Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2022-2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
FAMILY LAW AMENDMENT BILL 2023
ADDENDUM TO THE EXPLANATORY MEMORANDUM
(Circulated by authority of the
Attorney-General, the Hon Mark Dreyfus KC MP)
FAMILY LAW AMENDMENT BILL 2023
This addendum:
1. responds to concerns raised by the Senate Standing Committee for the Scrutiny of
Bills in its Scrutiny Digest 5 of 2023 dated 10 May 2023 and Scrutiny Digest 6 of
2023 dated 14 June 2023
2. responds to a request for further human rights analysis raised by the Parliamentary
Joint Committee on Human Rights in Report 5 of 2023, and
3. makes other minor corrections and clarifications in relation to Schedules 4, 5, 6 and 8.
GENERAL OUTLINE
1. On page 58, at the end of paragraph 284, after the sentence: 'In these circumstances,
the ICL should organise for an alternative method for the child to communicate their
views, for example, a letter or electronic communication.' Insert:
The ICL is to be guided by the evidence and information available to them and the
facts and circumstances of the case.
ICLs may refer to external evidence when determining whether the child does or does
not wish to meet or express views. For example, advice that the child has previously
expressed strong wishes to a family consultant or other expert that they did not want
to be involved in proceedings or did not want to engage with the ICL.
ICLs may also wish to refer to evidence from a parent or carer of the child that a child
does not wish to engage with the ICL. The weight to be given to this advice is at the
professional discretion of the ICL.
2. On page 58, at the end of paragraph 285, after the sentence: 'This subsection
acknowledges that there may be circumstances where it is not in the best interests of
the child for the ICL to perform one or both of the duties in subsection 68LA(5A) to
meet with the child and to provide an opportunity to express a view.' Insert:
The ICL is to be guided by the evidence and information available to them and the
facts and circumstances of the case.
An ICL may seek external advice or evidence to support an assessment of whether
there are exceptional circumstances. For example, information or advice from a
family consultant or other expert involved in the matter or a treating practitioner about
relevant risks or adverse effects on the child.
ICLs may also wish to refer to evidence from a parent or carer of the child to
determine whether there are exceptional circumstances. The weight to be given to this
advice is at the professional discretion of the ICL.
3. On page 59, at the end of paragraph 289, after the sentence: 'The court must consider
this prior to final orders being made.' Insert:
While the court must consider whether an ICL should meet with the child or provide
the child with an opportunity to express a view if the ICL has not done so prior to
final orders, and must order the discharge of duties if no exception applies, it is at the
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discretion of the court to make these determinations based on the evidence available
and having regard to the best interests of the child. It is important that ICLs meet with
children and provide children with an opportunity to express a view in every
appropriate case, and that the court provide oversight of this critical responsibility.
4. On page 64, after the end of the last dot at paragraph 323: 'in the case of child-related
proceedings (within the meaning of Part VII), the child who is the subject of the
proceedings would suffer harm if the first party instituted further proceedings against
the other party.' Insert:
The requirement for the court to be satisfied that there are 'reasonable grounds' under
new subsection 102QAC(1) is intended to ensure that the court does not need to be
satisfied that the respondent has actually suffered harm to make a harmful
proceedings order. This is to make sure that parties who may suffer harm from
proceedings do not have to experience harm for an order to be made. The court will
need to be satisfied of this test, based on the evidence before it and the circumstances
of each matter.
5. To address the Senate Standing Committee for the Scrutiny of Bills concerns:
6. On page 77, after the sentence: 'Subsection 114Q(2) also contains a note that makes
clear that a defendant bears an evidential burden in relation to the matters in this
subsection as per the principle codified in subsection 13.3(3) of the Criminal Code
1995 (Cth).' Insert:
It is considered necessary that the evidential burden rests with the defendant as court
approval to communicate may not necessarily be contained in written communication
or court orders and may be provided in non-written communication, for example
during dispute resolution conferences where no orders are made and no transcripts are
recorded. In such circumstance, knowledge of non-written approval provided to a
defendant is unlikely to be readily available to the prosecution.
7. On page 78, after the sentence: 'Subsection 114R(2) also contains a note that makes
clear that a defendant bears an evidential burden in relation to the matters in this
subsection as per the principle codified in subsection 13.3(3) of the Criminal Code
1995 (Cth).' Insert:
It is considered necessary that the evidential burden rests with the defendant as court
approval to communicate may not necessarily be contained in written communication
or court orders and may be provided in non-written communication, for example
during dispute resolution conferences where no orders are made and no transcripts are
recorded. In such circumstance, knowledge of non-written approval provided to a
defendant is unlikely to be readily available to the prosecution.
