Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Family Law Amendment (Family Violence and Other Measures) Bill 2018

Bill home page  


Download WordDownload Word


Download PDFDownload PDF

2016 - 2017 - 2018

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

FAMILY LAW AMENDMENT (FAMILY VIOLENCE AND OTHER MEASURES) BILL 2018

 

 

Revised EXPLANATORY MEMORANDUM

 

 

(Circulated by authority of the

Attorney-General, the Honourable Christian Porter MP)

                                                                                                        

 

THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY THE SENATE TO THE BILL AS INTRODUCED AND SUPERSEDES THE EXPLANATORY MEMORANDUM TABLED IN THE SENATE

 

 



 

FAMILY LAW AMENDMENT (FAMILY VIOLENCE AND OTHER MEASURES) BILL 2018

General Outline

1.                 The Family Law Amendment (Family Violence and Other Measures) Bill 2018 (the Bill) would enhance the capacity of the family law system to provide effective outcomes for people who are experiencing family violence. In particular, it aims to reduce the need for families to interact with multiple courts across the federal family law and state or territory family violence and child protection systems.

2.                 Family violence and child abuse are unacceptable and require a strong legislative response. The Government is committed to ongoing improvements to the family law system and providing the best possible outcomes for families, particularly children. The Bill would make a number of amendments to strengthen protections against family violence.

3.                 Several recent reports and inquiries have considered the need for changes to the Family Law Act 1975 and the broader family law system. The Bill would implement recommendations from the:

·          Family Law Council’s 2015 Interim Report and 2016 Final Report into Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems

·          Victoria’s 2016 Royal Commission into Family Violence

·          Australian and New South Wales Law Reform Commissions’ 2010 report Family Violence - A National Legal Response , and

·          Victorian State Coroner’s 2015 findings of the inquest into the death of Luke Geoffrey Batty.

4.                 The Bill would expand the family law jurisdiction of state and territory courts by:

·          allowing relevant state and territory courts, such as children’s courts, to be prescribed to have the same family law parenting jurisdiction as that held by state and territory courts of summary jurisdiction under Part VII of the Family Law Act, and

·          providing for an increased total property value to be prescribed in regulations, under which courts of summary jurisdiction can hear contested family law property matters without the parties’ consent.

5.                 These amendments would enable children’s courts to make appropriate orders under the Family Law Act where such orders would assist to resolve matters in the best interests of the child. The amendments would also enable courts of summary jurisdiction to hear contested family law property matters up to a higher value without requiring both parties’ consent to the court exercising the jurisdiction.

6.                 Allowing parties to resolve related matters together in state and territory courts would reduce their need to commence proceedings in a second court and can reduce time, cost, pressure and risk for vulnerable families and children. State and territory courts are not intended to become the primary fora for resolving family law disputes. Rather, these amendments are intended to provide state and territory judicial officers with additional tools to resolve matters involving family violence holistically, and prevent further violence by reducing the sometimes complicated legal processes.

7.                 The amendments would include allowing the regulations to prescribe the applicable rules of court, and making clear that judgments in interim matters can be given in short form, so that state and territory judges exercising family law jurisdiction can do so expeditiously.

8.                 The Bill would remove the 21 day time limit which applies to a family law order that is revived, varied or suspended by a state or territory court when making an interim family violence order. This amendment would allow the state or territory court to specify in the order a specific expiration, or that the revival, variation or suspension will expire when the interim family violence order expires, or when a court makes an alternative order. This is intended to avoid inconsistencies between family violence orders and family law orders, which can lead to confusion and increased risk for victims.

9.                 The Bill would strengthen and codify the power of the family law courts to dismiss unmeritorious cases and proceedings that are frivolous, vexatious or an abuse of process. This amendment would enable courts exercising family law jurisdiction to better protect victims of family violence from perpetrators who attempt to use the family law system as a tool of continued victimisation.

10.             The Bill would remove the requirement that a court must explain certain matters to a child, when it would not be in the child’s best interest to receive the explanation. The requirement applies when a court is making an order or injunction that is inconsistent with a family violence order. This amendment would ensure that the information children receive from a court is appropriate and would not expose them to further details of family violence.

11.             Finally, the Bill would remove misleading and unnecessary wording that suggests that conjugal rights and an obligation to perform martial services still exist in Australian law. These concepts do not reflect current law and their ongoing presence in the Family Law Act is unacceptable by any modern standard.

FINANCIAL IMPACT

12.             There are no immediate financial implications from implementing these amendments.  The Australian Government is discussing with states and territories any financial implications arising from prescribing state and territory courts in subsequent Regulations.

 



STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Family Law Amendment (Family Violence and Other Measures) Bill 2018

1.                 This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of the Bill

2.                 The Bill would make amendments to the Family Law Act 1975 to improve the family law system’s response to family violence.

3.                 In particular, the Bill would amend the Family Law Act to:

·          remove any doubt that state and territory children’s courts can, no matter how constituted, make family law orders under Part VII of the Family Law Act, by providing for courts to be prescribed in regulations as having the same family law parenting jurisdiction as that held by state and territory courts of summary jurisdiction

·          clarify the appeal pathway from decisions of prescribed courts exercising power under Part VII of the Act

·          provide for regulations to prescribe a new property value under which state and territory courts of summary jurisdiction can hear contested property matters without both parties’ consent, higher than the current value of $20 000

·          encourage judicial officers to deliver short form judgments in interim parenting proceedings

·          remove the strict 21 day time limit on the revival, variation or suspension of family law orders by state and territory courts in family violence order proceedings

·          give clearer powers to the family law courts to dismiss applications which clearly have no merit

·          allow judges the discretion to dispense with requirements to explain an order or injunction to a child, where the order is inconsistent with an existing family violence order and where it would be in the best interests of the child not to receive the explanation, and

·          repeal the redundant provision that allows the court to make an order relieving a party to a marriage from an obligation to perform marital services or render conjugal rights.

