Campo et al, 2020).[19]
1.46In its submission on the Exposure Draft of the Bill, the Family Law Practitioners’ Association of Western Australia stated:
We otherwise note that the proposed amendments do not take one of the primary recommendations of the ALRC into account. The Report found that many litigants misunderstood the term “equal shared parenting responsibility” and recommended that the legislation be amended to reflect “equal decision making” or similar. We support a change in labelling for the reasons identified by the ALRC.[20]
1.47Similarly, the Hunter Valley Family Law Practitioners Association submitted:
It is worth nothing that the ALRC’s review into the family law system in Australia recommends that the removal of ESPR should be accompanied by the inclusion of a presumption of “joint decision making for major, long term issues”. The draft bill does not propose to include such a presumption, and it is therefore against the ALRC recommendation on this issue…It is submitted the legislative amendments should, if made, contain a presumption of the kind contained in ALRC Recommendation 7.[21]
1.48Similarly (again), the Family Law Practitioners Association of Queensland submitted:
The existing legislation enshrined a decision-making pathway, enabling advice to be given as to the determinative process which would be undertaken by a decisionmaker, and the factors relevant to the steps in that pathway. For litigants, this represented a known process of reasoning, and therefore a predictable sense of the approach which would be taken to their case. The proposed legislation removes that presently known pathway, leaving in its place, from an advisory standpoint, a more variable process, which may seem less certain and predictable to litigants, and therefore more confronting...
In reality, there are a number of cases where the question of parental responsibility is not litigated, because the existence of the presumption in section 61DA guided those cases into a mutually accepted (by parents) treatment of parental responsibility to which both parents adhere. With the presumption removed, a question arises as to whether more cases will be initiated on the question of parental responsibility alone.
It is suggested that the practical effect of section 61C could – and should – also be explained further within the legislation (for the benefit of separated parents, who are not subject to an order of the courts), at the time of and in the context of the proposed reforms.
In certain matters, a parent will make unilateral decisions regarding major long-term decisions on an indiscriminate basis – for example, unilateral changes to the city or state of a child’s residence, or unilateral changes to a child’s school enrolment – after a separation (whether prior to any court application being filed or during court proceedings), prompting the filing of further applications to regulate such conduct after the fact.
The fear is that, in the absence of the regulation of decision making by parents (whether with or without any orders), parents caught up in a power-imbalance or victims of family violence will be required to make an active application to Court for orders as to parental responsibility and specific issues (e.g. school, medical treatment), and to bear the associated cost, to bring into order a situation where parental responsibility is being exercised in a way with which they do not agree.[22]
Recommendation 5:
1.49It is recommended that the ALRC recommendation to replace the presumption of ‘equal shared parental responsibility’ with a presumption of joint decision making about major long-term issues be adopted and reflected in the drafting of the Bill.
1.50Schedule 2 of the Bill deals with the enforcement of child-related orders. Itwould replace existing Division 13A of Part VII of the Family Law Act, and replace it with a new Division. The stated aim of the redrafted Division, as set out in the Explanatory Memorandum to the Bill, is:
…to make the consequences of non-compliance with parenting orders clearer and more straightforward.[23]
1.51However, significant concerns have been raised by the legal profession in relation to the redrafted provisions. Indeed, the Law Council’s submission to the committee makes clear that while there is broad support for the objective of simplification, the redrafted provisions require substantial work:
However, it considers that careful consideration should be given to clarifying and simplifying this Division to the greatest extent possible, as the consequences for litigants can be significant, including imprisonment…
The Law Council considers that the proposed redraft streamlines and improves the readability of Division 13A, which will likely result in more consistent application by the courts of that Division and greater understanding by parties—particularly self-represented litigants—as to the consequences of non-compliance with an order and initiation of unmeritorious contravention applications. However, while it is broadly supportive of Part 1 of Schedule 2 of the Bill, subject to the below recommendations, the Law Council has received feedback from the legal profession that Schedule 2 remains complex and difficult to understand overall.[24]
1.52The Law Council makes a range of recommendations for redrafting. Notably, it has expressly recommended that significant provisions in the Schedule be redrafted or removed in their entirety.
