20th National Family Law Conference 2024
*CHECK AGAINST DELIVERY*
Good morning, everyone.
I would like to begin by acknowledging the traditional custodians of the land on which we meet, the Whadjuk people of the Nyoongar nation, and pay my respects to their Elders, past and present. I also extend that respect to all Aboriginal and Torres Strait Islander people here today.
Thank you for the invitation to speak here today.
I acknowledge Chief Justice Alstergren and Chief Judge Sutherland, and their leadership of the Federal Circuit and Family Court of Australia and the Family Court of Western Australia respectively.
I thank the President, Greg McIntyre SC, and the Family Law Section of the Law Council of Australia and Chair, Di Simpson, for hosting this conference. The depth and variety of the program is impressive, and I am sure it will be a valuable professional development opportunity for you all.
I thank you all for coming today and I acknowledge the complexity of the work you do, in supporting Australian families at what is one of the most challenging times of their lives.
Reforms To The Family Law System
Significant progress has been made since I spoke at the last National Family Law Conference in August 2022, three months into the life of the Albanese Government.
I outlined the Government’s vision for Australia’s family law system. Our vision is simple: the system should be safe, accessible and simpler to use. A system that delivers justice and fairness for all Australian families.
I said then that it is critical the system protects those at risk of or experiencing family violence – including children and young people.
I affirmed our commitment to putting children’s best interests at the heart of the family law system, and making sure their voices are heard.
I am proud to say that in the last two years we have made some significant steps towards achieving this vision.
In May this year the Albanese Government’s landmark reforms to the Family Law Act came into effect.
These reforms were long overdue.
The former government failed to heed calls for reform from more than two dozen reviews over the past decade.
Some of these calls even came from members of the former government.
The running theme of these reviews was that more needed to be done – to better address family violence, to reduce the distress and hardship caused by protracted and adversarial litigation, and to make the legislative framework clearer, simpler and better equipped to support vulnerable individuals – particularly children – in resolving parenting and property matters.
This had real consequences for many thousands of Australian families navigating a complex system in what is often an already distressing experience.
Family Law Amendment Act 2023 (Cth)
Some of our reforms that came into effect on 6 May this year were enacted in the Family Law Amendment Act 2023. This is a once-in-a-generation step towards a family law system that puts the best interests of children at the heart of decision-making.
In order to achieve this, the parenting framework in the Family Law Act needed to be simpler; to be understood by all users of the Act, especially for unrepresented litigants and for those operating outside the courts, who rely on the normative standards set by the law and judicial interpretation.
Many of you will be well acquainted with the problems that stemmed from the concept of the presumption of equal shared parental responsibility and the associated requirements for courts to consider specific time arrangements.
For too long, children were placed into dangerous or unsuitable situations that were not in their best interests because of this misunderstood presumption.
Repealing the presumption allows for a more child-focused decision-making framework for the courts, and promotes understanding in the community that there is no pre-set or pre-determined expectation in the law about what parenting arrangements should look like. Every case should be decided based on the particular circumstances involved, with the best interests of children – including their safety – as the paramount consideration.
The Act also simplified the best interest factors for children, to provide a more straightforward framework for courts and for separating families to use as a guide when making their own arrangements.
In addition, the consideration of the best interests for Aboriginal and Torres Strait Islander children is now a standalone factor, to recognise and emphasise the fundamental importance of connection to culture.
It is now a requirement for Independent Children’s Lawyers to meet with a child and seek their views, unless there are exceptional circumstances. This elevates the voices of children in the decision-making process.
We also introduced measures to protect victims of family violence from the harmful impacts of perpetrators seeking to misuse the system to continue the abuse.
The court’s new power to make harmful proceedings orders is intended to shield victims of family violence from the significant harm that repeated, unmeritorious applications filed by a perpetrator can inflict on a person.
The Act replicated the overarching purpose of family law practice and procedure provisions in the Federal Circuit and Family Court of Australia Act in the Family Law Act, and expanded on them, to encourage parties and lawyers to facilitate matters safely, efficiently, inexpensively, and in the best interests of children. This recognises the important role of lawyers in leading by example in the way we conduct ourselves in proceedings.
We also created regulation-making powers to enable Government to set standards and requirements for family report writers and clarified the consequences for breaching parenting orders.
