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No
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HoR – December 2017
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Government response
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1
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4.226 The Committee recommends that the Australian Government considers extending the Family Advocacy and Support Services (FASS) program, subject to a positive evaluation, to a greater number of locations including in rural and regional Australia.
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Agreed
FASS program extended to 2022.
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2
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4.232 The Committee recommends that the Australian Government progresses, through the Council of Australian Governments, the development of a national family violence risk assessment tool. The tool must be nationally consistent, multi-method, multi-informant and culturally sensitive and be adopted to operate across sectors, between jurisdictions and among all professionals working within the family law system.
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Noted (action taken)
Government committed to developing an alternate approach using 'national principles rather than a national risk assessment tool'.
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3
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4.240 The Committee recommends that the Australian Government introduces to the Parliament amendments to the Family Law Act 1975 (Cth) to require a risk assessment for family violence be undertaken upon a matter being filed at a registry of the Family Court of Australia or the Federal Circuit Court of Australia, using the national family violence risk assessment tool. The risk assessment should utilise the national family violence risk assessment tool and be undertaken by an appropriately trained family violence specialist provider.
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Noted (partially addressed)
Through the use of 'existing, evidence-based, family violence risk assessment tools'.
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4
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4.246 The Committee recommends, subject to a positive evaluation of the recently announced legally-assisted family dispute resolution pilot, the Australian Government seeks ways to encourage more legally-assisted family dispute resolution, which may include extending the pilot program.
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Agreed in-principle
Extension of FASS program (per recommendation 1).
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5
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4.254 The Committee recommends that the Attorney-General considers how the Family Court of Australia and the Federal Circuit Court of Australia can improve case management of family law matters involving family violence issues, including:
▪
the adoption of a single point of entry to the federal family law courts so that applications, depending on the type of application and its complexity, are appropriately triaged, and actively case managed to their resolution in an expedited time-frame;
▪
the greater use of mediation or alternative dispute resolution by the federal family courts during proceedings to encourage earlier resolution of matters;
▪
the implementation of more uniform rules and procedures in the two federal family courts to reduce unnecessary complexity and confusion for families;
▪
the establishment of formal and expedited referral pathways between state and territory magistrates courts and the federal family courts; and
▪
the development of a stronger regime of penalties including cost orders to respond to abuse of process, perjury and non-compliance with court orders.
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Noted (action underway /awaiting ALRC report)
Government points to merging of Federal Circuit Court and Family Court of Australia as a means to create a 'single point of entry'. Government will consider the recommendation 'in the context of the ALRC review and in conjunction with the major federal court structural reforms.
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6
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4.258 The Committee recommends that the Attorney-General progresses through the Council of Australian Governments an expanded information sharing platform as part of the National Domestic Violence Order Scheme to include orders issued under the Family Law Act 1975 (Cth) and orders issued under state and territory child protection legislation.
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Noted (action underway)
Government working with states and territories to improve information sharing between systems and jurisdictions through a Council of Australian Governments family violence working group of justice officials.
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7
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4.261 The Committee recommends the Australian Government introduces to the Parliament amendments to the Family Law Act 1975 (Cth) to require a relevant court to determine family violence allegations at the earliest practicable opportunity after filing proceedings, such as by way of an urgent preliminary hearing and, where appropriate, refer to findings made, and evidence presented, in other courts.
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Noted (awaiting ALRC report)
See also response to recommendation 3.
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8
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4.262 The Committee recommends that abuse of process in the context of family law proceedings be identified in the list of example behaviours as set out in section 4AB(2) of the Family Law Act 1975 (Cth).
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Noted (NFA/awaiting ALRC report)
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9
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4.264 The Committee recommends that the Attorney-General develops stronger restrictions in relation to access by other parties to medical records in family law proceedings.
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Agreed (action underway)
Attorney-General's Department will work with federal family law courts to ensure appropriate procedures are in place.
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10
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4.270 The Committee recommends that the Attorney-General works with state and territory counterparts through the Council of Australian Governments to reach agreements (such as in relation to resources, education and court infrastructure) to encourage state and territory magistrates to exercise family law jurisdiction, particularly in specialist family violence courts and courts which deal with a high number of family violence matters.