Human rights implications

4.                 The Bill engages the following human rights:

·          Eradication of discrimination against women: Articles 2, 3 and 5 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).

·          Best interests of the child: Article 3(1) of the Convention on the Rights of the Child (CROC).

·          Protection of children on dissolution of a marriage, and generally: Articles 23(4) and 24(1) of the International Covenant on Civil and Political Rights (ICCPR), and Article 3(2) of the CROC.

·          Protection of children from physical, sexual or mental violence, injury or abuse: Articles 19(1) and 34 of the CROC.

Eradication of discrimination against women: Articles 2, 3 and 5 of the CEDAW

5.                 The CEDAW provides for key principles of equality which cover many aspects of women’s lives, including political participation, health, education, employment, marriage, family relations and equality before the law. In particular:

·          Article 2 provides that parties agree to pursue the elimination of discrimination against women, including by introducing new laws or policies, changing existing discriminatory laws and providing sanctions for discrimination where appropriate.

·          Article 3 requires parties to take appropriate measures to ensure women’s full development and advancement, so that they can enjoy human rights and fundamental freedoms on the same basis as men.

·          Article 5 requires parties to take appropriate measures to modify the social and cultural patterns of conduct of men and women, to eliminate prejudices based on the idea of inferiority or superiority of either of the sexes.

6.                 Discrimination against women includes gender-based violence - that is, violence that is directed against a woman because she is a woman, or that affects women disproportionately. Although family violence is perpetrated by both men and women, and against both men and women, and the Family Law Act is accordingly gender-neutral, the majority of those who experience family violence are women. Therefore, the measures in this Bill which seek to better protect and reduce risk for victims of family violence will in turn address the impacts on women of gender-based violence.

Repeal of subsection implying an obligation to perform marital services

7.                 The Bill would repeal a subsection that implies that there is a continuing obligation under the family law to render conjugal rights or perform marital services.

8.                 Repealing this subsection would ensure the Family Law Act reflects the principle of equality within relationships, and would send a clear message to eliminate any remaining prejudices to the contrary (Article 5 CEDAW).

Best interests of the child: Article 3(1) of the CROC

9.                 Article 3(1) of the CROC provides that in all actions concerning children, including by courts, the best interests of the child shall be a primary consideration.

Dispensing with explanations to children

10.             Currently, the Family Law Act requires the court to explain orders or injunctions that are inconsistent with an existing family violence order to children.

11.             The Bill would support the best interests of the child as a primary consideration by removing the requirement for the court to give this explanation where it would not be in the child’s best interests.

12.             In most cases, it will be in a child’s best interests to understand how court orders apply to themselves and their family. However, this may not always be the case. In particular, it may not be in the child’s best interests to be exposed to the conflict between their parents to the extent necessary for courts to comply with this requirement.

13.             The Bill would provide an appropriate discretion for courts to dispense with this requirement if that is in the child’s best interests. In making that decision, the court is required to have regard to the benefit to the child of having a meaningful relationship with both parents, and the need to protect the child from exposure to family violence.

Protection of children on dissolution of a marriage, and generally, and protection of children from physical, sexual or mental violence, injury or abuse: Articles 23(4) and 24(1) of the ICCPR, and Articles 3(2), 19(1) and 34 of the CROC

14.             The ICCPR provides for fundamental civil and political rights which derive from the inherent dignity of each person, and makes special provision for children. In particular:

·          Article 23(4) requires parties to take appropriate steps to ensure provision is made for the protection of children on the dissolution of a marriage.

·          Article 24(1) provides for protection for all children, without discrimination, by virtue of their status as minors.

15.             The CROC recognises that children are entitled to special care and assistance, and that they should grow up in an atmosphere of happiness, love and understanding. In particular:

·          Article 3(2) provides that parties will take appropriate measures to ensure that children have the protection and care necessary for their well-being.

·          Article 19(1) requires parties to take all appropriate legislative measures to protect children from all forms of physical or mental violence, injury or abuse, including negligent treatment and sexual abuse.

·          Article 34 provides that parties will protect children from all forms of sexual abuse.

Removal of 21 day time limit for revival, variation, or suspension of orders

16.             The Bill would amend section 68T of the Family Law Act, which puts a time limit on a state or territory court’s ability to revive, vary or suspend a parenting or other related order to the extent to which that order provides for a child to spend time with a person. The courts have this power under section 68R when making a family violence order. This power is designed to protect children by avoiding any inconsistency between family violence orders and family law orders. However, when making an interim family violence order, there is currently a 21 day time limit on the court’s amendment of a family law order.

17.             The Bill would strengthen the court’s ability to protect children by removing this 21 day time limit and instead allowing judicial officers to set timeframes according to the particular circumstances of the case. This will better protect children from violence by reducing the risk that can arise from inconsistent orders applying to their contact with a violent parent.

Conclusion

18.             The Bill is compatible with human rights because it promotes the protection of human rights. 

 



NOTES ON CLAUSES

Preliminary

Clause 1 - Short title

1.                    This clause provides for the short title of the Act to be the Family Law Amendment (Family Violence and Other Measures) Act 2018 .

Clause 2 - Commencement

2.                    Subclause 2(1) provides for the commencement of each provision in the Bill, as set out in the table. 

3.                    Item 1 in the table provides that sections 1 to 3, which concern the formal aspects of the Bill as well as anything in the Bill not elsewhere covered by the table, will commence on the day on which this Act receives Royal Assent.

4.                    Items 2, 3 and 4 in the table provide that Part 1, Part 2, and Part 3 of Schedule 1 will all commence on the day after this Act receives Royal Assent. This will allow all amendments in the Bill to commence immediately. The measures conferring enhanced jurisdiction on state and territory courts, though, will have no immediate impact until certain matters are prescribed in regulations.

