Chapter 3Other key issues
3.1Submitters and witnesses also commented substantively on the provisions proposed in Schedules 2–7 of the Family Law Amendment Bill 2023 (the Bill). The following matters are discussed in this chapter:
the enforcement of ‘child-related orders’;
the definitions of ‘member of the family’ and ‘relative’;
new duties for independent children’s lawyers (ICLs);
‘harmful proceedings orders’;
communications of details of family law proceedings;
standards and requirements for family report writers; and
the public consultations and review.
Enforcement of ‘child-related orders’
3.2Division 13A of Part VII of the Family Law Act 1975 (the Family Law Act) sets out the court’s enforcement powers in relation to parenting orders and other orders affecting children. The Bill would repeal and replace this division, with a redrafted division that is intended to be simpler and easier to apply.
3.3Item 21 in Schedule 2 of the Bill would insert new Division 13A into Part VII of the Family Law Act, reducing the existing six subdivisions to four subdivisions.
3.4According to the Explanatory Memorandum (EM), the proposed new division aims to achieve two specific outcomes:
…the [redrafted] Division no longer separately provides for circumstances where the court considers the contravention to be ‘less serious’ or ‘more serious’. Instead, the court has discretion to tailor its response to match the gravity of the contravention, while still being required to consider a number of factors in weighing up the seriousness of any given contravention, including the current and previous behaviour of the parties. This approach intends to simplify the law, while retaining the court’s discretion to consider the circumstances of each case…[In addition] the penalties and costs provisions are centralised to improve readability. Currently these provisions are repeated throughout the Division against the different outcomes that can result from a contravention matter.
3.5Submitters supported simplified and user-friendly provisions for orders in proceedings relating to the contravention of child-related orders. TheHonProfessor Richard Chisholm AM noted that, while proposed new Division 13A remains complex, this is unavoidable and still an improvement on the present law.
3.6Both Professor Chisholm and the Family Law Council referenced the Australian Law Reform Commission (ALRC) report titled Family Law for the Future: An Inquiry into the Family Law System and in particular, Recommendation 42:
Recommendation 42 Part VII Div 13A of the Family Law Act 1975 (Cth) should be redrafted to achieve simplification, and to provide for:
a power to order that a child spend additional time with a person;
a power to order parties to attend relevant programs at any stage of proceedings; and
a presumption that a costs order will be made against a person found to have contravened an order.
3.7The Family Law Council endorsed new Division 13A, noting that it shifts ‘the focus to attempting to resolve the underlying issue that gave rise to the non-compliance and with the issue of potential penalty [to] be considered as a last resort’, consistent with ALRC Recommendation 42.
3.8The Law Council of Australia (Law Council) concurred with the implementation of ALRC Recommendation 42. In its view:
…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.
3.9However, while broadly supportive of proposed new Division 13A, theLawCouncil—together with other submitters—queried elements of proposed new Division 13A, including the proposal for costs orders.
Costs orders
3.10Proposed section 70NBE would provide the court with the power to order costs against either party in certain circumstances. According to the EM, the provision has been ‘designed to simplify Division 13A by reducing duplication and improving readability’.
3.11The Law Council did not support proposed new subsection 70NBE, for the following reasons:
the provision unnecessarily confuses and duplicates an existing costs power (section 117 of the Family Law Act);
the provision ‘generalises to an extreme when, and how, a costs order would be made’, which is inconsistent with ALRC Recommendation 42; and
the provision is unlikely in practice to result in costs orders being made, as only genuine costs consequences, with ‘sharper teeth’ than those proposed, will act as a deterrent.
3.12WLSA also opposed the proposed provision. It argued that the provision could lead to unfair and unsafe outcomes:
…parents who are found to have contravened orders in minor ways, have contravened orders to protect their child, or have contravened orders in a manner that they thought amounted to a reasonable excuse (notwithstanding this might not be the view of the court), may end up with onerous costs orders… Many of our clients contravene orders in circumstances where they have serious concerns for the safety of their children and for themselves and they should not be penalised for trying to act protectively, even though they have not met the evidential threshold of reasonable excuse. In our experience it can be difficult for our clients to prove that they have a reasonable excuse... Further, a costs order is a significant penalty. Many of our clients are at extreme financial disadvantage. Fear of a cost risk places these women in a near impossible situation and the cost risk would be a real deterrent to act protectively.
