THE HON MARK DREYFUS KC MP
MEMBER FOR ISAACS
Family Law Practitioners’ Association of Queensland Annual Conference
QT Gold Coast
9 June 2023
Let me begin by respectfully acknowledging the people of the Yugambeh language region, the traditional owners of the land on which we meet.
I pay my respects to their Elders past and present. I would like to extend that respect to any Aboriginal and Torres Strait Islander peoples here today.
And I reiterate the Government’s commitment to implementing the Uluru Statement from the Heart in full – which will begin with a referendum later this year to enshrine an Aboriginal and Torres Strait Islander Voice in the Australian Constitution during this term of Parliament.
Thank you for inviting me to take part in the FLPA Retreat 2023.
I acknowledge Chief Justice Alstergren, and his leadership of the Federal Circuit and Family Court of Australia.
I recognise and thank the Family Law Practitioners’ Association of Queensland, and the President of the Board Rebecca Horsley, for hosting this conference.
The work that the FLPA does in supporting the family law sector and bringing us together for events like this one ensures that the family law system continues to respond to the needs of Australians who access it, whilst at all times ensuring the safety and wellbeing of families, especially children.
Family Law Practitioners
I understand that this annual event, hosted by the Family Law Practitioners’ Association of Queensland, is always enthusiastically attended. It provides an opportunity for Queensland family law professionals to share ideas and challenges.
Australians are more likely to come into contact with a family lawyer than with any other legal professional. And it is guaranteed to be at a time of great stress in their lives.
Whether you practise in Coolangatta or Cairns, what you do every day matters.
And I acknowledge the legal work that you do is some of the most difficult and complex legal work that is done by lawyers anywhere in Australia.
Family Law Reforms
The Albanese Government is committed to ensuring the family law system is safe, accessible, simple to use, and delivers justice and fairness for all Australian families.
Despite the busy practices you all have, overwhelmingly most Australians resolve their post-separation arrangements without the need for court intervention, and many without a lawyer.
Most separations are managed through consultation and consent but in that small minority of separations where this is not possible, lawyers and the courts need to step in, and by definition, this of course means that these are generally the more difficult and emotional cases.
Regrettably, for far too long, the Family Law Act 1975 has been a source of confusion for Australian families. Instead of providing clear guidelines, it has often acted as a barrier for parenting arrangements that should put the best interests of children first and ensure that families using the family law system are protected from harm. It’s particularly concerning given that 80 percent of matters in the family law courts involve allegations of family violence and 70 percent involve allegations of child abuse or a risk of child abuse.
That’s why, on 29 March 2023, I introduced into Parliament two important Bills to amend the Family Law Act 1975.
The first Bill is the long-overdue Family Law Amendment Bill 2023, which acts on key recommendations of the Australian Law Reform Commission’s 2019 report Family Law for the Future: An Inquiry into the Family Law System (Report 135). It also implements some of the recommendations of the Joint Select Committee on Australia’s Family Law System, which delivered its final report in November 2021.
The second Bill introduced is the Family Law Amendment (Information Sharing) Bill which also addresses key findings of these inquiries and puts in place key aspects of both of the I just mentioned and the National Strategic Framework for Information Sharing between the Family Law and Family Violence and Child Protection Systems.
Both Bills will work together to create a family law system which meets the needs of its users, focusing on the voices and best interests of children, and ensuring their safety and wellbeing is the paramount consideration.
These Bills would not have been possible without the valuable contributions from key stakeholders with family law expertise, including some of you here today, to both the exposure drafts of the Bills and the inquiries that preceded them. I thank all those who contributed to these consultation processes.
The Family Law Amendment Bill 2023 will make the family law system simpler and safer for separating families and their children. It will address confusing and overly complex drafting, resulting from decades of incremental change to the Act.
The Bill introduces critical changes to the legal framework for making parenting orders. It will repeal the presumption of equal shared parental responsibility and the requirement for a court to consider significant and substantial time with a parent.
