Purpose of the Bill

The Family Law Amendment Bill 2023 (the Bill) will amend the Family Law Act 1975, with the stated purpose being to make the family law system safer and simper, and ensure the best interests of children are placed at its centre.[1] The amendments implement a number of recommendations from the Australian Law Reform Commission’s 2019 report into the state of Australia’s family law system and elements of the Government Response to the 2021 Joint Select Committee inquiry into Australia’s Family Law System.

The Bill also makes consequential amendments and minor amendments to the Federal Circuit and Family Court of Australia Act 2021 (FCFCOA Act).

Structure of the Bill

The Bill consists of 9 Schedules.

Schedule 1 contains amendments to the legislative framework for making parenting orders, including changes which cover the factors to be considered when making parenting arrangements in the best interests of the child. The Schedule also repeals the presumption of equal shared parental responsibility and the mandatory consideration of certain time arrangements.

Schedule 2 contains a redraft of Division 13A of Part VII of the Family Law Act, which provides for the enforcement of parenting orders and other orders affecting children.

Schedule 3 contains amendments to provide definitions related to the concept of ‘family’ in the Family Law Act that are more inclusive of Aboriginal or Torres Strait Islander culture and traditions.

Schedule 4 contains amendments to provisions about Independent Children’s Lawyers (ICLs) aimed at enhancing the voice of children in family law proceedings.

Schedule 5 contains amendments to the Family Law Act and FCFCOA Act relating to family law case management and procedure, specifically:

• introducing new ‘harmful proceedings orders’ to prevent a vexatious litigant from filing and serving new applications without first obtaining leave from the court, and
• broadening and extending the ‘overarching purpose of family law practice and procedure’ and the accompanying duty, to all proceedings instituted under the Family Law Act.

Schedule 6 contains a redraft of section 121 of the Family Law Act to clarify restrictions around public communication of family law proceedings.

Schedule 7 contains amendments to establish a new power to make regulations that would provide standards and requirements to be met by professionals who prepare family reports.

Schedules 8 and 9 make two minor amendments to the FCFCOA Act which will:

• bring forward the review of the FCFCOA Act by two years, and
• state explicitly that a judge serving in the Family Court of Western Australia can be dually appointed as a judge of Division 1 of the Federal Circuit and Family Court of Australia (FCFCOA).

Background

The state of family law

It is often suggested that the family law system is in crisis, beset by a lack of resources and federal funding, with an exponentially increasing workload leading to unacceptably long delays.[2]

Much of the controversy and debate about the family law courts has focused on the courts’ handling of the complex problems of family violence.[3] As various studies have indicated, families with complex needs, including those related to violence, are the predominant clients of the family law system. Compounding these problems is the significant number of self-represented litigants, many of whom cannot afford legal representation and are traumatised as a result of family violence and the abuse of children and find it challenging to navigate the family law system.

Reviews and inquiries: ALRC Report and Joint Select Committee Report

The need for structural and systemic reform of family law has been a consistent theme in the plethora of inquiries and reports produced over the last 20 years.[4] 

One of the recent and more significant of these inquiries was conducted by the Australian Law Reform Commission (ALRC). The ALRC was asked by the Turnbull Government to inquire into the state of Australia’s family law system and report to the Government in March 2019. This inquiry represented the first comprehensive review of the Family Law Act since the legislation commenced in 1976. The ALRC report, Family Law for the Future: An Inquiry into the Family Law System[5] (ALRC Report) was tabled in Parliament by the Attorney-General, Christian Porter, on 10 April 2019.[6]

The ALRC inquiry highlighted the challenges facing the family law system and concluded there was a strong case for reform. It noted:

Ultimately, the case for reform is that the system is not adequately assisting Australian separated couples to resolve disputes following the breakdown of their relationship. Children are not consistently protected from harm; nor are people experiencing family violence. Disputes are protracted by delays occasioned by resource constraints in the courts but also by the conduct of parties who are unable or unwilling to resolve their dispute quickly and without acrimony. The substantive law, which has been subject to repeated amendments, is no longer clear or comprehensible. 

Public perceptions of the family law system are mixed. The majority of those who contributed to this Inquiry were highly dissatisfied. […] Contributions from women highlighted a range of concerns, particularly around violence and abuse, but also in relation to poor disclosure regarding financial resources. Men were often concerned about inadequate time with their children, and not being able to see their children because of non-enforcement of parenting orders. Both men and women often felt that the system failed to address the conduct of the other litigant when it involved misuse of court procedures and resources.[7]

The ALRC made 60 recommendations for reform which in very general terms fall into the following areas:

• Close the jurisdictional gap: Stop children falling through the gaps between the federal family law courts, the state/territory child protection systems and the state/territory responses to family violence. Family law disputes returned to the states/territories and the federal family courts eventually abolished.
• Implement simpler property division arrangements: reform the current property division arrangements under the Family Law Act, including a starting position that separated couples made equal contributions during the relationship.
• Changes to children’s orders: Simplify the factors to be considered when determining living arrangements that promote a child’s best interests and remove mandatory consideration of particular living arrangements.
• Improve compliance with children’s orders: Improve understanding of orders through greater engagement with family consultants and place limits on interim appeals.
• Impose stricter case management and encourage amicable resolution: Have clearer consequences for couples and their advisors if they don’t seek to resolve disputes as quickly, inexpensively, and efficiently as possible, and with the least acrimony.
• Greater legislative clarity: Redraft the Family Law Act to make it easier to understand the law.[8]

The Government responded to the ALRC report on 21 March 2021.[9] The AGD advises that 15 of the 60 ALRC recommendations have been addressed in the Bill.[10]

In addition to the ALRC recommendations, the Bill also includes some elements of the Government response to the 2021 Joint Select Committee inquiry into Australia’s Family Law System.[11]

The Joint Select Committee on Australia's Family Law System (Joint Select Committee) was appointed by the Parliament in September 2019 and undertook a comprehensive two-year inquiry into the family law and the child support systems. The Committee produced three interim reports and a final report was tabled in the House of Representatives on 23 November 2021. These reports are available on the Committee’s website.

In its second interim report, Improvements in family law proceedings,[12] the Joint Select Committee made 29 recommendations proposing a number of reforms to the family law system. Three of those recommendations have been addressed in the Bill to some degree. These relate to:

• clarifying the presumption of shared parental responsibility (Recommendation 17) 
• codifying the requirements for Independent Children’s Lawyers, aimed at enhancing the voice of children in family law proceedings (Recommendation 18), and
• simplifying the provisions relating to compliance and enforcement of parenting orders (Recommendation 20).[13]

Exposure Draft of the Bill

On 30 January 2023, the Government released an Exposure Draft of the Bill and called for submissions on the Draft and the accompanying Consultation Paper.[14] After a short period of consultation, the Family Law Amendment Bill 2023 was introduced to the House of Representatives on 29 March to give effect to these proposed reforms.

Committee consideration

At the time of writing, the Bill has not been referred to a committee for inquiry.

Senate Standing Committee for the Scrutiny of Bills

At the time of writing, the Committee had not reported on the Bill.

Policy position of non-government parties/independents

In a media release on the day of the Bill’s introduction into Parliament, the Australian Greens said they welcomed ‘the introduction of family law amendments aimed at putting children’s welfare first in family law matters.’[15] Senator Larissa Waters said:

Finally, after years of wasted time and damaging misinformation campaigns - including Pauline Hanson’s toxic family law inquiry - we may start to see real improvements to the family law system.

