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Improvements in Family Law Proceedings Joint Select Committee on Australia’s Family Law System Improvements in family law proceedings Second interim report March 2021 © Commonwealth of Australia ISBN 978-1-76093-183-4 (Printed Version) ISBN 978-1-76093-183-4 (HTML Version) This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 4.0 International License. The details of this licence are available on the Creative Commons website: https://creativecommons.org/licenses/by-nc-nd/4.0/. Printed by the Senate Printing Unit, Parliament House, Canberra. Members Chair Hon Kevin Andrews MP Menzies, VIC Deputy Chair Senator Pauline Hanson PHON, QLD Members Dr Anne Aly MP Cowan, WA Senator Claire Chandler LP, TAS Dr Fiona Martin MP Reid, NSW Senator Matt O'Sullivan LP, WA Mr Graham Perrett MP Moreton, QLD Senator Helen Polley ALP, TAS Ms Zali Steggall OAM MP Warringah, NSW Mr Terry Young MP (from 7.09.2020)1 Longman, QLD Participating Member Senator Larissa Waters AG, QLD Senator Malcolm Roberts PHON, QLD Former Members Senator Tim Ayres (19.09.2019–15.10.2019) ALP, NSW Mr Llewellyn (Llew) O’Brien MP (until 24.02.2020) Wide Bay, QLD Department of the Senate Ph: 02 6277 3439 PO Box 6100 Fax: 02 6277 5809 Parliament House E-mail: [email protected] Canberra ACT 2600 Internet: www.aph.gov.au/select_familylaw 1 House of Representatives; Votes and Proceedings, No. 71 Tuesday, 6 October 2020, p. 1224. See also, House of Representatives, Proof Hansard, 6 October 2020, p. 4. The House of Representatives appointed Mr Young on 6 October 2020 with his appointment being effective from 7 September 2020. iii Terms of Reference That a joint select committee, to be known as the Joint Select Committee on Australia’s Family Law System, be established to inquire into and report on the following matters: (a) ongoing issues and further improvements relating to the interaction and information sharing between the family law system and state and territory child protection systems, and family and domestic violence jurisdictions, including: (i) the process, and evidential and legal standards and onuses of proof, in relation to the granting of domestic violence orders and apprehended violence orders, and (ii) the visibility of, and consideration given to, domestic violence orders and apprehended violence orders in family law proceedings; (b) the appropriateness of family court powers to ensure parties in family law proceedings provide truthful and complete evidence, and the ability of the court to make orders for non-compliance and the efficacy of the enforcement of such orders; (c) beyond the proposed merger of the Family Court and the Federal Circuit Court any other reform that may be needed to the family law and the current structure of the Family Court and the Federal Circuit Court; (d) the financial costs to families of family law proceedings, and options to reduce the financial impact, with particular focus on those instances where legal fees incurred by parties are disproportionate to the total property pool in dispute or are disproportionate to the objective level of complexity of parenting issues, and with consideration being given amongst other things to banning ‘disappointment fees’, and: (i) capping total fees by reference to the total pool of assets in dispute, or any other regulatory option to prevent disproportionate legal fees being charged in family law matters, and (ii) any mechanisms to improve the timely, efficient and effective resolution of property disputes in family law proceedings; (e) the effectiveness of the delivery of family law support services and family dispute resolution processes; (f) the impacts of family law proceedings on the health, safety and wellbeing of children and families involved in those proceedings; (g) any issues arising for grandparent carers in family law matters and family law court proceedings; v (h) any further avenues to improve the performance and monitoring of professionals involved in family law proceedings and the resolution of disputes, including agencies, family law practitioners, family law experts and report writers, the staff and judicial officers of the courts, and family dispute resolution practitioners; (i) any improvements to the interaction between the family law system and the child support system; (j) the potential usage of pre-nuptial agreements and their enforceability to minimise future property disputes; and (k) any related matters. vi 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. 1 See discussion of this issue in Chapter 3. 2 See discussion of this issue in Chapter 4. vii 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. viii 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
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