Introductory Info

Date of introduction: 2024-08-22

House introduced in: House of Representatives

Portfolio: Attorney-General

Commencement:  

Sections 1 to 3 commence on Royal Assent. Schedule 3, Parts 2, 3 and 4; Schedule 4, Parts 2 and 3; and Schedule 5 commence on the day after Royal Assent. The remainder of the provisions commence 6 months after Royal Assent.  

Purpose of the Bill

The purpose of the Family Law Amendment Bill 2024 (the Bill) is to amend the Family Law Act1975, the Evidence Act 1995 and other related legislation to clarify and strengthen the family law system for children and victim-survivors of family violence. To achieve this, the Bill proposes a range of amendments.

The most substantive proposals concern property proceedings in family courts. The new provisions allow for consideration of the impact of family violence in property settlement proceedings, as well as in relation to spousal maintenance matters.

Additionally, the Bill will enhance the operation of Children’s Contact Services (CCS), providing for a new regulatory framework for the provision of these services to children and families. Finally, the Bill proposes a range of case management and procedural amendments to support the operation of the family law system.

Structure and summary of the Bill

The Bill consists of 5 schedules. This Bills Digest primarily considers Schedules 1–3, and briefly considers Schedules 4–5.

Schedule 1—Property reforms

Schedule 1 contains amendments to the property framework in the Family Law Act. The proposed amendments include the ability for courts to consider the impact of family violence in relation to property disputes by:

• including economic or financial abuse as examples of behaviour that may constitute family violence
• providing explicit provisions allowing for consideration of the impact of family violence in relation to property, including the impact on a party’s ability to make financial and non-financial contributions, and on current and future circumstances of a party
• introducing the definition of ‘companion animals’ (pets) and providing clarity on how family pets are to be treated in family law disputes and
• extending application of the ‘Less Adversarial Trial’ (LAT) processes beyond child-related proceedings to both child and non-child related proceedings.

The Bill also contains provisions which provide for consideration of family violence in relation to spousal maintenance.

These reforms are the most substantive changes contained in the Bill.

Schedule 2—Children’s Contact Services

Contains amendments which aim to enhance the operation of CCS; services that support contact between children and family members dealing with family law disputes. The proposed amendments will strengthen CCS regulation by requiring CCS businesses and practitioners to become accredited through a new Accreditation Rules scheme. Other proposed amendments to the CCS scheme provide for:

• regulation of the disclosure of safety information, which relates to risk of harm to children or their family members
• civil penalties for non-compliance with Accreditation Rules requirements and
• strict liability offences for the unaccredited provision of these services to children.

Schedule 3—Case management and procedure

Contains a range of amendments regulating the way family law cases are managed, and affiliated court procedures. The most substantial amendments relating to family violence include amendments which:

• clarify the type of information contained in Commonwealth Information Orders (CIO), including by allowing courts to request information from relevant Commonwealth agencies pertaining to actual or threatened violence towards children and
• prevent the disclosure of certain sensitive medical or other material or communication (referred to as a ‘protected confidence’) which occur between a person and a professional.

Schedule 4—General provisions

Contains amendments to three key areas being costs orders, court rule making powers, and methods for calculating superannuation interests.

Schedule 5—Review of amendments

Contains a requirement that the Minister conduct a review of the operation of the amendments contained in Schedules 1–4, to be commenced as soon as practicable after 3 years from when Division 1, Part 1, Schedule 1 commences.

Background

Recent family law reforms

This Bill follows two previous tranches of family law amendments, which became law in 2023. The first was the passage of the Family Law Amendment Act 2023, which received Royal Assent on 6 November 2023 and amended the Family Law Act to, among other things:

• simplify the process to ensure courts consider the best interests of children, including providing factors to be considered when making parenting arrangements
• provide key reforms to the legal framework for the enforcement of child-related orders
• remove the ‘equal shared parental responsibility’ provisions and
• acknowledge Aboriginal and Torres Strait Islander notions of family.

For further information on these amendments, see the Bills Digest and the Replacement Supplementary Explanatory Memorandum.

The Family Law Amendment (Information Sharing) Act 2023, which received Royal Assent on 6 November 2023, complemented these changes. It amended the Family Law Act to:

• provide for clearer information sharing processes between federal family law courts, police, child protection and other relevant agencies to better protect children
• ensure sensitive information is stored in an appropriate manner and
• give effect to key aspects of the National Strategic Framework for Information Sharing between the Family Law and Family Violence and Child Protection Systems.

For further information on these amendments, see the Bills Digest.

Brief background on reforms contained in this Bill

In late 2023, the Government released an Exposure Draft (ED) of the Family Law Amendment Bill (No. 2) 2023 (which formed the basis of this Bill) for public consultation (which closed on 10 November 2023). The reforms in the ED focused on simplifying the family law decision-making framework so that couples could resolve property disputes in clearer and safer ways. The Attorney-General’s Department (AGD) sought stakeholder feedback on the ED and received 86 submissions, most of which are publicly available on AGD’s website.

