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COMMONWEALTH GOVERNMENT ANNOUNCES RESPONSE TO ALRC REPORT INTO FAMILY LAW AND RELEASES RECOMMENDATIONS FROM THE JOINT SELECT INQUIRY INTO THE FAMILY LAW SYSTEM

The landscape of family law into the future looks set to become dynamic as shortly after the passing of the Federal Circuit and Family Court of Australia Acts, amalgamating the administrative structure of those two courts, the Federal Government has now released it’s response to the ALRC Report: Family Law for the Future – An Inquiry into the Family Law System in addition to releasing the Joint Select Committee on Australia’s Family Law System (JSCAFLS).

The Response to the ALRC Inquiry

The Federal Government’s response to the 60 recommendations of the ALRC Family Law Inquiry[1] is now available.[2]

The Table below sets out the Government’s response to each of the 60 Recommendations.

Perhaps most critical to legal practitioners are the recommendations concerning dispute resolution with the Government supporting greater emphasis upon genuine attempts to resolve a dispute before litigating (Recommendation 21) and extending arbitration to child support and parenting. (Recommendations 26 and 27).

In relation to the guarded support for parenting arbitrations the Government states:

The Government agrees with the principle that the desirability of increased resolution by arbitration extend to children’s matters but is taking a cautionary approach, noting that even with the protections proposed by the ALRC, a number of complexities in respect of arbitration of children’s matters must be analysed further to assess whether such a change would benefit parties to proceedings and promote arrangements that would be in the best interests of children. These include evidentiary issues such as the evidence upon which a judge would determine a matter is suitable for arbitration; how family reports would be ordered and used in the arbitral process; how children’s views would be taken into account; the potential costs to parties; and the competencies and accountabilities of those who might conduct arbitration in children’s matters.

No.

Recommendation

Response

1

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

Not agreed

2

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;

• police records;

• experts’ reports; and

• other relevant information.

 

Agreed

3

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.

Agreed

4

Repeal sect 60B

Agreed in part

5

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.

 

Agreed in part

6

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.

Agreed in principle

7

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’.

Agreed in part

8

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.

Not agreed

9

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.

Agreed in principle

10

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).

Agreed in principle

11

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.

 

Agreed

12

FLA should be amended to include a presumption of equality of contributions during the relationship

Not agreed

13

FLA amended to provide that the relevant date for determination of value is separation

Not agreed

14

Develop protocol for jurisdictional overlap between family law and Australian Financial Complaints

Noted

15

Privacy Act and National Consumer Credit Protection Act amended

Noted

16

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.

Not agreed

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.

Agreed in principle

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.

 

Agreed

19

FLA amended to include tort of family violence

Noted

20

Extend s69ZX to property settlement proceedings

Agreed

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.

Agreed in principle

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’.

Not agreed

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.

 

Noted

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.

Noted

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.

Agreed

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.

Agreed

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.

Agreed

28

Recommendation 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)

Agreed in Principle

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).

Agreed

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.

 

Agreed in Principle

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

Agreed in Principle

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.

Agreed in Principle

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.

Agreed in Principle

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.

Noted

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)

Noted

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.

 

Noted

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.

Agreed in Principle

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.

Noted

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.

 

Noted

40

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.

 

Agreed in Principle

41

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.

 

Agreed

42

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.

 

Agreed

43

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.

 

Agreed in Principle

44

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.

 

Noted

45

The Australian Government should ensure the availability of Indigenous Liaison Officers in court registries where they are required.

Agreed in Principle

46

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.

Noted

47

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.

Noted

48

The Australian Government should work with state and territory governments to facilitate the appointment of statutory authorities as litigation representatives in family law proceedings.

Agreed in Principle

49

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

 

Agreed in Principle

50

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.

Noted

51

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.

Agreed

52

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

Noted

53

The Australian Government Attorney-General’s Department should develop a mandatory national accreditation scheme for private family report writers.

Agreed in Principle

54

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.

Agreed in Part

55

The Family Law Act 1975 (Cth) and its subordinate legislation should be comprehensively redrafted.

Agreed in Principle

56

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.

Agreed

57

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.