3.13Both WLSA and the Law Council suggested that proposed section 70NBE should be removed from the Bill. In the words of the latter: ‘the question of costs should remain at the discretion of the judicial officer, relying upon section 117 of the Act and taking all relevant matters into account’.
Definition of ‘member of the family’ and ‘relative’
3.14At present, the Family Law Act defines the terms ‘member of the family’ and ‘relative’. Items 2 and 4 in Schedule 3 of the Bill would expand both definitions, to provide ‘for an Aboriginal or Torres Strait Islander child—a person who, in accordance with the child’s Aboriginal or Torres Strait Islander culture, is related to the child’.
3.15The EM advises that the proposed amendments are intended ‘to reflect that Aboriginal or Torres Strait Islander peoples may have extended family structures or kinship systems and that child‑rearing responsibilities may extend beyond the immediate family group or what is reflected in the current definition[s]’.
3.16Submitters and witnesses supported an expanded definition of the terms ‘member of the family’ and ‘relative’. Professor Chisholm noted that the proposed definition of ‘member of the family’ follows ALRC Recommendation 9, which was made in consultation with Aboriginal and Torres Strait Islander bodies.
3.17In evidence, the Attorney-General’s Department (AGD) commented further upon its consultations with First Nations people in relation to the Bill:
…we engaged with a range of organisations that included SNAICC… Weconsulted them as part of the pre-brief and during the consultation period on the bill. They were also consulted earlier in the piece on the particular wording in schedule 3. There was a consultation period conducted to arrive at the particular wording of 'member of the family' and 'relative' that had been included in schedule 3. We also consulted with national family violence prevention and legal services as well as New South Wales Aboriginal legal services. There were a number of submissions as well from a range of different Aboriginal and Torres Strait Islander peak groups. We invited the National Aboriginal and Torres Strait Islander Legal Services, NATSILS, to participate in a consultation meeting during the period. They were unable to take us up on that, but they did provide a submission to our process.
3.18SNAICC—National Voice for our Children (SNAICC) advised that notions of kinship and associated obligations vary considerably among different Aboriginal and Torres Strait Islander Nations, language and clan groups. Torecognise this diversity, it suggested that Aboriginal community-controlled organisations be funded to develop practice guidelines and deliver training to develop the capability within the family law system to apply these concepts.
3.19The Law Council agreed that it is vital for the Family Law Act to recognise and value the traditions and culture of Aboriginal and Torres Strait Islander people, and to afford separating families and the court broad discretion in identifying and including those they recognise in their traditions, cultures and community as family.
3.20However, the Law Council suggested that Items 2 and 4 in Schedule 3 should be reconsidered, as there is no reference to ‘kin’ or related concepts in the Bill:
The Law Council queries why Schedule 3 proposes to depart from this more familiar terminology, noting that section 61F of the [Family Law] Act requires the court to ‘have regard to any kinship obligations, and child‑rearing practices, of the child’s Aboriginal or Torres Strait Islander culture’. It is essential that a kinship group, and kinship roles, be recognised clearly in the definition of ‘relative’, without regard to terminology such as ‘related to’, which continues to afford primacy to biological relationships and does not address the intricacies of Aboriginal and Torres Strait Islander families.
3.21The Law Council also questioned whether the proposed definition of ‘member of the family’ implements the final limb of ALRC Recommendation 9: a concept of family ‘that is relevant in the particular circumstances of the case’. In the view of legal professionals, omitting this qualifier could have unintended consequences:
For instance, strangers to the litigation—who may not have anything to do with the care of the subject child and are therefore not ‘relevant in the particular circumstances of the case’—could have their health or police records subpoenaed and disclosed. It is inevitable that many people will find this invasive and will object to these records being produced or inspected. This will likely increase legal need and create additional costs and delay.
3.22The Family Law Council and SNAICC agreed that over-reach would be one of many unintended consequences of items 2 and 4 in Schedule 3 of the Bill:
SNAICC notes the risk that discriminatory determinations could be made where Aboriginal and Torres Strait Islander applicants are subjected to greater scrutiny regarding violence in extended family and kinship networks, than for non-Indigenous applicants for whom a more limited definition of family, and consequently family violence, is applied.
