Current committees and working groups of the Family Law Council
1. Arbitration
On 26 May 2006 the Council received the following terms of reference from the Attorney-General:
I request that the Family Law Council investigate arbitration of family law property and financial matters, taking into consideration the following:
- Is it possible, and if so is it desirable, for a court exercising jurisdiction under the Family Law Act 1975 to have the ability to compulsorily require parties to proceedings to participate in arbitration of property and financial matters?
- What, if any, legislative changes need to be made to support compulsory arbitration?
- What, if any, changes to court processes need to be made to assist compulsory arbitration?
- What, if any, funding might be required to support voluntary and compulsory arbitration?
- What, if any, changes to court processes or other changes could be made to promote voluntary arbitration.
Current status of the project
The Council released a discussion paper on arbitration in June 2007. Submissions on the discussion paper closed on 13 August 2007. Council received submissions from the major family law stakeholders, and is currently considering its final recommendations.
Members
Justice Garry Watts (convenor)
Mr Kym Duggan
Federal Magistrate Mead
Federal Magistrate Susan Purdon-Sully
Ms Lani Blackman
Ms Maurine Pyke
The Committee is being assisted by the following members of NADRAC:
Justice Murray Kellam
Professor Tania Sourdin
Mr Fabian Dixon QC
2. Improving post-parenting order processes
Terms of Reference
In light of the Every Picture Tells a Story report, and the Government’s proposed response to that report outlined in the discussion paper released on 10 November 2004 and entitled A New Approach to the Family Law System, the Family Law Council consider:
(a) how family law processes can better deal with the need to vary parenting orders from time to time as family circumstances change, and
(b) the need to distinguish variation issues from situations of serious non-compliance with court orders, taking into consideration:
- The proposed changes to the family law system in response to the Every Picture Tells a Story report, as outlined in the discussion paper released on 10 November 2004, particularly the potential role of Family Relationship Centres in assisting families to resolve parenting order variation and compliance issues
- The role of court orders generally in structuring post-separation parenting arrangements and whether courts need greater flexibility in dealing with post-separation parenting arrangements
- How court orders might be better drafted to reduce the likelihood of subsequent disputes
- The desirability of court orders, including alternative processes, particularly primary dispute resolution processes, for dealing with changes in circumstances and resolving subsequent disputes such as a contact orders program or a post-separation parenting program
- The desirability of encouraging parties to include in their agreements primary dispute resolution processes for dealing with changes in circumstances and resolving subsequent disputes
- The procedural and cost barriers to bringing contravention applications in relation to serious non-compliance matters, and
- Any other matter that may be relevant.
Mandatory Penalties for a Third Breach of Parenting Orders
The committee is also considering the following Terms of Reference received on 28 February 2006.
Further examine the recommendation of the House of Representatives Standing Committee on Family and Community Affairs in the Every Picture Tells a Story report that a court should give consideration to a parenting order in favour of the other parent where there is a third breach within a pattern of defiance of court orders. In particular, consider and make recommendations about whether it is appropriate for there to be mandatory penalties for a party that has breached a parenting order for a third time in the Family Law Act 1975.
This examination should consider the Government response to that report, which did not support this recommendation.
Current status of project
Council has finalised its report. The report was released in April 2008 and may be found at the link below.
Members
Mr Kym Duggan (convenor)
Ms Nicky Davies
Deputy Chief Justice Faulks
Federal Magistrate Hartnett
Federal Magistrate Mead
Mr Clive Price
Principal Registrar Angela Filippello
Ms Dianne Gibson
Ms Yvonne Marsh
Associate Professor Bruce Smyth
3. Violence and the Family Law Act
On 28 February 2006 the Council received the following terms of reference on coordination of the family law system and State and Territory systems:
The Family Law Council should consider recommendation 13 of the Report on the Exposure Draft of the Family Law Amendment (Shared Parental Responsibility) Bill 2005 in relation to adult victims of family violence. The Government notes that the Family Law Council has already made recommendations on the protection of children in the September 2002 report, Family Law and Child Protection.
The Family Law Council should identify strategies for improving the coordination of State and Territory systems, including specific projects that may assist the Government achieve their objectives. The Family Law Council should only consider State and Territory laws to the extent that they intersect with the family law system.
In accordance with recommendation 13, consider measures that the Commonwealth may initiate on its own or with the cooperation of State and Territory governments to:
- improve effective protection of persons who are, or may be, victims of family violence
- examine the effectiveness of legal and law enforcement mechanisms and their costs
- consider the degree to which Commonwealth, State and Territory agencies, individually or in cooperation, are able to deliver just and cost-effective outcomes
- assess the effectiveness of initiatives in public education prevention and rehabilitation, and
- examine the alleged incidence of false allegations of family violence.
The Government notes that, as part of the Family Law Violence Strategy, independent, short-term research will be commissioned about how the courts currently deal with allegations of violence that arise in family law proceedings.
Current status of the project
Council is currently preparing a report for the Attorney-General.
Members
Ms Nicky Davies (convenor)
Mr Kym Duggan
Mr Clive Price
Federal Magistrate Sexton
Ms Lani Blackman
Principal Registrar Angela Filippello
Principal Registrar David Monaghan
Ms Ruth Weston
4. Mental Health
On 5 July 2007 the Family Law Council received the following terms of reference on mental health in the family law system:
I request the Family Law Council investigate:
A. Whether the Family Law Act 1975 should be amended to allow a court exercising jurisdiction under the Act to make orders:
(a) relating to the assessment of, and reporting on, a party’s mental health, and the treatment of the party’s mental health.
(b) relating to the assessment of, and reporting on, whether a party has a physical or mental disability affecting his or her understanding of the nature or possible consequences of the case, or affecting his or her capacity to adequately conduct, or give instruction for the conduct of, a case.
B. How the costs of obtaining a report as to a party’s mental health should be funded.
Current status of the project
Council is currently preparing a report for the Attorney-General.
Members
Federal Magistrate Norah Hartnett (convenor)
Ms Nicola Davies
Mr Kym Duggan
Federal Magistrate Robyn Sexton
Justice Garry Watts
Ms Amanda Parkin
Ms Dianne Gibson
Current working groups of the Family Law Council
5. Child Support Working Group
The child support working group has been monitoring the operation of the Child Support Scheme. Council has membership on the Child Support Liaison Committee, which enables it to meet with officers of the Child Support Agency, the Department of Family and Community Services, the Legal Aid Office (ACT) and the Family Law Section of the Law Council on a regular basis. The working group provides Council with information on the operation of the Child Support Scheme.
Members
Mr Kym Duggan
Ms Yvonne Marsh
6. Statistical Snapshot Working Group
The Statistical Snapshot Working Group is responsible for compiling the Council’s biennial Statistical Snapshot of Family Law. Council released the most recent edition, covering the period from 2003 to 2005, in June 2007. The next edition will cover the period from 2005 to 2008, and is currently in the planning stages.
Members
Principal Registrar Angela Filippello (convenor)
Mr John Mathieson
Principal Registrar David Monaghan
Ms Ruth Weston