Chapter 1Introduction
1.1On 11 May 2023, the Senate referred the provisions of the Family Law Amendment Bill 2023 (theBill) to the Legal and Constitutional Affairs Legislation Committee (thecommittee) for inquiry and report by 24 August 2023.
1.2The Bill would primarily amend the Family Law Act 1975 (the Family Law Act), with some consequential amendments to the Federal Circuit and Family Court of Australia Act 2021 (the FCFCOA Act). The proposed amendments aim to make the family law system safer and simpler for separating families to navigate, and to ensure the best interests of children are placed at its centre.
Conduct of the inquiry and acknowledgement
1.3In accordance with its usual practice, the committee advertised the inquiry on its website and wrote to organisations and individuals, inviting submissions by 23 June 2023. The committee received 67 submissions, which are listed at Appendix1. The committee also received 87 short statements (< 150 words).
1.4The committee held a public hearing in Canberra on 11 August 2023. A list of the witnesses who appeared at the hearing is at Appendix 2.
1.5The committee thanks those individuals and organisations who made submissions and who gave evidence at the public hearing.
Scope and structure of the report
1.6This report comprises four chapters:
Chapter 1 provides background information relating to the Bill, identifies its key proposals, and notes consideration of the Bill undertaken by other parliamentary committees;
Chapter 2 examines the key concerns raised in relation to Part VII of the Family Law Act;
Chapter 3 discusses other key concerns raised in relation to the Bill; and
Chapter 4 sets out the committee's findings and recommendations.
Note on references
1.7In this report, references to the Committee Hansard are to the proof (that is, uncorrected) transcript. Page numbers may vary between the proof and the official transcript.
Background
1.8In 2021, the Australian Labor Party Special Platform Conference set out a ‘contemporary policy agenda’ that would be implemented by an Albanese government. As part of this agenda, the conference resolved:
Labor will restore Australia’s long-neglected family law system so that it is once again properly resourced, simple to use and delivers justice and fairness for Australian families… Labor will ensure that the best interests of children will always be the paramount consideration in resolving family law disputes… Labor will ensure that family courts and family law services protect those at risk of family violence.
1.9Following the 2022 Federal Election, the Attorney-General, the Hon Mark Dreyfus KC MP, introduced the Bill into the Parliament, affirming the government’s commitment to reform the family law system. In his second reading speech, theAttorney-General stated that long‑standing problems concerning parents and children would be addressed by the Bill:
For too long the Family Law Act 1975…has been a source of confusion. It has inhibited separated families' ability to put into practice post separation parenting arrangements that align with this most important principle: thebest interests of children must come first. There is ample evidence demonstrating that key provisions in the Family Law Act have themselves become a barrier to achieving safe and fair outcomes.
1.10The Explanatory Memorandum (EM) to the Bill adds that the Bill responds to report recommendations from two inquiries: theAustralian Law Reform Commission (ALRC) review of the family law system and the Joint Select Committee on Australia’s Family Law System (the JSC Inquiry):
These inquiries highlighted a number of challenges facing the family law system, including extensive court delays, complex and confusing legislation and inadequate protection for people at risk of family violence. This Bill will focus on the ALRC Report and JSC Inquiry recommendations relating to parenting and children.
1.11The Attorney-General noted that the Bill would also amend the FCFCOA Act to support a 2024 review of recent structural changes to the court, to ensure that it operates in a manner which protects the safety of families and provides an efficient resolution of family law matters.
1.12The Attorney-General’s Department (AGD) advised that it consulted a wide range of stakeholders throughout the development of the Bill. This consultation included confidential pre-briefings on the proposed draft legislation (December2022 – January 2023), public consultation on an exposure draft of the Bill (theExposure Draft Bill, January – February 2023) and 22 stakeholder meetings during the consultation period.
1.13The AGD advised that a number of changes were made to the Exposure Draft Bill based on information received during consultations. Thedepartment provided the committee with a useful comparison of the differences between the Exposure Draft Bill and the Bill.
Key proposals
1.14The Bill comprises nine schedules that set out proposed amendments to the Family Law Act and the FCFCOA Act. According to the EM, the key proposals are:
a simplified objects provision for Part VII of the Family Law Act;
a simplified list of factors that must be considered by the court in determining the best interests of children in parenting arrangements;
the repeal of the presumption of equal shared parental responsibility;
simplified and easier to use provisions for orders in proceedings relating to the contravention of child-related orders;
an expanded definition of the terms ‘member of the family’ and ‘relative’ for Aboriginal or Torres Strait Islander children;
new requirements for ‘independent children’s lawyers’;
enhanced powers for the court to deal with unmeritorious, harmful and vexatious proceedings; and
a regulatory-making power for government to prescribe standards and requirements for ‘family report writers’, who prepare ‘designated family reports’.
Examination by other parliamentary committees
1.15When examining a bill or bills, the committee takes into account any relevant comments published by the Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) and the Parliamentary Joint Committee on Human Rights (Human Rights Committee).
1.16The Scrutiny of Bills Committee assesses legislative proposals against a set of accountability standards that focus on the effect of proposed legislation on individual rights, liberties and obligations, the rule of law and on parliamentary scrutiny.
1.17The Scrutiny of Bills Committee examined the Bill and sought further information in relation to three matters: a reversal of the evidential burden of proof, a provision which may restrict a person’s right to commence proceedings in their personal capacity, and the inclusion of significant matters (taximposition) in delegated legislation. The second of these concerns is examined further in Chapter 3.
1.18The Human Rights Committee examines bills and legislative instruments for compatibility with human rights and reports its findings to both Houses of Parliament. The Human Rights Committee has examined the Bill and made one recommendation to correct an omission in the Statement of Compatibility:
The committee notes that [the proposed] measures promote a number of rights, in particular the rights of the child, the right to culture, and the right to equality and non-discrimination. They would also limit certain human rights, including the right to a fair hearing and the right to protection of the family.
The committee considers that having regard to the comprehensive information set out in the statement of compatibility, and the extensive consideration of these matters in previous inquiries, these would constitute permissible limitations on human rights. However, the committee notes that the statement of compatibility does not recognise the engagement of the right to protection of the family, and recommends that it be updated to reflect this.