Since the Howard government re-wrote Australia’s family laws in 2006, we have seen the presumption of shared care weaponised, instead of the best interests of kids coming first.

Gendered violence is at the core of many cases in the family law system, and we know children frequently bear the brunt of violent relationships and protracted legal matters.

We look forward to supporting amendments based on expert advice, instead of the political grandstanding that has traumatised victim-survivors, put children at risk, and provided a platform for hate and misinformation.

[…]

While these reforms are welcome, without more funding to courts and frontline family and domestic violence services, delays, unequal representation and lack of support will continue to put women and children at risk.[16]

Apart from the Greens, it appears that to date, there has been no public comment about the position of non-government parties or independents.

Position of major interest groups

The Law Council of Australia has welcomed the Bill stating that ‘the reforms will ensure that the best interests of the child should remain the paramount consideration, including protecting children’s physical, emotional and mental health’. In a media release the Law Council stated:

We must remember that matters which will come before a court are the most complex and difficult matters involving the most vulnerable children. The legislation must be able to appropriately respond to those cases, as well as being as accessible as possible to members of the public.

To the extent that these intentions underpin the Bill and any amendments made, we wholeheartedly support reform of Australia’s family law system to improve outcomes for those who interact with it.

We remind the Commonwealth again though, that our family law system, particularly the Federal Circuit and Family Court of Australia and the legal assistance sector, needs a significant boost in funding, especially to meet their increased obligations arising from the proposed reforms.[17]

Apart from the Law Council, there appears to be little public comment on the Bill since its introduction into Parliament.

A large number of submissions on the Exposure Draft were submitted to the Attorney-General’s Department (AGD) during consultations in February 2023 with 273 of those currently available on the AGD website.[18] The submissions came from a range of different stakeholders including the legal profession, human rights advocates, women’s legal services, academics and various advocates of children’s, women’s and men’s rights. As the Bill and Exposure Draft are substantially the same,[19] these submissions provide useful analysis on the Bill.

As a general observation, there is a strong focus in submissions on the provisions in Schedule 1, the parenting framework provisions. Many of the submitters, including the Australian Institute of Family Studies (AIFS), National Children’s Commissioner, and the Family Law Council welcomed the proposals for reform.[20] Some, such as former Family Court Judge, Professor Richard Chisholm,[21] generally supported the amendments but made a number of suggestions for improvements.[22] The Law Council, in its 52-page submission,[23] also suggested a number of possible improvements. Women’s Legal Services Australia (WLSA) welcomed the ‘prioritising of children and adult-victim-survivor's safety in the family law system’ that is ‘clearly evident in the removal of the presumption of equal shared parental responsibility and the removal of the requirement to consider particular forms of time with each parent’. ^[24] WLSA, like many submitters, also reiterated the importance of properly resourcing the family law system.[25]

Professor Patrick Parkinson, a family law academic who was heavily involved in the 2006 reforms,[26] supports most aspects of this Bill, but argues:

Schedule 1, amending the core elements of the law on parenting after separation, goes very far beyond what is necessary and justified in order to remedy perceived deficiencies in the current law.[27]

Professor Parkinson argues against the removal of many of the provisions that emphasise the importance of children’s relationship with their parents, as this may send a message that parents are no longer to be valued or valued as much as previously.[28]

While women’s legal groups generally welcomed the changes, men’s groups expressed concerns that the amendments may significantly undermine or permanently change the currently accepted rights of the family in separation, including both children and parents. They noted a particular concern about the sections framed around the presumption of shared responsibility for the children of a relationship.[29]  

Some Aboriginal legal groups were generally in favour of the amendments specific to Indigenous people in Schedules 1 and 3, although the Aboriginal Legal Rights Movement expressed a different view. It submitted that the proposed definition of family ‘does not show a satisfactory attempt at addressing and defining the intricacies of ATSI families’ and needs to be ‘more considered, particularised and acknowledge cultural ways’. [30]

A small selection of submitters’ views, mainly from the legal profession and family law academics, are included in the Keys issues and provisions section below. Note that the selection does not represent the full range of views.

Financial implication

The Explanatory Memorandum states that the Bill will have no financial impact.[31]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[32]

Parliamentary Joint Committee on Human Rights

At the time of writing the Committee had not reported on the Bill.

Key issues and provisions

Schedule 1—Parenting framework and Schedule 3—Definition of member of the family

Schedule 1 of the Bill amends Part VII of the Family Law Act which contains the provisions dealing with disputes between parties concerning parenting arrangements for children. 

Overview of Part VII and rationale for reform

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 orders about children’s care and living arrangements, parental responsibility, and other matters relevant to a child’s welfare (‘parenting orders’) as it thinks proper.[33]

In making parenting orders, Pt VII provides that the best interests of the child must be the paramount consideration. However, as is so often noted, 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.[34]

Much of this framework for determining what is in the best interests of a child was added to the Family Law Act by the Family Law Amendment (Shared Parental Responsibility) Act 2006. Further amendments made in 2011 prioritised the safety of the child in parenting matters but were explicitly intended to retain the substance of the 2006 amendments.[35]

Currently, the Family Law Act provides a number of steps that a court must follow in order to apply the principle that the best interests of a child be paramount to the decision. These steps include:

• the court must consider specified factors (comprising two ‘primary considerations’ about the child’s safety and meaningful relationships with both parents, and 13 ‘additional considerations’) and make findings about them if possible
• the court must decide if the legislative presumption of equal shared parental responsibility applies or is rebutted
• if the court makes or proposes to make an order for equal shared parental responsibility, it must consider whether the child spending equal time with each of the parents would be in the best interests of the child, and whether it would be ‘reasonably practicable’
• if the court does not make an order for equal time, it must then consider whether the child spending ‘substantial and significant time’ with each parent would be in the child’s best interests, and whether it is ‘reasonably practicable’. If it is, the court must consider making such an order, and
• if neither equal time nor substantial and significant time is considered to be in the child’s best interests, the court may make such orders as the court decides are in the best interests of the child.[36]

The ALRC Report states that submissions to its inquiry expressed a number of concerns about this pathway, including that:

• it is complex and repetitive, which has increased costs for clients and has created productivity issues for the courts
• it has created community confusion by having a presumption of equal shared parental responsibility, which is commonly misunderstood as being a presumption of equal shared time
• the requirement that parents must jointly make decisions provides scope for conflict in the absence of clear information about which decisions do not require consultation
• insufficient weight is given to the views of the child in decision making, and
• greater emphasis should be placed on ensuring the safety of the child, and of the child’s carers.[37]

The ALRC Report recommended a reshaped decision-making framework for parenting orders. This would include:

• retaining the paramountcy principle in its current form
• removing the objects and principles provisions
• collapsing the different tiers of considerations within the best interests factors 
• clarifying, simplifying, and amending the list of considerations for determining what is in the child’s best interests
• amending the presumption of equal shared parental responsibility to be a presumption of joint decision making about major long-term issues[38], and
• removing mandatory consideration of particular arrangements including equal time.[39]

Many, but not all, of these recommendations have been adopted in Schedule 1 to the Bill.