Noted

58

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

Noted

59

Family Relationship Centres should be expanded to provide case management to clients with complex needs who are engaged with the family law system.

Noted

60

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.

Noted

 

Joint Select Committee on Australia’s Family Law System (JSCAFLS)

 

No

Recommendation

1

The Government fund and expand the following Pilots

  • Lighthouse Pilot
  • PPP500 Pilot
  • Legally-assisted property mediation pilot (legal aid)
  • Legally-assisted FDR pilot for culturally and linguistically diverse and ATSIL families
  • Co-location of child protection and police

2

Broaden role of registrars through delegation of judicial power to

  • Authority to check compliance with financial disclosure
  • Power to make a final order or declaration in property matters up to $2M
  • Provision of dispute resolution for parenting and expanding property conciliation

See also recommendation 19

3

Funding to support addition 25 to 30 Registrars

4

Single point of entry and rules harmonisation

5

 

6

Prohibition of disappointment fees

7

Requirement of proportionality of costs

8

Expedition of unbundling legal services

9

Mandatory accreditation for family report writers and children’s contact services

10

Reconstitute the FLC and FLC tasked with determining how to make family law courts less adversarial

11

Conduct a three year pilot of an Inquisitorial Tribunal Model for children’s cases

12

Mechanism for referral for investigation for perjury

13

The committee recommends that the Commonwealth, states and territories, through the Council of Attorneys-General, undertake a review of the state and territory family violence order framework to consider what may be done to address the concerns raised in this inquiry, particularly in relation to the following issues:

  • what actions should courts take to discourage improper applications, such as those made based on allegedly false allegations not ultimately upheld on review of the evidence (including whether any record of such application should be removed from the alleged perpetrators record);
  • the length of time between an interim order and a contested hearing;
  • whether judges of the family law courts can or should be able to amend a family violence order that is in existence between the parties before it to ensure consistency with family law orders.

The committee also recommends that the Council of Attorneys-General undertake a review of the definitions of domestic violence to ensure a uniform approach by Commonwealth, state and territory governments.

14

Information sharing between family law courts, police and child protection

15

The committee recommends that all family law professionals, including judges, undertake regular professional training, including in the areas of:

  • family violence and child abuse, including coercive control;
  • complex trauma/ trauma informed practice, including child responses to trauma and abuse;
  • characteristics of systems abuse; 
  • unconscious bias;
  • family systems; 
  • parental alienation dynamics;
  • engaging and communicating with children; and
  • disability awareness.

16

Increased funding to LAC

17

Redraft sect 61DA

18

Amend FLA to require ICLs to comply with guidelines, provide child an opportunity to express a view and meet with a child

19

Registrars drive the National Contravention List including delegation of power

20

Review Div 13A to simplify and consider penalties for non-compliance

21

Information sharing between ATO and family law courts

22

The committee recommends that the Australian Government consider amendments to the Family Law Act 1975 to relocate disclosure duties regarding financial circumstances from the Family Court Rules 2004 and Federal Circuit Court Rules 2001 to the Family Law Act 1975, and to further include:

  • the cost consequences for a failure to disclose financial information, and reflect that non-disclosure of financial information may be taken into account in apportioning the property pool; and
  • an application of this provision beyond court proceedings to include alternative dispute resolution.

23

The committee recommends that the Australian Government amend the Family Law Act 1975 to better reflect the impact of family violence on property settlements.

24

Enhance the use of BFAs

25

Review family violence and family law services to ensure adequate support

26

Expand the Family Advocacy and Support Service

27

Expand funding of Legally Assisted Family Dispute Resolution

  • to family and domestic violence cases, to be carried out by specialist family and domestic violence and trauma informed practitioners; and
  • parties who do not qualify for legal aid.

28

Better documentation of property agreements post ADR

29

Investigate the impact of separation upon the economy

Many of these recommendations would seem to compliment the Government’s response to the ALRC Inquiry Recommendations.


[1] Family Law for the Future: An Inquiry into the Family Law System (ALRC Report 135)

[2] Government Response to ALRC Report 135: Family Law for the Future – An Inquiry into the Family Law System March 2021

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