Enactment of measures to increase emphasis on protection-from-harm principle in family law cases

Legislation has recently come into effect that aims to increase the emphasis on protecting children from harm in family law cases. The Family Law Legislation Amendment (Family Violence) Act 2011 (the Act) received royal assent on 7 December 2011. The Act contains a number of measures relating to family violence in family law (Schedule 1), which commenced on 7 June 2012.

According to the Explanatory Memorandum to the Act, the purpose of these amendments is to better support people in the family law system to disclose and act where there are family violence and child abuse concerns, while continuing to promote a child's right to a meaningful relationship with both parents where this is safe for the child.

The Act responds to the findings and recommendations of three reports: the Australian Institute of Family Studies Evaluation of the 2006 Family Law Reforms (Kaspiew et al., 2009), the Family Courts Violence Review (Chisholm, 2009) and the Improving Responses to Family Violence in the Family Law System report (Family Law Council, 2009), which all considered the ways in which the family law system dealt with matters involving family violence and child abuse, and indicated there was room for improvement.

Key measures include:

• prioritising the safety of children in parenting matters by specifying that, when determining a child's best interests, greater weight is to be given to protection from harm compared to a child's right to meaningful involvement with both parents after separation (see s 60CC(2A)) in cases where these principles may be in conflict;
• broadening the definitions of "family violence" and "abuse" to include physical and emotional abuse and the exposure of children to family violence, among other behaviours (see s 4AB);
• strengthening the emphasis placed on protecting children from harm when providing advice to separating parents, by imposing obligations on advisers (family consultants, family counsellors, family dispute resolution practitioners and legal practitioners) to inform parents that post-separation parenting arrangements should maintain children's safety (see s 60D);
• ensuring the courts have better access to evidence of family violence and abuse by setting out the obligations on parties to notify the court of family violence allegations and making clear the requirement that courts ask parties about family violence (see ss 67ZBA, 67ZBB, 69ZQ(1aa)); and
• making it easier for state and territory child protection authorities to participate in family law proceedings by removing the risk that a costs order might be made against an officer who acts in good faith (see s 117(4A)).

The Bill had been referred to the Senate Standing Committee on Legal and Constitutional Affairs, which reported on 22 August 2011. The Standing Committee received 275 submissions and held a public hearing in Canberra on 8 July 2011. The majority of submissions supported the objective of the amendments; however, the Standing Committee report indicates that a diverse range of issues was raised in relation to the specific measures. Among other issues, the Standing Committee considered submissions:

• in favour of and against the addition of the Convention on the Rights of the Child as a new object of the Act;
• mostly supporting the principle that protecting children from physical or psychological harm should be a priority, though some submissions questioned the way in which the Act gives effect to this principle;
• supporting the repeal of the facilitation aspect of the "friendly parent" provisions (former paragraph 60CC(4)(b)) on the grounds that it discourages disclosures of family violence and child abuse, though some were in opposition, for example, on the ground that it continued to have relevance;
• mostly in support of including a broader definition of "abuse" and "family violence", but some questioning, for example, the inclusion of the word "serious" and/or suggesting it was inconsistent with other provisions of the Act.

The full Standing Committee report is available from the Attorney-General's Department website at <www.ag.gov.au/familyviolenceact>.

Improving the family law system: Release of Family Law Council reports

The Family Law Council (FLC) has made a series of recommendations aimed at improving the family law system's capacity to meet the needs of clients from Indigenous and culturally and linguistically diverse backgrounds. The recommendations are contained in two separate reports released by the Federal Attorney-General, Nicola Roxon, in May (FLC, 2012a, 2012b).

The Attorney-General had requested that the FLC examine the extent to which the family law system meets the needs of clients from these backgrounds and consider strategies to better enable the system to meet these clients' needs.

In relation to Aboriginal and Torres Strait Islander clients, the FLC (2012a) identified numerous barriers to these clients engaging with the family law system. Fear of engaging with this aspect of the legal system was identified as a core issue, in light of past policies relating to the forced removal of children and current levels of over-representation of Aboriginal and Torres Strait islander peoples in the child protection and criminal justice systems. Other impediments included literacy and language barriers, limitations in understanding the role of the family law system, and access to services, particularly in regional and remote areas.

The FLC made nine recommendations and emphasised that these recommendations are intended to build on the steps that have already been taken to better meet the needs of Indigenous clients. The report stressed that key stakeholders across the system,¹ including Aboriginal and Torres Strait Islander services and communities, should be involved in the implementation of these recommendations. The recommended strategies include the development of education and literacy in family law for Indigenous clients, and strengthening culturally responsive service delivery (including the development of education and training programs in cultural competency for professionals). A need for more programs that enable outreach to and early assistance for Aboriginal and Torres Strait Islander families was also identified.