5.                    The Note at the end of the table explains that the table relates only to the provisions of this Act as originally enacted. The table will not be amended to deal with any later amendments of this Act.

6.                    Subclause 2(2) provides that any information in column 3 of the table is not part of the Act. It also clarifies that information may be inserted in column 3, or information in it may be edited, in any published version of the Act.

Clause 3 - Schedules

7.                    This is a formal clause that enables each Act specified in a Schedule to the Bill to be amended in accordance with the items set out in the relevant Schedule.



 

Schedule 1 - Amendment of the Family Law Act 1975

Part 1 - Family law matters to be resolved by State and Territory Courts

Family Law Act 1975

Item 1 - Subsection 4(1)

8.                    Item 1 would insert a new definition into the Family Law Act to define ‘ section 69GA proceedings ’. The term is defined by reference to new subsection 69GA(2), which would be inserted by Item 6.

Item 2 - Subsection 28(2)

9.                    Item 2 would repeal existing subsection 28(2) and replace it with a new subsection which would provide that the jurisdiction of the Family Court may be exercised by one Judge or by a Full Court, in an appeal from either a court of summary jurisdiction, or a court prescribed by regulations for the purposes of new section 69GA.

10.                This amendment reflects the insertion of new section 69GA by Item 6 and would ensure that, for consistency, section 28(2) would apply to courts prescribed in the regulations to have jurisdiction under Part VII of the Family Law Act, in the same way as it applies to courts of summary jurisdiction.

11.                This amendment also reflects the insertion of new subsection 96(7) by Item 11, which confirms that the appeal pathway for courts of summary jurisdiction is the same for courts prescribed in the regulations as having jurisdiction under Part VII of the Family Law Act.

Item 3 - Subsection 46(1)

12.                Item 3 would remove the words ‘in relation to property of a total value exceeding $20,000’ from subsection 46(1) and replace them with the words ‘in a State or Territory, in relation to property of a total value exceeding the amount referred to in section 46A,’.

13.                Sections 39 and 39B vest courts of summary jurisdiction in each state and territory with federal jurisdiction in matrimonial causes and de facto financial causes under the Family Law Act.

14.                Subsection 46(1) provides that where proceedings in relation to property of a total value exceeding $20,000 are instituted in, or transferred to, a court of summary jurisdiction, and the respondent seeks an order different from that sought in the initiating application then, unless each of the parties consents to the court hearing and determining the proceedings, the court must transfer the proceedings to one of the family law courts or to the relevant state or territory Supreme Court.

15.                This amendment would remove the reference to the existing property value of $20,000 from the subsection, and replace it with a reference to new section 46A introduced by Item 4.

Item 4 - After section 46

16.                Item 4 would introduce new section 46A, which would provide that the property value for the purposes of section 46 is $20,000 or a higher amount if prescribed by regulations.

17.                This amendment would implement recommendation 15-2 of the Family Law Council’s 2016 Final Report on Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems . This amendment would also partially implement recommendation 131 of the Victorian Royal Commission into Family Violence.

18.                The Family Law Council supported the recommendation of the Victorian Royal Commission to increase ‘ the monetary limit on the jurisdiction of state and territory courts to divide the property of parties to a marriage or a de facto relationship under the Family Law Act, as a way of supporting clients of these courts to achieve some measure of economic independence without having to initiate proceedings in the family courts .’ [i]

19.                Many victims of family violence have to engage with more than one court to address their legal needs. Submissions and data received by the Family Law Council suggested that:

‘greater numbers of clients move from the state system to the federal family law system than in the opposite direction. These data pointed to the potentially significant benefits for families with complex needs of supporting state and territory magistrates courts to exercise their existing family law jurisdiction for these clients.’ [ii]

20.                By increasing the property value above which the parties’ consent to the jurisdiction is required, magistrates in state and territory courts would be able to deal with more contested property matters in the forum in which they are initiated. This would reduce the number of parties required to navigate both the state and federal court systems to resolve their disputes and may help to ensure that victims of family violence will not abandon their claims.

Prescribing a Value

21.                The existing property value of $20,000 has not been updated since 1988. This was equivalent to approximately $43,800 in 2016. [iii]

22.                New subsection 46A(1) would retain $20,000 as the default property value for the purposes of section 46, so that a value exists until a higher value is prescribed. It would also provide for a higher amount to be prescribed in regulations for a specific state or territory. This would allow the property value for contested matters to be increased to better reflect its modern day value, and provide flexibility to determine the most appropriate amount in each state and territory.

23.                New subsection 46A(2) would allow the regulations to prescribe a higher amount by incorporating a reference to the civil property limit on a court of summary jurisdiction under state or territory law, as in force from time to time.

24.                By prescribing the law as in force from time to time, the family law property value in a state or territory for the purposes of section 46 would be amended automatically if the state or territory changed its civil property limit. This would ensure continued consistency between the family law property value and the state and territory jurisdiction, which provides certainty for state and territory magistrates exercising their family law jurisdiction.

25.                Subsection 46A(2) is also intended to convey a contrary intention for the purposes of section 14 of the Legislation Act 2003 . That section provides that the regulations may not prescribe a matter by incorporating any document (other than a Commonwealth Act or disallowable instrument) as in force from time to time, unless the contrary intention appears.

26.                This subsection does not limit the way in which an amount is to be prescribed in the regulations. Rather it provides flexibility to prescribe a property value for a state or territory as a specific dollar amount or by reference to the specific state or territory’s existing civil property limit.

Consultation with States and Territories

27.                New subsection 46A(3) would require that before a new property value is prescribed in the regulations for a particular state or territory, the Commonwealth Minister with responsibility for this section under the Administrative Arrangements Order must be satisfied that the Minister with responsibility for courts in that state or territory has been consulted.