Many of the reforms contained in this Bill have been sourced from a variety of recommendations, including:

• the 2021 Joint Select Committee on Australia’s Family Law System: final report (JSC Inquiry), including the JSC Inquiry First interim report (2020), Second interim report (2021), and Third interim report (2021).
  • the 2023 Australian Government Response to the JSC Inquiry also formed part of the basis for reforms.
• the 2019 Australian Law Reform Commission’s (ALRC) Final Report No. 135 Family law for the future – an inquiry into the family law system (ALRC Report)
• the 2017 House of Representatives Standing Committee on Social Policy and Legal Affairs Inquiry: A better family law system to support and protect those affected by family violence (Henderson Inquiry).

AGD has collated a list of recommendations drawn from the above sources linked with proposed reforms in the Bill, contained in slides from a presentation on 5 October 2023.

Relatedly, AGD has recently released an Exposure Draft of the Family Law Regulations 2024, which closed for submissions on 5 September 2024. Public submissions are not yet available online.

While distinct from this Bill, the House of Representatives Standing Committee on Social Policy and Legal Affairs is currently conducting an inquiry into family violence orders. Public hearings for this inquiry were heard on 23 and 30 August 2024.

Position of major interest groups

Since the introduction of this Bill, there have been limited comments from major interest groups. However, a range of commentary was provided on the ED, including from legal professionals, family law services representatives, women’s safety advocacy groups, First Nations bodies, and academics. Of those who commented, submissions were largely welcoming of the changes proposed in the Bill.

Stakeholders appeared particularly welcoming towards reforms to the CCS scheme, as CCS entities and practitioners to date have largely been operating unregulated. Most stakeholders were also supportive, in principle, of the explicit inclusion of consideration of family violence in property proceedings. However, most stakeholder comments related to technical aspects around these latter reforms, including in relation to how family violence is proven by courts, and the disapplication of the Evidence Act in certain circumstances. Where relevant, stakeholder comments are considered in relation to the issues discussed below.

Key issues and provisions

Schedule 1—Property reforms

Property proceedings in the Family Law Act

There are three legally binding ways after separation to finalise property settlement under the Family Law Act and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Family Law Rules):

1. an application to a court for a ‘consent order’, in terms agreed by the parties (Family Law Rules, Part 10.2)
2. a financial agreement between the parties (Family Law Act, Part VIIIA (for marriages) or Division 4 of Part VIIIAB (for de facto relationships)) or
3. a judgment by a court exercising jurisdiction under the Family Law Act. This is the only option where orders can be made without the agreement of the parties.

The amendments in Part 1 of Schedule 1 of the Bill are aimed at ensuring couples, who are negotiating consent orders or financial agreements can be guided by new principles. Additionally, the amendments will require courts to consider legislative factors, so far as they are relevant, when determining whether to alter property interests. The intention is to codify existing common law practice to more clearly identify what factors courts must consider. As outlined in the Explanatory Memorandum (EM) (pp. 18–19), upon commencement these amendments will apply to all property and spousal maintenance matters, except those for which a final hearing has commenced (see item 68 of Schedule 1).

The Family Law Act contains provisions for dealing with property for both married couples (section 79) and de facto couples (section 90SM). Any below reference to amendments regarding sections 79 and 90SM are, respectively, references to married couples and de facto couples.

Proposed paragraphs 79(3)(a)–(b) and 90SM(3)(a)–(b) (at items 15 and 34 of Schedule 1, respectively) outline the approach courts must take when considering altering property interests between parties (except in relation to pets). As explained in the EM (pp. 38, 53), these new provisions bring together the decision-making framework for property settlement and codify common law practices. This responds to the ALRC Report Recommendation 11 (p. 16), which suggested amending the Family Law Act to specify steps a court will take when considering altering property interests.

Under these new provisions, courts are required to do two things (in any order):

1. identify existing legal and equitable rights and interests in property (for example houses, superannuation, vehicles) and existing liabilities (for example credit cards, debts owed to the Australian Taxation Office) of both parties and
2. take into account considerations relating to contributions set out in subsections 79(4) or 90SM(4) (as amended by items 16 to 23, and 35 to 42 of Schedule 1, respectively) and considerations relating to current and future circumstances contained in proposed subsections 79(5) or 90SM(5) (items 24 and 43 of Schedule 1).

The proposed amendments primarily focus on the second aspect, which require courts to consider contributions, as well as current and future circumstances, of parties involved in disputes.

Family violence considerations in property proceedings

Schedule 1 of the Bill contains amendments to the Family Law Act which provide for consideration to be given to the impact of family violence in property proceedings. The Bill proposes amendments for considering family violence in three ways:

1. listing ‘economic or financial abuse’ as an example of behaviour that may constitute family violence
2. specifying family violence as a factor which can impact a person’s ability to make financial and non-financial contributions and
3. requiring the court, where relevant, to take into account the impact which family violence has, or could have, on current and future circumstances of the parties.