Numerous inquiries have found that these key provisions are convoluted and widely misunderstood. This means parents negotiating outside the court can be led into arrangements that may not be safe or appropriate for children, because of the misapprehension that equal time with children is an entitlement.
The Family Law Act will continue to recognise the importance of children having a relationship with both their parents where it is safe to do so.
The Bill will simplify the list of considerations to determine what is in a child’s best interest when determining parenting arrangements. Six key factors will replace two primary factors, 13 additional factors, and the guidance of four objects, five principles and a presumption.
A seventh factor applies to the best interests of Aboriginal and Torres Strait Islander Children, to emphasise the importance of keeping a connection to culture.
The Bill also introduces amendments to require Independent Children’s Lawyers to meet with the child and provide the child with the opportunity to express any view about the matters to which the proceedings relate. There are exceptions to this requirement, to ensure the child’s safety or wellbeing is prioritised.
These changes are consistent with the unique and vital role that ICLs play in assisting the court to make decisions that are in the best interests of children in some of the most serious and difficult family law matters, such as cases of abuse.
It is imperative that children not only have the right to freely express views about matters and decisions that affect them, but also that their voices are heard. These amendments support children’s rights under Article 12 of the United Nations Convention on the Rights of the Child, while ensuring their safety and wellbeing.
Further, the Bill also proposes the removal of the ‘exceptional circumstances’ requirement for the appointment of an ICL in matters concerning the Convention on the Civil Aspects of International Child Abduction, the Hague Convention. This change will provide greater opportunity for a child’s views to be heard and considered during Convention proceedings.
Many victim-survivors of family violence, and their children, suffer the effects of continued abuse by their perpetrators through misuse of legal processes.
To address a gap in the current law the Bill introduces the capacity for the family law courts to restrain a party from engaging in repeated litigation by making a harmful proceedings order. The focus of the measure is on the protection of the other party and any children from harm, including the detrimental effect on the other party’s capacity to care for a child.
Once this order is in place, any further proposed proceedings would first be assessed by the court to ensure that matters that are vexatious, frivolous or unlikely to be successful are not being heard. There will be no erosion of the principles of procedural fairness – applicants will have the opportunity to make the case for the particular matter they wish to bring before the court.
It is important that the family law courts have the best possible evidence before them when considering what parenting orders to make. As you would be aware, a family report, prepared by social science professionals, is a critical piece of evidence available to assist the court.
The Bill will establish a power for Government to prescribe standards and requirements for these professionals. It is crucial that families, the court and all those involved in the family law system have confidence that every family report has been prepared by a professional with the skills and knowledge required to undertake this important task.
The standards and requirements for family report writers will be developed in consultation with stakeholders.
Federal Circuit and Family Court of Australia Act reforms.
The Bill also amends the Federal Circuit and Family Court of Australia Act 2021 to support a timely review of the structural changes made to the court in the last term of government to ensure the courts are operating in a manner which protects the safety of families and provides an efficient resolution of family law matters.
The review will now commence in 2024, bringing forward the timeframe by two years.
The Family Law Amendment Bill 2023 passed the House last month and is now awaiting consideration by the Senate, despite the Opposition voting against these important changes to make the family court system safer for families and children.
The Family Law Amendment (Information Sharing) Bill 2023 will establish an enhanced, court-led information sharing framework for information relating to family violence, child abuse and neglect risk in child-related proceedings.
The enhanced information sharing framework established by the Bill will work alongside the successful Co location Program, co-locating State and Territory child protection and police officials in select family law registries around Australia. It will bolster and expand the pathways for information sharing between these interconnecting systems.
The Bill’s overarching objective is to promote the safety and well-being of children and adults affected by family violence, and to support informed and appropriate decision-making.
The Bill will shift the responsibility for gathering information about risks to family safety from the parties to the family law courts and State and Territory agencies responsible for child protection, policing and firearms management.