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Agreed (action taken and underway)
Government working to encourage and support increased exercise of state and territory courts in family law matters. Government has passed the Family Law Amendment (Family Violence and Other Measures) Bill 2018, which expands and clarifies the family law jurisdiction of state/territory courts.
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11
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4.272 The Committee recommends that the Attorney-General works with state and territory counterparts through the Council of Australian Governments to establish a trial in one or more specialist state or territory family violence courts (including reaching agreement in relation to resources, education and court infrastructure) enabling family law issues in family violence cases to be determined by the one court, including expedited pathways for breach and enforcement proceedings. One of the trial courts should ideally be located in an area of high Indigenous population.
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Agreed (action taken and underway)
See recommendation 10.
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12
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4.275 The Committee recommends the Attorney-General introduces the Family Law Amendment (Family Violence and Cross-examination of the Parties) Bill 2017 into the Parliament for its urgent consideration such that perpetrators of family violence will be prohibited from cross examining the other party including in relation to the qualifications and funding of those appointed to undertake such cross examination.
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Agreed (action taken and underway)
Government has passed the Family Law Amendment (Family Violence an d Cross-examination of Parties) Bill 2018, which prohibits direct cross examination.
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13
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5.67 The Committee recommends that the Australian Government introduces to the Parliament amendments to the Family Law Act 1975 (Cth) to enable:
▪
the impact of family violence to be taken into account in the Court’s consideration of both parties’ contributions; and
▪
the impact of family violence to be specifically taken into account in the Court’s consideration of a party’s future needs.
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Noted (action underway/awaiting ALRC report)
Courts are already able to take family violence into account.
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14
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5.71 The Committee recommends that the Australian Government introduces to the Parliament amendments to the Family Law Act 1975 (Cth) to include a requirement for an early resolution process for small claim property matters. This process should involve a case management process upon application to the Court for a property settlement, rather than a pre-filing requirement, which will provide greater certainty and more expeditious resolution.
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Noted (awaiting ALRC report)
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15
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5.74 The Committee recommends that the Attorney General:
▪
develops an administrative mechanism to enable swift identification of superannuation assets by parties to family law proceedings, leveraging information held by the Australian Taxation Office; and
▪
amends the Family Law Act 1975 (Cth) and relevant regulations to reduce the procedural and substantive complexity associated with superannuation splitting orders, including by simplifying forms required to be submitted to superannuation funds.
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Agreed in principle
Government actively considering options to facilitate the timely disclosure of financial information between parties following separation.
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16
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5.80 The Committee recommends that the Attorney-General’s Department considers options for legislative amendment to the Family Law Act 1975 (Cth) to enable the federal family courts to make greater use of court orders for the split or transfer of unsecured joint debt and shared liabilities following the separation of families, particularly those affected by family violence.
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Agreed in principle (awaiting ALRC report)
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17
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5.83 The Committee recommends that the jurisdictional limit on state and territory magistrates’ courts hearing family law property disputes be increased and that the Attorney-General introduces to the Parliament the Family Law Amendment (Family Violence and Other Measures Bill 2017) to give effect to the increase.
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Agreed (action taken)
Government has passed the Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018, which increases the threshold for hearing family law property disputes in state/territory courts.
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18
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5.86 The Committee recommends that the Family Law Act 1975 (Cth) be amended to extend sections 69ZN and 69ZX, which requires the Court to conduct proceedings in a way which safeguards the parties against family violence in parenting matters, to apply in property division matters.
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Agreed in part
(Government supports consideration by ALRC)
Amendments in Family Law Amendment (Family Violence an d Cross-examination of Parties) Bill 2018 will partially implement this recommendation by introducing additional safeguards for victims of family violence in both parenting and property proceedings.
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19
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6.130 The Committee recommends that the Australian Law Reform Commission, as part of its current review of the family law system, develops proposed amendments to Part VII of the Family Law Act 1975 (Cth), and specifically, that it consider removing the presumption of equal shared parental responsibility.