Proposed amendments

Schedule 1 is divided into three parts:

• Part 1 makes amendments to do with the ‘best interests of the child’ provisions.
• Part 2 repeals provisions dealing with the presumption of equal shared parental responsibility and the mandatory consideration of certain times arrangements.
• Part 3 makes amendments to clarify when a court can vary existing parenting orders.

The Digest discusses these parts in order.

Part 1: best interests of the child

As already noted, central to Part VII is the principle of the ‘best interests of the child’. 

Section 60CC deals with how a court determines what is in the child's best interests. Currently section 60CC sets out a two-tiered approach with 2 primary considerations and 14 additional considerations that a court must consider in determining the best interests of children. The primary considerations a court must have regard to are: 

• the benefit to the child of having a meaningful relationship with both of the child’s parents, and
• the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.

In applying these considerations, the court is required to give greater consideration to the second of these.[40]

Item 6 repeals and replaces section 60CC. The new section removes the two-tier hierarchical structure of ‘primary’ and ‘additional’ considerations and focuses on a core list of six considerations, with two additional factors for Aboriginal or Torres Strait Islander children.

Proposed subsection 60CC(2) sets out the list of six matters that the court must consider when determining what is in a child’s best interests. These are:

• what arrangements would promote the safety (including safety from family violence, abuse, neglect, or other harm) of:
  •  the child, and
  •  each person who has care of the child (whether or not a person has parental responsibility for the child)
• any views expressed by the child
• the developmental, psychological, emotional and cultural needs of the child
• the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs
• 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
• anything else that is relevant to the particular circumstances of the child.

Additional considerations specific to Aboriginal or Torres Strait Islander children

Proposed subsection 60CC(3) sets out additional matters that must be considered by the court when determining what is in the best interests of an Aboriginal or Torres Strait Islander child. These matters are:

• the child’s right to enjoy their Aboriginal or Torres Strait Islander culture,[41] by having the opportunity to connect with, and maintain their connection with, members of their family and with their community, culture, country and language
• the likely impact of any proposed parenting order on the child’s right to enjoy their Aboriginal or Torres Strait Islander culture.

Further amendments acknowledging Aboriginal or Torres Strait Islander notions of family and kinship are made by Schedule 3 to the Bill. The definition of ‘member of the family’ for Aboriginal or Torres Strait Islander children is expanded by amending the definition of ‘relative’ to include persons who, in accordance with the child’s Aboriginal or Torres Strait Islander culture, are related to the child (items 2 and 4, Schedule 3).

New objects provision

Related to the amendments discussed above, item 4 repeals the current objects and principles provision set out in section 60B and substitutes a simplified objects provision for Part VII.

Existing section 60B is long and complex, containing a list of 4 objects followed by a list of 5 principles. There is an emphasis on the best interests of the child being met by ensuing the children have the benefit of both of their parents having a meaningful involvement in their lives.

Proposed section 60B provides that the objects of Part VII are to:

• ensure that the best interests of children are met, including by ensuring their safety, and
• give effect to the Convention on the Rights of the Child (CRC) done at New York on 20 November 1989.

This provision does not have the effect of incorporating the CRC into domestic law. Rather it may be considered as an interpretive aid. To the extent that the Family Law Act departs from the CRC, the Family Law Act prevails.[42]

The Explanatory Memorandum states 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 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.[43]

The ALRC, noting the confusion the current objects and principles provision has caused and the limited legal effect of the principles, recommended instead that section 60B be repealed and not replaced.[44]

Part 2: Repeal of the presumption of equal shared parental responsibility and associated equal time or significant time provisions

Section 61DA currently provides that when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

Along with the presumption of equal shared parental responsibility, section 65DAA requires the court to consider a child spending equal time, or substantial and significant time, with each parent in certain circumstances. This section applies only when an order of ‘equal shared parental responsibility’ is made under section 61DA.

These amendments were controversial at the time of introduction and have remained so since then. Items 16 and 24 repeals these provisions, the Explanatory Memorandum arguing:

Matters that end up in court often involve concerns about family violence, health issues or substance abuse. These are complex matters which the court must consider very carefully. In these matters, the court’s primary focus should be on making arrangements that meet the best interests of the children involved. Any presumptions about the allocation of parental responsibility or consideration of specific time arrangements can detract from a focus on the needs of the individual child.

Recent inquiries into the family law system have concluded that the presumption of equal shared parental responsibility is commonly misunderstood. An order for ‘equal shared parental responsibility’ simply means that parents are required to make joint decisions about major long-term decisions (for example, in relation to education and health). However, the majority of parenting matters are settled outside of court, and the ALRC Report and the JSC Inquiry as well as numerous studies have found that this part of the law is commonly misinterpreted as creating a right to equal shared time with children which has never been the case. This means that parents can enter negotiations based on incorrect assumptions about their entitlements. This can lead to inappropriate arrangements for children and increased parental conflict.[45]

It is of note that the ALRC did not recommend the total repeal of the presumption of joint responsibility, preferring instead that it be replaced with a presumption of joint decision making about ‘major long-term issues’.[46]

The ALRC argued that a presumption of shared parental responsibility serves as a good starting point for negotiations between parents and recommended that the concept be retained. However, the ALRC recommended the wording of the presumption should be clarified to avoid conflating the term ‘equal shared parental responsibility’ with equal time. The ALRC therefore recommended that, to reduce confusion, section 61DA be redrafted to refer to ‘joint decision making on major long-term issues’.[47]

Other related amendments in Part 2

Part 2 of Schedule 1 contains other amendments related to the main amendments discussed above which include:

• Proposed subsection 61D(3) (item 15): provides that a parenting order that deals with the allocation of responsibility for making decisions about major long‑term issues in relation to the child may provide for joint or sole decision‑making in relation to all or specified major long‑term issues. This is intended to make it clear that, with the removal of the presumption of equal shared parental responsibility, the court may still make orders providing for joint decision-making about major long-term issues, and parties can continue to agree to such matters between themselves.[48]
• Proposed section 61DAA: (previously found in section 65DAC) outlines the effect of a parenting order that provides for joint decision-making about major long-term issues.
• Proposed section 61DAB (which reflects previous section 65DAE) provides that, if a child is spending time with a person under a parenting order, there is no requirement for the person to consult a person with parental responsibility for the child about issues that are not major long-term issues. Both this section and proposed section 61DAA have been relocated to Division 2 – Parental responsibility of Part VII, to ensure that the provisions relating to the allocation of parental responsibility are collocated and are intended to make the Family Law Act more user-friendly.[49]
• proposed section 61CA (Item 14) provides that subject to court orders, and if it is safe to do so, parents are encouraged to consult each other about major long-term issues and, in doing so, to have regard to the best interests of the child. The Explanatory Memorandum notes that this is ‘not enforceable but is intended to signal to parents that, in the absence of court orders, decisions about major long-term issues should be made in consultation, with the best interests of the child being the paramount consideration’.[50]

Part 3: Reconsideration of final parenting orders

Under subsection 65D(2) of the Family Law Act the court has a power to discharge, vary, suspend or revive earlier parenting orders. However, the Act does not specify the circumstances in which parties may return to the court to seek revision of an order. Item 26 inserts proposed section 65DAAA, its purpose being to clarify when a court can reconsider an existing parenting order.

New subsection 65DAAA(1) provides that if a final parenting order is in place, the court must not reconsider it unless the court has considered whether there has been a significant change in circumstances since the final order was made and is satisfied that it is in the best interest of the child for the order to be reconsidered.

