Family Law Amendment Bill 2023

The two objects included in the proposed redraft are an excellent and much-needed change that will return the focus to the best interests of the child, instead of parental entitlement.

This will make it much easier for the Court, mediators and parents to focus on the best interests of the children.

This is excellent wording and should be retained in the finalised version, particularly the prioritising of children’s safety over having a relationship with each parent; the prioritising of the safety of the child’s caregiver/s; the focus on each parent’s capacity to provide for the child’s developmental, psychological and emotional needs; and consideration of the carer’s willingness to seek help. This wording supports the safety of children and caregiver-victims of DV. This wording will reduce use of the system to perpetrate abuse.

The simplified structure is easier to understand and ensures all considerations are given appropriate consideration.

In Court and mediations, we need to shift from the current situation of the victim of DV, or carer of a child victim, having to prove the perpetrator is a risk to the children and/or their caregiver, to a new system in which perpetrators have to prove they are safe to care for children and co-parent with the caregiver. This change would align with the Family Law Amendment Bill focus of prioritising the best interests of the child. Forcing the victim to raise the issue of risk endangers their safety by encouraging perpetrators to intimidate the victim in order to deter the victim from raising concerns. If they succeed in intimidating the victim, risks to the children’s safety may not be considered in Court/mediation. Forcing the victim to prove risk also inflames the perpetrator’s blaming of the victim instead of encouraging them to take responsibility for their own actions, and is costly and damaging to the psychological recovery of victims. This same shift of responsibility could also be made in cases of severe substance misuse and severe psychiatric issues, in order to protect the best interests of children, encourage responsibility and reduce conflict between parents.

Yes

The removal of the requirement to encourage parents to consider particular time arrangements is good because time arrangements should be tailored to the circumstances of the specific child/ren and their family, not one size fits all. It is also good because under the current law, fear of children being forced to spend unsafe amounts of times with abusers is deterring victims of DV from leaving the abusive relationship. The removal of equal shared parental responsibility is also a great step forward as this has been used abusively by perpetrators of DV, to control the victim by withholding or threatening to withhold consent to important health and educational interventions for children. Requiring victims to consult perpetrators places them in unsafe situations and perpetuates DV and is not in the best interests of children. The meaning of equal shared parental responsibility is also very much misunderstood, leading to insistence by perpetrators on consultation on every minor day-to-day decision.

No. I do not think it is necessary to set out the meaning of an order for shared parental responsibility, when the presumption of this has been removed. I think this could be misinterpreted as the Court encouraging shared parental responsibility. When such an Order is made, the meaning could be placed in a Notation if it is considered to be unclear.

These capture my understanding of the goals of the enforcement regime and are good.

It is important to continue the planned change so that the Court must make a costs order, unless the Court is satisfied it is not appropriate to do so. The current system favours the person who breaches Orders, because the only way the victim can inform the Court is by funding an Application to the Court and a Court hearing. The cost of this means that victims feel they have to tolerate breaches and this lack of consequences for breaches undermines the authority of the Court and renders Orders meaningless.

It is very important to proceed with the planned approach, in which there is no limit to the circumstances in which a court may deal with a contravention of child-related orders that arise in proceedings. If it is specified that the court may only consider a contravention matter on application from a party, parties who are the victim of breaches will be deterred from informing the Court, due to the prohibitive cost of making an Application and the likelihood of attracting revenge from the perpetrator. In turn, the lack of enforcement of Court orders undermines the authority of the Court and encourages further breaches.

I would like the government to consider setting up an online reporting portal for breaches of Court Orders. Currently the Court only becomes aware of a breach of Court Orders if the victim has sufficient funds for the preparation of an Application to the Court and for a Court Hearing. As this can be tens of thousands of dollars in legal fees, Court Orders become meaningless when victims lack financial resources (and perpetrators know this). A free online reporting portal could be monitored at low cost by specially trained, lower ranked Court staff. These staff could cancel inappropriate or malicious reports (with a range of penalties available to discourage this) and put forward appropriate reports for consideration at the next Court date (when there is one) or in a separate hearing, where appropriate.

(While parties can self-represent, most victims of DV lack the legal knowledge and skills required and are also terrified of facing their perpetrator and perpetrator’s lawyer in Court without the protection of a lawyer on their own side, so this is not a realistic option for most.)

Yes, although it is unclear whose responsibility it is to identify that the child would be at risk of harm from the ICL performing this duty.