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Noted (Government supports consideration by ALRC)
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20
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6.136 The Committee recommends that the Attorney-General extends the Family Advocacy and Support Services pilot, subject to positive evaluation, to include a child safety service attached to the Family Court of Australia and the Federal Circuit Court of Australia, modelled on the United Kingdom’s Children and Family Court Advisory and Support Service. The expanded service, which may require additional infrastructure, should:
▪
provide ongoing supervision of the safety of children following orders made by a court;
▪
bring applications to the Court where the risk of a child’s safety is of concern and where an exercise of judicial power is required to ensure the child’s ongoing safety; and
▪
refer matters to state and territory child protection agencies, where required.
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Noted (awaiting ALRC report)
See also response to recommendation 1.
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21
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6.148 The Committee recommends the Attorney-General, through the Council of Australian Governments where necessary, works to improve the information available to courts exercising family law jurisdiction at the earliest possible point in proceedings by:
▪
implementing the Family Law Council’s recommendations in its 2015 Families with complex needs and the intersection of the family law and child protection systems – Interim Report for information sharing protocols between the federal family courts and state and territory child protection departments;
▪
establishing a child safety service attached to the Court that operates as a liaison between the federal family courts and child protection departments to ensure all relevant information is available to the Court at the earliest possible stage; and
▪
consider the adoption of multi-disciplinary panels by state and territory governments for child abuse investigations which would assist the family law courts to determine whether family violence has occurred; and
▪
works with the Family Court of Australia to extend the Magellan program to all parenting matters where there are allegations of family violence.
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Agreed in part
Government is working with states and territories to improve information sharing between systems and jurisdictions through the CAG family violence working group, but notes that coordinated approach to information and support is a matter for state and territory governments.
Government agrees to work with the federal courts and consider options for extending the Magellan program or establishing a new case management program for matters involving allegations of family violence.
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22
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6.156 The Committee recommends the Attorney-General pursues legislation and policy reform to abolish private family consultants, with family consultants to be only engaged and administered by the Court itself. Further, the Committee recommends the development of an agreed fee schedule to regulate the costs of family reports and other expert witnesses.
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Noted
Government acknowledges the need to ensure that independent assessments prepared by family consultants are of a consistently high quality.
Government notes that all reports prepared by family consultants are funded by the court at no cost to the parties, but fees charged by private practitioners are not regulated by the Government.
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23
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6.159 The Committee concludes that the Court must be better informed of children’s views, concerns and matters affecting their welfare, and recommends that the Australian Law Reform Commission in its ongoing review of the family law system, examines and propose alternative mechanisms that would ensure children’s perspectives are heard in court.
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Agreed
ALRC review established 27/09/17.
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24
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7.96 The Committee recommends that, as a matter of urgency, the Australian Government implements the Family Law Council recommendations from both the 2012 Improving the family law system for Aboriginal and Torres Strait Islander clients report, and the 2016 Families with complex needs and the intersection of the family law and child protection systems – Final Report, as they relate to Aboriginal and Torres Strait Islander families, including those recommendations addressing:
▪
culturally diverse workforce;
▪
early assistance and outreach;
▪
legal and non-legal services;
▪
family group conferences;
▪
participation of elders or respected persons in court hearings; and
▪
consulting with Aboriginal and Torres Strait Islander representatives in the development of any reforms.
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Noted (Government supports consideration by ALRC)
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25
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7.101 The Committee recommends that, as a matter of urgency, the Australian Government implements recommendations from both the 2012 Improving the family law system for clients from culturally and linguistically diverse backgrounds report, and the 2016 Families with complex needs and the intersection of the family law and child protection systems – Final Report, as they relate to culturally and linguistically diverse families, including those recommendations addressing:
▪
culturally diverse workforce;
▪
consultation with culturally and linguistically diverse communities in service evaluation;
▪
cultural connection for children; and
▪
family group conferences.
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Noted (Government supports consideration by ALRC)
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26
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7.103 The Committee recommends the Attorney-General extends the Family Advocacy and Support Service pilot to include collaboration and referral pathways to specialist support services for families with additional challenges, using the Children and Family Court Advisory and Support Service model.
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Noted
Government considering extension and expansion of FASS program (per recommendation 1).