The family law courts will have an expanded legislative basis to initiate evidence-gathering in relation to family violence or child abuse risk, and determine what information will be relied upon to support or refute allegations. State and Territory agencies will also have discretionary power to provide relevant information not directly requested by the courts.
To achieve this a new subdivision will be incorporated into Part 7 of the Family Law Act. The new subdivision will allow the courts to gain a holistic picture of the factors contributing to family violence, neglect and child abuse in relevant cases.
The family law courts will be able to issue information sharing orders at any time during proceedings to any prescribed agency.
In recognition that the information to be shared is inherently sensitive, the Bill will enhance existing legislative protections and introduce new information sharing safeguards to be prescribed in the Family Law Regulations 1984.
In addition to these Family Law Bills, last December, the Government amended the Family Law (Child Abduction Convention) Regulations 1986.
The Albanese Government is committed to Australia’s international obligations under the Convention on the Civil Aspects of International Child Abduction, while ensuring it cannot be abused.
The Convention provides a lawful mechanism for the return of children to their country of habitual residence, so that parenting matters can be decided in the appropriate jurisdiction. The overriding purpose of the Convention is to protect children from the harmful effects of international child abduction and to establish a lawful framework to ensure the prompt return of abducted children in appropriate cases.
Critics of the Convention claim that it is being abused by violent fathers and that return orders put women and children fleeing family and domestic violence at risk. Accordingly, the Government has invested in several measures to improve safety for women and children fleeing family and domestic violence.
The amended Regulations now make it unequivocally clear that allegations of family and domestic violence can be considered in Convention cases. They clarify that consideration of the ‘grave risk’ defence can include any risk of family and domestic violence. The court does not need to be satisfied that such violence has occurred, will occur or is likely to occur before it is taken into account.
The Regulations also include a new requirement that judges who are considering refusing to make a return order on the basis of ‘grave risk’ must consider any conditions proposed by a party to reduce risk.
Through the recent budget, the Government is investing $18.4 million over four years from 2023-24 and $5.0 million per year ongoing in targeted measures to improve safety in Convention cases.
This includes investing in a new financial assistance scheme to enable parents defending against the return of a child – who are mostly women - to have access to legal representation to level the playing field with parents applying for the return of the child.
The family law courts will receive funding to provide alternative dispute resolution (ADR) strategies and child assessments as early intervention pathways in Convention matters.
Additional funding will also provide enhanced social support services and counselling; training for new ADR practitioners; and funding for enhanced capability to gather and report evidence relating to family violence in Convention cases and to monitor safety outcomes for women and children post return.
These budget measures will make meaningful improvements and address known gaps to improve the safety of the Convention’s implementation for victim survivors while still respecting our international obligations.
Family Law Property Pilot Programs
Achieving a fair share of the property pool after separation is critical to the financial and broader wellbeing of separating couples, especially vulnerable groups and vulnerable women impacted by violence.
I am pleased that the Government has invested $46.5 million in the 2023-24 budget in two highly successful family law property pilot programs.
Firstly, ‘Priority Property Pools: 500’ or ‘PPP500’ as it is known, helps separated couples and empowers vulnerable women by providing access to a streamlined court process to support them in achieving an expedited resolution of their property dispute that is quick, fair and affordable. This means an already small property pool is not further reduced by the cost of protracted court proceedings. It also means separated couples can walk away with more, and are in a far better position to move on with their lives.
From 1 July 2023, PPP500 will be rolled out across the Federal Circuit and Family Court of Australia and established in the Family Court of Western Australia.
The second program, the Lawyer-assisted Property Mediation program, which is being trialled through Legal Aid Commissions across all jurisdictions, will continue until 30 June 2025. This program provides legal advice, advocacy, mediation and practical support to help vulnerable separating couples reach agreement on a family law property division, avoiding court proceedings.
I thank the dedicated staff of the Federal Circuit and Family Court of Australia and Legal Aid Commissions for their work in these programs.