In part, these amendments legislate existing case law to make family law more accessible to people including self-represented litigants (EM, p. 4). These provisions respond to Recommendation 13 of the Henderson Inquiry (p. xxxii) and Recommendation 23 of the JSC Inquiry Second Interim Report (p. xiii), which both recommended amendments to the Family Law Act to explicitly enable the impact of family violence to be considered.

Stakeholders principally supported the proposed changes to the property alteration scheme, as well as the introduction of family violence as a factor to be considered in property proceedings. Some stakeholders, for example the Fitzroy Legal Service (p. 5), noted that family violence impacts victim-survivor clients by limiting their ability to earn income or to contribute to the family home.

However, several stakeholders including Fitzroy Legal Service (p. 6), Family & Relationship Services Australia (FRSA) (p. 5), and Relationships Australia (pp. 11–12) raised concerns about the difficulty in proving family violence occurred. For instance, the Fitzroy Legal Service (p. 6) noted that it was unclear whether a Family Violence Intervention Order (or state equivalent) would be sufficient to establish that family violence has occurred. Some stakeholders recommended the Bill include the standard of proof required for courts to take the effects of family violence into account.

One of the issues raised concerned the evidential challenges of these proposed reforms. The Law Council of Australia (p. 30) referred to its working understanding that many current and former claims alleging family violence fail on evidential grounds, often because of a lack of admissible evidence. The Law Council of Australia (p. 30) also raised evidential difficulties of raising historical allegations of family violence, which may never have been reported and therefore may be difficult to prove. As the Family Law Council (p. 3) stated in its submission on the ED ‘the proposed legislation simply includes family violence as a matter “to be taken into account” without specifying or providing any guidance as to how it might be taken into account.’  

Some stakeholders discussed practical implications which could arise from the inclusion of family violence in property proceedings. These included higher legal costs, longer (and potentially more complex) affidavits, lengthier trial durations, and more resentment between parties (see, for example, the Law Council of Australia (pp. 28–30), Family Law Council (p. 3) and National Legal Aid (p. 2)). Fitzroy Legal (p. 6) also considered this could result in an increase of ‘unmeritorious allegations of family violence due to the potential for a financial advantage in property proceedings.’

Finally, some stakeholders considered it was not clear at what stage of proceedings a party would be required to raise the issues of family violence, and in what manner this will be done. However, as Women’s Legal Services Australia (p. 14) outline, the family courts are already required to hear evidence and undertake a fact-finding exercise when issues of family violence are raised, with data from the Federal Circuit and Family Court of Australia indicating that 80 percent of parenting matters involve allegations of family violence.

(1)               Introduction of economic or financial abuse (including dowry abuse) as family violence

Item 2 of Schedule 1 amends subsection 4AB(2) of the Family Law Act to include ‘economic or financial abuse’ as an example of behaviour that may constitute family violence.

Proposed subsection 4AB(2A) (at item 3 of Schedule 1) provides detailed examples of behaviour that may constitute economic or financial abuse. Such behaviour could include: unreasonably denying a family member financial autonomy (including by controlling superannuation, or sabotaging employment potential); unreasonably withholding financial support required for reasonable living expenses (including the consistent withholding of child support payments); coercing a person to give or seek money as dowry; or hiding or falsely denying things done or agreed to in connection with dowry.

(2)               Contributions

Currently, family law courts consider the contributions made by parties, as required by subsections 79(4) and 90SM(4), when determining whether to alter property interests. Common examples of contribution factors considered by the court under these provisions, which aid in determining what order (if any) the court should make, include (non-exhaustively): income earned by the parties, conservation and maintenance of the property, improvements carried out to a property, parenting, and homemaking.

The Bill introduces family violence as a new factor by inserting proposed paragraphs 79(4)(ca) and 90SM(4)(ca) (items 19 and 38 of Schedule 1), making it explicit that courts are to consider any family violence impact on contributions. Specifically, the courts are required to consider the effect of any family violence which one party has subjected (that is, committed direct violence towards) or exposed (that is, committed violence on other persons such as children in the family) the other party to. The proposed provisions will require courts to consider (where relevant) how any violence has impacted a person’s ability to make financial, non-financial and/or family welfare contributions, in accordance with paragraphs 79(4)(a)–(c) and 90SM(4)(a)–(c).

(3)               Current and future circumstances

The Bill also contains proposed subsections 79(5) and 90SM(5) (items 24 and 43 of Schedule 1), which set out the matters which are relevant for courts to consider when assessing current and future circumstances. Current factors the court is directed to consider when assessing current and future needs include a person’s age, health, income status and earning capacity, and whether any children are required to be cared for (see paragraph 79(4)(e) and subsection 75(2); and paragraph 90SM(4)(e) and subsection 90SF(3)).

Four new factors are proposed in the Bill, in proposed subsections 79(5) and 90SM(5). Firstly, proposed paragraphs 79(5)(a) and 90SM(5)(a) permit family courts to take into account the effect of family violence on current and future circumstances of impacted people. As outlined in the EM (p. 44), this could include the costs for ongoing counselling due to family violence. For family violence to be relevant to this consideration, a party must demonstrate a connection between the violent conduct and its effect on a party’s current and future circumstances (EM, p. 44).