28.                This requirement is intended to ensure that states and territories are aware of the family law jurisdiction to be conferred on their courts, and have an opportunity to express preferences as to the scope of that jurisdiction and how it aligns with the state or territory’s civil property limit.

29.                New subsection 46A(4) would provide that new subsection 46A(3) does not limit the requirement in section 17 of the Legislation Act 2003 that rule-makers should consult before making a legislative instrument. That section requires that the rule-maker must be satisfied that any consultation considered appropriate and reasonably practicable has been undertaken.

Item 5 - Application of amendments

30.                Item 5 would provide that the amendment to section 46 in Item 3 and new section 46A introduced by Item 4 apply to proceedings instituted after this Part commences. This will provide certainty for court users that the consent requirement that was in place when their proceedings were instituted will continue to apply to their proceedings.

Item 6 - After section 69G

31.                Item 6 would insert a new section 69GA into the Family Law Act to enable the regulations to prescribe courts for which Subdivision C of Division 12 of Part VII applies in the same way as the Subdivision applies to a court of summary jurisdiction.

32.                This amendment aims to enhance the capacity of the federal family law, and state and territory child protection and family violence systems, to deliver integrated services to families with multiple legal needs, by removing some of the existing Commonwealth legislative barriers to state and territory children’s courts exercising family law jurisdiction.

33.                This amendment would implement recommendation 1 of the Family Law Council’s 2015 Interim Report on Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems . In its report, the Council noted that:

… there are a number of potential benefits of enabling state and territory children’s courts to exercise jurisdiction under the Family Law Act to make parenting orders in certain circumstances. In particular, there are significant potential benefits for children where the matter is already before the children’s court and a parent or kinship carer needs orders for (sole) parental responsibility to support the care of their children. Enabling children’s court judicial officers to exercise Family Law Act powers in this situation would mean that the parent or carer could obtain parenting orders in the court with which they are familiar. [iv]

34.                The Council went on to note that:

Council believes there are circumstances where an interim decision by a children’s court would be beneficial for families who need parenting orders when a child protection matter has been finalised and the children’s court (and the child protection department) is familiar with the family’s circumstances. In Council’s view, children’s courts should be supported to exercise jurisdiction under the Family Law Act in such circumstances where appropriate. [v]

35.                The Council recommended that the Family Law Act be amended to remove any doubt that children’s courts, no matter how constituted, are able to make family law orders under Part VII of the Family Law Act in the same circumstances that are currently applicable to courts of summary jurisdiction. This amendment would also partially implement recommendation 131 of the Victorian Royal Commission into Family Violence.

36.                 Decision-making in parenting cases is governed by Part VII of the Family Law Act. This Part empowers the family courts, and in defined circumstances, state and territory courts of summary jurisdiction, to make orders about with whom a child will live, how much time the child should spend with other people, and how often and the way in which a child and parent should communicate with one another.

37.                Section 69J of the Family Law Act vests state and territory courts of ‘summary jurisdiction’ with federal jurisdiction to make orders under Part VII of the Family Law Act, [vi] including parenting orders. Section 69N limits this power to circumstances where the parties consent to the orders being sought or where the parties consent to the court of summary jurisdiction hearing and determining the matter.

38.                Section 2B of the Acts Interpretation Act 1901 defines a court of summary jurisdiction as ‘any justice of the peace, or magistrate of a state or territory, sitting as a court of summary jurisdiction’. Magistrates’ courts and local courts will usually be courts of summary jurisdiction. In some states and territories, children’s courts are also part of the magistrates’ or local court. These courts most likely fall within the definition of a ‘court of summary jurisdiction’, and would therefore have jurisdiction to make parenting orders under section 69J of the Family Law Act.

39.                However, uncertainty remains about whether this jurisdiction extends to specialist children’s courts that are not part of a magistrates’ court. [vii] Some of these specialist children’s courts are presided over by a judicial officer from a superior court.

40.                It is not to be taken that, if a state or territory children’s court is not prescribed by the regulations, then it is not able to make family law orders under Part VII of the Family Law Act as a court of summary jurisdiction. Rather, it is intended that, in cases where there is doubt, a court can be prescribed by the regulations so as to remove any doubt as to its capacity to exercise such jurisdiction.

41.                New subsection 69GA(1) would provide that new section 69GA applies if the regulations prescribe one or more courts for the purposes of this section. It would apply whether the court or courts are prescribed in relation to proceedings generally or in relation to specified classes of proceedings.

Prescribing Courts

42.                New subsection 69GA(2) would provide that Subdivision C of Division 12 of Part VII of the Act, about jurisdiction of courts, applies to proceedings referred to as section 69GA proceedings in the same way as the Subdivision would apply if the proceedings were heard in a court of summary jurisdiction.

43.                Section 69GA proceedings would be those that are heard in a court prescribed in the regulations for the purposes of new subsection 69GA(1), and that fall within a specified class of proceedings, if a class of proceedings is prescribed in the regulations in relation to that court.

44.                The provision would allow a class of proceedings to be prescribed, in which a prescribed court will have the jurisdiction. Different classes of proceedings can be prescribed for different courts. For example, the regulations could prescribe that a children’s court will only exercise family law parenting jurisdiction when an existing state or territory matter is already before the court, for example, child protection proceedings.

Prescribing Rules

45.                New subsection 69GA(3) would provide that the regulations can prescribe rules of a court, as in force from time to time, that are to apply to section 69GA proceedings. This would mean that if a children’s court is prescribed for the purposes of section 69GA, the regulations can also prescribe that court’s own rules as applying even when the court is exercising family law jurisdiction.

46.                This supports the amendment in subparagraph 69GA(2)(b) allowing specific classes of proceedings to be prescribed. Should regulations provide that family law jurisdiction in a children’s court would only be exercised where it was incidental to the exercise of the courts’ normal jurisdiction, it is appropriate that only one set of rules apply. Where a court is hearing a child protection matter, under its own rules, it should be able to deal with any ancillary family law matters expeditiously. It would be unnecessarily complex to expect children’s court judges to apply two sets of rules in one proceeding (unless the children’s court rules do not cover a particular issue, as noted below).