Proposed subsection 65DAAA(2) includes a list of matters that a court may have regard to in weighing up whether it would be in the child’s best interests to reconsider a final parenting order.

Proposed subsection 65DAAA(3) confirms that the court may reconsider a parenting order with the agreement or consent of all the parties to the final parenting order even where there hasn’t been a change in circumstances or the court is not satisfied it is in the best interests of the child.

The Explanatory Memorandum states that this amendment:

… codifies the common law rule established by Rice and Asplund (1979) FLC 90-725 and elaborated on in subsequent cases, that is, where final parenting orders are in place the applicant must establish that there has been a significant change of circumstance since the making of the orders before those orders can be reconsidered. The rule is founded on the notion that continuous litigation over a child or children is generally not in their best interests. [footnotes omitted][51]

Comments on Schedule 1

The amendments proposed in Parts 1 and 2 of Schedule 1 were the main focus of many of the submissions received by AGD on the Exposure Draft. The views of submitters varied: many welcoming the changes, others suggesting improvements, and some voicing strong concerns about the impact of the changes.

The National Children’s Commissioner welcomed all the amendments, including:

• the new simplified objects provision that gives acknowledgement of the CRC
• the best interest factors which more clearly reflects how the best interest of the child principle is interpreted under the CRC
• the inclusion of the importance of an Aboriginal or Torres Strait Islander child’s connection to culture, language, community and country, which is in line with Article 30 of the CRC that ‘explicitly recognises the right of Indigenous children to culture, language and religion’
• the removal of the mandatory consideration of certain time arrangements under section 65DAA, pointing out that there is no reference to equal time with both parents in the CRC.[52]

The AIFS supports the amendments in Schedule 1, noting that they are in alignment with AIFS research findings.[53] It states that AIFS research demonstrates a persisting concern with the presumption of equal shared parental responsibility and supports the proposed removal.[54] The submission argues:

Despite the strong policy intent of a non-universal application of the presumption in matters involving family violence and safety concerns, AIFS and other research evidence shows that orders for shared parental responsibility are made in the majority of litigated matters and in the presence of these concerns.[55]

In relation to the new objects provision, the Law Council agreed with the ALRC recommendation,[56] noting that ‘if simplification is the aim of the reforms… section 60B should be removed in its entirety’.[57] Alternatively, if section 60B is to remain, then the Law Council suggests the new provision should have the following features:

• the reference to the CRC should be removed as it could be a source of confusion and may create unintended consequences
• consideration ought to be given to retaining several features of existing section 60B:
  • a child’s best interests being met by both of their parents having a ‘meaningful’ involvement in their lives to the maximum extent consistent with the best interests of a child (existing paragraph 60B(1)(a)), and
  • the safety of a child, particularly being protected from physical or psychological harm, abuse or violence (existing paragraph 60B(1)(b)).

The Law Council considers that these key objects should not be removed from the legislation just because a layperson may not understand their legal operation at face value.[58]

In relation to the presumption of equal shared parental responsibility, Professor Richard Chisholm argues that rather than removing this provision, amendments should be considered. He states:

The problem with the existing provisions about equal shared parental responsibility mainly arises from the way the existing Act links orders for equal shared parental responsibility with the requirement that courts consider the children spending equal time, or ‘substantial and significant’ time, with both parents. The word “equal”, used in both provisions, probably contributed to the earlier misunderstanding that the current legislation creates a presumption favouring equal time.[59]

Professor Chisholm suggests that removing the link would help remove this misunderstanding, even if the provision for equal shared parental responsibility remained in the Family Law Act. His submission includes a re-draft of the provision he had previously proposed and which he still favours:

The court shall presume that it is in the child’s best interests that both parents continue to have parental responsibility, unless it considers that this would not be in the child’s best interests in the circumstances of the case.[60]

Professor Chisholm’s submission also includes a survey of family law legislation in six overseas jurisdictions which he says reveals that none of the other jurisdiction’s legislation creates any presumption or suggestion that any particular time allocation or other arrangement is to be preferred or given special consideration. He states:

Australia is currently the only jurisdiction among these six jurisdictions countries that requires the court in some circumstances to “consider” parents having equal time, or “substantial and significant” time with the child. In that respect, the proposed reforms would bring Australia into line with the other jurisdictions examined.[61]

The Law Council notes that there are divergent views on the removal of sections 61DA and 65DAA amongst its Constituent Bodies.[62] Some of the Constituent Bodies, along with the Family Law Section, agreed that the simplification of the legislative framework for making parenting orders may assist in explaining the law to clients and clarifying misconceptions regarding the expectation of equal time arrangements in some situations.[63]

Other Constituent Bodies hold a different view, submitting that the existing presumption ‘provides a simplified framework for practitioners to explain to their clients how the court can be expected to determine shared time arrangements, and its removal may make it more difficult to explain the law on parental responsibility to a client’.[64]

It is the Law Council’s overall view that the removal of obligations on practitioners to encourage parents to consider equal time arrangements will ultimately result in significantly less shared, or substantially shared, care arrangements.[65]

The Law Council also notes that most of its Constituent Bodies have submitted that the obligation on legal practitioners to focus primarily on the best interests of children will enable practitioners to direct parents’ attention away from what time they see as desirable or as an entitlement for themselves. The Council adds:

The fact that parties are embroiled in disputes about time arrangements for children, including court proceedings, in and of itself indicates that they are having difficulty agreeing on issues relevant to the best interests of the child and that their interactions may be defined by conflict and a lack of trust’.[66]

Many submitters were generally supportive of the amendments regarding special acknowledgement of Aboriginal and Torres Strait Islander children’s rights and the amendments broadening the meaning of ‘member of the family’. The Aboriginal Family Legal Services WA reiterated the importance of connection to culture stating:

… consideration of connection to culture for Aboriginal children as a key mechanism to ensure that a child’s Aboriginal and Torres Strait Islander status, cultural rights and other cultural issues are brought to the attention of judicial officers in determining the child’s best interests at any stage, is paramount.[67]

Schedule 2—Enforcement of child-related orders

Schedule 2 of the Bill contains:

• a redraft of Division 13A of Part VII (compliance with parenting orders) which is intended to make it simpler and easier to apply, and
• amendments to the FCFCOA Act to allow registrars of the court to be delegated the power to make compensatory time parenting orders (or ‘make-up’ time orders).

Background: Part VII, Division 13A

Court powers in relation to non-compliance with parenting orders are set out in Part VII, Division 13A. The broad framework of the present contravention regime consists of a three-tier regime involving preventative measures, remedial measures and sanctions.

Within this Division, Subdivision D deals with situations where a contravention is established but the contravening party can establish they had a reasonable excuse. Subdivision E deals with contraventions where reasonable excuse is not established but the contraventions are ‘less serious’. Subdivision F deals with contraventions without reasonable excuse that are ‘more serious’. A greater range and severity of responses and penalties is available under Subdivision F.[68]

Section 70NFB of the Family Law Act provides that the powers of the court in relation to more serious contraventions range from the enforcement of an order to the punishment of a person for failure to obey an order. Orders that may be made in these proceedings include orders providing for: 

• a further order to compensate a person for lost time with the child/children (make-up time)
• placing a person on notice that if the person does not comply with an order, the person will be punished
• punishing a person by way of a fine, community service order (section 70NFC), bond (for example to attend counselling or family dispute resolution (section 70NFE)) or imprisonment (section 70NFG).