1.53In comments on the Exposure Draft of the Bill, the ACT Bar Association expressly called for the schedule to be reconsidered in conjunction with the profession before proceeding:
While it is agreed that the current provisions in Division 13A are a complex mess and should be simplified, the ACT BA does not consider that the proposed changes would make the division easier to understand.They are, instead, a different complex mess.Rather than responding to questions 12 – 16 of the questions consultation paper, ACT BA submits that the provisions should be reconsidered and consultation with the profession should occur before that reconsideration.[25]
1.54Similarly, in comments on the exposure draft legislation, Professor Parkinson outlined some of the significant issues in the drafting of the schedule. Hereferred in particular to proposed subsection 70NBE(4) which deals with costs. As presently drafted, the provision would require the court to make a costs order against a person who contravenes a child-related order without having a reasonable excuse ‘unless the court is satisfied that it is not appropriate to do so in the circumstances’. He noted as follows:
Translated, the court should make a costs order unless it thinks that it shouldn’t make one. The consultation paper describes this as “a presumption in favour of a cost order being made against a person found to have contravened an order without reasonable excuse”. I don’t think it is anything of the sort.[26]
1.55It is noted that the Attorney General’s Department is undertaking further consideration in relation to the schedule providing for safeguards against the disclosure of protected confidences that was contained in the Exposure Draft of the Bill. In my view, Schedule 2 of the Bill should be dealt with in the same way.
1.56Given the material issues raised by the legal profession in relation to Schedule2, and the fact that a further bill will no doubt be introduced to deal with the issues relating to protected confidences, it is suggested that the Attorney-General’s Department take the opportunity to undertake further detailed consideration of Schedule 2, including through additional engagement with the legal profession to ensure that the new schedule meets the objective of simplifying the Family Law Act. This opportunity to simplify in the best way possible should not be lost.
Recommendation 6:
1.57Schedule 2 be withdrawn from the Bill to enable further consideration and engagement with the legal profession and then Schedule 2 (after appropriate revision) be reintroduced in a subsequent bill.
1.58No further comment. I support the recommendation contained in the majority report.
1.59A consistent theme across submissions was the need for adequate funding to enable access to independent children’s lawyers. This was made clear in the submission made by the Law Council. This is an example where in the absence of additional funding, the amendments could lead to unintended consequences.Great care should be taken in this regard.
1.60The Law Council has provided detailed recommendations in relation to this Schedule.I note that the response by the Attorney General’s Department does not appear (at least on my reading) to engage with the recommendations made by the Law Council. (As noted above, the Attorney-General’s Department only had three business days to turnaround the answers and my observation is not intended by way of criticism – the representatives of the department have engaged in an extremely professional and prompt way with the committee).
Recommendation 7:
1.61The Attorney-General’s Department consider the Law Council of Australia’s recommendations in relation to Schedule 4 and make appropriate amendments to the Bill.
1.62The introduction of harmful proceedings orders is an extremely important reform. It is noted that the Law Council has proposed some amendments which are worthy of consideration.
1.63Careful consideration should be given to providing that an order is available where the other party or a child the subject of the proceedings ‘would likely suffer harm’, as opposed to ‘would suffer harm’.
1.64The Law Council has also suggested that the wording of proposed subsection 95(1) should be expanded: ‘to address explicitly the concept of minimising acrimony’.[27] In my view, there is great merit in that proposed amendment.
1.65The Law Council has also provided helpful observations with respect to the duty which would be imposed on parties and their legal representatives to conduct proceedings in relation to the overarching purpose. Again, these are well worth detailed consideration.[28]
Recommendation 8:
1.66The Attorney General’s Department considers the amendments proposed by the Law Council of Australia in relation to Schedule 5 and make any appropriate amendments to the Bill and the Explanatory Memorandum.
1.67Whilst the Law Council raises a number of policy issues for further consideration in due course, the most important relates to the power of the Court to grant an injunction.[29] As the Law Council states:
The most serious issue, which should be addressed as a priority is that sections 114Q to 114T ‘shut the gate well after the horse has bolted’. There is no overt power to grant an injunction to stop an offending publication or to take down material published in breach of the section.[30]
1.68It is also noted that the Scrutiny of Bills Committee and the Law Council have raised concerns regarding the role of the Director of Public Prosecutions (DPP), including who can commence proceedings or who can apply for the consent of the DPP. This should be clarified and further considered.
Recommendation 9:
1.69The Attorney General’s Department further considers the policy issues raised by the Law Council of Australia and the scrutiny concerns of the Scrutiny of Bills Committee and make any appropriate amendments to the Bill or the Explanatory Memorandum.
1.70The Law Council raises numerous drafting issues in relation to the proposed Part XIVB.[31] The arguments for the drafting amendments are persuasive. These should be considered in detail by the Attorney Generals’ Department.
1.71In addition to the drafting issues raised by the Law Council, consideration should be given to the following matters:
Is the reference to ‘witness’ in section 114Q(1)(b)(ii) intended to capture expert witnesses? There seems to be less of a policy reason for expert witnesses to have their names redacted. There could be some use in being able to see which experts appear as witnesses in which cases. The matter could be clarified in either the section or in the Explanatory Memorandum.