47.                Subsection 69GA(3) is also intended to convey a contrary intention for the purposes of section 14 of the Legislation Act 2003 . That section provides that the regulations may not prescribe a matter by incorporating any document (other than a Commonwealth Act or disallowable instrument) as in force from time to time, unless the contrary intention appears. 

48.                New subsection 69GA(4) would provide that the Family Law Rules made under section 123 of the Act apply to section 69GA proceedings if the regulations do not prescribe rules of court in relation to that court, or if the regulations do prescribe rules of court but those rules do not deal with a matter arising in the proceedings that is covered by the Family Law Rules.

49.                It is possible that when a state or territory court is hearing a family law matter, issues might arise which are not dealt with by the prescribed state or territory rules of court. New paragraph 69GA(4)(b) would provide that the Family Law Rules would operate to fill the gap in that situation, if applicable.

Consultation with States and Territories

50.                New subsection 69GA(5) would require that before a court, a class of proceedings, or a set of rules are prescribed in the regulations for a particular state or territory, the Commonwealth Minister with responsibility for this section under the Administrative Arrangements Order must be satisfied that the Minister with responsibility for courts in that state or territory has been consulted.

51.                This requirement is intended to ensure that states and territories are aware of the family law jurisdiction to be conferred on their courts, and have an opportunity to express preferences as to the scope of that jurisdiction and the applicable rules.

52.                New subsection 69GA(6) would provide that new subsection 69GA(5) does not limit the requirement in section 17 of the Legislation Act 2003 that rule-makers should consult before making a legislative instrument. That section requires that the rule-maker must be satisfied that any consultation considered appropriate and reasonably practicable has been undertaken.

Item 7 - Application of amendments

53.                Item 7 would provide that new section 69GA inserted by Item 6 applies to decisions made on or after the commencement of Part 1, whether the proceedings in which the decision was made were instituted before, on or after that commencement.

Item 8 - Subsection 69J(1) (note)

54.                Item 8 would repeal the note under subsection 69J(1) and replace it with a note to confirm that section 69J applies to proceedings heard in a court prescribed by the regulations for the purposes of new section 69GA inserted by Item 6, in the same way as the section applies to proceedings heard in courts of summary jurisdiction.

55.                Section 69J sets out various matters relating to the jurisdiction of courts of summary jurisdiction. This amendment would provide consistency by confirming that the provisions of the Family Law Act relating to courts of summary jurisdiction apply equally to courts prescribed as having jurisdiction under Part VII of the Family Law Act by the regulations for the purposes of new section 69GA.

56.                The existing note under subsection 69J(1) would be repealed as it has been rendered redundant as a result of amendments to the Judiciary Act 1903 . This is because the meaning of this note is dependent on paragraph 39(2)(d) of the Judiciary Act, which was repealed by the Judiciary Legislation Amendment Act 2006 .

Item 9 - At the end of subsection 69N(1)

57.                Item 9 would insert a note under subsection 69N(1) to confirm that section 69N applies to proceedings heard in a court prescribed by the regulations for the purposes of new section 69GA inserted by Item 6, in the same way as the section applies to proceedings heard in courts of summary jurisdiction.

58.                Section 69N deals with the transfer of proceedings from courts of summary jurisdiction in certain courts. This amendment would provide consistency by confirming that the provisions of the Family Law Act relating to courts of summary jurisdiction apply equally to courts prescribed as having jurisdiction under Part VII of the Family Law Act by the regulations for the purposes of new section 69GA.

Item 10 - At the end of Division 12 of Part VII

59.                Item 10 would insert a new section 69ZL into the Act to provide that a court may give reasons in short form for a decision it makes in relation to an interim parenting order.

60.                This amendment would implement recommendation 3 of the Family Law Council’s 2015 Interim Report on Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems . In its report, the Council identified that a practical barrier to state children’s or magistrates’ courts exercising family law jurisdiction is that the writing of detailed judgments is not the usual practice of these courts. The Council noted that:

…it is not the regular practice of state and territory children’s courts to provide written judgments. Where a written judgment is supplied, it is usually much less detailed than a judgment of a family court in an interim matter. Allowing children’s courts and magistrates’ courts to provide family law interim decisions in short form will support an efficient use of a judicial officer’s time and help to ensure that family law work does not lead to hearing delays in these courts. [viii]

61.                Courts are already able to give reasons for any decision in short form, as long as the reasons are adequate. Adequate reasons are required by the implied guarantee of procedural due process in the exercise of judicial power. If they choose to give reasons for their decisions in short form, courts will still be obliged to ensure that those reasons are adequate. New subsection 69ZL(2) is intended to make this clear.

62.                The amendment is intended to encourage judicial officers to consider giving short form judgments in interim hearings, and to reduce the perceived barrier noted by the Family Law Council. The amendment is not intended to, and should not be read to, limit the courts’ existing powers in any way. For example, it should not be implied that courts cannot deliver short form judgments in final proceedings or in proceedings under other Parts of the Act.

63.                The Family Law Act already makes provision for short form judgments in relation to certain appeals. Existing subsections 94(2A) and 94AAA(7) provide that in dismissing an appeal from another court, the Full Court of the Family Court and the Family Court, respectively, may give reasons in short form.

Item 11 - At the end of section 96

64.                Item 11 would insert a new subsection into section 96 to confirm that the section applies to the proceedings in courts prescribed by regulation under new section 69GA (introduced by Item 6) in the same way that the section applies to proceedings heard in courts of summary jurisdiction.

65.                Section 96 of the Act sets out the procedure for appeals from courts of summary jurisdiction. In particular, subsection 96(1) provides that an appeal lies from a decree of a court of summary jurisdiction of a state or territory exercising jurisdiction under the Act to the Family Court or to the Supreme Court of that state or territory.