The second factor is the effect of intentional or reckless material wastage introduced at proposed paragraphs 79(5)(d) and 90SM(5)(d). This could include, for example, allowing the court to consider one party’s excessive gambling. As outlined in the EM (p. 45), courts could consider wastage as a factor where it would be unjust for any detriment or diminution to be shared equally by both parties.

The third new factor allows courts to consider liabilities incurred by either party, introduced at proposed paragraphs 79(5)(e) and 90SM(5)(e). Liabilities could include, for example, an unsecured loan, a gambling debt, or a taxation liability. Including this factor allows the court to undertake detailed questioning of who obtained the liabilities, when they were obtained, and whether both parties consented to obtaining them.

Finally, courts can now explicitly consider any relevant care and housing needs for children under 18 years of age, included in proposed paragraphs 79(5)(f) and 90SM(5)(f)). This replicates existing paragraphs 75(2)(c) and 90SF(3)(c), which requires family law courts to consider the extent to which parents care for children – but goes further by explicitly requiring the court to consider parental needs to provide housing for children.

Spousal maintenance

Separate to property settlement, the Bill provides for consideration of family violence in relation to spousal maintenance. When the court exercises jurisdiction regarding spousal maintenance decisions (that is, payments paid to a former spouse to meet reasonable living expenses), it is required to consider certain prescribed matters, outlined in existing subsections 75(2) and 90SF(3). The amendments introduce proposed paragraphs 75(2)(aa) and 90SF(3)(aa) (items 6 and 26 of Schedule 1), which allow courts to consider the effect of family violence in relation to spousal maintenance. Additionally, amendments to paragraphs 75(2)(c) and 90SF(3)(c) (items 7 and 27 of Schedule 1) provide consideration to appropriate housing for children in relation to spousal maintenance decisions.

New provisions to account for companion animals (‘pets’)

The Bill introduces a new definition of ‘companion animals’ (to mean family pets). This definition describes an animal kept by the parties (either collectively or individually) primarily for the purpose of companionship (a phrase which has not been defined in the Family LawAct but is to be given its ordinary meaning), with some exceptions of animals not considered companions. Relying on this definition, proposed subsections 79(6) and (7) (item 24) and proposed subsections 90SM(6) and (7) (item 43) provide clarity for how family pets are treated in property proceedings.

While previously courts could award joint custody of pets in family law proceedings, the new amendments limit courts to making two orders only regarding pets (including orders made by consent): an order that one person exclusively own the pet, or an order that the pet be sold. The EM states:

This is consistent with the duty of a court in section 81 of the Family Law Act to, so far as practicable, make orders that will finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them (p. 47).

In considering making an order, proposed subsections 79(7) and 90SM(7) provide the court with factors to consider where relevant. These factors include how the pet was acquired, the general maintenance arrangements for the pet, any family violence either party has subjected the pet to, and a demonstrated ability of either party to take care of the pet in the future.

Extension of Less Adversarial Trial processes to property proceedings

Existing Division 12A of Part VII of the Family Law Act applies Less Adversarial Trial (LAT) processes to child-related proceedings. The application of LAT in child matters is aimed at reducing any negative impacts adversarial proceedings can have on parties, especially children. Current section 69ZN of the Family Law Act provides 5 core principles which direct LAT processes, being requirements that the court:

1. consider the needs of any children concerned and the impact the conduct of proceedings may have on them
2. actively direct, control and manage conduct of the proceedings
3. conduct proceedings in a way that will safeguard children or parties involved in the proceedings from family violence
4. conduct proceedings in ways that promote child focused parenting and
5. conduct proceedings without undue delay, with as little formality and legal technicality as possible.

These principles guide the duties and powers courts exercise in conducting child-related proceedings, as outlined in Subdivision C of Division 12A.

Part 2 of Schedule 1 of the Bill repeals Division 12A of Part VII from the Family Law Act (item 75) and replaces it with proposed Division 4 (comprising proposed sections 102ND to 102NN) in Part XI (which deals  with Procedure and Evidence) (item 78). The impact of this is that the LAT processes will now apply to child and in some circumstances non-child related (including property) proceedings. The Bill provides that new Division 4 of Part XI will apply to proceedings that are wholly or partly under Part VII (Children) (proposed subsection 102ND(1) and paragraph 102ND(2)(a)). It will also apply to:

• other proceedings under the Family Law Act if the parties are or were parties to proceedings under Part VII or
• proceedings under the Family Law Act where there are no child-related proceedings

where either the parties consent to the Division applying or the court orders that the Division applies (whether or not the parties consent) (proposed paragraph 102ND(2)(b) and subsection 102ND(3)).

Proposed subsections 102NE(3)–(7) replicate the 5 core principles set out above, with  principles 1 and 4 not relevant to non-child related proceedings.

The amendments to extend LAT procedures to non-child related proceedings respond to Recommendation 18 of the Henderson Inquiry (p. xxxiii) and Recommendation 20 (p. 18) of the ALRC Report which both suggested extending the LAT process to property settlement proceedings.