Independent children’s lawyers
3.23Section 68L of the Family Law Act provides for the independent representation of a child’s interests, by enabling the court to appoint an ‘independent children’s lawyer’ (ICL, as defined). Section 68LA of the Act then sets out the role and specific duties of an ICL.
3.24Proposed subsection 68LA(5A) would expand the duties of an ICL, byincluding a requirement for the ICL to meet with the child and to provide the child with an opportunity to express any views in relation to the matters to which the proceedings relate, unless exceptional circumstances apply.
3.25The EM explains:
These new duties complement the existing duties in subsection 68LA(5) which require the ICL to act in a certain way and undertake specific actions in order to promote the best interests of the child. This item will ensure that the child is provided an opportunity to express views and to be heard, consistent with Article 12 of the [United Nations Convention on the Rights of the Child, CRC].
3.26Some submitters agreed with the extension of the ICLs’ duties as proposed in subsection 68LA(5A). In supporting the proposal, the Family Law Council highlighted that ICLs are vitally important in ensuring that the court is appraised of the child’s views:
The Council has received feedback that it is generally the case that, consistent with national principles, ICLs usually meet with the children whose interests they are representing in the proceedings...[However,] stakeholders meeting with the Council have indicated inconsistent practice on the level of personal interaction between ICLs and children.
3.27The Council of Single Mothers and their Children and Single Mother Families Australia similarly supported proposed subsection 68LA(5A):
We view this as very important as hundreds of women have shared with us their distress that the ICL, always presumed to exist to represent children, had failed to meet with their child and formed their determination from talking to others. These women have in almost every instance, said what they wanted for every future child in the family law courts, a conscientious and kind ICL who would meet personally with each child and accurately report the views of that child.
3.28National Legal Aid (NLA) supported the intent of proposed subsection 68LA(5A) but suggested that the provision be amended to reflect that the timing of a meeting and all other matters concerning the same are subject to an ICL’s discretion:
This discretion is considered necessary and is supported…This is because every situation is different and there is no one point in time at which an ICL will always be in a position to make a decision about whether or not it is appropriate to meet with a child. An ICL’s position about whether to meet (or again meet) with a child may also change over time depending on the developing circumstances of the individual case.
3.29Youth Law Australia questioned whether proposed subsection 68LA(5A) would, in practice, allow for the adequate participation of children and young people.
3.30Dr Georgina Dimopoulos and Dr Michelle Fernando expressed a similar concern in relation to proposed paragraph 68LA(5A)(b) (the requirement to provide the child with an opportunity to express any views in relation to the matters to which the proceedings relate). They argued that this is not the same as giving children an opportunity to express their views in judicial proceedings affecting them.
3.31The Law Council supported in principle proposed subsection 68LA(5A), referencing research which highlights that children and young people wish to be heard in decision-making about their care and safety when they are the subject of family court proceedings:
Including the proposed requirement in the [Family Law] Act for an ICL to meet with a child and provide them with an opportunity to express any views is a step toward achieving this and the Law Council is supportive of such requirement. While the Law Council acknowledges that Schedule 4 of the Bill may function as a safeguard to protect children, as well as acting as a quality-control measure to ensure that ICLs are discharging their roles suitably, implementing a mandatory requirement for an ICL to meet with a child may have practical and costs implications which warrant examination.
3.32The AGD acknowledged that concerns have been raised about when an ICL should fulfil the duty to meet with the child, with a departmental representative stating: ‘we’re still engaging with that…that’s something which we’ll continue to look at’.
Resourcing for ICLs
3.33Submitters and witnesses emphasised that legal assistance providers must receive sufficient long-term funding, to enable ICLs to properly discharge the additional duties contemplated by the Bill. For example, the Law Council argued:
…the grants for funding of ICL appointments are limited and practitioners acting as ICLs are not appropriately remunerated for their expertise, time and travel. In this context, amendments which impose additional, mandatory steps to be undertaken by ICLs must be considered with caution.