This is a good start. However, lawyers are not trained in child development or counselling skills. The way in which lawyers speak can upset grown adults. Given the percentage of Family Court cases that involve DV, mental health issues and/or substance abuse, all children going through the Family Court system are likely to have experienced trauma, although this may not have been diagnosed or documented in material available to the ICL. In addition, parents have often worked hard to shield their child from the Court process and hope the children will forget conflict witnessed prior to separation and associated fears. Court Orders also sometimes specifically mandate that parties do not discuss Court proceedings with children. Therefore, there is a risk of ICLs accidentally re-traumatising children with their questioning. There is also a risk of ICLs misinterpreting normal developmental child responses to questions about living arrangements. These problems might be solved by adding the specification that ICLs should meet children in the company of the Family Report Writer, or where there has been no family report, a court-appointed Family Consultant. The ICLs should also have a discussion with the Family Consultant prior to the arrival of the children, about what information they wish to obtain from the children. The Family Consultant could then discuss with the ICL a plan for appropriate questioning and interpretation of responses, based on the developmental stage and psychological needs of the child. It may also be appropriate to specify that questions should be asked by the Family Consultant, with the ICL observing. The Family Consultant could also assist with managing any child distress that arises in the meeting, which lawyers are not trained to deal with.

Given the percentage of Family Court cases that involve DV, mental health issues and/or substance abuse, all children going through the Family Court system are likely to have experienced trauma. I think precautions to avoid re-traumatising children should be the rule rather than the exception. For example, ICLs discussing the information they seek with the Family Report Writer or court-appointed Family Consultant in cases that have not yet had a Family Report, and being advised, accompanied and assisted by the Family Report Writer/Family Consultant when interviewing children.

No

This will have a beneficial impact.

Yes. This is a very important step forward in reducing financial and emotional destruction of parents within the Court system, which then harms their children due to significantly impairing parents’ caregiving capacity. This should be implemented the day after the Bill receives Royal Assent, with judges having the capacity to make these Orders for all cases in which a Final Hearing has not yet taken place. There is no justification for allowing vexatious litigation to continue during a lead-in period as this is simple, easily understood and protects families from great harm.

Yes

These tests are good. I think it is a great step forward that these tests allow the Court to make this Order at the Court’s discretion (rather than requiring the victim to be aware of the possibility of obtaining this and have the capacity to seek this). I also think it is particularly good that these tests allow the Court to make harmful proceedings orders pre-emptively, instead of waiting until after the harm of repetitive applications has already occurred.

Potentially some perpetrators of DV or people who engage in other forms of behaviour harmful to children or their caregivers, may claim that further proceedings would cause them psychological distress, in order to prevent further harmful behaviour being raised with the Court. It may be useful for the Court to specify that in order to make a harmful proceedings order, the Court would need to be satisfied the harm to the respondent from the filing of future applications naming the respondent, would outweigh benefits to the child.

The wording is good and Court case management flow per the Central Practice Direction should also be modified to enable the most efficient and least costly progress of cases through the system, so that the practice matches the purpose. For example, the Court process is currently prolonged by waiting for hearings at which the only action is to book the next available date for a hearing (which is by then a long time away), or for which the only action is to appoint an expert or ask an ICL for the directions they seek. Examples of this include Mentions and Compliance and Readiness Check hearings. Prolonging court proceedings results in children being in unsafe situations for long periods and their caregivers being placed under significant financial and emotional strain for longer periods, impairing their caregiving. (Costs for the same number of hearings increase when the hearings are spaced out, due to the greater time provided to perpetrators to harass and intimidate their victims.) A solution would be to set the date for the next major court event at the previous major court event (for example, when an initiating application is made to Court, the interim hearing date could be set, and at the interim hearing, the final trial date could be set). Mentions and procedural hearings could be scheduled in the intervening period, and the major court dates could be cancelled if necessary (there are always other families who would be glad to be moved forward on a cancellation).

In order for family law procedure to match the overarching purpose, the case management powers of the Court need to be strengthened so that the Court can more strictly penalise parties who deliberately subvert Court procedures. For example, parties who delay filing their material until the day before a Court hearing for which there has been ample preparation time should not have their material included in the hearing unless they can prove adequate reasons for the delay. (The onus needs to be on the perpetrator of this action proving adequate reason and not on the other party to prove this is problematic, incurring costs for the victim and anger towards the victim from the perpetrator). Parties who dispose of assets between an Application and the hearing and parties who fail to provide financial disclosure should also have automatic penalties commensurate to the impact on the other party (e.g. being required to pay or be indebted to the victim for an amount commensurate with the lost asset or estimated value of the undisclosed asset), with the onus being on the perpetrator to prove why this should not happen. This behaviour should also be identified by the Court and penalised when it comes to the Court’s attention, rather than requiring the victim to fund an Application to draw this to the Court’s attention.