The expansion of LAT is aimed at enhancing experiences of family law proceedings for victim-survivors and children (EM, p. 68). In the spirit of protecting victim-survivors, when giving effect to the above principles, proposed paragraph 102NH(1)(a) will require family law courts to ask each party whether they, or another party in the proceedings, has been or is at risk of being subjected to family violence. It is, however, unclear at which stage the courts would ask this of each party or whether all parties would be aware of responses to this question. This could create particular sensitivities for victim-survivors to respond in formal settings, especially if required to positively respond in court as a first-time admission.

Proposed section 102NJ, which largely reflects existing section 69ZR, provides at subsection 102NJ(1) the power for courts to make a finding of fact, determine a matter, or make an order in relation to an issue arising out of the proceedings, at any time before making final orders.

Proposed subsection 102NL(1) outlines aspects of the Evidence Act which do not apply under the LAT approach. When a LAT approach is being used, provisions of the Evidence Act that do not apply (other than sections 26, 30, 36 and 41) are:

• Division 3 of Part 2.1 – General rules about giving evidence
• Division 4 of Part 2.1 – Examination in chief and re-examination
• Division 5 of Part 2.1 – Cross examination
• Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections) and
• Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).

Proposed subsection 102NL(2) provides that the court can give such weight (if any) as it thinks fit to evidence admitted because of parts of the Evidence Act outlined above not applying. If there are exceptional circumstances, the court can apply one or more of the above disapplied parts of the Evidence Act, in accordance with proposed subsection 102NL(3).

A range of stakeholders opposed the application of LAT processes to non-child related proceedings. These included the Law Council of Australia, the ACT Law Society, SA Bar, SA Law Society, and NSW Bar (stated in the Law Council of Australia’s submission at p. 47). In part, this opposition was justified on the grounds that property proceedings were inherently different from those involving children, and thus LAT processes were not required where children were not involved. For example, the Family Law Council (p. 5) considered that evidential rules are necessary to determine property value, especially as parties apportion different value to property. As the ACT Bar Association (p. 3) outlines, the Evidence Act provisions regarding opinion and hearsay ‘play a fundamental role in property proceedings where there are often differences of opinion concerning values of property, effect of improvement on values, future appreciation of investments/superannuation and the like.’

Additionally, it was put forward by some stakeholders that the valuation of property can lead to complex evidence being introduced, for instance the valuation of trusts. Disapplying parts of the Evidence Act could, therefore, have complicated results. As the Law Council of Australia indicated (p. 49), ‘[t]his is a complex area with a variety of considerations.’ Given the range of complexities, further detailed consideration may need to be given to how this Bill, and particularly the application of LAT in non-child proceedings, interacts with the EvidenceAct, including its disapplication when LAT is being used.

The Family Law Council (p. 5) proposed that an alternative framing of the disapplication of the Evidence Act could be that ‘the [evidence] rules apply unless it is ruled they do not’, which would ‘largely protect the veracity of and need for evidence, but empower the Court, on application or of its own motion, to dispense with specified rules of evidence in order to do justice in an appropriate case.’

Duty of disclosure of property interests

The measures in Part 3 of Schedule 1 introduce a requirement for parties to disclose their financial interests, including assets and liabilities, when participating in financial or property proceedings. These provisions implement Recommendation 22 of the JSC Inquiry Second Interim Report (pp. xii-xiii) and Recommendation 25 of the ALRC Report (p. 18). Duty of disclosure obligations are currently outlined at Chapter 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

The amendments introduce proposed subsections 71B(1) and 90RI(1) (items 83 and 84 respectively), which provide that each party has a duty to the court, and to each other, to give full and frank disclosure, in a timely manner, of all information and documents relevant to all financial and property matters. Relevant matters and information which must be disclosed are outlined in proposed subsections 71B(7)–(9) and 90RI(7)–(9). The duty to disclose remains an ongoing duty, applying from when the proceeding commences (when an application is filed in court) until it is finalised (when proceedings conclude) (proposed subsections 71B(2) and 90RI(2)).

If a party fails to comply with their duty of disclosure, the court has a range of powers it can exercise, as outlined in the note at proposed subsections 71B(2) and 90RI(2). Relevant powers include considering the non-compliance when making an order to alter property interests, making a costs order against a non-compliant party, or making any other order with respect to disclosure that the court considers appropriate.

Finally, proposed subsections 71B(10) and 90RI(10) will require legal practitioners and family dispute resolution practitioners to advise clients of their duties of disclosure, explain the consequences of non-compliance, and encourage the party to take all necessary steps to comply with disclosure obligations.

As outlined in the EM (p. 90), the limited referral of family law powers from Western Australia to the Commonwealth means that disclosure obligations for Western Australian de facto couple’s family law property matters (other than superannuation interests) are contained in Western Australian law, located in the Family Court Rules 2021 (WA).