3.34NLA also had reservations about the potential increase in demands upon ICLs:
This concern is held in the context of serious and increasing ICL resourcing pressures which have been building over years due to a combination of limited funding, the extremely challenging nature of the work, and issues associated with recruitment and retention. Whilst NLA supports the case management reforms implemented by the Federal Circuit and Family Court of Australia, and initiatives of that Court such as Lighthouse and the Evatt List, these initiatives have resulted in earlier appointments of ICLs and additional and longer court events and these have also added to resourcing pressures.
3.35The AGD advised that the NLA’s resourcing concerns fit within a broader context—the National Legal Assistance Partnership—which is currently under review by Dr Warren Mundy. An officer confirmed that funding guidelines will be considered as part of that review.
Proceedings under the Hague Convention
3.36Subsection 68L(3) of the Family Law Act provides that the court may order the appointment of an ICL for proceedings under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention) only if the court considers that there are exceptional circumstances that justify doing so.
3.37Item 5 in Part 2 of Schedule 4 of the Bill would repeal this provision to allow judicial discretion to appoint ICLs in Hague Convention matters in line with other family law matters. The EM states:
…in practice, Convention matters are often complex and do not always proceed in the summary nature originally contemplated. Rather than slow down proceedings, ICLs can often facilitate more efficient resolution in complex matters including pre-trial resolution or compensation for deficiencies in parties’ cases.
3.38Submitters supported the repeal of subsection 68L(3) of the Family Law Act. The Law Council emphasised:
…the importance of children having an opportunity to express their independent voice in such matters, particularly given that many of these proceedings involve allegations of family violence and other issues which pose a risk to children.
3.39Ms Miranda Kaye, Senior Lecturer at the University of Technology, Sydney, agreed that children’s voices and views should be heard and considered:
The changes will allow ICLs to be involved in ensuring the prevention of ‘grave risks’ to children in return proceedings in line with the recent amendments to regulation 16 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) [the Regulations] that family violence may be considered in such proceedings.
3.40Dr Dimopoulos and Dr Fernando pointed out that independent representation for children is also particularly significant when the taking parent objects to a return order under regulation 16(3)(c). This regulation enables the court to refuse to make such an order if:
(i)the child objects to being returned;
(ii)the child's objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
(iii)the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views[.]
3.41Dr Dimopoulos and Dr Fernando highlighted that the requirements of regulation 16(3)(c) are more stringent than the requirements of the ‘children’s objection’ exception as it appears in the Hague Convention: ‘this is because the Regulations add a requirement that the child’s objection ‘shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes’’. In addition, they argued that the additional requirement is contrary to the Convention and contrasts with the approach in comparable jurisdictions.
3.42To resolve this inconsistency, Dr Dimopoulos and Dr Fernando suggested:
To the extent that they are inconsistent with the Hague Convention and Article 12 of the CRC, section 111B(1B) of the Family Law Act and the ‘strength of feeling’ requirement in regulation 16(3)(c)(ii) of the Regulations should be repealed.
3.43In response, the AGD acknowledged that concerns regarding subsection 111B(1B) have been raised with the department. An officer advised that it is seeking feedback from the Law Council to inform its advice to the Attorney‑General, the Hon Mark Dreyfus KC MP:
There is work underway to consider the appropriateness of realigning the wording of that exception with the wording of the convention. Thedepartment has been undertaking some analysis of that and consultation, and is informed by the views that have come up during consultation on the bill as well. That is something that will inform our advice to the Attorney-General on the issue.
‘Harmful proceedings orders’
3.44Part XIB of the Family Law Act sets out the court’s powers to deal with ‘vexatious proceedings’ (as defined). The Bill would amend this Part to empower the court to deal with proceedings that are unmeritorious and harmful, as well as vexatious.
3.45Item 6 in Part 1 of Schedule 5 would insert Divisions 1A and 1B into Part XIB of the Family Law Act. In particular, proposed Division 1B would provide the court with the power to make a ‘harmful proceedings order’ (asdefined), prohibiting one party from instituting proceedings against the other party without the leave of the court, if the court is satisfied that there are reasonable grounds to believe:
(a) the other party would suffer harm if the first party instituted further proceedings against the other party; or
(b) in the case of child-related proceedings (within the meaning of Part VII)—the child who is the subject of the proceedings would suffer harm if the first party instituted further proceedings against the other party [proposed subsection 102QAC(1)].