While the importance placed by FCFCOA on negotiation between parties throughout the Court process has admirable aims, there needs to be safeguards in place to prevent the abusive use of negotiation and ensure it occurs within the overarching purpose of family law practice and procedure. Currently parents are told that if they refuse to participate in negotiation, this will go against them in Court. Therefore, they feel compelled to continue to engage in protracted, expensive and distressing negotiations that are not in good faith, and impair their ability to parent their children. A solution would be for the FCFCOA rules to provide a specified number of correspondences, time in which a party has waited for a response, and duration of unsuccessful negotiation, after which parties can refuse to negotiate without fear of Court penalty. Examples of the abusive use of negotiation include a party repeatedly sending back draft documents with changes that render them unable to be filed, requiring the other party’s lawyer to repeatedly modify and re-send at great cost; a party repeatedly sending legal correspondence expressing their sincere desire to finalise an agreement but never actually doing so (with the receiving lawyer charging for all this correspondence); and one party accruing a large legal bill due to repeatedly having to chase the other party to complete legally agreed actions.

The Court needs to be able to apply penalties to parties who perpetrate emotional abuse (including gaslighting) via legal correspondence and lawyers who facilitate this, so that family law practice is in line with the overarching purpose. Emotional abuse via legal correspondence causes deteriorating mental health and therefore deterioration in parenting capacity during the course of legal proceedings, which harms children. Legal correspondence should only be fact-based and relevant to matters under negotiation.

Financial abuse is part of domestic violence and for this reason, a legal system in which tens of thousands to hundreds of thousands of dollars are required for adequate legal representation disadvantages victims and forces compliance with perpetrators and non-reporting of risk to children. This is not in line with the overarching purpose of family law practice and procedure. (Parties whose legal expenses are greater than their income are NOT currently eligible for Legal Aid. To be eligible for Legal Aid, parents must be in a position of such severe financial hardship that their ability to care for their children would be significantly impaired, and even then, a grant of Legal Aid is not certain. It is also not in the best interests of children to wait until that point before providing assistance. Duty lawyers available in Court on the day cannot assist with all the preceding legal paperwork required and do not have adequate time to familiarise themselves with reams of subpoenaed evidence etc.) Some possible solutions include:
• Setting up student law clinics on university campuses, similar to the existing university health clinics, in which students provide cheap services to the public while under the supervision of experienced professionals. This provides the students with valuable training and meaningful, practical assignments as well as benefiting the public.
• Having a publicised central phone number per state and/or online form via which parties can register to be on a central database of parties requiring pro bono or discount legal representation. Lawyers who are able to volunteer their time could then access this.

This is an excellent step forward to protect victims of DV from systems abuse and to enable them to get the health care they need, without fear of revealing vulnerabilities to the perpetrator that are then used to further target and humiliate them personally as well as in Court. It is excellent that under the proposed changes, the onus of proving the need for the information to go before the Court, will be on the person wishing to issue the subpoena, BEFORE issuing it. Under the current system, people whose private health care records are subpoenaed can only object after the information has already been subpoenaed, and must be able to afford to initiate an application to Court and a Court hearing on the matter, determination of which requires judicial officers and potentially the other party’s lawyer, reading the private material and thereby breaching the victim’s privacy anyway. It is also traumatic for the victim to have to read through the subpoenaed information unsupported in order to object.

Yes

This test is appropriate. Yes, the onus of proving that evidence of protected confidences should be admitted, should definitely be on the party seeking to admit the evidence, BEFORE subpoenas are issued, as planned in the draft Family Law Amendment Bill. Under the current system, people whose private health care records are subpoenaed can only object after the information has already been subpoenaed, and must be able to afford to initiate an application to Court and Court hearing on the matter, determination of which requires judicial officers and potentially the other party’s lawyer, reading the private material and thereby breaching the victim’s privacy anyway. It is also traumatic for the victim to have to read through the subpoenaed information in order to object.

Yes, for the reasons mentioned in the consultation paper.

Yes

It would be good to clarify whether discussing court proceedings with family/friends/other members of the person’s support network/their health professionals such as therapists breaches solicitor-client privilege. Currently parties to Court proceedings often are advised that they cannot discuss legal advice and proceedings with their support network without risking their private client-solicitor correspondence being brought before the Court, which reduces their capacity to cope with the stress of going through Family Court.

Yes

Yes

I think it needs to be clearer that this covers anyone who provides a single expert report to the Court, such as psychiatrists who provide a single expert report that is not a Family Report, but is instead a psychiatric report on one or both parents (these are often court-ordered and/or requested by Family Report Writers). Currently it can be interpreted as only applying to Family Reports.

There needs to be specified required content for Family Reports and Single Expert Psychiatric Reports prepared for Court, and requirements for the assessment process followed by these professionals for the purposes of preparing the report.

For example, the giving or removal of a mental or physical health diagnosis is a serious matter that must be based upon assessment of the relevant diagnostic criteria by interview and validated assessment measures and review of any collateral information. The assessment of risk in parenting matters is also a very serious matter that affects the future of children and their caregivers, and therefore regulations should include specific criteria that must be assessed. Any statements about risk or mental or physical health conditions of the parties must be supported by evidence of specific thoughts, behaviour or functional limitations of the parties rather than opinion only, or cut and pastes of generic statements about such conditions.