Schedule 2—Children’s contact services

Schedule 2 of the Bill enhances the operation of CCS. CCS operate to provide services in circumstances where there is acrimony between separated parties and/or if there are safety concerns for either party or children. CCS ‘[provide] children of separated parents with a safe place to maintain contact with both parents or other significant family members, where it would otherwise be unsafe or unmanageable to do so without assistance.’ (EM, p. 99).

CCS have existed in the family law system since the 1990s. However, the Family Law Act does not currently prescribe standards or requirements for the regulation of these services. Additionally, the increased recognition of risk factors in family law, especially family violence, has ‘increased concerns that lack of oversight could result in avoidable risks to the safety of clients and staff not being adequately addressed.’ (EM, p. 99)

The Bill provides a more comprehensive regulatory framework for CCS in family law, which sets standards and requirements for registration and regulation as a CCS. These provisions respond to Recommendation 54 of the ALRC Report (p. 22), and Recommendation 9 of the JSC Inquiry Second Interim Report (p. ix), both which recommended the establishment of accreditation requirements for CCS providers; the ALRC Recommendation also suggested making it an offence to provide these services without accreditation.

Proposed Division 3A of Part II of the Family Law Act (comprising proposed sections 10KA to 10KI) contains further details about the regulation and functions of CCS (item 15 of Schedule 2). CCS services are defined by proposed section 10KB which refer to services that:

• facilitate connection between a child and a family member they are not living with
• are provided in circumstances where members of the family may not be able to safely manage contact with children and
• are provided on professional, commercial, or charitable bases.

Additional definitions are included in subsection 4(1) for both a ‘CCS business’ (further defined by proposed section 10KD) and a ‘CCS practitioner’ (further defined by proposed section 10KC), both of which deliver children’s contact services (item 1 of Schedule 2). A court can order that one or more of the parties is to make use of services provided by a CCS entity (proposed paragraph 13C(1)(ba), at item 17). CCS entities will also have new obligations to report failures of parties to comply with court orders regarding the use of a CCS entity (amendment to subsection 13D(1) at item 19).

Accreditation of CCS

One of the most significant changes proposed by the Bill is the introduction of accreditation requirements for CCS. Section 10A of the Family Law Act currently requires accreditation for certain persons involved in family law matters, including family counsellors and family dispute resolution practitioners, but does not include CCS entities or practitioners. The Bill will require both CCS practitioners and businesses to meet the Accreditation Rules, which will be prescribed in regulations, by inserting both CCS practitioners and businesses into the list of services for which accreditation is required, through proposed paragraphs 10A(1)(ba) and 10A(1)(bb), respectively (item 4). The new CCS definitions ensure accreditation requirements apply broadly to anyone providing children’s contact services including natural persons, sole traders, and other structured entities who operate a CCS business.

Unlawful disclosure of safety information

Proposed section 10KE provides that entrusted persons must not use or disclose safety information, unless required or authorised by that section. ‘Entrusted persons’ is defined at proposed subsection 10KE(2) to mean a CCS practitioner or business, or director or employee of a relevant CCS provider. ‘Safety information’ is defined at proposed subsection 10KE(3) to mean information which could risk, harm or identify a child or family member, such as addresses, vehicle details or safety plans for providing the CCS service (see EM, p. 104). Entrusted persons can only lawfully disclose the information in certain circumstances (outlined at proposed subsections 10KE(4), (6)–(9)). Lawful reasons for disclosure include:

• a requirement under State, Territory or Commonwealth law
• to allow other employees of a CCS to access the information
• if the individual whom the safety information concerns provides their consent
• to protect a child from the risk of harm or
• to provide relevant information (other than personal information as defined in the Privacy Act 1988) for research relevant to families.

In most circumstances, safety information is not admissible in court proceedings (proposed section 10KF).

Civil penalty provisions

The new CCS framework provides enforcement mechanisms for persons or entities that do not comply with accreditation requirements. Proposed section 10KG provides that the Accreditation Rules may prescribe civil penalties for non-compliance. As outlined in the EM (p. 106), civil penalties have been considered as ‘essential to the effective functioning of the Accreditation Rules, in order to deter against non-compliance.’ These new civil penalties will be contained in the Accreditation Rules (which will be subordinate legislation), and enforceable under Part 4 of the Regulatory Powers (Standard Provisions) Act 2014.

As authorised by proposed subsection 10KG(3), the Secretary of the AGD and any person prescribed by the Accreditation Rules can make an application to a relevant court for the imposition of the civil penalties. The Secretary can delegate these powers to an SES or Acting SES employee in AGD (proposed subsection 10KG(4)).

Strict liability offences

Proposed section 10KH will provide new strict liability offences for the unaccredited provision of children’s contact services. There are several types of new offences included which are contingent on who is providing the CCS and through what arrangement. For instance, proposed subsection 10KH(1) provides an offence for an unaccredited individual providing CCS, and proposed subsection 10KH(2) provides an offence for an unaccredited body corporate providing CCS. Other entities, including trusts, unincorporated organisations, and partnerships, fall within relevant offence categories if supplying unaccredited services.