Government notes that it may not be possible to replicate the same mechanisms used by Children and Family Court Advisory and Support Service in the Australian context.
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27
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8.82 The Committee recommends that the Australian Government develops a national and comprehensive professional development program for judicial officers from the family courts and from states and territory courts that preside over matters involving family violence. The Committee recommends that this program includes content on:
▪
the nature and dynamics of family violence;
▪
working with vulnerable clients;
▪
trauma informed practice;
▪
‘The Safe and Together Model’ for understanding the patterns of abuse and impact of family violence on children.
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Agreed in principle
Attorney-General's Department is working with National Judicial College of Australia to develop and deliver training for judicial officers, and state and territory judicial officers.
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28
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8.83 The Committee recommends that the Australian Government develops a national, ongoing,
comprehensive, and mandatory family violence training program for family law professionals, including court staff, family consultants, Independent Children’s Lawyers, and family dispute resolution practitioners. The Committee recommends that this program includes content on:
▪
the nature and dynamics of family violence;
▪
working with vulnerable clients;
▪
trauma informed practice;
▪
the intersection of family law, child protection and family violence; and
▪
‘The Safe and Together Model’ for understanding the patterns of abuse and impact of family violence on children.
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Agreed in principle
Government noted its funding to Legal Aid NSW and federal family courts for training.
Council of Australian Governments family violence working group will consider this recommendation as part of its forward work program.
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29
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8.84 The Committee recommends the Australian Government undertakes an evaluation of the Addressing Violence: Education, resources and training (AVERT) family violence training program, with consideration of its content, format, uptake, reach and effectiveness.
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Noted
Council of Australian Governments family violence working group is considering options for improving the family violence competency of professionals working in the family law and family violence systems, this recommendation would be considered as part of this.
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30
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8.87 The Committee recommends that the Australian Government develops a national accreditation system with minimum standards and ongoing professional development for family consultants modelled on the existing accreditation system for family dispute resolution practitioners. This system should include a complaints mechanism for parties when family consultants do not meet the required professional standards.
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Noted (awaiting ALRC report)
See response to recommendation 22.
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31
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8.92 The Committee recommends that the Australian Government considers the current backlog in the federal family courts and allocates additional resources to address this situation as a matter of priority.
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Noted
Government has undertaken considered steps to improve the sustainability and effectiveness of the role of the federal courts in the civil justice system through e.g. structural reforms to the Family Court of Australia, also notes past and existing funding allocations in 2015–16 and 2017–18 Budgets.
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32
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9.40 The Committee recommends the Attorney-General works to introduce ‘wrap-around’ services co-located in the federal family courts, modelled on the provision of these legal and non-legal support services in the specialist family violence courts of the states and territories.
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Agreed in principle
Government considers that the establishment of the FASS program mentioned in some of the committee recommendations partially addresses this recommendation.
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33
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9.44 The Committee recommends the Attorney-General works to establish a systematic court referral mechanism to evidence-based, evaluated, best practice behaviour change programs, through an expanded Family Advocacy and Support Services program, which includes systematic reporting from behaviour change program providers to advise the Court on ongoing risks to families’ safety. Further, the Committee recommends that the Attorney-General work with state and territory counterparts to ensure adequate funding of evidence-based, evaluated, best practice behaviour change programs to support the mechanism.
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Agreed in principle
Evaluation of FASS program (per recommendation 1), after which the Government will be in a position to consider future funding arrangements and the potential expansion of the FASS program.
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No
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ALRC – April 2019
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Government response
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Closing the Jurisdictional Gap
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On 10 April 2019, the Attorney‑General, the Hon Christian Porter MP, issued a media release announcing that the ALRC report was to be tabled in Parliament. The Attorney‑General stated that his department was considering the ALRC's report and will 'develop comprehensive advice about each of the reforms suggested by the ALRC to ensure that the family law system supports modern Australian families to resolve their disputes safely and as efficiently and cheaply as possible'. The Attorney-General also stated that he envisaged 'a further period of engagement with key stakeholders' to develop 'options for reform and responding to the report, to ensure the family law system is reformed in a manner that delivers just, effective and safe outcomes for Australian families'.