3.46The EM advises that proposed Division 1B of Part XIB of the Family Law Act is being introduced to address a known problem in family law proceedings:
The purpose of this measure is to protect the respondent and/or children who are the subject of proceedings from the harmful impact of frequent and unnecessary applications filed by an applicant. This measure aims to limit systems abuse, which is a form of family violence that is prevalent in the family law system. This measure addresses a gap in the court’s powers to scrutinise the institution of further proceedings.
3.47Many submitters supported the introduction of ‘harmful proceedings orders'. The Family Law Council argued that focussing on the impact on a respondent would enable the court to better protect children and victim-survivor adults:
…the Council considers that strengthening Court powers to respond to the misuse of litigation is essential to protect parents and children from harm and ensure that publicly funded resources are not co-opted into campaigns of abuse.
3.48Similarly, the Law Council submitted that proposed subsection 102QAC(1) could be extended to address process abuse as a form of family violence:
The Law Council…suggests extending the power to make harmful proceedings orders to particular types of proceedings, or applications within proceedings. This would enable the court to prevent process abuse perpetrated within the currency of a set of proceedings and would also better reflect Recommendation 32 of the ALRC Report—with which the former Government agreed in principle.
3.49Some submitters referred specifically to proposed subsection 102QAC(3), which would provide a list of matters that the court may consider in determining whether to make a ‘harmful proceedings order’:
(a) the history of the proceedings under this Act between the first party and the other party; and
(b) whether the first party has frequently instituted or conducted proceedings against the other party in any Australian court or tribunal (including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section); and
(c) the cumulative effect, or any potential cumulative effect, of any harm resulting from the proceedings referred to in paragraphs (a) and (b).
3.50The EM explains that the proposed list is not intended to be exhaustive:
The court may have regard to any other factor relevant to the matter, including where there have been proceedings in other courts that relate to the matter, interactions with agencies, for example in relation to child welfare or child support, and any other relevant factor.
3.51However, Victoria Legal Aid queried whether the proposed subsection would ‘prevent a party from oppressing another through repetitive requests for family dispute resolution’. Relationships Australia added:
Determined perpetrators of systems abuse are likely to try to ‘game the system’ by confecting ‘new disputes’ in relation to which they will seek to invite a respondent to engage in FDR, with the goal of harassing the victim survivor... The subsection should at least allow the Court to have regard to a party’s history of use of FDR.
3.52In supporting a broadening of the proposed provisions, Relationships Australia noted that there are other forms of systems abuse that are not captured by proposed section 102QAC(3):
Other means of perpetrating systems abuse, which could be reflected in the Act, include unmeritorious and harassing reports to child protection authorities, to regulators (including professional disciplinary bodies), licensing authorities, and complaints handling agencies (eg.Ombudsman offices).
3.53An AGD representative indicated that proposed section 102QAC is intended to broadly capture systems abuse, such as in the child support system:
My understanding of the drafting is that that would be able to be considered. It doesn't just have to be where proceedings have been instituted within the court that it would be relevant. It could be instituting proceedings through a range of avenues where it is systems abuse. That could be relevant to a harmful proceedings order.
Communication of details of family law proceedings
3.54Section 121 of the Family Law Act restricts the communication of information or accounts of family law proceedings that would identify a party to the proceedings, or a person associated with the proceedings, without court authorisation. The Bill would repeal section 121 of the Act and replace it with proposed Part XIVB of the Act.
3.55The EM explains the changes, as follows:
The new Part will continue to protect the privacy of families and other persons connected with family law proceedings by restricting public communication of information that identifies children, families and other persons involved in family law matters. The new Part aims to clarify the law in this area and does not introduce any significant changes to the existing law in section 121 of the Family Law Act, including in relation to the offences and penalties.
3.56Submitters supported the proposal to clarify privacy protections in the Family Law Act. The Family Law Council, for example, submitted that the proposed amendments appear to strike the right balance between protecting personal privacy and exempting from the prohibition on disclosure, information that could be vital to ensuring a person’s welfare and safety.
3.57The Law Council largely supported proposed Part XIVB, recognising that the ‘minor’ changes would aid understanding and reflect ‘the progression of technological and broadcast mediums to communicate and share information’, including the oft-used internet and social media.
