2024 Judicial Plenary of the Federal Circuit and Family Court of Australia

Introduction

Thank you very much for the invitation to join you at the 2024 Judicial Plenary of the Federal Circuit and Family Court of Australia so soon after the commencement of the Family Law Amendment Act and the Information Sharing Act.

Unfortunately, I am unable to attend in person this week. However, I am delighted to be able to address this Plenary meeting today.

I begin by acknowledging the Traditional Custodians of the lands on which you are meeting, the Wonnarua people. I also extend that respect to any First Nations people here today.

I would like also to acknowledge the Honourable Chief Justice William Alstergren, AO, the Honourable Deputy Chief Justice Robert McClelland, AO, the Honourable Chief Judge Patrizia Mercuri and all the Honourable judges in attendance today.

Family Law Reform

As you meet today, it has been about six weeks since the first set of family law reforms brought forward by the Albanese Government came into effect.

These changes have been long needed.  Reforms of this scale occur once or twice in a generation, and of course, with significant change comes a period of adjustment.

It is almost 50 years since the Family Law Act itself was passed, rolling out what was at that time the deeply divisive concept of no-fault divorce.

These days it would be inconceivable to expect parties to a divorce application to demonstrate proof of infidelity or neglect. We take it as given that it is enough for a party to claim that the marriage has irretrievably broken down.

What can at first seem like large changes to some, soon become well accepted aspects of family law. It is a necessity that our legal systems adapt to meet the evolving needs of the Australian people, and change course when evidence tells us that we can do better.

Family Law Amendment Act 2023

The Family Law Amendment Act 2023 was a high priority for the Government.

For many people in the community, the only time they come into contact with the legal system is if they go through a separation or divorce, and they need to find a way of deciding arrangements for their children and dividing assets of what was once a shared life. It can be one of the most stressful and all-consuming times in peoples’ lives.

For children in particular, parental separation can have lasting impacts if they are exposed to ongoing conflict or protracted litigation, or if they feel their opinions about their own lives are not heard.

With the commencement of the Family Law Amendment Act, many important reforms have now come into effect that make the family law system simpler and safer.

A fundamental principle of the family law system – that decisions must prioritise the best interests of the child – is at the heart of these reforms. After all, the family law system has been established to deliver more than simply justice between parties.  It aims to deliver safe and secure futures for children as well.

For years, parliamentary inquiries, family law experts and women and children’s safety advocates raised concerns that the presumption of equal shared parental responsibility and related mandatory time considerations in the Family Law Act were confusing and easily misunderstood.

For some parents trying to determine arrangements in the shadow of the law, the provisions resulted in vulnerable parties agreeing to unsafe or unfair parenting arrangements. At times, they have also exacerbated situations of conflict, control and family violence for women.

The Family Law Amendment Act responds to those concerns.  It also implements a significant number of other well considered recommendations aimed at improving the experiences of children in contact with the family law system.

The reforms establish a clearer and simpler parenting framework by repealing the presumption of equal shared parental responsibility and the associated requirements for courts to consider specific time arrangements.

They create a new list of best interest factors to be considered when determining parenting arrangements in the best interests of the child. The new list strongly reflects the core list of six factors recommended by the Australian Law Reform Commission in its 2019 report on the family law system. The list is streamlined for decision-makers, easier for self-represented litigants to understand and captures those considerations most likely to be applicable in the vast majority of parenting cases.

This list is non-hierarchical, and there is no longer a distinction between ‘primary’ and ‘additional’ considerations. Many commentators have noted that these reforms are distinguished by the fact that they return discretion to judges, rather than restrict it.

We know that the views of children themselves are of fundamental importance in family law proceedings. In recognition of this, the reforms introduce a statutory requirement for Independent Children’s Lawyers to meet with and seek the views of children. This will ensure that, where they wish to, children will have an opportunity to be heard in family law matters affecting them.

The reforms will also make it easier for judges to appoint Independent Children’s Lawyers in matters under the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

Family Law Amendment (Information Sharing) Act 2023

The Family Law Amendment (Information Sharing) Act also came into effect in May. The changes mean that courts will have access to critical safety information earlier in proceedings, so that judges are better enabled to make well-informed and timely decisions about the safety of children and vulnerable parties.

The aim of these reforms is to ultimately assist decision-making that promotes the best interests of children.

These law changes build on the success of the Co-location Program, which has seen child protection and policing officials from most jurisdictions co-located within family court registries. Working in step with these co-located officials, the Information Sharing Act will ensure the courts can access a greater range of critical family violence, child abuse and neglect information from state and territory police, child protection and firearms agencies.

I would like to acknowledge the significant body of work that the courts have put into preparing for the Family Law Amendment Act and Information Sharing Act. Both on providing procedural expertise relating to the initial draft provisions - and then reviewing and adapting the court’s processes, forms and resources in light of the amendments.

The amendments will be formally reviewed after 3 years to ensure they are operating as intended. I expect that the courts will be a critical source of advice on how these reforms are operating in practice, so Government can consider possible improvements.

Next tranche of reforms

As you are aware, a second tranche of family law reform is underway. This reform is focussed on property matters under the Family Law Act.

Better recognition of, and accounting for, the economic consequences of family violence in property settlements is a key objective. Many family violence victims struggle to achieve a fair division of property and may suffer long-term financial disadvantage following their relationship breakdown.

The current threshold for considering the financial impact of family violence in family law property disputes is high. This has led to these impacts being assessed in fewer cases than where they are likely to be relevant.

The proposed reforms will establish the effect of family violence as a factor to be considered in the assessment of contributions and current and future circumstances, where relevant. This will be clear on the face of the legislation, benefiting both those resolving their dispute in the court system or negotiating resolution outside of court.  

The reforms will also ensure separating couples better understand the steps the court takes when determining a property settlement, by setting these steps out in the Family Law Act. This will provide important guidance for those seeking a property settlement.

To ensure separating couples understand and comply with their financial disclosure obligations, the proposed amendments will elevate these obligations, currently located in the Rules of Court, to the Family Law Act.

This reflects the fundamental importance of disclosure of relevant financial information to the fair and timely resolution of property disputes. It also recognises that non-disclosure can be related to economic or financial abuse and misuse of systems and processes.

Conclusion

It has been encouraging to witness how courts and the judiciary have responded over time to the increasing evidence of family violence in our communities. From the development of the Evatt List and the Lighthouse Project, to the strong expectations placed on judicial officers to undertake family violence training, to the symposium the Chief Justice hosted this year, it is evidence of an institution adapting to clear needs within Australian society.

Ultimately, we hope that these reforms will assist you in delivering outcomes that are just, safe and simple.

Each of you here today plays a critical role in our legal system – I thank you for all your work and dedication and wish you well in your Plenary event.