Subsequently, on 17 September 2019, in a joint media release with the Prime Minister announcing the Joint Select Committee on Australia's Family Law System, the Attorney-General's stated that: '[t]he Government is also considering the recommendations of the Australian Law Reform Commission report into family law…and will respond in full to all of those recommendations relating to the design of multiple important provisions in the Family Law Act 1975'.
In Supplementary Budget Estimates, it was revealed by the Attorney‑General's Department that it had provided advice to government on the recommendations of the ALRC's inquiry into the family law system. Senator Payne subsequently noted that the government's response to the recommendations of the ALRC's inquiry into the family law system was with the Attorney-General.
The Attorney-General's Department also addressed the Government's response to the ALRC report in its appearance before the committee on 14 February 2020.
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1
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The Australian Government should consider options to establish state and territory family courts in all states and territories, to exercise jurisdiction concurrently under the Family Law Act 1975 (Cth), as well as state and territory child protection and family violence jurisdiction, whilst also considering the most efficient manner to eventually abolish first instance federal family courts.
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2
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The Australian Government should work with state and territory governments to develop and implement a national information sharing framework to guide the sharing of information about the safety, welfare, and wellbeing of families and children between the family law, family violence, and child protection systems. The framework should include:
▪
the legal framework for sharing information;
▪
relevant federal, state, and territory court documents;
▪
child protection records;
▪
other relevant information.
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3
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The Australian Government, together with state and territory governments, should consider expanding the information sharing platform as part of the National Domestic Violence Order Scheme to include family court orders and orders made under state and territory child protection legislation.
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Children's Matters
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4
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Section 60B of the Family Law Act 1975 (Cth) should be repealed.
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5
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Section 60CC of the Family Law Act 1975 (Cth) should be amended so that the factors to be considered when determining parenting arrangements that promote a child’s best interests are:
▪
what arrangements best promote the safety of the child and the child’s carers, including safety from family violence, abuse, or other harm;
▪
any relevant views expressed by the child;
▪
the developmental, psychological, and emotional needs of the child;
▪
the benefit to the child of being able to maintain relationships with each parent and other people who are significant to the child, where it is safe to do so;
▪
the capacity of each proposed carer of the child to provide for the developmental, psychological, and emotional needs of the child, having regard to the carer’s ability and willingness to seek support to assist with caring; and
▪
anything else that is relevant to the particular circumstances of the child.
|
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6
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The Family Law Act 1975 (Cth) should be amended to provide that in determining what arrangements promote the best interests of an Aboriginal or Torres Strait Islander child, a court must consider the child’s opportunities to connect with, and maintain the child’s connection to, the child’s family, community, culture, and country.
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7
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Section 61DA of the Family Law Act 1975 (Cth) should be amended to replace the presumption of ‘equal shared parental responsibility’ with a presumption of ‘joint decision making about major long-term issues’.
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8
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Section 65DAA of the Family Law Act 1975 (Cth), which requires the courts to consider, in certain circumstances, the possibility of the child spending equal time, or substantial and significant time with each parent, should be repealed.
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9
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Section 4(1AB) of the Family Law Act 1975 (Cth) should be amended to provide a definition of member of the family that is inclusive of any Aboriginal or Torres Strait Islander concept of family that is relevant in the particular circumstances of the case.
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10
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Combined rules for the Family Court of Australia and the Federal Circuit Court of Australia should provide for proceedings to be conducted under Pt VII Div 12A of the Family Law Act 1975 (Cth) by judges of both courts. Both courts should be adequately resourced to carry out the statutory mandate in s 69ZN(1) of the Family Law Act 1975 (Cth).
|
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A Simplified Approach to Property Division
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11
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The Family Law Act 1975 (Cth) should be amended to:
▪
specify the steps that a court will take when considering whether to make an order to alter the interests of the parties to the relationship in any property; and
▪
simplify the list of matters that a court may take into account when considering whether to make an order to alter the interests of the parties to the relationship in any property.
|
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12
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The Family Law Act 1975 (Cth) should be amended to include a presumption of equality of contributions during the relationship.
|
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13
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The Family Law Act 1975 (Cth) should be amended to provide that the relevant date to ascertain the value of the parties’ rights, interests, and liabilities in any property is the date of separation, unless the interests of justice require otherwise.