3.58Nonetheless, the Law Council submitted that ‘by merely clarifying the existing law, the redraft arguably reproduces the problems which afflict existing section 121’. It argued that the relevant provisions in the Bill would ‘shut the gate well after the horse has bolted’, with no overt power to grant an injunction to stop an offending publication or to take down material published in breach of the Family Law Act.
3.59The Law Council also commented upon proposed section 114T which would prohibit the commencement of proceedings for an offence without the written consent of the Director of Public Prosecutions (DPP):
…proposed section 114T reverses the usual criminal law practice of the police investigating, collecting evidence, and charging the offence and the DPP deciding whether to proceed with the prosecution. The proposed approach unjustifiably constrains the right to private prosecution in such circumstances. In the absence of a clear public policy rationale as to why this should be the case, the Law Council considers that commencement of proceedings should be able to proceed without the authority of the DPP.
3.60The Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) also commented on proposed section 114T, as follows:
The committee considers that restricting the ability of an individual to initiate a private prosecution on their own volition risks unduly trespassing [on] personal rights and liberties and expects this to be justified in the explanatory materials. In this case, the explanatory memorandum explains that proposed section 114T is 'an important safeguard in addition to the Prosecution Policy of the Commonwealth which requires that a prosecution only be pursued where there is sufficient evidence to prosecute the case, and the prosecution would be in the public interest'.
3.61The Scrutiny of Bills Committee did not accept this rationale:
…it is not clear to the committee what proposed section 114T is intended to safeguard against. If the concern is that an individual may bring a case with little evidence, the committee notes that this may more appropriately be dealt with by the courts and, further, that the DPP has the power to intervene in a private prosecution where there is insufficient evidence to justify the prosecution. It is therefore unclear to the committee why it is considered necessary and appropriate to rely on the DPP to provide consent to commence a proceeding under subsections 114Q(1) and 114R(1).
3.62The Attorney-General responded to the Scrutiny of Bills Committee on 19 May 2023 and 28 June 2023. The first response affirmed that proposed section 114T is an important safeguard against systems abuse and is intended to ensure that the offences in the new Part are operating as intended. In the second response, the Attorney-General advised:
..the explanatory materials for the Bill will be updated to make clear that the prosecutorial safeguard of written consent from the Commonwealth Director of Public Prosecutions in relation to the offences contain in the Part [XIVB] is required to prevent systems abuse as parties may commence private prosecutions for improper reasons.
Standards and requirements for family report writers
3.63The Bill would insert Part IIIAA into the Family Law Act to provide the executive with a regulation-making power for ‘family report writers’ who prepare a ‘designated family report’ (proposed subsection 11K(1)). The Bill proposes that the regulations prescribe standards and requirements, and provide for the consequences of non-compliance.
3.64The Attorney-General noted that concerns have previously been raised about the competency and accountability of ‘family report writers’. In addition, hehighlighted the importance of having the best possible evidence before the court:
A family report is often the only independent evidence available to assist the court. It is crucial that families, the court and all those involved in the family law system can have confidence that every family report has been prepared by a professional with the skills and knowledge required to undertake this important task.
3.65The EM stated that it is necessary for the standards and requirements for ‘family report writers’ to be placed in regulations:
Regulations enable the Government to rapidly respond to any issues or changing circumstances that arise affecting family report writers, particularly those who are also psychologists or psychiatrists. This is to ensure an appropriate balance between expectations and requirements as family report writers, and any other requirements arising as part of their professional registration under the Australian Health Practitioner Regulation Agency.
3.66Submitters and witnesses supported the introduction of standards and requirements for ‘family report writers’. WLSA pointed out, for example, that neither the Family Law Act nor the regulations currently prescribe any standards or core competencies. Relationships Australia described the legislative proposal as ‘long overdue’, while the Australian Psychological Society asserted:
…all family report writers, including psychologists, should perform their duties with utmost diligence and integrity. We agree that a system that promotes certainty, consistency and quality across reports and report writers would be good for all participants, including psychologists and their clients.
3.67The Family Law Council agreed with the appropriate accreditation and regulation of family report writers but argued that there must be a distinction between the various report writer cohorts:
Court Child Experts employed by the Court are highly qualified and skilled, and must undertake regular professional development. The [Federal Circuit and Family Court of Australia] has similar measures to ensure the high quality of reports prepared by Regulation 7 report writers…It is important that differences in the skills, qualifications and training requirements of these two cohorts and those of private report writers are distinguished in the framing of this provision and any proposed regulations.