8. On page 78, after the sentence: 'This is an important safeguard in addition to the
Prosecution Policy of the Commonwealth which requires that a prosecution only be
pursued where there is sufficient evidence to prosecute the case, and the prosecution
would be in the public interest.' Insert:
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This safeguard also prevents against unfounded private prosecutions. This is
necessary in the family law context to ensure that parties to proceedings do not seek
to pursue proceedings for alleged breaches of new Part XIVB which are based on
improper personal or other motives and which if pursued, may have adverse outcomes
for those experiencing family violence and abuse. The Bill does not intend to limit
law enforcement officials or private persons from seeking consent from the Director
of Public Prosecutions to commence proceedings.
9. On page 77, after the sentence: 'This is to allow a court to publish its necessary daily
lists setting out the parties, court rooms and judicial officers hearing the proceedings.'
Insert:
It is also intended that lawyers be permitted to provide clients with daily court lists
that have been publicly communicated by the court for the purpose of their family law
matters.
10. On page 85, at the end of paragraph 460, after the sentence: 'The regulations would
not establish fees to recover other costs associated with the general administration of a
regulatory scheme.' Insert:
New paragraph 11K(2)(i) does not limit the amount of the fee that may be imposed,
so that fees may remain aligned with future regulations and keep pace with change
over time. Any fees charged to professionals who prepare designated family reports
that are set out in regulations made under paragraph 11K(2)(i) must not be such as to
amount to taxation.
11. Item 1 - Subsection 284(1):
In paragraph 479, omit 'This would trigger a review of the FCFCOA Act to be
conducted between 1 September 2026 and 31 March 2027' and substitute 'This would
trigger a review of the FCFCOA Act to be conducted after 1 September 2026'.
In paragraph 480, omit 'It would be conducted between 1 September 2024 and
31 March 2025.'
The amendment is to address a drafting error in the Explanatory Memorandum and
ensure consistency between the Explanatory Memorandum and the text of the Bill.
STATEMENT OF COMPATIBILITY
1. On page 6, bottom of paragraph 4 insert:
• Right to protection of the family: Articles 17 and 23(1) of the ICCPR; and
Article 10(1) of the International Covenant on Economic, Social and Cultural
Rights (ICESCR); and Article 5 of the CRC
2. On page 15, insert the following new paragraphs after paragraph 63:
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Right to protection of the family: Articles 17 and 23(1) of the ICCPR; and Article 10
of the ICESCR; and Article 5 of the CRC
64. Article 17(1) of the ICCPR provides that no person shall be subjected to
arbitrary or unlawful interference with regards to their family.
65. Article 17(2) of the ICCPR provides that 'everyone has the right to the
protection of the law against such interference or attacks' as mentioned in
article 17(1).
66. Article 23(1) of the ICCPR provides that '[t]he family is the natural and
fundamental group unit of society and is entitled to protection by society and
the State'.
67. Article 10(1) of the ICESCR provides that '[t]he widest possible protection
and assistance should be accorded to the family, which is the natural and
fundamental group unit of society, particularly for its establishment and while
it is responsible for the care and education of dependent children'.
68. Article 5 of the CRC provides that the responsibilities, rights and duties of
parents shall be respected or, 'where applicable, the members of the extended
family or community as provided for by local custom, legal guardians or other
persons legally responsible for the child, to provide, in a manner consistent
with the evolving capacities of the child, appropriate direction and guidance in
the exercise by the child of the rights recognized in the [CRC]'.
Repeal of the presumption of equal shared parental responsibility
69. The Bill will repeal the presumption contained in section 61DA of the
Family Law Act. The Bill will also repeal section 65DAA. Currently, when
the court makes an order for equal shared parental responsibility, it is also
required to consider making an order for the child to spend equal, or
substantial and significant, time with the child's parents. The repeal of the
presumption is a response to substantial evidence of community
misconception about the law - that is, that parenting arrangements after
separation are based on a parent's entitlement to equal time, rather than an
assessment of what arrangements serve the child's best interests. This
misunderstanding may lead parents to agree to unsafe and unfair
arrangements, or encourage parties to prolong litigation based on the incorrect
expectation of equal time.
70. The repeal of these provisions constitute a limitation to the right to
protection of the family. However, the limitation is reasonable, necessary and
proportionate to the legitimate aim to ensure that repealing these provisions
would address misconceptions that parenting arrangements after separation are
based on a parent's entitlement to equal time, rather than an assessment of
what arrangements serve the child's best interests. The court can continue to
make orders for equal time or substantial and significant time in the event that
it determines that the arrangement is in the best interests of the child, however
there is no requirement to consider these arrangements if they would not be
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suitable. Further, the repeal of these provisions would enhance the ability of
the courts to make decisions specific to each family, in accordance with the
best interests of the child.
Definition of member of the family - Aboriginal and Torres Strait Islander
children
71. Subsections 4(1) and 4(1AC) amend the definitions in the Family Law Act
related to the concept of 'family' to be more inclusive of Aboriginal and Torres
Strait Islander culture and traditions and recognise that persons may be related
to a child in accordance with their Aboriginal or Torres Strait Islander culture.
72. These provisions promote the right to protection of the family by better
recognising kinships and extended family structures.
FINANCIAL IMPACT
NIL
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