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Family Law Inquiry

The ABF has completed it’s submission to the Family Law Inquiry. Our submission #1668 is available on the committee website here, 

https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Family_Law_System/FamilyLaw/Submissions

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If you require legal support or representation please contact the ABF on 1800 FATHER (1800 328 437) and we can connect you to our lawyers.

 

Below are details about the Inquiry with active links.

 

Link to Inquiry Here!

 

List of Recommendations

Recommendation 1

2.44
The committee recommends that, subject to a positive evaluation, the Australian Government fund and expand the following pilot programs across the family law system:
 
the three-year screening and triage pilot, known as the Lighthouse Project, currently being undertaken in the Federal Circuit Court of Australia, which involves the screening of parenting matters for family safety risks at the point of filing;
 
the Priority Property Pool 500 small claims property pilot in the Federal Circuit Court of Australia;
 
the legally-assisted property mediation pilot being undertaken by Legal Aid Commissions;
 
the legally-assisted Family Dispute Resolution pilot for Culturally and Linguistically Diverse and Aboriginal and Torres Strait Islander families; and
 
the co-location of state and territory officers, such as child protection practitioners and policing officials, in family law courts across Australia.1

Recommendation 2

2.54
The committee recommends that the Australian Government work closely with the Family Court of Australia and the Federal Circuit Court of Australia to broaden the role of registrars through the delegation of judicial power or specific legislative amendment to further assist with the case management and hearing of appropriate matters in family law proceedings, including (but not limited to):
 
in property matters, having authority to check a party’s compliance with financial disclosure requirements and to make orders for compliance where disclosure has not been provided;2
 
in the case of senior registrars, the power to make a final order or declaration in appropriate circumstances in relation to property interests, maintenance or financial agreements, where the gross value of the property is no more than $2 000 000; and
 
the provision of dispute resolution for parenting matters and expanded availability of conciliation in property matters.

Recommendation 3

2.55
The committee recommends that the Australian Government provide appropriate funding to support the engagement of 25 to 30 additional registrars as well as support staff to assist the Family Court of Australia and the Federal Circuit Court of Australia to address backlogs and delays.

Recommendation 4

2.60
The committee recommends that a single point of entry into the family law system be established to facilitate effective triage and streamlined case management.
2.61
The committee also recommends that the rules, forms and case management of the Family Court of Australia and the Federal Circuit Court of Australia be harmonised as a matter of priority. If necessary, the Australian Government should amend the Family Law Act 1975 to authorise the Chief Justice/Chief Judge and the Deputy Chief Justice/Deputy Chief Judge to draft and finalise the harmonised rules, forms and case management for both the Family Court of Australia and the Federal Circuit Court of Australia.

Recommendation 5

2.92
The committee recommends that the Australian Government amend the Family Law Act 1975 to include the proposed provisions set out in Appendix 4 of this second interim report.

Recommendation 6

2.98
The committee recommends the prohibition of the use of disappointment fees in family law matters.

Recommendation 7

2.106
The committee recommends that the Family Court of Australia and the Federal Circuit Court of Australia include the requirement for proportionality of costs currently included within Schedule 1 of the Family Law Rules 2004 within their new harmonised rules of court.

Recommendation 8

2.111
The committee recommends that the Commonwealth, states and territories, through the Council of Attorneys-General, expedite the work on uniform rules to support the provision of unbundled legal services by private family lawyers which commenced in May 2017.

Recommendation 9

2.147
The committee recommends that the Australian Government lead the establishment of mandatory accreditation, standards and monitoring processes, including complaints mechanisms and ongoing professional development requirements, for:
 
family consultants, including family report writers employed by the court and engaged under Regulation 7 of the Family Law Regulations and privately engaged family report writers; and
 
Children’s Contact Services.3

Recommendation 10

2.164
The committee recommends that the Australian Government re-constitute the Family Law Council and that the Family Law Council be tasked with determining how to make the family law courts less adversarial. In the interim, the committee recommends that courts better utilise the less adversarial trial approach in Division 12A of Part VII of the Family Law Act 1975.
2.165
The committee also recommends that in considering how to make the family court less adversarial, the re-constituted Family Law Council should consider how best to involve the voice of children in parenting proceedings in appropriate cases. This should include consideration of the establishment of a Children’s and Young People’s Advisory Board.4

Recommendation 11

2.166
The committee recommends that the Australian Government implement a three year pilot of an inquisitorial tribunal model similar to that proposed by Professor Patrick Parkinson and Mr Brian Knox for deciding children’s cases, and which was formerly considered by the Australian Parliament as parenting management hearings, but with adequate safeguards for families and which addresses the concerns raised about the previous model.

Recommendation 12

3.42
The committee recommends that the Family Court of Australia and the Federal Circuit Court of Australia establish a mechanism by which allegations of a person wilfully misleading the court in family law proceedings can be reviewed, and where appropriate, referred for investigation for perjury.