3.68While providing in principle support, the Law Council submitted that it is not possible to comprehensively assess the potential impact of proposed Part IIIAA, as the regulations are not yet available for scrutiny. It called on the AGD to consult with relevant stakeholders when developing these regulations:
If these proposed provisions are passed, it will be important to consult widely on the content of the regulations, particularly with existing report writers and professional organisations representing those report writers. Without meaningful consultation and careful drafting, the regulations have the potential to be problematic in a number of respects.
3.69The Australian Psychological Society expressed concerns about the ability of the proposed Part to achieve its objectives. Similar to the Law Council, it queried a regulatory approach established without stakeholder consultation:
Psychologists, who make up a substantial proportion of family report writers, are already subject to significant regulation and oversight including through the Health Practitioner Regulation National Law. The creation of a parallel regulatory process for already highly regulated practitioners would be an inefficient and poorly considered approach to achieving the stated policy objectives. If we are seeking to increase the standards of family report writers, we need meaningful engagement and co-design with the profession and professional bodies from the outset, rather than after key parameters have been fixed in legislation.
3.70The Family Law Council agreed with the Australian Psychological Society that it is important not to discourage psychologists from engaging in this area of practice:
…there is an acute shortage of persons who are qualified to fulfil the important responsibility of report writing. It is therefore important that the accreditation and regulatory regime is not so onerous that it is a disincentive for appropriately qualified people to become family report writers or for some professionals to continue to undertake family reports.
3.71In response to these concerns, officers from the AGD advised that the department will need to a cost-benefit analysis of different regulatory models:
We are working to look at what those models could be, currently, and we hope that, possibly later this year, subject to agreement from government, we could be consulting with key stakeholders on what those models look like…Potentially, we could have public consultations on the models, and then that would inform our advice to government later this year. Subject to that, we would then go through the process of drafting regulations, and again we would undertake some consultations on those regulations so that it's not just getting views on the model. It would be testing, once we've actually determined the model, how the rubber hits the road and making sure that, in practice, the actual provisions would operate as intended with the professions.
Public consultations and review
3.72Many submitters and witnesses appreciated the opportunities afforded to them by the AGD to comment on the development of the Exposure Draft Bill and the Bill. Some also commented on changes made to the Exposure Draft Bill following that consultation.
3.73Dr Patrick Parkinson AM, for example, noted that proposed section 61CA (see‘Presumption of equal shared parental responsibility’, Chapter 2) would have ‘substantial’ implications for the work of the courts, legal representatives, mediators and family consultants. However, ‘the proposed s.61CA was not included in the Exposure Draft and has therefore not been a matter for consultation with the legal profession or academic experts’.
3.74The Law Institute of Victoria (LIV) commented especially on proposed section 99 in the Exposure Draft Bill, which has been omitted from the Bill. Thisprovision would have made evidence of a ‘protected confidence’ (asdefined) inadmissible without the leave of the court and inserted additional factors for the court to consider in potentially admitting evidence of a protected confidence. The LIV argued:
There is clear public interest in preserving the confidentiality of health records, and the current lack of provisions in the Family Law Act 1975 (Cth) or court rules to deal with therapeutic records or services is inadequate. Without safeguards in the legislation to protect sensitive information, there is insufficient protection for vulnerable parties who seek professional healthcare assistance.
3.75WLSA agreed that it is important to protect sensitive information and voiced its disappointment with the removal of these protections from the Bill. It argued that this protection would have encouraged children and adult victim-survivors to access much-needed support:
Access to victim-survivors sensitive records, such as counselling records and medical records, in family law and other proceedings can be a barrier to victim-survivors accessing the support they need to help them in their recovery.It is in the public interest to ensure victim-survivors can access the support they need knowing these records and processes will be confidential.
3.76The Australian Psychological Society submitted that the court’s existing power to exclude evidence is not an adequate safeguard:
…the existence and operation of these discretionary powers is not well‑understood by parties and health professionals. Preventing the disclosure of highly sensitive personal information which was shared in an environment of trust and safety should not be dependent on a non-lawyer’s knowledge of the intricacies of evidence law.
