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Joint Select Committee on Australia's Family Law System

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Joint Select Committee on Australia's Family Law System Joint Select Committee on Australia’s Family Law System 20 December 2019 Telephone +61 2 6246 3788 • Fax +61 2 6248 0639 Email [email protected] GPO Box 1989, Canberra ACT 2601, DX 5719 Canberra 19 Torrens St Braddon ACT 2612 Law Council of Australia Limited ABN 85 005 260 622 www.lawcouncil.asn.au {00615048.docx} Table of Contents About the Law Council of Australia ............................................................................... 4 Acknowledgement .......................................................................................................... 5 Acronyms and abbreviations ......................................................................................... 6 Executive Summary ........................................................................................................ 7 Responses to the Terms of Reference .......................................................................... 9 Term of Reference (a) ................................................................................................... 9 Information sharing .................................................................................................... 9 Sub-clause (i) of the term of reference (a) ................................................................15 Sub-clause (ii) of the term of reference (a) ................................................................15 Comments by the Law Society of NSW ....................................................................19 Term of Reference (b) ..................................................................................................21 The ability of the Court to ensure parties provide truthful evidence ...........................21 The ability of the Court to ensure parties provide complete evidence ........................25 The ability of the Court to make orders for non-compliance ......................................26 The ability of the Court to enforce orders related to non-compliance.........................26 Term of Reference (c) ...................................................................................................28 Recommendation 1 ...................................................................................................29 Recommendation 2 ...................................................................................................35 Recommendation 3 ...................................................................................................37 Term of Reference (d) ..................................................................................................41 Introduction ...............................................................................................................41 Costs orders against lawyers ....................................................................................47 Costs – Notice of estimated costs and instructions from clients ................................58 Cancellation fees ......................................................................................................61 Capping fees ............................................................................................................61 Streamlining the Court’s listings ................................................................................62 Term of Reference (e) ..................................................................................................64 Term of Reference (f) ...................................................................................................70 Identification of the families accessing family law proceedings – what the science and statistics show ....................................................................................................70 Impact on these families involved in family law proceedings .....................................76 What are some of the positive things implemented to manage risk and lessen negative impact on children and their families? .........................................................81 ALRC Recommendations to better support children and their families ......................84 Positive impact .........................................................................................................85 Term of Reference (g) ..................................................................................................85 Term of Reference (h) ..................................................................................................89 Performance and monitoring of the family law system ..............................................89 Joint Select Committee on Australia’s Family Law System Page 2 Performance and monitoring of professionals in the family law system .....................92 Independent Children’s Lawyers (ICLs) ....................................................................94 Family Report writers ................................................................................................94 Judges ......................................................................................................................96 Term of Reference (i) .................................................................................................. 100 Reforms to the CSS ................................................................................................ 104 The current child support system ............................................................................ 107 Child Support Agreements ...................................................................................... 110 Limited Child Support Agreements .......................................................................... 110 Binding Child Support Agreements ......................................................................... 111 Arbitration in child support matters .......................................................................... 113 Conclusion .............................................................................................................. 113 Term of Reference (j) .................................................................................................. 115 Background matters ................................................................................................ 115 Statutory provisions ................................................................................................ 117 The categories of financial agreements .................................................................. 118 The transitional provisions for state and territory cohabitation agreements ............. 118 Family Law Amendment (Financial Agreements and other Measures) Bill 2015 – currently dormant .................................................................................................... 119 Other changes to the FLA which would make Financial Agreements more effective .................................................................................................................. 120 Term of Reference (k) ................................................................................................. 123 Conclusion ................................................................................................................... 124 Joint Select Committee on Australia’s Family Law System Page 3 About the Law Council of Australia The Law Council of Australia exists to represent the legal profession at the national level, to speak on behalf of its Constituent Bodies on national issues, and to promote the administration of justice, access to justice and general improvement of the law. The Law Council advises governments, courts and federal agencies on ways in which the law and the justice system can be improved for the benefit of the community. The Law Council also represents the Australian legal profession overseas, and maintains close relationships with legal professional bodies throughout the world. The Law Council was established in 1933, and represents 16 Australian State and Territory law societies and bar associations and the Law Firms Australia, which are known collectively as the Council’s Constituent Bodies. The Law Council’s Constituent Bodies are: • Australian Capital Territory Bar Association • Australian Capital Territory Law Society • Bar Association of Queensland Inc • Law Institute of Victoria • Law Society of New South Wales • Law Society of South Australia • Law Society of Tasmania • Law Society Northern Territory • Law Society of Western Australia • New South Wales Bar Association • Northern Territory Bar Association • Queensland Law Society • South Australian Bar Association • Tasmanian Bar • Law Firms Australia • The Victorian Bar Inc • Western Australian Bar Association Through this representation, the Law Council effectively acts on behalf of more than 60,000 lawyers across Australia. The Law Council is governed by a board of 23 Directors – one from each of the constituent bodies and six elected Executive members. The Directors meet quarterly to set objectives, policy and priorities for the Law Council. Between the meetings of Directors, policies and governance responsibility for the Law Council is exercised by the elected Executive members, led by the President who normally serves a 12 month term. The Council’s six Executive members are nominated and elected by the board of Directors. Members of the 2019 Executive as at 14 September 2019 are: • Mr Arthur Moses SC, President • Ms Pauline Wright, President-elect • Dr Jacoba Brasch QC, Treasurer • Mr Tass Liveris,
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