Together, these amendments support a safer, more child-focused, family law system.
Family Law Amendment (Information Sharing) Act 2023 (Cth)
The Family Law Amendment (Information Sharing) Act 2023 also commenced on 6 May this year. This established an enhanced framework for sharing information between the family law courts and other agencies, including police and child protection agencies.
This enables the family law courts to make two new information sharing orders and improve access to critical information relating to family violence, child abuse and neglect, at any time during parenting proceedings.
The Act also removes State and Territory legislative barriers which previously restricted access to some critical safety information, and ensures a more comprehensive range of information can be shared by agencies to mitigate safety risks.
These amendments support decisions being made in the best interests of children, and allow for appropriate case management for matters identified as high risk – including triaging and safety planning for women, children and their families.
The critical importance of information sharing was recently recognised at National Cabinet. On 6 September, First Ministers announced additional funding to extend the current information sharing arrangements until 30 June 2028 and to expand their operation to property-only proceedings. This expansion is in recognition of the Government’s most recent reforms to the property-decision making framework.
Family Law Amendment Bill 2024
The Albanese Government’s reform of the Family Law Act is generational change. It will positively affect the lives of many Australian families – improving their safety, saving them time, money and distress.
But there is more work to be done.
On 22 August 2024, I introduced the Family Law Amendment Bill 2024 to the Parliament. This Bill focusses on enhancing the framework for resolving the property and financial aspects of relationship breakdown.
We know that family violence, including economic or financial abuse, is present in a staggering 80 per cent of parenting matters before the courts.
We also know that financial or economic abuse can be part of this cycle of family violence. Women are more likely to experience financial difficulties after separation, and face a greater risk of poverty and homelessness than men.
For some women, family violence can be a barrier to seeking a property settlement.
The Bill responds to that reality.
It would amend the Family Law Act to ensure that the economic effect of family violence can be considered in property settlements, wherever this is relevant.
This sends a strong and unambiguous signal to all users of the legislation that the economic impact of family violence is relevant in property settlement outcomes. In cases involving family violence, this can be essential to ensuring a just and equitable outcome.
We also know that family pets are too often used and abused in cycles of family violence. This Bill would provide a specific framework in the Family Law Act for determining ownership of the family pet in property proceedings, including the presence of family violence, recognising their status as a unique type of property.
The Bill would make a range of other changes to support separating couples more easily and safely navigate the division of their property, within and outside the court system. This includes codifying the existing property decision-making process of the courts, removing confusing cross-references to the spousal maintenance provisions, and elevating the duty of financial disclosure into the Family Law Act.
This Bill would expand safeguards to protect vulnerable parties in family law proceedings.
It would extend the availability of the less adversarial approach to property proceedings with the consent of the parties or at the discretion of the court, guided by a set of principles. This would empower the court to manage proceedings in a way that supports parties to more safely raise family violence risks and ensure these issues can be managed effectively throughout the proceedings.
The Bill would also provide the family law courts with a new power to prevent ‘protected confidences’ from being viewed by the other party or used as evidence, where the harm in doing so outweighs the need for this evidence. The best interests of any children involved in proceedings would be the paramount factor in assessing the value of adducing the material.
It would also provide a regulatory framework for Children’s Contact Services, to encourage child focussed and high-quality contact services for children, whose families are unable to safely manage contact arrangements on their own.
Finally, the Bill contains a number of amendments to clarify the law and provide practical improvements for all family law system users. This includes clarifying the family law arbitration framework, permitting the courts to determine sole applications for divorce in appropriate circumstances, and clarifying the Commonwealth Information Order provisions.
The Bill is being considered by the Senate Legal and Constitutional Affairs Legislation Committee, and it is my hope that it will achieve passage through Parliament soon.
Family Relationships Services Program Review
The legislative amendments introduced by our Government are an important part of a broader agenda for family law system reform.
The review of the Family Relationships Services Program has now been completed. The FRSP provides critical support to help separating families resolve parenting and property disputes in the best interests of children, without the stress or expense of going to court. It includes access to family dispute resolution, counselling and educational support for parents and children, and children’s contact services.
I expect many of your clients will have used these services to try to resolve their dispute without going to court, or to facilitate safe contact between children and parents after separation, or to support the family in their post separation arrangements.