Enforcement of family law parenting orders has been the subject of longstanding concern,[69] particularly in the context of family violence and child safety concerns. The punishments that the courts may impose for non-compliance can operate as a disincentive for parents with safety concerns to seek safer parenting orders and may give rise to unsafe compliance. The regime potentially can also be part of a tactic of aggression or coercion where non-compliance or contravention proceedings may be part of ongoing abuse or coercive control.[70]

The ALRC Report examined Division 13A and observed that stakeholders to the inquiry had expressed concern regarding the complexity of the provisions, and the difficulties users have in understanding them.[71] The Report states:

The Family Court observed that Division 13A was of a ‘labyrinthine nature’, highlighting the distinction between less serious and more serious contraventions; the difference in the standard of proof necessary depending on what penalty is imposed; and the difficulties in respect of procedures when a party fails to enter a bond. Chisholm described the division as ‘needlessly complex, difficult to understand, and impossible to defend’ and argued that a ‘complete revision of this part of the Act is essential’. His submission included a proposed redraft of Div 13A, which is intended to make the division more concise and to provide clarity for lawyers and non-lawyers.[72]

The ALRC concluded that Division 13A is a particular area of the Family Law Act which would benefit from simplification and it recommended that it 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.[73]

The Joint Select Committee also identified issues with non‑compliance as a key theme arising during its inquiry. The Committee recommended that the Government review Division 13A to simplify its operation and consider additional penalties to deter contravention of orders.[74]

Part 1 of Schedule 2 to the Bill contains a redraft of Division 13A and represents the Government’s response to these recommendations.

Redraft of Division 13A

Item 21 inserts proposed Division 13A–Orders in proceedings relating to contraventions of child- related orders. It is divided into 4 subdivisions (reduced from the current 6):

• Subdivision A – Preliminary
• Subdivision B – Orders relating to contraventions of child-related orders
• Subdivision C – Further provisions relating to bonds and imprisonment
• Subdivision D – Miscellaneous.

The redraft incorporates only minor policy changes and does not significantly change the underlying principles of the current compliance and enforcement provisions in Division 13A. For this reason, the Bills Digest provides only a short overview of the new structure, which includes a selection of the similarities and differences between the existing and the redrafted regimes. Greater detail can be found in the Explanatory Memorandum at pages 33–53.

New objects provision

Proposed Subdivision A contains an objects provision (proposed section 70NAB) which provides for five principal objects of the Division. According to the Explanatory Memorandum this provision was added to clarify that the compliance regime serves a number of different objectives, including supporting parties to comply with parenting orders and to resolve any difficulties that have contributed to non-compliance.[75] Other objectives include upholding the authority of the court and imposing appropriate sanctions on a person who seriously or repeatedly contravenes child‑related orders without having a reasonable excuse. The overarching object of Division 13A is to meet the best interests of children.[76]

Contravention of parenting orders

Sections 65M to 65P of the Family Law Act, which set out general obligations created by parenting orders, are to be replaced by proposed section 70NAC. This new section would perform an equivalent function in describing the circumstances in which a person contravenes a child‑related order, such as by hindering or preventing another person from spending time with a child, or failing to return a child to the care of another person, contrary to an order. Proposed section 70NDA in Proposed Subdivision D (Miscellaneous) replaces existing section 65Q, which provides that the court may issue a warrant for the arrest of an alleged offender.

Removal of the hierarchy of seriousness

In order to simplify the structure of the Division, the new provisions no longer separately provide for circumstances where the court considers the contravention to be ‘less serious’ or ‘more serious’. Instead, the court would have 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 (proposed subsections 70NBF(2) and (3)). The Explanatory Memorandum states the reason for this approach is ‘to simplify the law, while retaining the court’s discretion to consider the circumstances of each case’.[77]

Penalties

Under the Division’s new structure, the penalties and costs provisions are to be centralised to improve readability. Currently these provisions are repeated throughout the Division against the different outcomes that can result from a contravention matter.

The court would still need to be satisfied beyond reasonable doubt that the person contravened the child‑related order when making an order for the most serious sanctions of fines and imprisonment (proposed section 70NAE and paragraph 70NBF(1)(d)).

Cost orders

Currently there are powers concerning compensation for reasonable expenses incurred as a result of a contravention. If a less serious contravention application is upheld, the court may order that the contravening party pay all or some of the costs of the other party (paragraph 70NEB(1)(f)) even if it makes no other orders in relation to the contravention (paragraph 70NEB(1)(g)). If a more serious contravention application is upheld, a presumption applies that a court must make a costs order against the contravening party unless the court concludes this would not be in the best interests of the child concerned (paragraph 70NFB(1)(a)).

Proposed section 70NBE contains a central power to order costs which can be made at any stage during proceedings.

This section is divided into two subheadings which consolidate the existing costs provisions while retaining the existing underlying policies, namely that the court should consider:

• a costs order against the complainant where there are unsubstantiated allegations of contravention, and
• a costs order against the respondent where there has been a contravention without reasonable excuse.

In the second case where there has been a contravention without reasonable excuse, the court must make a costs order unless it is satisfied it is not appropriate in the circumstances. The court must make the costs order regardless of how serious the contravention is. Note that this provision is slightly broader than existing section 70NFB where the court must make a cost order only where a more serious contravention is established.

Removal of community service orders as an enforcement

As noted above, under the existing scheme community service orders (CSOs) are one of the more serious sanctions that the court may impose. The proposed redraft of Division 13A would remove reference to CSOs from Division 13A (including from existing sections 70NFC, 70NFD and 70NFF).

The Explanatory Memorandum argues CSOs have been rarely used as a sanction and their removal ‘aids simplification of the Division’.[78] The Family Law Council however questions the efficacy of removing the power to impose CSOs in circumstances where the imposition of a fine, bond or term of imprisonment is likely to impact a financially vulnerable parent more severely.[79]

Delegation of the power to make ‘make-up’ parenting orders

Part 2 of Schedule 2 (items 37 and 38) amend the FCFCOA Act so that registrars of the FCFCOA can be delegated the power to make a further parenting order for a child to spend additional time with a person (commonly referred to as a ‘make-up’ time or ‘compensatory time’ order).

The stated purpose of this amendment is to help achieve more timely outcomes in contravention matters and support compliance with parenting orders.[80]

Comments on Schedule 2

The AIFS observes that the scope of the amendments to Division 13A maintain ‘its quasi-criminal nature in the inclusion of criminal penalties, with only limited reform proposed… with the removal of Community Service orders’.[81]

The AIFS emphasised that the evidence from recent AIFS research studies suggests that:

 [I]t is in the interests of families for policy changes in this area to be directed towards more therapeutic interventions as an alternative to punitive approaches that are noted to be ineffective. In a context where punitive responses are rarely applied – and are available to courts through mechanisms such as contempt of court proceedings – further consideration – in addition to the suggested amendments should be given to reforming Division 13A in such a way as to provide an accessible means of adjusting parenting orders or access to interventions that will support compliance with safe and appropriate orders.[82]

In relation to the re-write of Division 13A, the Law Council accepts ‘that this is a challenging and prescriptive part of the Family Law Act and so simplification is difficult to achieve’.[83] In its view, while the proposed amendments simplify current Division 13A in part, it remains complex and challenging overall and 'consequently, where further simplification cannot be achieved, education around this Schedule may be necessary to improve general understanding’.[84] The Law Council also points out that in ‘circumstances where the consequences to litigants can be significant (including imprisonment), careful consideration should be given to this Division’.[85]

A number of submitters expressed criticism of the costs provision. The Family Law Section of the Law Council is of the strong view that proposed section 70NBE continues to confuse unnecessarily the power to order costs in any proceedings, which is already set out in section 117 of the Family Law Act:

This would include making an order against a complainant in a situation where no finding is made (provided that it is “just” to do so). Consequently, there is no need to have this costs power specifically set out in Division 13A.[86] 

Schedule 4—Independents Children’s Lawyers

An Independent Children’s Lawyer (ICL) may be appointed under section 68L of the Family Law Act where it appears to the court that the child’s interests in the proceedings ought to be independently represented.