There would be merit in providing further clarification as to the meaning of ‘significant and legitimate interest in the subject matters of the communication’ in proposed paragraph 114S(1)(a).This is a key phrase because circumstances falling within the ambit of this phrase would not be considered a communication to the public and, therefore, would not trigger the operation of the offence. For example, could it potentially include advocacy groups or the media in certain contexts. Presumably the Attorney‑General’s Department had some contexts in mind when drafting this phrase. Without further definition or explanation this could be a matter for dispute.
Presumably the reference to friend in proposed paragraph 114S(2)(a) is to a close personal friend, as opposed to social media ‘friend’.Again, I query if the phrase could be tightened.
Finally, is it intended that proposed section 114Q(2), as well as proposed section 114R(2)(b)(i), apply to formal orders of the court, as opposed to comments that a judge may say in passing. Again, there is merit in considering tightening the definition to perhaps refer to an: ‘order of the court’ rather than ‘direction’ or ‘approval’.This would make the operation of the provision clearer to a lay person.
Recommendation 10:
1.72The Attorney General’s Department should consider the above drafting issues and make appropriate amendments to the Bill or the Explanatory Memorandum.
1.73I note the submission of the Family Law Council with respect to the different cohorts of family report writers which is discussed at paragraph 3.67 of the majority report.
1.74Given that Court Child Experts are employees of the court and are subject to ongoing training requirements, supervision, and quality assurance processes, Iquery the utility of including them within the ambit of the proposed regulatory scheme.
1.75In relation to private practitioners appointed by the Court under Regulation 7 of the Family Law Regulations 1984, the appointment process itself, ongoing training requirements and quality assurance processes should provide the requisite comfort.
1.76The Law Council has raised the need to balance the goal of upholding standards of practice with:
…appropriate funding for the writers, as well as not creating costly and burdensome obligations which, in practice, hinder the report writing process and discourage family report writers from remaining in the field or entering it altogether.[32]
1.77The case for additional regulation is strongest with respect to private report writers who are not engaged by the Courts and with respect to whom the Court does not have regulatory responsibilities or the ability to exert control (albeit that a judicial officer may of course exercise their discretion not to enter the evidence of a particular report writer into evidence or to give it less weight).Moreover, consideration should be given with respect to the appropriateness of the application of the penalty regime to employees of the Court and those private practitioners appointed under Regulation 7 (e.g. should members of these cohorts be subject to penalty provisions).
1.78It is noted from the answers to questions on notice provided by the Attorney‑General’s Department that it is aware of the issue of disincentivising the existing and future workforce.However, consideration should be given to recognising the particular status of Court Child Experts and Regulation 7 report writers in the Bill.
Recommendation 11:
1.79The Attorney-General’s Department considers any adjustments to the provisions of Part IIIAA which are reasonably required to reflect the different appointment and oversight characteristics of Court Child Experts and practitioners appointed as report writers under Regulation 7, as opposed to private report writers not employed or appointed by the Court.
Recommendation 12:
1.80The Attorney-General’s Department undertakes further consultation with the relevant professions and the Court with respect to any unintended consequences that may flow from the Bill, in particular any disincentive that increased regulation and penalties may pose to current or potential family report writers.
1.81It is unclear whether the reports listed in subsection 11J(2) must also meet the criteria in subsection 11J(1) in order to be considered ‘designated family reports’.
1.82I query whether all reports prepared under section 11F are intended to be ‘designated family reports’.
1.83I query whether it is intended that preliminary assessments prepared for the purposes of assisting case management planning, dispute resolution or interim assessments are intended to be captured within the definition of: ‘designated family reports’.
1.84The Law Council suggested that ‘may deal with’ in section 11K(2) should be ‘must deal with’.[33]
Recommendation 13:
1.85The Attorney-General’s Department considers the above drafting issues in relation to Schedule 7 and make any appropriate amendments to the Bill.
1.86The Bill seeks to accelerate the timeline for the legislative review of the FCFCOA.Instead of the review taking place after five years, it would take place between three years and three years and six months after the commencement of the FCFCOA.
1.87I acknowledge that the Law Council welcomes the ‘expedited opportunity’ to assess the effectiveness and impact of the FCFCOA as referred to in paragraph 3.83 of the majority report. However, I note the Law Council does not nominate any particular concerns or issues in its submission that justify an acceleration of the review. In this regard, I note that the Law Council’s apparent dissatisfaction with respect to previous consultation processes is not a basis to accelerate a review – identification of particular concerns with the operation of the Court would be more persuasive.
1.88Moreover, the Law Council also observed that: ‘bringing forward the review will mean that proportionally more of the FCFCOA’s operational period would have been impacted by the COVID-19 pandemic than would be the case if the review occurred later.’This strongly militates against a finding that the review should be accelerated.
1.89Surely there is merit in conducting the review after the Court has had an opportunity to operate under normal conditions and to deal with legacy issues, including those arising from the COVID-19 pandemic period?