3.77The LIV acknowledged the detailed consideration of the matter by the AGD and supported the former proposed section 99 being reinserted into the Bill, as was recommended by the ALRC:
The LIV views section 99 of the Exposure Draft as balanced and well‑considered. The LIV supports the Commonwealth Attorney-General’s Department’s proposed approach in the exposure draft, to assume a baseline level of harm to both patients and public confidence resulting from admitting evidence from confidential therapeutic settings. The risk of harm to a person is significant when their private health information is subject to a subpoena in a ‘fishing expedition’ and when it might not have substantial probative value to a fact in issue.
3.78Mr Will Stidston from the Family Law Section of the LIV argued that, without this protective provision, the status quo is preserved which leads to more cost and delay:
…the current state of the rules and procedures would remain in effect, which effectively means that any litigant is able to issue up to five subpoenas without leave of the court. As a result of that, they can issue subpoenas to confidential sources. What then follows is that there often needs to be objection if there is no probative value or relevance to the evidence. There is then a subpoena objection hearing, and the objection can be taken by, in one sense, the victim in this. Then the onus shifts to, really, the victim having to satisfy the court that the evidence sought to be adduced has no probative value. Then, of course, professionals may also take their own objection.
3.79Ms Di Simpson, Chair of the Family Law Section at the Law Council, confirmed that the Law Council has a different view to the LIV. The national peak body supported the removal of the protected confidence provisions from the Bill, as well as further consultation on the underpinning considerations:
With great respect to our friends from the Law Institute of Victoria, we don't share their view about [those provisions] being fit for purpose. One of the elements identified is to protect vulnerable people from having to have their personal, private confidences shared with others, particularly an ex-partner. That was still going to occur…because the issue of a subpoena to compel the production of the documents to the court was still available, as it must be. When we are talking about the best interests of children, the court must have available to it the best evidence about matters that are important and relevant to making decisions about those children. So the provision of subpoenas to secure those records remains an essential tool that ought to be available to litigants before the court.
3.80The AGD reiterated that there are a number of complexities in relation to ‘protected confidences’ that require further and careful consideration and therefore:
…the measure was removed. We're engaging with stakeholders, including the Federal Circuit and Family Court of Australia; Women's Legal Services Australia; the Family Law Council; and the Family Law Practitioners Association of Western Australia, amongst others, about this. A range of specific concerns were raised about the complexities, particularly things like how we would define protective confidences, what the scope of that protection should be and the practical impacts on hearings, including on length, cost and increased litigation. There's a range of issues that we're working through. We don't have an exact time frame for when that will occur. We're in the process of engaging with the feedback that we've received through this process and that will take some time, so at this time we don't have an exact time frame for that. We'll then provide advice to government and then the timing for the consideration of would be a matter for government.
Legislative review
3.81Schedule 8 of the Bill would amend subsection 284(1) of the Federal Circuit and Family Court of Australia Act 2021 (the FCFCOA Act) to enhance the operation of the court, by bringing forward the review of the Act by two years. Theamendments would result in the review taking place between 1 September 2024 and 31 March 2025.
3.82According to the EM:
The substituted subsection provides for a timelier assessment of the effectiveness and impact of the FCFCOA Act on both the operation of the Courts and its users. This is intended to enable earlier Government decision‑making on improvements that may be required to the FCFCOA Act.
3.83The Law Council strongly supported an earlier review of the FCFCOA Act. Itnoted that the Act was passed despite a ‘lack of consultation with the family law courts and broader legal profession regarding the proposal’.
3.84Multiple submitters and witnesses added that the Bill would necessitate the provision of information and guidance for professionals operating within the family law system. The Law Council suggested also that there should be broader education and awareness of the proposed reforms, particularly in relation to the changes proposed in Schedule 1:
…historically, the realisation of reform within the Australian family law system has relied on legal practitioners communicating with and educating clients on new or developed legal principles. However, the Law Council strongly recommends the development and implementation of targeted educational campaigns to ensure that the broader community understands the reforms and their potential consequences.
3.85An AGD representative recognised that the Australian government will have a role in developing materials to educate everyone about the changes proposed in the Bill: ‘the six-month time frame [for commencement of most provisions] is a considered effort to find the most appropriate position for that process to occur’.