I look forward to seeing the continued successful and meaningful outcomes achieved in these programs.
Strengthening Family Law Competency
The competency of family law professionals is essential to achieving safe and just outcomes for families.
The Government has co-funded measures to improve the competency of professionals working in the family law system so they can identify, understand and respond appropriately to family violence, including systems abuse, to keep children and their families safe.
The National Domestic and Family Violence Bench Book – co-funded by the Commonwealth, states and territories – is an online educational resource for judicial officers. It aims to promote best practice, improve consistency in judicial decision-making, and improve court experiences for victim-survivors of domestic and family violence across Australia. It is also becoming widely used by other legal professionals and service providers working with victim-survivors, and provides a valuable contribution to building understanding around family and domestic violence within the broader community.
The Family Violence in the Court training program for judicial officers builds on the Bench Book resource and is delivered across Australia. Recently, this training program was delivered in Alice Springs and was tailored to address the unique issues faced by judicial officers in the region, with an emphasis on judicial officer wellbeing.
Judicial officers have provided positive feedback about the Bench Book and the Family Violence in the Court training program.
Additionally, the Commonwealth is working with states and territories to strengthen family safety competency for all legal practitioners by incorporating training in continuing professional development frameworks. In the October 2022-23 Budget, the Commonwealth provided $0.9 million over four years to develop training for legal practitioners on coercive control. The training will build on the work the Commonwealth, states and territories are currently undertaking on the development of the National Principles to Address Coercive Control.
Legal Assistance Sector
I would like to acknowledge the very significant contribution that the legal assistance sector makes to the family law system.
Legal aid commissions, community legal centres, women’s legal services, Aboriginal and Torres Strait Islander Legal Services, and Family Violence Prevention Legal Services all play a critical role in assisting Australians, who may otherwise be unable to afford legal advice and representation, to access our family law system.
The legal assistance sector provides and supports a number of key programs to address family violence. They played a significant role in supporting the pilot of the Lighthouse Project, a family safety risk screening and specialised case management pilot for matters involving family violence in the Federal Circuit and Family Court of Australia. The Lighthouse Project has now commenced nationally in Adelaide, Brisbane, Cairns, Canberra, Dandenong, Darwin, Hobart, Launceston, Melbourne, Newcastle, Parramatta, Rockhampton, Sydney, Townsville and Wollongong.
Legal aid commissions also play a significant role in the Family Violence and Cross Examination of Parties Scheme. The Scheme, which ensures that victims and survivors of family violence are cross-examined by a legal representative rather than the perpetrator, received virtually universal support. There is general acceptance that the Scheme prevents or at least reduces the re-traumatisation of victims of family violence and assists many victims to settle cases without the need for a contested court decision.
In the 2022-23 Budget, the Government provided an additional $52.4 million over four years for Legal Aid Commissions to continue to provide these important services.
The Government will continue to carefully monitor take-up of the Scheme to inform future investment decisions.
As well as assisting individual clients, the legal assistance sector makes important contributions to the modernisation and efficiency of the family law justice system. An example of this innovation is seen in the creation of Amica, an initiative of National Legal Aid and the Legal Services Commission of South Australia. Amica is an app that supports separating couples to make agreements without going to court.
The Government is currently delivering $2.4 billion over five years to the legal assistance sector through the National Legal Assistance Partnership 2020-2025 (NLAP). The NLAP provides specific funding for family law and/or family violence matters, and includes people at risk of family violence as a national priority client group.
As some of you would be aware, the NLAP will expire in 2025, and an independent review of the agreement is commencing this year. I look forward to receiving the findings of this comprehensive review. It will be an opportunity to show what changes should be made to the legal assistance framework to ensure that current and future legal need, including in the family law space, is adequately met.
I commend all of you for your ongoing work, dedication, and agility in responding to the challenges that arise working in the family law system.
Thank you for inviting me to speak. I wish you a productive and engaging conference and look forward to continuing to work with you.