66.                The appeal pathway will generally be to the Family Court, as a proclamation under subsection 96(3), dated 27 May 1976, provided that appeals may not be instituted in the Supreme Courts of New South Wales, Victoria, Queensland, South Australia, Tasmania and the Northern Territory on and after 1 June 1976.

67.                This amendment would support the implementation of recommendation 1 of the Family Law Council’s 2015 Interim Report on Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems . The recommendation to clarify the jurisdiction of state and territory courts included a recommendation that the Government consider the appropriate process of appeal from family law decisions made by state and territory courts. It is appropriate that the existing appeal pathway described above also applies to courts prescribed by regulations as having jurisdiction under Part VII of the Family Law Act.

Item 12 - Application of amendments

68.                Item 12 would provide that new subsection 96(7) applies to decisions made after the commencement of Part 1, whether the proceedings in which the decision was made were instituted before, on or after that commencement.

Item 13 - Subsection 123(1)

69.                Item 13 would insert the words ‘subject to subsection 69GA(3)’ into subsection 123(1), to ensure that subsection 123(1) and new subsection 69GA(3) do not conflict with each other.

70.                Existing subsection 123(1) gives judges the power to make Rules of Court to be followed in the Family Court and any other courts exercising jurisdiction under the Act. Therefore, when state and territory courts of summary jurisdiction are exercising jurisdiction under the Act, they are required to follow the Family Law Rules made under section 123.

71.                New subsection 69GA(3) introduced by Item 6 will allow the regulations to prescribe different rules of court that are to apply in relation to section 69GA proceedings, when a court prescribed under section 69GA is exercising jurisdiction under the Act.

72.                This amendment would clarify that the Family Law Rules made under section 123 are to be followed in any other courts exercising jurisdiction under the Act, unless different rules have been prescribed for a court under new subsection 69GA(3).

Part 2 - Strengthening the powers of the courts to protect victims of family violence

Family Law Act 1975

Item 14 - After section 45

73.                Item 14 would insert new section 45A into the Family Law Act to clarify and modernise the powers of courts under the Act to summarily dismiss unmeritorious applications. It is not intended to change the matters that a court must be satisfied of when determining that a proceeding or defence should be dismissed. It would replace existing section 118, which would be repealed by Item 23.

74.                An explicit power to dismiss unmeritorious applications or arguments brought to harass a party would improve outcomes for victims of family violence by allowing a court to prevent the use of its courtroom as a tool for perpetrators of family violence to perpetuate violence. The new section would complement existing powers to manage proceedings, conferred on courts by Division 12A of Part VII of the Family Law Act (which provides principles for conducting child-related proceedings).

75.                This amendment would also improve court efficiency by providing greater clarity about when applications can be dismissed by the court.

76.                The Victorian Royal Commission into Family Violence noted with approval the inclusion of this amendment in a previous Bill - the Family Law Amendment (Financial Agreements and Other Measures) Bill 2015. The report of the Commission stated that “[s]uch an amendment may go some way to help courts dismiss applications where it is clear that parties are using proceedings merely as a means to further perpetrate violence” [ix] .

77.                Various stakeholders have raised concerns about this power being used in situations where victims of family violence who are litigants in person make mistakes which could make their cases appear unmeritorious. New section 45A includes strict parameters around when a court may dismiss an application. The court may only dismiss an application if it is satisfied that the application has no reasonable prospect of success, is vexatious or frivolous, or is an abuse of process. Given the high rate of litigants in person in the family law system, the family law courts have significant experience in working with litigants with limited legal backgrounds. The courts are well placed to identify the difference between a litigant in person who is underprepared due to inexperience or trauma, and a litigant whose case should be dismissed because it is an abuse of process or has no reasonable prospect of success.

78.                New subsections 45A(1) and (2) would allow the court to make a summary decree in favour of one party, in relation to the whole or part of a proceeding, if satisfied that a party has no reasonable prospect of successfully:

·          prosecuting the proceedings or part of the proceedings, or

·          defending the proceedings or part of the proceedings.

79.                New subsection 45A(3) would provide that, for the purposes of the section, in determining whether a defence or proceeding has no reasonable prospect of success, proceedings need not be hopeless or bound to fail.

80.                New subsection 45A(4) would empower the court to dismiss all or part of a proceeding if it is frivolous, vexatious or an abuse of process.

81.                New subsection 45A(5) would provide that proceedings or a part of proceedings are not to be considered frivolous, vexatious or an abuse of process just because a related application is made and later withdrawn.

82.                New subsection 45A(5) is intended to operate as a safeguard against the court misinterpreting the actions of victims of family violence who are litigants in person, who might make an application and then withdraw it for reasons other than the merits of their case, for example as a result of the power and control dynamics of family violence.

83.                New subsections 45A(6)-(8) would provide that:

·          the court may make costs orders as it sees fit

·          the court may take such action of its own volition, or on the application of a party to the proceedings, and

·          the new section does not limit any powers that the court has apart from this section.

84.                The reference to ‘court’ in this provision has the meaning given by subsection 4(1) of the Act, which provides that in relation to any proceedings, ‘court’ means the court exercising jurisdiction in those proceedings by virtue of the Act. The power of dismissal provided by new section 45A would be available to any court exercising jurisdiction under the Act.

85.                New section 45A is substantially similar to the powers the Family Court exercises under Part 10.3 of the Family Law Rules 2004 . The power in new section 45A to dismiss proceedings that have no reasonable prospect of success would also be substantially similar to the powers of the Federal Court and the Federal Circuit Court in relation to summary judgment. However, section 45A would differ from these powers by expressly conferring power to dismiss proceedings that are frivolous, vexatious or an abuse of process. The explicit power to dismiss frivolous or vexatious proceedings reflects the existing dismissal power in section 118.