As proposed in subsection 10KH(10), strict liability applies to each of the new offences. This means that fault does not have to be proven for any of the offences, but that a defence of mistake of fact, contained in section 9.2 of the Criminal Code Act 1995, applies. The maximum penalty for an individual for each offence is 50 penalty units (currently $15,650) and the maximum penalty for a body corporate is 250 penalty units (currently $78,250).

Relevant defences are provided in new subsections 10KH(4), (7) and (9) for offences regarding CCS businesses where an individual of the business provides unaccredited services. These defences provide grounds for a CCS being under a mistaken but honest and reasonable belief that the CCS practitioner was, at a point in time, accredited (for instance, where the practitioner’s accreditation had lapsed, but they had not informed the CCS business). Defendants bear an evidential burden of proof in relation to these defences, meaning they will need to raise evidence which establishes their honest and reasonable belief (see section 13.3 of the Criminal Code).

Schedule 3—Case management and procedure

Attendance at family dispute resolution is compulsory before applicants can file a Part VII application in relation to a child, unless an exemption applies

Part 1 of Schedule 3 introduces amendments allowing family law courts to reject Part VII applications if applicants have not yet attended family dispute resolution (FDR) or have not received a court exemption (currently referred to in section 60I as an ‘exception’) from attending FDR. Exemptions include where the parties are seeking consent orders, there is a risk of child abuse and/or family violence, or the application is urgent.

Section 60I of the Family Law Act currently requires, on its face, that parties attempt to resolve parenting disputes through FDR as a first step. If unable to resolve issues through FDR, parties can then apply to courts for a Part VII order. To have their application heard by the court, an applicant must provide a certificate from an accredited FDR practitioner unless they satisfy a legislative exception. If parties do not participate in FDR, they are considered not to have complied with the application requirements.

However, as outlined in the EM (p. 20), recent case law has held that courts cannot reject non-compliant applications (used here to mean an application arising in circumstances where parties have not attended FDR and are not lawfully excused from attending) until after an application has been filed. In other words, courts must accept non-compliant applications. Once a court has accepted a non-compliant application, it can only then redirect parties to FDR. If the parties are unable to resolve disputes through FDR, they are required to return to the court.

New subsection 60I(7) (item 2 of Schedule 3) will ensure courts cannot accept non-compliant applications for filing. The Bill also renames ‘exceptions’ as ‘exemptions’, and the grounds for exemption are listed in subsection 60I(9). As required by proposed subsection 60I(8B), to grant an exemption a court must be satisfied that one or more ground in subsection 60I(9) exists.

As outlined in the EM (p. 114), the government states these amendments promote ‘the early resolution of parenting disputes through family dispute resolution processes, reducing costs, time and stress for families’. However, in its submission on the ED, the Law Council of Australia (pp. 64–65) raised strong concerns regarding the application of these amendments and the lack of clarity around the issue they are trying to address. Some stakeholders also identified the impact these amendments could have on self-represented litigants, with the Caxton Legal Centre (p. 4) stating that:

… unintended consequences could arise where self-represented litigants with genuine issues that fall under the exemptions file inadequately drafted material due to an inability to correctly complete documentation or an inability to adequately particularise concerns … creating the potential for otherwise eligible applications not being accepted …

Commonwealth Information Orders

Part 3 of Schedule 3 introduces amendments to the case management and procedure of family law matters. Substantially, the Bill provides amendments to what are referred to as CIOs.

Currently, CIOs are court orders made under section 67N of the Family Law Act which compel Commonwealth departments or bodies to provide courts with information about a child’s location. The amendments contained in Part 3 of Schedule 3 would allow CIOs to also require departments or Commonwealth agencies to provide violence-related information to courts. The amendments repeal existing subsections 67N(5)–(10) and replace them with new subsections, clarifying details about the contents of CIOs (item 20 of Schedule 3). Under proposed subsection 67N(5), a CIO may require either a one-off search for information, or periodic searches over a period not exceeding 12 months. Under proposed subsection 67N(8), a court may stipulate in a CIO that only specific types of records are to be searched, to avoid placing an unreasonable burden on the Commonwealth agency.

Proposed subsection 67N(9) provides that, in addition to information about a child’s location, CIOs could also require information about actual or threatened violence to a child, a person who is related to a child (within the meaning contained at proposed subsection 67NA(1), at item 21), or a person who has a connection to the child that the court considers relevant. Proposed subsections 67NA(10)–(12) place limitations on CIOs seeking information on violence, including requiring persons to be identifiable (rather than, for example, requesting information on broad classes of persons), and may require only particular records to be examined.

Through proposed subsection 67N(14), a CIO can specify a time by which information is to be provided, otherwise CIO information must be provided as soon as practicable. In accordance with proposed subsection 67N(16), information required by a CIO must be supplied despite Commonwealth, State or Territory laws otherwise prohibiting the release of such information (for example, spent conviction schemes).