Recommendation 13

3.59
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:
 
how police respond to requests for family violence orders or enforce breaches of existing orders where a family law matter is on foot;
 
how breaches of federal personal protection orders can be acted upon by state and territory police promptly to ensure protected persons, including children, are not left without protection;
 
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;
 
does the ability to ‘consent without admission’ to a family violence order have unintended consequences on family law proceedings, and if so, should any state or federal amendments be made;
 
whether state and territory legislation should require a court making a family violence order to inquire about any relevant Family Law Act 1975 orders and then take such steps as is necessary so as to avoid inconsistencies between the two orders;
 
whether there should be a power for a magistrate to make changes to family law orders where one party has been convicted of a family violence offence but there are no family violence orders in place (noting that this is a matter for discussion between the states/territories and the Commonwealth and would require an amendment to the Family Law Act 1975); and
 
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.
3.60
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.

Recommendation 14

3.68
The committee recommends that, subject to the finalisation of the information-sharing regime currently being progressed through the Council of Attorneys-General, that the Australian Government lead the development of an appropriate technology platform for information-sharing between family law, child protection, and family violence systems at a Commonwealth, state and territory level.

Recommendation 15

3.75
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; 5
 
unconscious bias;6
 
family systems; 7
 
parental alienation dynamics; 8
 
engaging and communicating with children;9 and
 
disability awareness.

Recommendation 16

3.80
The committee recommends that the Australian Government increase funding to Legal Aid and community legal centres, including funding to enable Legal Aid Commissions to relax their means tests so as to increase legal assistance to vulnerable families.
3.81
The committee also recommends that Legal Aid Commissions then review their means and merits policy to allow funding of both parties in appropriate circumstances.

Recommendation 17

4.40
The committee recommends that the Australian Government urgently draft and release an exposure draft of legislation which would amend section 61DA of the Family Law Act 1975 to address the current misunderstanding of the provision that equal shared parental responsibility equates to equal time with the children.

Recommendation 18

4.61
The committee recommends that the Australian Government consider amendments to the Family Law Act 1975 to require Independent Children’s Lawyers to:
 
comply with the Guidelines for Independent Children’s Lawyers;
 
provide a child with the opportunity to express a view in relation to the matter; and
 
seek to meet with a child, unless there are extenuating circumstances.

Recommendation 19

4.81
The committee recommends that the Australian Government establish and provide funding for a registrar-driven National Contravention List to deal with parties breaching court orders in the family court, with formal delegation of power to registrars to preside over contravention of order applications.
4.82
The committee also recommends that this should include funding for the appointment of an additional seven registrars to deal with the 1600 applications annually and an anticipated increase once the list is established, as well as to ensure that all contravention applications can be triaged within 14 days.

Recommendation 20

4.83
The committee recommends that the Australian Government review Division 13A of Part VII of the Family Law Act 1975 with a view to:
 
simplifying the operation of this Part; and
 
considering whether additional penalties for non-compliance should be included to deter the contravention of orders, including specific penalties for repeated non-compliance.

Recommendation 21

4.113
The committee recommends that the Australian Government consider expanding the current information-sharing mechanism between the Australian Taxation Office (ATO) and the Family Court of Australia and the Federal Circuit Court of Australia to include all financial information held by the ATO.

Recommendation 22

4.118
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.

Recommendation 23

4.128
The committee recommends that the Australian Government amend the Family Law Act 1975 to better reflect the impact of family violence on property settlements.

Recommendation 24

4.133
The committee recommends that the Family Law Council be asked to examine and report on enhancing the use of binding financial agreements, and how parties can be encouraged to consider entering into pre-nuptial agreements.

Recommendation 25

5.20
The committee recommends that the Australian Government through the Council of Australian Governments lead a review of family violence and family law services to ensure that there are adequate support services available for all victims of family violence—male and female—and that existing services review their public information platforms to ensure that it clearly highlights that the service is available to support men and their children.
5.21
The committee recognises the need for continued funding for non-legal support services for men and women in the family law system and recommends that the Australian Government continues to fund these services in registries where there is demonstrated need.
5.22
The committee also recommends that the Australian Government work closely with state and territory governments to develop workforce planning initiatives which will encourage a more gender-balanced workforce in professions that service family violence and family law systems.

Recommendation 26

5.43
The committee recommends that the Australian Government expand the Family Advocacy and Support Service (FASS) program to all Family Court and Federal Circuit Court registry and circuit locations with:
 
ongoing funding to be provided for all FASS locations; and
 
appropriate resourcing in rural and regional areas.
5.44
The committee also recommends the Australian Government implement case management services within either the FASS or Family Relationship Centres (FRCs), with a view to also building closer associations between the FASS and FRCs so that case management is available to clients of both services.

Recommendation 27

5.71
The committee recommends the Australian Government expand 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.

Recommendation 28

5.82
The committee recommends that the Family Law Council be tasked with considering how to best document agreements made with respect to property arrangements following Family Dispute Resolution in order to reduce litigation while still protecting the rights of the parties.

Recommendation 29

5.85
The committee recommends that the Australian Government request the Productivity Commission to investigate the direct and indirect costs to individuals and Australia of family dysfunction, and marriage and relationship breakdown and the adequacy of preventive measures, including measures to prevent family violence.