Recommendations need to be tailored to the specific needs, strengths and limitations of the children and their caregivers, rather than generic recommendations cut and pasted across case reports.

Reports need to summarise existing evidence and when the writer comes to a different conclusion from previous professionals, the reasons need to be presented. This would ensure existing evidence is appropriately considered by the report writer and the professionals and judicial officers reading the report.

The assessment process should be equitable, with both parties provided with the same interview format (e.g. online or face to face, unless there are justifiable reasons such as one party being overseas), and the opportunity to share their views about any aspect of their situation that will form part of the writer’s assessment.

There should also be a mandated minimum length for interviews so that these crucial assessments which determine children’s future are not rushed due to the profiteering practice of scheduling many brief interviews into one day.

There needs to be avenues for early and swift review and revocation of reports that do not meet criteria. There can be many months or over a year between the issuing of reports and the final trial in which they can be challenged. During that time, erroneous reports can form the basis of harmful parenting decisions, such as a child being placed in unsupervised care of a person who is a risk to the child, or the child being removed from a parent who is not a risk. This would also allow time for a new report to be sought, when the former report is ruled to be erroneous. Erroneous reports should also be able to be removed from the Court records and portal and replaced by a note with the Court’s findings about the reliability and validity of the report, or if that is not possible, there should be a mechanism allowing a covering sheet with the above to be attached to all appearances of the report within the Court records and portal. Costs orders for such reviews should be able to be made against the report writer when found guilty of negligence, malpractice or false and misleading statements; and against complainants when the complaint has been found to be vexatious.

Court-ordered single expert psychiatrist reports should be filed in the subpoena section with the same prohibition of copying that apply to other medical/health/counselling records. It does not make sense that there are heavy restrictions on access to other kinds of personal records but reports written for Court about intimate relationship details and psychological vulnerabilities can be downloaded from the Courts portal (or handed to clients by their lawyers), and used by abusive parties to harass, blackmail or publicly humiliate their ex-partner. (While current Court protocols do not permit dissemination of these reports, this is currently reliant upon the obedience of parties and the capacity of a victimised party to initiate Court proceedings to address any breach.) In cases of DV, consideration should also be given to making such reports for legal professionals’ eyes only, or if they are required to be shared with the parties’ medical practitioners, only the portion of the report about each party could be provided directly to their health professional, with the health professional required to commit to not sharing it. (Similar to current provisions for Family Report Writers to have electronic copies of subpoenaed medical records.)

The current practice of both parties being referred for psychiatric assessments when only one has identified mental health issues needs to stop. This encourages abusive partners to make false allegations about the other partner’s mental health in order to discredit their allegations and encourages psychiatrists to look for vulnerabilities in the victim, which are then shared with and used by the abusive partner. Where there are concerns about the truthfulness of the partner with identified mental health issues, the court-appointed psychiatrist could be requested to hold a collateral information interview with the other partner. In addition to protecting victims, this would enable a far more thorough assessment of the partner with identified mental health issues, as all of the interview time could be spent on relevant issues rather than seeking to identify problems with the victim. Furthermore, parties should only be referred for psychiatric assessments when existing evidence of mental health is insufficient, as the waiting time for such assessments significantly prolongs the Court process.

Standards for Single Expert Witnesses should include demonstrated experience and expertise in the specific issues that are to be addressed by their report. Just as an orthopaedic surgeon should not be called upon to write an expert report about an obstetric issue simply because they are both doctors, a psychiatrist should not make conclusions in a report about a mental health issue with which he has little experience or training, or about a physical health issue. There also needs to be a mechanism via which the Court can refer the writer of an invalid or unreliable report to their profession’s regulatory body, with the report in question and associated court judgements anonymised to protect the confidentiality of the parties.

All changes should commence the day after the Bill receives Royal Assent, as planned for the part about widening the consideration of family violence in ATSI systems, because all the proposed changes are designed to protect the safety and best interests of children and their caregivers, based upon evidence that children and their caregivers are suffering significant harm within the current system. Court decisions are altering the lives of children and their caregivers every day and the government has a duty of care to ensure this is not allowed to continue now that it has been identified and legislation drafted. The Bill should apply to any Court hearings that commence after the Bill receives Royal Assent (not only Court hearings for which the original application to Court was made after the Bill was passed). This is because the amount of time families have spent waiting in the system should not prevent their case from being considered under legislation designed to improve the safety of children and their caregivers. The only part of the Bill that requires lead-in time is requirements for specific qualifications/training of report writers. The Bill could go into effect with a provision allowing report writers a specified grace period (such as six months) to attain the necessary qualifications/training. The process of finalising the Bill and seeking Royal Assent needs to be expedited.