Chapter 4Conclusions and recommendations
4.1The Family Law Amendment Bill 2023 (the Bill) intends to make the family law system safer and simpler for separating families to navigate, and to ensure the best interests of children are placed at its centre.
4.2Overwhelmingly, stakeholders supported the objectives of the Bill, recognising that, over time, the Family Law Act 1975 (theFamily Law Act) has become convoluted and is not meeting the needs of separating families.
4.3Personal testimonies shared with the committee illustrated the ways in which the family law system has failed, and continues to fail, separating families and serve to remind all policy‑makers of the compelling reasons for reform in this area.
Objects
4.4The first key amendment in the Bill is the repeal and substitution of the objects and principles provision in the Family Law Act. The committee understands that this amendment aims to simplify section 60B, to assist with the interpretation of Part VII of the Act and to avoid duplication with section 60CC.
4.5In the committee’s view, proposed new section 60B would be simpler than the existing provision and also be consistent with other provisions in the FamilyLaw Act (namely, section 60CA and proposed new section 60CC).
Best interests considerations
4.6Stakeholders supported a simplified list of factors that must be considered by the court in determining the best interests of children in parenting arrangements (proposed new section 60CC). The committee agrees that a core list of six factors and an additional factor promote a more holistic approach to determining the child’s best interests.
4.7The committee considers, however, that the core list omits one very important factor: a history of family violence, abuse and neglect involving the child or a member of the child’s family. Adult victim-survivors and their advocates have explained the great need for recognition of this history when seeking safety through the family law system. The best interests considerations would not be complete without this express recognition and protection for separating families.
4.8In relation to the additional considerations, the committee recognises the expertise of SNAICC–National Voice for our Children and supports its call for a strengthening of the language in proposed new subsection 60CC(3). The committee agrees with the Law Council that well-known and understood language and concepts should continue to be utilised.
4.9The committee recommends that the Australian government amends item 6 in Part 1 of Schedule 1 of the Bill to:
include a history of family violence, abuse and neglect as a general consideration in determining what is in the child’s best interests; and
incorporate the language and concepts from subsection 60CC(6) of the Family Law Act 1975,to better recognise and protect the right of Aboriginal and Torres Strait Islander children to enjoy their culture.
Commencement dates
4.10Some stakeholders voiced concerns about the commencement dates for the provisions proposed in the Bill. The AGD explained that there will be a six‑month lead time for most of the provisions, to enable the court and family law professionals to adjust to the changes.
4.11Bearing in mind the objectives of the Bill, the committee agrees that all substantive amendments should commence as soon as possible, allowing an appropriate lead time for the changes.
4.12The committee notes that the situation is more complex for matters which would be part heard as at the commencement date. It is clearly preferable for the application of only one version of the law, however, if this is unavoidable, then the number of matters to which two versions of the law would be applicable should be minimised to the greatest extent possible. The AGD is aware of and seeking a solution to this issue in consultation with key stakeholders.
4.13The committee recommends that all substantive amendments commence in six months time beginning on the day the Bill receives Royal Assent, and apply to all matters which have not yet commenced a final hearing.
Costs orders
4.14The Bill proposes a power to award costs in proceedings for the enforcement of ‘child-related orders’. According to the Explanatory Memorandum, the relevant provision is partially designed to reduce duplication. It is not clear to the committee why the provision is necessary, as section 117 of the Family Law Act 1975 already provides the court with a discretionary power to award costs in circumstances that justify the making of a costs order.
4.15The committee recommends that the Australian government removes proposed section 70NBE from the Bill to avoid duplication of the court’s discretionary power to award costs in family law matters.
‘Member of the family’ and ‘relative’
4.16The committee heard that there is widespread support for the expansion of the terms ‘member of the family’ and ‘relative’, to better reflect the family structures or kinship systems of Aboriginal and Torres Strait Islander people.
4.17The committee especially acknowledges that Aboriginal and Torres Strait Islander stakeholders have been instrumental in the development of the proposal when it was first considered by the Australian Law Reform Commission and more recently, by the AGD.
4.18Notwithstanding these consultations, submitters have alerted the committee to two matters that require attention:
first, the proposed definitions do not reference ‘kin’ or related concepts; and
second, there is a risk that Aboriginal and Torres Strait Islander people could be required to disclose personal records in circumstances where they are strangers to the family law litigation.
4.19The committee recommends that the Australian government amends items 2 and 4 in Schedule 3 of the Bill to incorporate the concepts of kinship and child-rearing practices contained in section 61F of the Family Law Act 1975.
4.20The committee recommends that the Australian government amends the Bill to ensure that Aboriginal and Torres Strait Islander people are not subject to more onerous disclosure obligations as a result of the expanded definitions of ‘member of the family’ and ‘relative’ in the Bill.
Children’s right to be heard
4.21Submitters and witnesses supported the provisions in the Bill that further enable children and young people to express their views and be heard in family law proceedings. However, multiple submitters and witnesses questioned whether Independent Children’s Lawyers (ICLs) are sufficiently resourced, to fulfil the additional duties proposed in the Bill.