The Family Relationships Services Program review undertaken by Andrew Metcalfe AO affirms that the program offers significant benefit to the community. It identifies that all FRSP-funded activities provide an improvement in client outcomes and deliver a cost saving to government, by supporting people to resolve post-separation arrangements without going to court.
The review also identifies some opportunities for improvement, to ensure the program continues to meet contemporary demands.
A key recommendation focuses on reducing fragmentation of service delivery by consolidating core programs into Family Relationship Centre Hubs. Other recommendations include increasing access to case management, legally assisted family dispute resolution and child inclusive practice, the establishment of a dedicated Aboriginal Community Controlled Organisations-led family law services stream to provide culturally appropriate family law services to First Nations clients, and maintaining and enhancing the Family Law Pathways Networks, which play an important role in fostering and sustaining cross-system collaboration.
The review offers opportunities for reform and I have asked my department for further advice, following consultation with stakeholders.
I look forward to the sector’s response to the report.
Review of the Federal Circuit and Family Court of Australia Act 2021
Many of you will also be aware that I recently announced a review of the Federal Circuit and Family Court of Australia Act 2021.
The review is required by section 284 of the Act and is being conducted by the Honourable Linda Dessau AC CVO and Professor Helen Rhoades OAM.
The review will consider the Federal Circuit and Family Court of Australia’s family law jurisdiction and also the general federal law jurisdiction.
The reviewers will be conducting a consultation process and that information about the consultation will be available on the website of the Attorney-General’s Department in due course.
I would encourage you all to engage in the consultation process.
National access to justice partnership
When I spoke to you in 2022, I also said that our Government recognised the value of legal assistance in supporting separating families resolve disputes in a timely and safe manner, so that litigation is a last resort.
I also said there was more work to be done.
At National Cabinet on 6 September 2024, First Ministers agreed to establish a new 5-year National Access to Justice Partnership, commencing on 1 July 2025.
The Commonwealth Government committed a record $3.9 billion under the new agreement, with ongoing funding beyond the 5 years.
This funding commitment represents nearly $800 million in additional funding for the sector, including $500 million in additional funding for all critical parts of frontline legal services including Community Legal Centres, Women’s Legal Services, Aboriginal and Torres Strait Islander Legal Services, Legal Aid Commissions, and Family Violence Prevention Legal Services.
For the first time, the next agreement will include quarantined funding for Women’s Legal Services and Family Violence Prevention Legal Services.
The agreement will also include ongoing funding for specialist elder abuse services.
Our Government has committed to providing ongoing funding beyond the five-year agreement, so that the sector has long-term funding certainty.
Prevalence of Family Violence and Family Law Practitioners on the frontline
Finally, I wish to acknowledge the critical role of family law practitioners.
As we know, family violence and child abuse continue to remain prevalent in matters before the family courts.
In 2023 – 2024, 83 percent of applications for parenting or parenting and property related orders in the Federal Circuit and Family Court of Australia contained allegations of family violence and 79 percent of parenting matters were referred to child welfare agencies due to allegations of child abuse or family violence.
Protecting and maintaining the safety of victims and survivors in Australia’s family law system must be a priority.
Ensuring family law practitioners are trained in delivering trauma and family-violence informed services is essential to achieving safe and just outcomes for families. To support this, the Government is funding a range of measures to improve the competence 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.
These measures include training for legal practitioners on coercive control, strengthening family safety competence for legal practitioners through continuing professional development frameworks, and co-funding the National Domestic and Family Violence Bench Book with the states and territories.
As family law practitioners, I thank you for the tireless work you do in helping victims and survivors navigate the complexities of the family law system during what can be a deeply distressing time in their lives.
Conclusion
I acknowledge that such a significant program of reform, particularly legislative reform, has benefitted immeasurably from the sincere and passionate engagement of the family law sector.
I would like to thank each of you for your contribution, and in particular I would like to acknowledge the Family Law Section of the Law Council of Australia for its valuable and ongoing contributions.
Two years ago, I outlined the Albanese Government’s plans for Australia’s family law system.
Two years on, we have made significant progress and are continuing to work towards our vision of a safer, simpler and fairer family law system.
Together, we will continue to build a family law system that best serves Australian families.
Thank you, and enjoy the conference.