1.90It is also noted that many new judges and registrars have been appointed to the Court over the last few years. There must be merit in holding a review after new judges and registrars have had an opportunity to become fully operational.
1.91From my perspective, there has been no evidence heard in Estimates by this committee that would justify the acceleration of the review. Quite to the contrary, I have been impressed with the progress made by the Court post‑merger and the raft of positive initiatives undertaken by the Court.For any review to be worthwhile, there needs to be a reasonable period of time for the initiatives to be implemented, reviewed, refined and to operate in steady state.
1.92The review will be a major undertaking.It will require the dedication of substantial resources (including from within the Court).It would be a waste of effort if the review were to find (in whole or in part) that more time was needed to come to a considered conclusion with respect to the operation of the Court.
1.93Finally, I note that the Attorney-General’s Department acknowledged that the acceleration of the review date was initiated out of the office of the Attorney‑General, not because of consultation on this Bill. The following exchange from Hansard evidences this:
Senator Scarr: On schedule 8, in terms of bringing forward the review, I’ve looked at the helpful table that was included as attachment 2.It says:
Schedule 8 was introduced not the Bill following the consultation period.
What I’m seeking some clarity on is: was schedule 8 introduced following submissions by particular parties as part of the consultation process…or was it introduced as a matter of policy coming out of the Attorney-General’s office?
Mr Demamiel: It was the latter.It was a matter of policy.[34]
1.94Hence, it can be observed that this is not an initiative which was raised through the consultation process.
1.95With due respect to the Attorney-General, for the above reasons, the case for accelerating the review of the FCFCOA has not been made out.
Recommendation 14:
1.96That the timing of the review of the Federal Circuit and Family Court of Australia Act 2021 stand as originally legislated and Schedule 8 of the Bill be deleted.
Senator Paul Scarr
Deputy Chair
Liberal Senator for Queensland
Footnotes
[1]Law Council of Australia, Submission 62, paras 4 and 5, p. 6.
[2]Explanatory Memorandum (EM), p. 2.
[3]Australian Law Reform Commission, Family Law for the Future: An Inquiry into the Family Law System, ALRC Report 135, March 2019, www.alrc.gov.au/publication/family-law-report/ (accessed 24 August 2023), pp. 156–157.
[4]ALRC Report, p. 158.
[5]Joint Select Committee on Australia’s Family Law System, Second Interim Report, p. 80, www.aph.gov.au/Parliamentary_Business/Committees/Joint/Family_Law_System/FamilyLaw (accessed 24August 2023).
[6]Professor Patrick Parkinson AM, Submission 4, Attachment 1, pp. 5–6.
[7]House of Representatives Standing Committee on Family and Community Affairs, Every picture tells a story: Report on the inquiry into child custody arrangements in the event of family separation, 2003, pp. xi and xii.
[8]Ibid pp. 19 and 20.
[9]Ibid p. 20.
[10]Ibid p. 40.
[11]EM, p. 22.
[12]EM, pp. 17–18.
[13]Law Council of Australia, Submission 62, para 31, p. 14 (refer to footnote 20).
[14]EM, para 35, p. 20.
[15]Law Council of Australia, Submission 62, p. 16.
[16]Attorney-General’s Department, answers to questions taken on notice at a public hearing, 11August 2023 (received 15 August 2023), p. 6.
[17]Law Council of Australia, Submission 62, p. 18.
[18]Law Council of Australia, Submission 62, p. 18.
[19]Professor Bruce Smyth, Response 783933099 to the Family Law Amendment Bill 2023 Exposure Draft, p.11.
[20]Family Law Practitioners’ Association of Western Australia, Response 599879071 to the Family Law Amendment Bill 2023 Exposure Draft, p. 4.
[21]Hunter Valley Family Law Practitioners Association, Response 288761770 to the Family Law Amendment Bill 2023 Exposure Draft, p. 3.
[22]Family Law Practitioners’ Association of Queensland, Response 468085479 to the Family Law Amendment Bill 2023 Exposure Draft, pp. 5–7.
[23]EM, p. 3.
[24]Law Council of Australia, Submission 62, p. 32.
[25]ACT Bar Association, Response 737597677 to the Family Law Amendment Bill 2023 Consultation Paper, para 11.
[26]Professor Patrick Parkinson AM, Response 1035264302 to the Family Law Amendment Bill 2023 Exposure Draft, p. 20.
[27]Law Council of Australia, Submission 62, p. 48.
[28]Ibid p. 49.
[29]Ibid p. 52.
[30]Ibid p. 52.
[31]Law Council of Australia, Submission 62, p. 52.
[32]Law Council of Australia, Submission 62, p. 71.
[33]Law Council of Australia, Submission 62, p. 54.
[34]Proof Committee Hansard, 11 August 2023, p. 71.
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