The FLC also recommended that the Federal Government instigate a review of the accessibility and appropriateness of court, legal and family dispute resolution services for Indigenous people, and provide funding for more Indigenous Family Consultants and Indigenous Family Liaison Officers.² It was also recommended that the government develop a strategy for improving access to interpreter services, as well as a national protocol for their use in the family law system.

In relation to clients from culturally and linguistically diverse backgrounds, the FLC (2012b) also identified numerous barriers to their participation in the family law system. These barriers included a lack of knowledge about the law and available services, cultural barriers (such as negative perceptions or fear of government bodies), language and literacy barriers and cost and resource barriers.

The FLC (2012b) also identified a "need for greater integration, information sharing and collaboration" between the family law system and migrant settlement services (p. 6). The need for "a more comprehensive empirical examination of the application of the Family Law Act to families from culturally and linguistically diverse backgrounds" was also noted (pp. 6-7).

The FLC's specific recommendations included a recommendation that the Federal Government work with relevant stakeholders³ to develop and implement strategies for education and literacy in family law for clients from culturally and linguistically diverse backgrounds, together with developing strategies for culturally responsive service delivery (including the development of education and training programs in cultural competency for professionals).

The FLC also recommended the development of strategies to facilitate the collaboration that the FLC had identified as lacking between migrant services and the mainstream family law system and to increase the number of culturally and linguistically diverse personnel working within family law system services. The funding of Community Liaison Officers from culturally and linguistically diverse backgrounds and the development of strategies for improving access to interpretation services, as well as the development of a national protocol for their use in the family law system, were also recommended.

Of note, the FLC also recommended that the Attorney-General's Department examine whether the provisions of Part VII of the Family Law Act (Cth) (children's matters) adequately recognise the role of cultural connection in children's development. Monitoring by the Federation of Ethnic Communities' Council of access and equity issues in relation to the services provided by the family law system was a further recommendation.

Disclosing communications from family counselling: A recent decision from the Family Court of Australia

Counsellors cannot be compelled to disclose communications made by parties during family counselling, even where both parents consent to their disclosure, unless the communications involve an admission or disclosure indicating abuse or risk of abuse, according to an appellate decision of the Family Court of Australia.

In Uniting Care-Unifam Counselling and Mediation and Harkiss and Anor [2011] FamCAFC 159, Coleman J held that while s 10D(3)(a) of the Family Law Act 1975 (Cth) provides that family counsellors may disclose communications made at family counselling with the consent of both parents, "nothing in s 10D(3), or elsewhere in s 10D empowered the learned Federal Magistrate to require the family counsellor to disclose the communications made to him or her" (para. 40).

Although s 10E also provides that communications made in family counselling are inadmissible as evidence in court, an exception is created by s 10E(2), which provides that communications involving an admission by an adult or a disclosure by a child indicating that the child has been abused or is at risk of abuse is admissible if there is not sufficient evidence of the admission or disclosure from other sources. Coleman J held that although the s 10E(2) exception "may have empowered" the court to make an order for disclosure, the "failure of the subpoena to seek production of documents falling within those provisions (s 10E(2)) deprived the learned Federal Magistrate of that source of power" (para .74). It is also of interest that Senior Counsel for UnitingCare Unifam conceded that had the subpoena been expressed in terms of the s 10E(2) exception and UnitingCare Unifam had any documents falling within these exceptions, then they would have produced these documents (para. 73).

It was also held that s 69ZX (the Court's general duties and powers relating to evidence) did not enable an order to be made requiring the counsellor to produce the subpoenaed material.

The issue arose in this case because Altobelli FM had previously ordered Uniting Care Unifam to produce the documents subpoenaed in Harkiss and Beamish [2011] FMCAfam 527, stating that "when the parties to family counselling give consent to disclosure, it is not for the provider of family counselling to object to this" (para. 11).

Update on the strategic review of Attorney-General's portfolio agencies

On 8 June 2012, Federal Attorney-General Nicola Roxon (2012c) announced the release of the Strategic Review of Small and Medium Agencies in the Attorney-General's Portfolio: Report to the Australian Government (Skehill Review). Ms Roxon indicated that the Government was "already acting to implement the Skehill Review recommendations in several areas", including those directed at effective and efficient administration of courts in the federal jurisdiction. These include the adoption of a key recommendation regarding the introduction of a consultative committee constituted by jurisdictional and administrational heads, in addition to other relevant officers and an observer from the Attorney-General's Department.