Protected confidences

Part 5 of Schedule 3 provides courts power to prevent certain information being adduced into family law proceedings if its introduction is likely to cause harm that outweighs the information’s probative value. Material which courts could prevent from being disclosed includes sensitive therapeutic material (such as medical, counselling, or psychological information). As the ALRC Report (pp. 336–337) indicated, without ‘protected confidences’, persons requiring medical or therapeutic assistance may not receive it due to fear that their confidentiality may not be maintained and that it will later be used as evidence in family law proceedings. These provisions implement Recommendation 37 of the ALRC Report (p. 20).

The Bill introduces new Division 1B (comprising proposed sections 102BA to 102BG) of Part XI (which deals with Procedure and Evidence). The purpose of this new Division, as explained in the EM (p. 125), is to provide safeguards for where potential harm would outweigh the desirability of disclosure.

A ‘protected confidence’ is defined at proposed section 102BA as a communication that arises during a professional relationship between a person and a professional providing services (being certain health services, specialist sexual assault or family violence services, or any activity prescribed by regulations – proposed section 102BB) where the professional is under an obligation not to disclose such communications. As stated in the EM (p. 126), the inclusion of these types of services ‘recognises the highly sensitive nature of the records held by these services, and the risks to a person’s wellbeing and safety if this information is disclosed.’

Proposed section 102BC provides that courts can direct evidence not be introduced in proceedings if it would disclose a protected confidence (or information relating to a protected confidence), on the court’s own initiative or on application. Additionally, proposed section 102BD extends a court’s ability to make directions regarding the production, inspection, or copying of documents including protected confidence information, in relation to a disclosure requirement. As outlined in the EM (p. 128), this is intended to prevent harm caused by confidential information being revealed in compulsory disclosure processes. If the court finds that compliance with disclosure obligations (including a subpoena to produce a document) would reveal a protected confidence, then it can direct that the document is not produced, inspected, or copied.

For a court to make such an order, proposed section 102BE requires it to be satisfied that harm would likely be caused by the disclosure, and the extent of harm would outweigh the desirability of allowing the information to be introduced or considered. Harm, as used in proposed section 102BE, includes (but is not limited to) physical harm, psychological harm, or mental distress. Additionally, proposed subsection 102BE(4) outlines factors that a court must have regard to when considering making a section 102BC or 102BD direction. Factors include: matters relating to the protected confidence, including its probative value and importance in the proceedings; the likely impact, including any harm, that could be caused; and the public interest in preserving the confidentiality of such protected confidences.

Schedule 4—General provisions

Costs

Part 1 in Schedule 4 repeals and remakes the costs provisions in the Family Law Act. In part, costs provisions have been included into the Family Law Act from the Family Law Rules and will be contained in proposed Part XIVC, comprising proposed sections 114UA to 114UE (item 2 of Schedule 4). The intention of including these provisions in the Act is to assist parties, including self-represented litigants, to better understand the possible costs orders that can be made against them (EM, pp. 21–22). These amendments respond, in part, to Recommendation 36 from the ALRC Report (p. 20), though the ALRC also recommended that the Act be amended to remove the general rule that each party to proceedings under the Act bears his or her own costs.

Proposed subsection 114UB(1) outlines that, subject to some limited exceptions, parties are to bear their own legal costs. Courts, however, will have authority to make any order for costs (including security for costs) they consider appropriate, as outlined in proposed subsection 114UB(2). In considering whether to make an order for costs, a court must consider certain criteria contained in proposed subsection 114UB(3), including the financial circumstances of each party and the conduct of the parties in the proceedings. Other costs provisions, including the right for parties to apply for costs, and requirements around the court’s ability to make a costs order, are included in proposed subsections 114UB(4) to 114UB(9).

Proposed section 114UC regulates the costs for independent children’s lawyers, replacing parts of existing section 117. Of note is that if a party to the proceedings is receiving assistance by way of legal aid, or they would suffer financial hardship if they were required to pay for an independent children’s lawyer, the court must not make a costs order against them in relation to legal costs for the independent children’s lawyer (proposed subsection 114UC(2)).

Superannuation and offences for non-compliance with Ministerial direction

Part 3 of Schedule 4 of the Bill amends Divisions 3 and 4 of Part VIIIB, which concerns orders for splitting superannuation interests. Proposed subsection 90XT(3A) (item 34 of Schedule 4) would enable the Minister to give a written direction to a trustee of an eligible superannuation plan requiring them to do a thing prescribed in the regulations in relation to an approved method or factor (being the method which determines the relevant value of a superannuation interest). The intention of this new provision is, as outlined in the EM (pp. 149–150), to ‘create a mechanism by which the Minister can direct a trustee of an eligible superannuation plan to review and if necessary, submit updated methods or factors to the Minister for approval.’ This is to ensure methods for calculating superannuation interests stay relevant to changing actuarial assumptions and continue to produce accurate and reasonable estimates of value.

Proposed subsection 90XT(3D) provides an offence for non-compliance with a Ministerial direction issued under subsection 90XT(3A). A trustee of an eligible superannuation plan with an approved method or factor who receives a direction would commit an offence if they intentionally did not comply with the direction. The maximum penalty is 50 penalty units (or 250 penalty units for a body corporate).