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14
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The family courts and the Australian Financial Complaints Authority should develop a protocol for dealing with jurisdictional overlap with respect to debts of parties to family law proceedings. The protocol should provide that:
▪
disputes about the enforceability of a debt against one or both parties under the National Consumer Credit Protection Act 2009 (Cth) are dealt with by the Australian Financial Complaints Authority; and
▪
disputes about the reallocation of a debt between parties to a family law proceeding are dealt with by the family courts.
|
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15
|
The Privacy Act 1988 (Cth) and the National Consumer Credit Protection Act 2009 (Cth) should be amended to provide that when a court has ordered that one party (Party A) be responsible for a joint debt and indemnify the other party (Party B) against any default, credit providers are prohibited from making an adverse credit report against Party B to any credit reporting business as a consequence of the subsequent actions of Party A.
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16
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The Family Law Act 1975 (Cth) should be amended to provide a presumption that the value of superannuation assets accumulated during a relationship are to be split evenly between the parties.
|
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17
|
The Family Law Act 1975 (Cth) should be amended to simplify the process for splitting superannuation including:
▪
developing template superannuation splitting orders for commonly made superannuation splits; and
▪
when the applicant is suffering economic hardship, requiring superannuation trustees to limit the fees they charge members and their former spouse for services provided in connection with property settlement under Pt VIII to the actual cost of providing those services.
|
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18
|
The Family Law Act 1975 (Cth) should be amended so that:
▪
the spousal maintenance provisions and provisions relating to the division of property are dealt with separately under the legislation; and
▪
access to interim spousal maintenance is enhanced by the use of Registrars to consider urgent applications.
|
|
19
|
The Family Law Act 1975 (Cth) should be amended to include a statutory tort of family violence that would provide remedies consistent with existing common law remedies.
|
|
20
|
The Family Law Act 1975 (Cth) should be amended to extend s 69ZX to property settlement proceedings.
|
|
Encouraging Amicable Resolution
|
|
21
|
The Family Law Act 1975 (Cth) should be amended to:
▪
require that parties take genuine steps to attempt to resolve their property and financial matters prior to filing an application for court orders; and
▪
specify that a court must not hear an application unless the parties have lodged a genuine steps statement.
A failure to make a genuine effort to resolve a matter should have costs consequences.
|
|
22
|
Regulation 25 of the Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth), which refers to ‘equality of bargaining power between the parties’, should be amended to refer to the ‘equality of bargaining power between the parties, including an imbalance in knowledge of relevant financial arrangements’.
|
|
23
|
The Family Law Act 1975 (Cth) should be amended to require Family Dispute Resolution Providers to provide a certificate to the parties in all matters where some or all of the issues in dispute have not been resolved.
|
|
24
|
Sections 10H and 10J of the Family Law Act 1975 (Cth), which provide for confidentiality and inadmissibility of discussions and material in Family Dispute Resolution in relation to parenting matters, should be extended to Family Dispute Resolution for property and financial matters. The legislation should provide an exception for a sworn statement in relation to income, assets, superannuation balances, and liabilities that each party signs at the start of Family Dispute Resolution, which should be admissible.
|
|
25
|
The Family Law Act 1975 (Cth) should be amended to clearly set out the disclosure obligations of parties, and the consequences for breach of those obligations.
|
|
Arbitration
|
|
26
|
The Family Law Act 1975 (Cth) and the Child Support (Assessment) Act 1989 (Cth) should be amended to increase the scope of matters which may be arbitrated, whether or not upon referral from a court. Those matters should include all financial issues, including child maintenance and child support, subject to limitations. Appropriate occasions for arbitration would not include disputes:
▪
relating to enforcement;
▪
under ss 79A or 90SN of the Family Law Act 1975 (Cth) (subject to limitations); and
▪
in which a litigation guardian has been appointed.