The scope of the role is set out in section 68LA of the Family Law Act. An ICL must form an independent view, based on the evidence available, of what is in the best interests of the child and act in relation to the proceedings in what the ICL believes to be the best interests of the child.[87] An ICL is not the child’s legal representative and is not obliged to act on the child’s instructions in relation to the proceedings.[88]

Guidelines for Independent Children’s Lawyers (the Guidelines), prepared by National Legal Aid and endorsed by the FCFCOA also set out the expectations of the role.

An ICL is appointed to a case by the legal aid commission in the relevant state or territory, either from their own in-house ICLs or from a panel of private practitioners who can be appointed to this role after completing a period of specialised training.[89]

Schedule 4 includes the following measures in relation to ICLs.

Requirement for ICLs to meet with a child

Item 2 amends section 68LA of the Family Law Act to require ICLs to meet with a child whose best interests they have been appointed to represent and to provide the child with an opportunity to express a view, unless:

• the child is under 5 years of age
• the child does not want to meet the ICL or express their views, or
• there are exceptional circumstances that justify not performing that duty.

These exceptional circumstances include, but are not limited to, if the ICL in performing the duty would expose the child to the risk of physical or psychological harm that cannot be safely managed or would have a significant adverse effect on the wellbeing of the child.

Where an ICL decides not to meet the child due to exceptional circumstances, the court must, before making final orders either:

• determine whether it is satisfied that exceptional circumstances exist that justify not performing the duty, or
• if the court determines that those circumstances do not exist, it must make an order requiring the ICL to perform the relevant duty.[90]

The Explanatory Memorandum argues in support of this amendment stating:

While an ICL is required by the Family Law Act (section 68LA(5)(b)) to convey the child’s views to the court if they have been expressed, at present there is no legislative obligation for an ICL to meet with or seek a child’s views unless this is ordered by a judge (section 68L(5)). Although many ICLs do meet with children and seek to facilitate children’s participation where appropriate, new subsection 68L(5A) will require all ICLs to do this. New subsections 68L(5B) and (5C) clarify the circumstances where the ICL is not required to perform these duties, in order to safeguard the safety and wellbeing of the child.[91]

Expansion of the use of ICLs in cases brought under the Hague Convention

The Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention) is the main international agreement that covers international parental child abduction. It provides a process through which a parent can seek to have their child returned to their home country. The Hague Convention also deals with issues of international child access. When a parent or guardian lives in a different country to the home country of their child, it may be hard to work out access to them.[92]

Under subsection 68L(3) of the Family Law Act judges are currently only permitted to appoint ICLs in cases brought under the Hague Convention where there are exceptional circumstances that justify doing so. Item 5 in Schedule 4 repeals subsection 68L(3), removing the restriction on the appointment of ICLs in these cases. Subsection 68L(1) will also be repealed and replaced (item 4) to express that section 68L applies to proceedings where a child’s best interests are paramount or a relevant consideration, including Hague Convention proceedings.

Comments on Schedule 4

Many stakeholders expressed support for the amendments requiring ICLs to meet with the child, however some pointed to problems with their practical application.

Victoria Legal Aid noted that while it supports the policy intention of requiring ICLs to meet with a child, ‘in our view, it would be preferable that the legislation state that the timing of the meeting, and who is present, is a consideration for the ICL’.[93] The submission argues:

This would, as the circumstances require, enable the ICL to make submissions that they intend to meet with the child at a later, more appropriate stage of the proceedings or in the company of another person. Without affording ICLs the flexibility to determine the appropriate time to meet the child without judicial determination, there will likely be additional hearings and unnecessary delays, and consequent funding implications.[94]

The Family Law Council supported the amendments regarding mandatory meetings with the child, but also raised concerns that ‘the obligation for ICL’s to approach the court to obtain court acknowledgment that exceptional circumstances exist may be impractical and absorb unnecessary resources of the court litigants and ICLs’.[95]

The Law Council had a number of concerns with the provisions in Schedule 4. It submits that while acknowledging that the proposed reforms ‘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’. The submission states:

The Law Council wishes to emphasise, at the outset, that increased funding for legal aid organisations is essential if the proposal to introduce a mandatory requirement for ICLs to meet with the child is to be successful.[96] 

Schedule 5—Case management and procedure

Part 1: Harmful proceedings orders and co-location of provisions

Part 1 of Schedule 5 amends Part XIB of the Family Law Act, including re-naming it from ‘Vexatious proceedings’ to ‘Decrees and orders relating to unmeritorious, harmful, and vexatious proceedings’.

The amendments consist of:

• proposed Division 1A that brings together existing provisions that deal with decrees and orders relating to unmeritorious, harmful and vexatious proceedings
• proposed Division 1B that contains provisions relating to a new power for the court to make a harmful proceedings order.

Harmful proceedings orders

Proposed section 102QAC provides the court with power to make a ‘harmful proceedings order’. A harmful proceedings order is an order restraining a party to the proceedings from making any further applications and serving them on the respondent to the proceedings, without first obtaining leave of the court.[97] The person being restrained by the order is known as the ‘first party’.

In considering whether to make a harmful proceedings order, the court should be satisfied there are reasonable grounds to believe that:

• the other party would suffer harm if the first party instituted further proceedings against the other party, or
• in the case of child-related proceedings, the child who is the subject of the proceedings would suffer harm if the first party instituted further proceedings against the other party.

Harm may include but is not limited to psychological harm or oppression, major mental distress or a detrimental effect on the other party’s capacity to care for a child.[98]

Proposed subsection 102QAC(3) provides that in determining whether to make a harmful proceedings order, the court may also have regard to:

• the history of the proceedings under the Act between the two parties
• whether the first party has frequently instituted or conducted proceedings against the other party in any Australian court or tribunal, and
• the cumulative effect, or any potential cumulative effect, of any harm resulting from these proceedings.

The court may make a harmful proceedings order on its own initiative or on application by a party to the proceedings (proposed subsection 102QAC(4)).

The court must not make a harmful proceedings order in relation to a person without hearing the person or giving the person an opportunity to be heard on the merits of their application.[99]

Proposed subsection 102QAC(7) provides that when a court is making a harmful proceedings order, it must also make a determination on whether the other party should be notified of any applications under proposed section 102QAE for leave to institute proceedings against the other party. This notification includes that the application was made, and/or if applicable, that the application has been dismissed. The court must have regard to the wishes of the other party when determining whether the respondent should be notified (proposed subsection 102QAC(8)).[100]

Consequences of a harmful proceedings order

Proposed subsection 102QAD(1) provides that a person subject to a harmful proceedings order must not institute proceedings, or act in concert with another person to institute proceedings, without leave of the court under proposed section 102QAG.