86.                For consistency with other provisions of the Act, the new section would refer to making a decree, rather than giving judgment as in section 17A of the Federal Circuit Court of Australia Act 1999 and section 31A of the Federal Court of Australia Act 1976 . This is not intended to reflect any difference in policy between these provisions. Item 25 would amend the Federal Circuit Court of Australia Act 1999 to remove any overlap between the provisions.

Item 15 - Application of amendments

87.                Item 15 would provide that new section 45A inserted by Item 14 applies to all proceedings in the family law courts whether instituted before or after the commencement date.

Item 16 - At the end of subsection 60CC(1)

88.                Item 16 would add a note to the end of existing subsection 60CC(1) to alert the reader to the application of new subsection 68P(2C), inserted by Item 17 below, which would limit the requirement in subsection 60CC(1) that the court must consider certain matters in determining what is in a child’s best interests.

89.                As noted below, new subsection 68P(2C) would provide that when determining what is in a child’s best interests for the purposes of new subsections 68P(2A) and 69P(2B), the court is not required (but may choose) to consider the matters listed in existing subsection 60CC(3), despite the requirement in subsection 60CC(1).

Item 17 - After subsection 68P(2)

90.                Item 17 would insert new subsections (2A), (2B) and (2C) into section 68P to create exceptions to the requirement in subsection 68P to explain certain decisions of the court to children.

91.                Existing section 68P sets out the obligations of a court when making an order, or granting an injunction under the Act, that is inconsistent with an existing family violence order.

92.                Existing subparagraph 68P(2)(c)(iii) requires the court, to the extent to which the order or injunction provides for a child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with a child, to explain the order or injunction to the person protected by the family violence order (if that person is not the applicant or respondent). In some circumstances, the person protected by the family violence order may be a child.

93.                Existing paragraph 68P(2)(d) sets out the matters that the court must include in the explanation, and notes that the explanation must be in language the person is likely to readily understand.

94.                In practice, it can be difficult for the court to comply with the requirements of subparagraph 68P(2)(c)(iii) and paragraph 68P(2)(d) where the person protected is (or includes) a child. For instance, young children covered by the order or injunction, such as infants and toddlers, are unlikely to be able to grasp the concepts to be conveyed in the explanation. For older children it may not be in their best interest, and indeed may be distressing, to be exposed to parental controversy to the extent necessary to comply with the requirements.

95.                To address this, new subsection 68P(2A) would specify that the court is not required to provide the explanation mandated by subparagraph 68P(2)(c)(iii) to a child if the court is satisfied that it is in the child’s best interests not to receive an explanation of the order or injunction.

96.                Similarly, new subsection 68P(2B) would specify that the court is not required to include a particular matter otherwise required to be explained by paragraph 68P(2)(d) if the court is satisfied that it is in the child’s best interests for the matter not to be included in the explanation.

97.                New subsection 68P(2C) would provide that when determining what is in a child’s best interests for the purposes of new subsections 68P(2A) and 69P(2B), the court is required to consider the matters in existing subsection 60CC(2), but is not required (but may choose) to consider the matters listed in existing subsection 60CC(3), despite the requirement in subsection 60CC(1).

98.                Subsections 60CC(2) and (3) provide considerations to be taken into account in determining the best interests of a child. Subsection 60CC(2) provides that the primary considerations are the benefit to the child of having a meaningful relationship with both parents, and the need to protect the child from physical or psychological harm from being exposed to family violence. These would be relevant and beneficial considerations in a judge’s decision about whether to provide a child with an explanation of an order made which affects them. Subsection 60CC(3) provides an extensive list of additional considerations, not all of which would be relevant to such a decision. To require consideration of all those matters in the context of section 68P would be excessive and unnecessary.

99.                This subsection is intended to strike an appropriate balance between ensuring that judges do not dispense with an explanation lightly, and avoiding an excessive burden on judges to consider an extensive range of matters, given the relatively confined scope of the decision required of the court under new subsections 68P(2A) and (2B).

100.            While part of the rationale for the amendment is that the existing requirement can be difficult for the court to comply with in the case of a very young child, the new subsections do not specifically exclude the requirement on the basis of a child being ‘too young’. This term was considered to be too open to different interpretations. Under paragraph 60CC(3)(g) the court would still have the option of considering ‘the maturity… of the child… and any other characteristics of the child that the court thinks are relevant’. The effect of this paragraph is that the court is able to take into account the age or maturity of a child as one factor in considering the best interests of the child.

Item 18 - Subsection 68T(1)

101.            Item 18 would remove the word ‘earlier’ and replace it with the word ‘earliest’ to reflect the increased number of paragraphs in subsection 68T(1) after the amendment that would be made by Item 19.

Item 19 - Paragraph 68T(1)(b)

102.            Item 19 would repeal existing paragraph 68T(1)(b) and replace it with new paragraphs 68T(1)(b) and (c).

103.            This amendment would implement recommendation 4 of the Family Law Council’s 2015 Interim Report on Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems . The amendment is also consistent with recommendation 12 made by the Victorian State Coroner in the findings of the inquest into the death of Luke Geoffrey Batty.

104.            Existing section 68R of the Act provides that a state or territory court making a family violence order may revive, vary, discharge or suspend a parenting order, recovery order, injunction or other arrangement (together, ‘Order’) to the extent to which they provide for a child to spend time with a person. This is intended to ensure that family law Orders are consistent with a state or territory family violence order.

105.            Existing subsection 68R(4) restricts the court’s power when making an interim family violence order to revival, variation or suspension of an Order. Existing paragraph 68T(1)(b) places a strict 21 day time limit on the operation of a state or territory court’s revival, variation or suspension of an Order under section 68R, where that revival, variation or suspension occurs in the context of proceedings to make an interim family violence order or an interim variation of a family violence order.