4.22The committee accepts that the requirement for ICLs to meet with the child and provide the child with an opportunity to express any views in relation to the matters to which the proceedings relate will contribute to resourcing ‘pressures’ within the legal aid system. This broader issue of funding under the NationalLegal Assistance Partnership is currently the subject of an independent review.
4.23Thecommittee also heard that there is scope for the Australian government to consider further how children’s rights, as articulated in the United Nations Convention on the Rights of the Child, could be upheld in the Family Law Act 1975.
4.24Some stakeholders highlighted the particular example of subsection 111B(1B) of the Family Law Act 1975 and regulation 16(3)(c)(ii) of the Family Law (ChildAbduction Convention) Regulations 1986. The committee understands that these provisions impose a requirement on the child in addition to what is required under the 1980 Hague Convention on the Civil Aspects of International Child Abduction. The practical effect is that Australian family law imposes a higher threshold for consideration of a child’s objection to a return order, which is inconsistent with other convention partners.
4.25The committee recommends that the Australian government repeals subsection 111B(1B) of the Family Law Act 1975 and the ‘strength of feeling’ requirement in regulation 16(3)(c)(ii) of the Family Law (ChildAbduction Convention) Regulations 1986, to enable the objections of the child to a return order to be taken into consideration under the HagueConvention on the Civil Aspects of International Child Abduction.
‘Family report writers’
4.26Stakeholders supported enhanced standards and accountability mechanisms for ‘family report writers’. The committee heard concerns about the quality of some family reports, which are critical to informing the court in its assessment of what is in the child’s best interests.
4.27Noting that the AGD is currently examining regulatory models, the committee encourages the department to take note of the concerns raised in this inquiry with respect to the different cohorts of report writers, and the need to retain and attract professionals in this area.
Protected confidences
4.28The committee heard concerns that personal health records are not sufficiently protected from disclosure in family law proceedings. Stakeholders agreed that sensitive information must be better protected to protect people’s privacy, toencourage children and adult victim-survivors to access supports, and to prevent systems abuse through the subpoenas process. The committee accepts that there are some unresolved complexities in the provisions previously drafted for inclusion in the Bill.
4.29In the committee’s view, the Family Law Act must balance the need to protect sensitive information with the need for the court to have access to information that would allow it to make decisions that are in the best interests of children.
4.30The committee acknowledges that the AGD is currently actioning specific concerns identified by key stakeholders and that the department will then provide its advice to government.
4.31The committee urges the AGD to specifically take into account the legitimate concerns of people who do not wish for their private and sensitive information to be disclosed in family law proceedings, particularly where this will not assist the court in the discharge of its functions.
4.32Noting that these measures would comprise a further protection for children and women experiencing domestic and family violence, the committee also expresses its view that resolution of this issue should be expedited by the AGD and the Australian government in its response to the AGD’s advice.
4.33The committee recommends that the Attorney-General’s Department prioritises its advice to the Attorney-General, to introduce safeguards against the disclosure of ‘protected confidences’ in circumstances where there is no probative value for the disclosure.
Awareness and education
4.34Multiple stakeholders commented on the complexity of the family law system, the number of separating families operating in the shadow of the law or as self‑represented litigants, and the widely and deeply held misunderstandings that the Bill seeks to dispel.
4.35The committee considers that, prior to commencement of the Bill, the Australian government should increase awareness of the impending changes to the FamilyLaw Act 1975. In particular, separating families should be under no illusions: there is no right to access in parenting arrangements and the best interests of the child will be paramount in all cases
4.36The committee recommends that the Australian government delivers an awareness and education campaign to ensure that the repeal of the presumption of equal shared parental responsibility and the primacy of the child’s best interests are well understood by separating families.
Review
4.37The committee notes that the Bill was introduced into the Parliament simultaneously with the Family Law Amendment (Information Sharing) Bill 2023. After inquiring into that bill, the committee recommended a review into the operation of that Act, no later than three years after its enactment and in conjunction with a review of the Bill.
4.38The Bill proposes significant changes to the Family Law Act 1975 and the committee is mindful of the need to ensure that these operate as intended.
4.39The committee recommends that the Bill is amended to provide for a review of the operation of the Act, in conjunction with a review of the operation of the Family Law Amendment (Information Sharing) Bill 2023.
Concluding comment
4.40The Bill responds to long-standing concerns identified in the 2019 Australian Law Reform Commission review of the family law system and the 2019–2021 Joint Select Committee on Australia’s Family Law System.
4.41The committee acknowledges that the Australian government has actively progressed the law reforms contained in the Bill, including through a three-month consultation process.
4.42The committee understands that the Bill represents a first tranche of family law reform and that the Australian government intends to introduce further reforms following consultations with stakeholders. The committee agrees that reform of the family law system should proceed with due care and consideration.
4.43Having said that, most stakeholders considered that the changes proposed in the Bill would significantly improve the Act, by prioritising the best interests of children, enhancing protections from violence and abuse, and clarifying the law.
4.44In these circumstances, the committee considers that the Bill should be passed by the Parliament with a view to the earliest possible commencement.
4.45Subject to the preceding recommendations, the committee recommends that the Senate pass the Bill.
Senator Nita Green
Chair
Labor Senator for Queensland