PART 1 A new family law system

The Australian Government recognises the impact of family breakdown on Australian families, as well as the wider community. There is too much long term conflict and too many children growing up without the involvement of both their parents in their lives. The inquiry by the House of Representatives Standing Committee on Family and Community Affairs into child custody identified the need for major change. The committee’s report, Every picture tells a story, recommended a range of reforms to the law and to the family law system.

The government has responded with the biggest investment in the family law system ever and the most significant changes to family law in 30 years. In doing so the government has adopted the great majority of the committee’s recommendations, in full or in part.

The government agrees a new approach to the family law system is needed – one that helps prevent separation and, where separation does occur, helps parents agree on what is best for their children rather than fighting in the courtroom. The government has allocated $397.2 million over four years in the 2005-06 Budget to support the new approach.

A new network of 65 Family Relationship Centres is the centrepiece of the reforms. The committee identified the need for a single entry point into the family law system. The government has allocated $188.5 million over four years for the establishment of the Family Relationship Centres to provide information, advice, and dispute resolution services to families to help them reach agreement on parenting arrangements without the need to go to court. The centres will also be a doorway to other services families need and will assist families to access those services. Where parenting arrangements breakdown or court orders are breached, the centres will be a first port of call to help families to resolve the problem outside the courts where possible. They will also assist families who have not separated but who are experiencing relationship difficulties by providing information and referral to services that can help prevent separation. In addition, the centres will have a role in building strong, healthy relationships through helping couples access pre-marriage education and relationship skills training.

The Family Relationship Centres will be established in many regional as well as metropolitan centres and will provide outreach services to rural and Indigenous communities. A national telephone advice line and website will support the Family Relationship Centres, providing information and advice for those unable to attend a centre in person.

In addition to the Family Relationship Centres, the government will be establishing over a hundred other new services to help families. These include:

• 15 new services under the Contact Orders Program, at a cost of $23.3 million over four years. The Contact Orders Program is very successful in helping high conflict families restore contact between non-resident parents and their children where contact has broken down;
• 30 new children’s contact services, at a cost of $17.0 million over four years, providing safe, neutral places for separated parents to hand over and spend time with their children;
• Early intervention and prevention services at a cost of $61.6 million over 4 years which includes:
  • up to 40 new pre-marriage and family relationship education services to assist in positive family relationship formation and development;
  • 45 new men and family relationship services;
  • 35 new family relationship counselling and skills services; and
  • increased funding for the delivery of specialised family violence services, at a cost of $7 million over four years.
• increased funding to Men’s Line Australia, at a cost of $12.4 million over four years to help fathers have greater involvement in parenting, both before and after separation, and increase their access to relevant support services; and
• increased resources for mediation and similar services provided by agencies supporting the new Family Relationship Centres network, so more separating families have the opportunity to sit down and agree on what is best for their children, at a cost of $13.4 million over four years.

Changes to the Family Law Act 1975 will recognise the importance of children having the opportunity for both parents having a meaningful involvement in their lives and will include a new presumption of joint parental responsibility, except in cases involving child abuse or violence. Other changes will:

• require parents to attend dispute resolution, such as mediation, before taking a parenting matter to court (with exceptions including child abuse or violence);
• require the courts to consider substantial sharing of parenting time in appropriate cases;
• encourage parents to consider substantially sharing parenting time when developing parenting plans outside the courts; and
• better recognise the interests of the child in spending time with grandparents and other relatives.

The changes to the law will emphasise the best interests of the child.

When deciding the best interests of a child, the primary factors that the court must consider will be the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm. Among other factors to be considered will be the capacity of each parent to provide for the needs of the child and the willingness and ability of each parent to facilitate a continuing relationship between the child and the other parent.

The government recognises the important role grandparents and other extended family members play in children’s lives. In addition to legal changes, the government will be providing resources to legal aid commissions to facilitate the involvement of grandparents or other extended family members in family conferencing. Family conferencing is a form of mediation which includes family members, rather than just the parents, in the dispute resolution process. Staff of Family Relationship Centres will also be trained in family conferencing.

Breaches of court orders are a major source of conflict and distress. The Family Relationship Centres will have an important role to play in helping parents to resolve such issues outside the courts. The expansion of the Contact Orders Program will also help where entrenched conflict has led to a breakdown in contact between a parent and child. However the government recognises that in some cases the court needs to take firm action to deal with breaches. The government proposes to strengthen the enforcement provisions in the Act. New provisions will include :

• a requirement that the court consider ‘make up’ contact (such as another weekend) where contact has been missed through a breach of an order;
• a power to award compensation for reasonable expenses incurred by a party (such as airfares wasted or other tickets purchased but not used);
• where there has been a series of breaches or a serious disregard of court orders, a presumption that legal costs will be awarded against the party who has breached the order, unless it is not in the best interests of the child; and
• a discretion to impose a bond for all breaches of orders.

Adversarial processes tend to escalate and prolong conflict. As part of this response, the government intends to reduce the adversarial nature of court processes for parenting matters. The government has also asked the Family Court of Australia and the Federal Magistrates Court to establish a combined registry for family law matters. The two courts are working together to implement this reform.

The government has heard the community concerns about the need to ensure the reforms do not increase the risk of violence or child abuse. These concerns have been taken into account in the drafting of the amendments to the Act. Moreover, screening for violence and child abuse will be a very important role of the Family Relationship Centres. The centres will be able to provide information and advice to victims of family violence about their options and about support services available, and will help them to access those services.

The government will release an exposure draft of the Bill making these changes to the law.

The government’s responses to the committee’s specific recommendations are set out in Part 3(Opens in a new tab/window).