Proposed section 102QAE sets out the requirements for the party who is subject to a harmful proceedings order to make an application for leave to institute proceedings. The applicant must file an affidavit with the application which lists all occasions on which the applicant has applied for leave as well as disclosing all relevant facts about the application.

Applications for leave made under section 102QAE would be made ex parte (that is without serving documents on the respondent) – unless an order is made under proposed section 102QAG granting an application for leave.

Proposed section 102QAF provides that the court may dismiss an application for leave under proposed section 102QAE if the court considers that the affidavit does not substantially comply with that section. If the court considers the proceedings to be vexatious proceedings, then it must dismiss the application.

Proposed section 102QAG provides that a court may only grant an application for leave to institute proceedings if it is satisfied that the proceedings are not frivolous, vexatious or an abuse of process, and have reasonable prospects of success.

Comments on Schedule 5, Part 1

The harmful proceedings provisions respond to the ALRC Report recommendation 32.[101] The Explanatory Memorandum states that the amendments ‘address a gap in the court’s powers to scrutinise the institution of further proceedings, cited in the case of Marsden & Winch (2013) 50 FamLR 409.’[102] It notes also that ‘the ALRC Report found that the court’s existing vexatious proceedings and summary dismissal powers do not provide sufficient scope for courts to make appropriate orders in cases where one party oppresses the other by repetitive filing of applications and the serving of those applications on the other party’.[103]

The Explanatory Memorandum also explains that harmful proceedings order powers are different from the court’s current vexatious proceedings orders powers[104] in that they ‘require the court to consider the impact that the repetitive and litigious nature of the applicant’s filings would have on the respondent’.[105] On the other hand, vexatious proceedings orders powers focus on the applicant’s intent to institute or conduct proceedings in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.[106]

Legal professional bodies and family law academics generally support these new measures. Victoria Legal Aid is broadly supportive of this new power stating it will help to ‘minimise a party’s ability to use the court as a means of inflicting family violence and other forms of harm’.[107]

Similarly the AIFS supports the proposed introduction of harmful proceedings orders noting it may address concerns raised by professionals and parties in the AIFS Compliance and Enforcement Project ‘regarding the limitations of the current vexatious litigant provisions to address the misuse of litigation, including as a means of perpetrating family violence, and the trauma for children and parties this can cause’.[108] Both Victoria Legal Aid and the AIFS suggest that the grounds for making a harmful proceedings order should be widened to refer additionally to the misuse of other systems and processes in addition to court-based ones.[109]

Part 2: Overarching purpose of the family law practice and procedure provisions

Part 2 of Schedule 5 makes amendments that would insert proposed Division 1A into Part XI of the Family Law Act in order to broaden the overarching purpose provisions that currently exist in the FCFCOA Act, as well as to extend the overarching purpose to cover all proceedings instituted under the Family Law Act.

The Explanatory Memorandum explains that this includes proceedings heard by other courts, such as the Family Court of Western Australia (when exercising its federal family law jurisdiction) and courts of summary jurisdiction exercising jurisdiction under the Family Law Act.[110]

Proposed subsection 95(1) provides that the overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes:

• in a way that ensures the safety of families and children
• in relation to proceedings under the Family Law Act in which the best interests of a child are the paramount consideration – in a way that promotes the best interests of the child
• according to law, and
• as quickly, inexpensively and efficiently as possible.

Proposed subsection 95(2) states that the objectives of the overarching purpose include:

• the just determination of all proceedings
• the efficient use of the judicial and administrative resources available to the courts exercising jurisdiction
• the efficient disposal of the overall caseload of courts exercising jurisdiction in proceedings
• the disposal of all proceedings in a timely manner, and
• the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

Proposed subsection 95(4) defines the ‘family law practice and procedure provisions’ as the applicable Rules of Court and any other provision made by or under the Family Law Act, or any other Act, with respect to the practice and procedure of the FCFCOA or any other court.

Proposed section 96 imposes duties on parties to proceedings and their lawyers. These include:

• a party must conduct proceedings in a way that is consistent with the overarching purpose of the family law practice and procedure provisions
• a party’s lawyer must take account of the party’s duties and assist the party to comply with those duties
• a court may require a party’s lawyer to give the party an estimate of the likely duration of the proceedings and the likely amount of costs the party will have to pay in connection with the proceedings
• when awarding costs, a court is required to take into account any failure by parties and their lawyers to comply with their duties
• a court may order a party’s lawyer to bear costs personally and these costs cannot be passed on to the party.

Amendments to the FCFCOA Act

Currently the FCFCOA Act also includes overarching purpose and duty provisions that apply to the Family Law Act. In order to avoid overlap with the proposed amendments in Schedule 5, items 19‑35 make consequential amendments to the FCFCOA Act that will limit the application of the existing provisions in the FCFCOA Act to civil proceedings other than those under the Family Law Act.

Comments on Schedule 5, Part 2

The provisions in Part 2 of Schedule 5 respond to the ALRC recommendations 30 and 31.[111] Submissions were broadly supportive of these provisions.[112]

Schedule 6—Communications of details of family law proceedings

Schedule 6 of the Bill inserts new Part XIVB into the Family Law Act. It consists of a redraft of section 121 of the Act, the current provision that deals with protection of the privacy of families and other persons connected with family law proceedings. The new Part aims to clarify the law in this area and improve readability. It does not introduce any significant changes to the existing law, but rather is intended to ‘address misconceptions about its operation’.[113]

Background

Section 121 of the Family Law Act criminalises the publication or dissemination of an account of a family law proceeding that could identify a party, witness or other person associated with the proceedings. A number of exceptions to the offence are provided, including for publication of case reports, legal professional regulation, and other purposes.

The ALRC inquiry examined section 121 as part of its brief to look at the complexity and accessibility of the Family Law Act. In its report the ALRC noted that aspects of section 121 cause significant confusion, citing the following examples:

For example, doubts have been expressed about whether s 121 prevents communication of details of proceedings to professional regulators as part of a complaint, or communications between family law service providers about safety concerns for clients, or even private conversations between individuals. There is a perception that the provision prevents scrutiny of family law decision making, reporting on the deficiencies of the family law system, and victims of family violence from speaking out about their experiences.[114]

The ALRC therefore recommended that section 121 be redrafted[115] and that a number of changes should be made to ‘improve the clarity of the provision and ensure that it does not discourage communications about family law proceedings beyond its intended scope’.[116]

The provisions in Schedule 6 represent the Government’s response to this recommendation.

New Part XIVB—Restriction on communication of accounts and lists of proceedings

The redraft creates a new Part XIVB.[117] Section 121 has been separated into a number of sections within Part XIVB. This is intended to make the provision clearer by separating the offence provisions and creating shorter sections that are easier to read.[118]

Proposed section 114N contains a simplified outline of the two offences contained in Part XIVB and summarises when communications do not constitute communications to the public for the purposes of the new Part.

Proposed section 114P provides the meaning of key terms ‘communicate’, ‘proceedings’ and ‘public’ used in new Part XIVB. The redraft uses the phrase ‘communicates to the public’ in place of ‘publishes or otherwise disseminates to the public’. This is intended to better articulate that the restrictions apply to public communications beyond what might be traditionally understood by the term ‘publication’.[119] The definition of communicate includes communicate ‘by means of the internet’ and uses social media as an example.