106.            In that situation, if a party wants to have the family law Order amended in the way it was revived, varied or suspended by the state or territory court, the party has 21 days to bring a parenting matter in a family law court and have it heard.

107.            However, it is not always possible for families to file, or the federal family law courts to hear, such proceedings within a timeframe of 21 days after a state or territory court revives, varies or suspends the Order. Where this does not occur, the revival, variation or suspension will cease to have effect, and the parties may be subject to two valid, yet inconsistent, orders. This outcome has the potential to put children and their carers at risk of further family violence - for example if the interim family violence order prohibits or limits a parent’s contact with a child, and a parenting order allows the same parent greater contact with the child.

108.            To avoid situations which may result in inconsistent orders about parent-child contact, this amendment would remove the 21 day time limit and instead provide that the court’s revival, variation or suspension under section 68R ceases to have effect at the earliest of:

·          the time the interim family violence order stops being in force (existing paragraph 68T(1)(a))

·          the time specified in the interim order as the time at which the revival, variation or suspension ceases to have effect (new paragraph 68T(1)(b), and

·          the time that the Order is affected by an order made by a court, under s68R or otherwise, after the revival, variation or suspension (new paragraph 68T(1)(c)).

109.            This would mean that any revival, variation or suspension of an Order would always cease upon the expiration of the interim protection order, but judicial officers would have the flexibility to determine timeframes and relist matters to manage cases according to their particular circumstances. This provides certainty for victims of family violence.

110.            The use of the term ‘affected’ in new paragraph 68T(1)(c) is intended to capture orders made by a court that directly impact on the relevant Order or interim family violence order. The paragraph is not intended to include orders, injunctions or arrangements involving the parties that do not have direct relevance to the Order or interim family violence order.

111.            The amendment would not change existing subsection 68T(2), which provides that parties cannot appeal orders as to the revival, variation or suspension of an Order. Section 68T applies to proceedings for interim family violence orders or interim variations of family violence orders. Therefore, if a party is unhappy with the terms of the revival, variation or suspension of an Order, they may challenge it at the next or later hearing of the family violence order proceeding or through family court proceedings.

Item 20 - Application of amendments

112.            Item 20 would provide that the amendments to section 68T in Item 19 only apply to revivals, variations and suspensions made under section 68R after the commencement of this Part.

Item 21 - Section 102QA (note)

113.            Item 21 would repeal the existing note to section 102QA, which references section 118, and replace it with a new note referencing section 45A. This would reflect the amendment in Items 14 and 23, which would repeal existing section 118 and introduce new section 45A.

Item 22 - Subsection 117(1)

114.            Item 22 would remove the reference to section 118 from subsection 117(1) and replace it with a reference to new subsection 45A(6). This amendment would reflect the amendment in Items 14 and 23, which would repeal existing section 118 and introduce new section 45A.

115.            Subsection 117(1) provides that each party to proceedings under the Act shall bear his or her own costs, subject to the specific sections and subsections. New subsection 45A(6) allows the court to make such order as to costs as it considers just, if it makes a decree, or dismisses all or part of proceedings, under new section 45A.

Item 23 - Section 118

116.            Item 23 would repeal section 118, which enables the court to dismiss frivolous or vexatious proceedings and make costs orders as it sees fit.

117.            Section 118 would no longer be necessary as the amendment in Item 14 would introduce new section 45A, which would include and build upon the dismissal power in existing section 118.

Item 24 - Application of amendments

118.            Item 24 would provide that the repeal of section 118 in Item 23 applies to all proceedings under the Family Law Act whether instituted before or after the commencement date.

119.            Any action taken under section 118 before its repeal would not be affected by the repeal, as the section was in force when the action was taken.

Federal Circuit Court of Australia Act 1999

Item 25 - At the end of section 17A

120.            Item 25 would add new subsection 17A(5) to the Federal Circuit Court of Australia Act 1999 , which would limit the application of existing section 17A to when the Federal Circuit Court is exercising its general federal law jurisdiction.

121.            This would remove any overlap between the court’s existing summary dismissal power under section 17A, and the new family law summary dismissal power which would be introduced by Item 14. This would mean that the new section 45A of the Family Law Act would apply when the court was hearing family law matters, and the existing section 17A of the Federal Circuit Court Act would apply to all other matters.

122.            The amendment would also include a note under the new subsection 17A(5), which directs readers to section 45A of the Family Law Act if the court is exercising jurisdiction under that Act.

Part 3 - Other amendments

Family Law Act 1975

Item 30 - Subsection 114(2)

123.            Item 30 would repeal existing subsection 114(2), which permits the court to make an order relieving a party to a marriage from any obligation to perform marital services or render conjugal rights.

124.            The existence of this subsection could imply that there is a continuing obligation in Australian law to perform marital services or render conjugal rights. These concepts do not reflect current law, and are repugnant to modern principles of autonomy and equality within relationships.

125.            The amendment would implement recommendation 17-6 of the Australian and New South Wales Law Reform Commissions in their 2010 report Family Violence - A National Legal Response .

 




[i] Family Law Council: Final Report on Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems , p145.

[ii] Family Law Council: Final Report on Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems , p145.

[iii] Reserve Bank of Australia Inflation Calculator, accessed 16 October 2017.

[iv] Family Law Council: Interim Report on Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems , p100.

[v] Family Law Council: Interim Report on Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems , p101.

[vi] With the exception of ‘leave to adopt’ orders under section 60G.

[vii] This uncertainty has been discussed in a number of recent reports. See, for example, paragraphs 19.121 to 19.124 of the Australian and New South Wales Law Reform Commission’s 2010 report Family Violence - A National Legal Response , and Chapter 4 of the Family Law Council’s 2015 Interim Report on Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems .

[viii] Family Law Council: Interim Report on Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems , p103.

[ix] Victorian Royal Commission into Family Violence: Report and recommendations , Vol VI p202.