The report makes the following recommendations
Closing the Jurisdictional Gap
R 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.
R 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.
R 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.
Children’s Matters
R 4 Section 60B of the Family Law Act 1975 (Cth) should be repealed.
R 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.
R 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.
R 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’.
R 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.
R 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.
R 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).
A Simplified Approach to Property Division
R 11 The Family Law Act 1975 (Cth) should be amended to: y 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 y 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.
R 12 The Family Law Act 1975 (Cth) should be amended to include a presumption of equality of contributions during the relationship. Recommendations 13
R 13 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.
R 14 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.
R 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.
R 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.
R 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.
R 18 The Family Law Act 1975 (Cth) should be amended so that: y the spousal maintenance provisions and provisions relating to the division of property are dealt with separately under the legislation; and y access to interim spousal maintenance is enhanced by the use of Registrars to consider urgent applications.
R 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.
R 20 The Family Law Act 1975 (Cth) should be amended to extend s 69ZX to property settlement proceedings.
Encouraging Amicable Resolution
R 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.
R 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’.
R 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.
R 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.
R 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
R 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.
R 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.
R 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; y 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).
R 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
R 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.
R 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.
R 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.
R 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.
R 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.
R 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).
R 36 Section 117 of the Family Law Act 1975 (Cth) should be amended to: y remove the general rule that each party to proceedings under the Act bears his or her own costs; and y articulate the scope of the courts’ power to award costs.
R 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
R 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.
R 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.
R 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.
R 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.
R 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.
Support Services in the Courts
R 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.
R 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.
R 45 The Australian Government should ensure the availability of Indigenous Liaison Officers in court registries where they are required.
R 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.
R 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.
R 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.
Building Accountability and Transparency
R 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.
R 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.
R 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.
R 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.
R 53 The Australian Government Attorney-General’s Department should develop a mandatory national accreditation scheme for private family report writers.
R 54 The Family Law Act 1975 (Cth) should be amended to: y require any organisation offering a Children’s Contact Service to be accredited; and y make it an offence to provide a Children’s Contact Service without accreditation.
Legislative Clarity
R 55 The Family Law Act 1975 (Cth) and its subordinate legislation should be comprehensively redrafted.
R 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.
Secondary Interventions
R 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.
R 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.
R 59 Family Relationship Centres should be expanded to provide case management to clients with complex needs who are engaged with the family law system.
R 60 The Australian Government should work with 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.