Proposed subsection 114Q(1) establishes that it is an indictable offence if a person:

• communicates to the public an account of family law proceedings under the Family Law Act, and
• the account identifies a party to the proceedings, a witness in the proceedings, a person related to, or associated with, a party to the proceedings, or a person who is, or alleged to be, in any other way concerned in the matter to which the proceedings relate.

Proposed subsection 114Q(2) permits a court to approve or direct communication that would otherwise be in breach of this section. Proposed subsection 114Q(3) provides examples of information that may be considered sufficient to identify a person to a member of the public. These examples substantially replicate the existing law contained in subsection 121(3).

Proposed subsection 114R(1) establishes that it is an indictable offence for a person to communicate to the public a list of proceedings under the Family Law Act that identifies the parties to the proceedings by reference to their names. Proposed subsection 114R(2) excludes from this offence court lists of proceedings that identify the parties to the proceedings. It is also not a breach of this section if the court directs, approves or otherwise states in its Rules of Court that the communication is permitted.

Proposed subsections 114Q(1) and 114R(1) retain the existing penalty for the two offences under current section 121 (a maximum of one year imprisonment).

Proposed section 114S sets out the circumstances whereby a communication to a person or body is not considered a communication to the public. Proposed subsection 114S(1) provides that a communication to a person or body is not a communication to the public if the person or body has a significant and legitimate interest in the subject matter of the communication and that interest is substantially greater than, or different from, the interests of members of the public generally.

The Explanatory Memorandum explains:

This subsection is intended to apply to a range of circumstances, including in relation to communications with professional regulators and Government agencies or other organisations who provide services to families who are involved in family law proceedings. It only applies where there is a significant and legitimate interest in the subject matter of the communication and that interest is substantially greater than, or different from, the interests of members of the public generally. For example, a party may communicate with a child welfare organisation and include information that identifies the other party to proceedings. Subsection 114S(1) is not intended to exclude media reporting from being subject to the offences under the new Part.[120]

Proposed subsection 114S(2) provides a non-exhaustive list of other circumstances where a communication will not be considered a communication to the public. These include:

• private communication between a party to proceedings and a person who is a family member or friend of the party
• communication to a prescribed state or territory child welfare authority
• communication to a body responsible for disciplining members of a profession in a state or territory, such as a law society
• communications for legal aid grant purposes, and
• other forms of communication as set out in the provision.

Proposed subsection 114S(2) largely reflects the permitted communications currently contained in subsection 121(9) of the Family Law Act.

Comments on Schedule 6

Submitters were generally supportive of the provisions in this Schedule. For example, the AIFS states:

AIFS supports this amendment which is of particular relevance to AIFS’ evaluation and research activities. The amendments articulate the position in case law differentiating communications to persons who have a significant and legitimate interest that is substantially greater than or different from the general public.[121]

Schedule 7—Family report writers

The Family Law Council states that family reports provide a vitally important role in parenting proceedings, including amongst other things:

• assisting judges, lawyers, and families by providing expert opinion regarding the level parental conflict, parent functioning, child-parent relationships, and the children's developmental, social, emotional, and educational needs post separation and divorce
• often providing the only social science evidence available in parenting matters
• are important to pre-trial negotiations and family dispute resolution processes, as they are acknowledged to be a very powerful settlement tool
• assisting the court’s inquisitorial function with family report writers being able to observe parties, review court documents and consult with extended family, teachers, therapists, child protection workers, police, general practitioners and other significant people in the child’s life.[122]

Given this important role, the Family Law Council argues it is important that they are appropriately accredited and regulated.[123]

The ALRC also recommended that AGD should develop a mandatory national accreditation scheme for private family report writers,[124] and Schedule 7 responds in part to that recommendation.[125]

Regulation making power for standards and requirements for family report writers

The proposed amendments in Schedule 7 create a framework to enable the Government to make regulations setting standards for family report writers. The extent and nature of these regulations will be developed after further consultation with stakeholders.[126]  

Item 4 inserts a new Part IIIAA in relation to family report writers. Part IIIAA consists of:

• a power to make regulations about family report writers
• a framework and parameters for the regulation of family report writers and
• definitions to clarify the application of the regulations.

Proposed section 11K introduces a power to make regulations in relation to the standards and requirements that family report writers or a class or classes of family report writers must comply with in connection with their role of preparing designated family reports.

A ‘family report writer’ is defined as any individual who prepares a designated family report (proposed section 11H).

A ‘designated family report’ is defined in proposed section 11J as a report prepared following a family assessment which sets out the advice and the views of the report’s preparer on parenting arrangements for the purposes of parenting orders being made by the court. In addition, in order to fit within the definition, a report must be one that fits into certain categories of reports that can be prepared or ordered under the Act. The regulations can exclude certain types of reports from the definition.

The regulations may establish and provide consequences for non-compliance with regulated standards and requirements. The consequence of non-compliance may include offences and civil penalty provisions with pecuniary penalties not exceeding 30 penalty units, and other administrative sanctions such as suspension or cancellation of recognition of compliance.[127]

The regulations may deal with any, or all, of the following matters:

• recognition, monitoring and enforcement of compliance with prescribed standards and requirements
• the person or persons responsible for that recognition, monitoring and enforcement (that is the regulator(s))
• the duties of family report writers
• circumstances in which a regulator may collect, use and share information and documents for the purposes of meeting the regulator’s responsibilities
• review of decisions that affect recognition of a family report writer’s compliance
• processes for dealing with persons who make false or misleading representations about a family report writer’s compliance
• processes for handling complaints involving family report writers
• training for family report writers
• the charging of fees, to family report writers, for services provided to them in connection with recognition, and maintenance of recognition, of their compliance
• publication of information about named family report writers regarding personal details about qualifications, availability amongst others, and
• standards and requirements in relation to the content of designated family reports.

Comments on Schedule 7

Competency training and standards for family report writers were generally welcomed in submissions, although with some caveats. As several submitters noted, it is difficult to assess the impact of Schedule 7 as the detail will be in the Regulations.[128] The Law Council and others stressed that it will therefore be important to consult widely on the content of the regulations, particularly with existing report writers and professional organisations representing those report writers.[129]

While many submitters argued in favour of measures that would improve standards for family report writers, some expressed caution about the possible consequences of obligatory training.

The ALRC recommended a mandatory accreditation scheme for private family report writers,[130] and the provisions in the Bill also allude to the possibility of mandatory accreditation. The Law Council is opposed to any mandatory accreditation scheme for family report writers for the following reasons:

The Law Council observes that the consequences of mandatory accreditation (or something akin to that) may impact upon those qualified social scientists who are willing to undertake this important work, due to the costs and compliance burdens such a scheme may impose. That will place attendant pressure upon the court system and may lead to obvious delay and cost increases for families who must enter the system, where there is a scarcity of private report writers. The Law Council recognises that the challenges in building a system of regulations to guide and provide for minimum standards for report writers is made more fraught by the different professional expectations and applicable eligibility criteria of various social science fields of expertise. Any costs consequences for compliance may create a further disincentive to participation and compliance (barriers to access) and lead to the further attrition of experts willing to perform this role.[131]