|
|
27
|
The Family Law Act 1975 (Cth) should be amended to remove the opportunity for a party to object to registration of an arbitral award, while maintaining appropriate safeguards for the integrity of registered awards.
|
|
28
|
The Family Law Act 1975 (Cth) should be amended to allow some children’s matters to be arbitrated. Appropriate occasions for arbitration in children’s matters would not include disputes:
▪
relating to international relocation;
▪
relating to medical procedures of a nature requiring court approval;
▪
relating to contravention matters;
▪
in which an Independent Children’s Lawyer has been appointed; and
▪
involving family violence which satisfy ss 102NA(1)(b) and (c) of the Family Law Act 1975 (Cth).
|
|
29
|
The Family Law Act 1975 (Cth) should be amended to provide that upon application by an arbitrator, or by a party to an arbitration, a court has power to make directions at any time regarding the further conduct of the arbitration, including power to make a direction terminating the arbitration (whether or not the arbitration was referred from a court).
|
|
Case Management: Efficiency and Accountability
|
|
30
|
The Family Law Act 1975 (Cth) should include an overarching purpose of family law practice and procedure to facilitate the just resolution of disputes according to law, as quickly, inexpensively, and efficiently as possible, and with the least acrimony so as to minimise harm to children and their families.
|
|
31
|
The Family Law Act 1975 (Cth) should impose a statutory duty on parties, their lawyers, and third-parties to cooperate amongst themselves, and with the courts, to assist in achieving the overarching purpose. Breach of the duty will have costs consequences for the person who fails to act in accordance with the overarching purpose.
|
|
32
|
The Family Law Act 1975 (Cth) should be amended to provide the courts with a power to make an order requiring a litigant to seek leave of the court prior to making further applications and serving them on the other party where the court is satisfied that such an order is appropriate for the protection of the respondent and/or any children involved in the proceedings, having regard to the overarching purpose of family law practice and procedure.
|
|
33
|
Section 45A of the Family Law Act 1975 (Cth) should be amended to provide that the courts’ powers of summary dismissal may be exercised where the court is satisfied that it is appropriate to do so, having regard to the overarching purpose of family law practice and procedure.
|
|
34
|
The family courts should consider promulgating a joint Practice Note for Case Management which describes the courts’ approaches to the family law practice and procedure provisions.
|
|
35
|
The Family Law Act 1975 (Cth) should be amended to provide for the appointment and protection of referees in the same terms as provided for in ss 54A and 54B of the Federal Court of Australia Act 1976 (Cth).
|
|
36
|
Section 117 of the Family Law Act 1975 (Cth) should be amended to:
▪
remove the general rule that each party to proceedings under the Act bears his or her own costs; and
▪
articulate the scope of the courts’ power to award costs.
|
|
37
|
The Family Law Act 1975 (Cth) should be amended to provide courts with an express statutory power to exclude evidence of ‘protected confidences’. In determining whether to exclude evidence of protected confidences the court must:
▪
be satisfied that it is likely that harm would or might be caused, directly or indirectly, to a protected confider, and the nature and extent of the harm outweighs the desirability of the evidence being given; and
▪
ensure that in parenting proceedings, the best interests of the child is the paramount consideration when deciding whether to exclude evidence of protected confidences.
|
|
Compliance with Children’s Orders
|
|
38
|
The Family Law Act 1975 (Cth) should be amended to require parties to meet with a Family Consultant to assist their understanding of the final parenting orders made by a court following a contested hearing.
|
|
39
|
The Family Law Act 1975 (Cth) should be amended to provide that:
▪
in all parenting proceedings for final orders, the courts must consider whether to make an order requiring the parties to see a Family Consultant for the purposes of receiving post-order case management; and
▪
the appointed Family Consultant has the power to seek that the courts place the matter in a contravention list or to recommend that the court make additional orders directing a party to attend a post-separation parenting program.
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40
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The Family Law Regulations 1984 (Cth) should be amended to require leave to appeal interim parenting orders. Leave should only be granted where:
▪
the decision is attended by sufficient doubt to warrant it being reconsidered; and
▪
substantial injustice would result if leave were refused, supposing the decision to be wrong.