The Skehill Review identified the recent move to a shared administration for the family law courts as a "genuine success" and recommended against proceeding with the family law restructure. Consistent with this recommendation, Ms Roxon (2012c) announced that "given the efficiencies already implemented within the Family Court of Australia and Federal Magistrates Court, the Government will not proceed with the previously announced merger". Instead, the Government agreed with the recommendation to formalise the courts' shared administration and to establish a process that encourages their closer cooperation. Ms Roxon (2012c) also announced the Government's intention to change the name of the Federal Magistrates Court and the title of Federal Magistrates "to better reflect their important role in the judicial system" and will commence a consultation process with the courts in this regard.

In addition, Ms Roxon announced that rather than undertaking a review of the Court's financial position as recommended in the Skehill Review, the Government will work more closely with the courts to "address any financial pressures and maintain services" (2012c).

Validation of de facto property and maintenance orders

The Family Law Amendment (Validation of Certain Orders and Other Measures) Act 2012 (Cth) (which was assented on 10 April 2012) now corrects a Government oversight made at the time that the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) was proclaimed. This oversight involved the failure to specify a commencement date of the family law courts' jurisdiction in de facto property and maintenance matters.

In addition to specifying commencement dates, the Family Law Amendment (Validation of Certain Orders and Other Measures) Act 2012 (Cth) operates to retrospectively validate de facto property and maintenance orders made by the Family Court of Australia and Federal Magistrates Court since March 2009 (s 2 and s 8).

The introduction of a National Children's Commissioner

On 29 April 2012, the Federal Government announced the introduction of a National Children's Commissioner within the Australian Human Rights Commission (Roxon, Macklin, & Collins, 2012). Attorney-General Nicola Roxon identified the new Commissioner's role as focusing on "promoting the rights, wellbeing and development of children and young people in Australia". The Minister for Families, Community Services and Indigenous Affairs, Jenny Macklin, stated that establishing a National Children's Commissioner was a key action under the Federal Government's National Framework for Protecting Australia's Children 2009-2020.

This new role was identified as complementing the work of state and territory commissioners and guardians. The Children's Commissioner will take on a "broad advocacy role to promote public awareness of issues affecting children, conduct research and education programs, consult directly with children and representative organisations as well as monitor Commonwealth legislation, policies and programs that relate to children's rights, wellbeing and development" (Roxon, Macklin, & Collins, 2012).

Legislation establishing the National Children's Commissioner will be introduced later this year, with the Commissioner expected to commence office at the end of 2012.

Bill introduced for civil partnerships to become "registered relationships" in Queensland

The Queensland government has introduced the Civil Partnerships and Other Legislation Amendment Bill 2012. The Bill proposes to rename civil partnerships as registered relationships (clause 6-7) and to introduce new arrangements for the registration (clause 8-14) and termination (clause 15-17) of these relationships.

The Bill proposes to remove the current legislative provisions for the declaration of civil partnerships, which detail ceremonial and registration requirements of a marriage-like nature (Civil Partnerships Act 2011 (Qld) s 10-12). The Bill also provides for the removal of the current termination provisions, which are reflective of those for the dissolution of marriage (Civil Partnerships Act 2011 (Qld) s 15-19). In place of these current declaration and termination provisions, the Bill proposes a simple registration process (clause 8-17).

New appointees to the Family Law Council and new reference on surrogacy

On 22 June 2012, Federal Attorney-General Nicola Roxon (2012b) announced four new appointees to the Family Law Council:

• Justice Robert Benjamin, Family Court of Australia, Tasmania;
• Ms Kylie Beckhouse, Executive Director, Family Law, Legal Aid New South Wales;
• Ms Jennie Hannan, Chair, Family Relationship Services Australia Board and Chief Executive Officer, Anglicare Western Australia; and
• Ms Colleen Wall, Executive Director, Aboriginal and Torres Strait Islander Women's Legal and Advocacy Service, Queensland.

Ms Roxon also announced a new reference for the council concerning the definition of "parent" in the Family Law Act 1975 (Cth) that will also require an examination of "how issues of surrogacy and family formation are dealt with" (Roxon, 2012b).

The terms of reference require the council to examine whether the parentage provisions in Part VII of the Family Law Act give rise to outcomes that are "appropriate, non-discriminatory and consistent for children" and whether any amendments could be made to the Act to "clarify the operation, interaction and effect" of these provisions (Roxon, 2012b). The reference also requires the council to examine whether any amendments could be made to the Act that would make it more consistent with state and territory legislation providing for the legal parentage of children, together with amendments that would assist the family courts in determining the parentage of children who are born through assisted reproductive technology, including surrogacy, where state and territory legislation does not apply.