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41
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The Family Law Act 1975 (Cth) should be amended to explicitly state that when a new parenting order is sought, and there is already a final parenting order in force, the court must consider whether:
▪
there has been a change of circumstances that, in the opinion of the court, is significant; and
▪
it is in the best interests of the child for the order to be reconsidered.
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42
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Part VII Div 13A of the Family Law Act 1975 (Cth) should be redrafted to achieve simplification, and to provide for:
▪
a power to order that a child spend additional time with a person;
▪
a power to order parties to attend relevant programs at any stage of proceedings; and
▪
a presumption that a costs order will be made against a person found to have contravened an order.
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Support Services in the Courts
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43
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The Family Law Act 1975 (Cth) should be amended to:
▪
replace ‘family consultants’ with ‘court consultants’; and
▪
redraft s 11A to include a comprehensive list of functions that court consultants would provide to children, families, and the courts.
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44
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Section 68LA(5) of the Family Law Act 1975 (Cth) should be amended to include a specific duty for Independent Children’s Lawyers to comply with the Guidelines for Independent Children’s Lawyers, as promulgated from time to time and as endorsed by the family courts.
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45
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The Australian Government should ensure the availability of Indigenous Liaison Officers in court registries where they are required.
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46
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The Family Law Act 1975 (Cth) should be amended to include a supported decision making framework for people with disability consistent with recommendations from the ALRC Report 124, Equality, Capacity and Disability in Commonwealth Laws.
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47
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The Family Law Act 1975 (Cth) should include provisions for the appointment of a litigation representative where a person with disability is unable to conduct the litigation. These provisions should be consistent with the recommendations of the ALRC Report 124, Equality, Capacity and Disability in Commonwealth Laws.
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48
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The Australian Government should work with state and territory governments to facilitate the appointment of statutory authorities as litigation representatives in family law proceedings.
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Building Accountability and Transparency
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49
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Section 115 of the Family Law Act 1975 (Cth) should be amended to expand the Family Law Council’s responsibilities to include:
▪
monitoring and regular reporting on the performance of the family law system;
▪
conducting inquiries into issues relevant to the performance of any aspect of the family law system, either of its own motion or at the request of government; and
▪
making recommendations to improve the family law system, including research and law reform proposals.
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50
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The Family Law Council should establish a Children and Young People’s Advisory Board, which would provide advice and information about children’s experiences of the family law system to inform policy and practice.
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51
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Relevant statutes should be amended to require that future appointments of all federal judicial officers exercising family law jurisdiction include consideration of the person’s knowledge, experience, skills, and aptitude relevant to hearing family law cases, including cases involving family violence.
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52
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The Law Council of Australia should work with state and territory regulatory bodies for legal practitioners to develop consistent requirements for legal practitioners undertaking family law work to complete annually at least one unit of continuing professional development relating to family violence.
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53
|
The Australian Government Attorney-General’s Department should develop a mandatory national accreditation scheme for private family report writers.
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54
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The Family Law Act 1975 (Cth) should be amended to:
▪
require any organisation offering a Children’s Contact Service to be accredited; and
▪
make it an offence to provide a Children’s Contact Service without accreditation.
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Legislative Clarity
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55
|
The Family Law Act 1975 (Cth) and its subordinate legislation should be comprehensively redrafted.
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56
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Privacy provisions that restrict publication of family law proceedings to the public, currently contained in s 121 of the Family Law Act 1975 (Cth), should be redrafted.
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Secondary Interventions
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57
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The Family Advocacy and Support Service’s social support services should be expanded to provide case management to clients who are engaged with the family law system.
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58
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The Australian Government should work with Legal Aid Commissions in each state and territory to expand the Family Advocacy and Support Service to court locations that have a demonstrable need and to ensure the provision of adequate and appropriate services.
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59
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Family Relationship Centres should be expanded to provide case management to clients with complex needs who are engaged with the family law system.
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60
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The Australian Government should work with Family Relationship Centres to develop services, including:
▪
financial counselling services;
▪
mediation in property matters;
▪
legal advice and Legally Assisted Dispute Resolution services; and
▪
Children’s Contact Services.
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