124 The Family Law Act governs how decisions in family disputes over parenting and property matters will be made. In this section, the ALRC asks what changes might be made to the legislative provisions governing decisions about children’s care arrangements and the court’s welfare jurisdiction. It also asks whether and how the law in relation to parenting might be reformed to ensure a consistent approach to decision making about children’s care needs regardless of the structure of their family or how it was formed. The ALRC also asks about the need for changes to be made to the law governing property division, spousal maintenance and binding financial agreements.
Question 14 What changes to the provisions in Part VII of the Family Law Act could be made to produce the best outcomes for children?
Question 15 What changes could be made to the definition of family violence, or other provisions regarding family violence, in the Family Law Act to better support decision making about the safety of children and their families?
125 Early consultations for this Inquiry revealed a number of concerns about Part VII of the Family Law Act (Part VII). Among other things, Part VII vests relevant courts with the power to make ‘parenting orders’ about the care of children. These may include orders about:
126 Part VII also contains a framework that governs decision making about these issues by the courts. This framework, introduced in 2006, provides that the best interests of the child must be the court’s ‘paramount consideration’ when deciding what orders to make. It also sets out a list of factors the courts must take into account when determining the child’s best interests. This list identifies two matters—the benefit to the child of having a meaningful relationship with both parents, and the need to protect the child from harm from being subjected to, or exposed to, abuse, neglect or family violence—as primary considerations. As a result of amendments to the Act in 2012, the courts are required to give greater weight to the second of the primary factors, the need to protect children from harm.
127 Additional factors that the courts must consider include:
128 The decision-making framework in Part VII also includes a presumption that it is in the best interests of the child for his or her parents to have equal shared parental responsibility for their care. This presumption does not apply in cases of family violence or child abuse, and it can be rebutted by evidence that it is not in the best interests of the particular child in the circumstances. If the court does make an order for equal shared parental responsibility, it is then required to consider whether an equal care-time arrangement is in the child’s best interests and reasonably practicable.
129 In the 2006 case of Goode & Goode, [133] the Full Court of the Family Court held that this framework provides the courts with a multi-step decision-making pathway to follow. According to this pathway, a judicial officer should:
130 Academic scholarship and preliminary consultations for this Inquiry indicate that this framework has been the subject of considerable critique. This has included concerns about:
131 The definition of family violence in the Family Law Act is integral to the application of the provisions designed to protect children from harm. The relevant section, introduced in 2012, defines family violence as ‘ violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family … or causes the family member to be fearful’. [137] The section also provides a non-exhaustive list of examples of behaviour that may constitute family violence, including:
132 Some concerns have been expressed that this definition:
133 Recent reports and early consultations for this Inquiry suggested a number of potential reforms to the decision-making framework in Part VII and to the Act’s definition of family violence. These include proposals to:
134 Concerns have also been raised about the Family Law Act’s welfare jurisdiction, which gives the family courts a broad power to make orders relating to the welfare of children. [145] This supervisory jurisdiction of the court is used to support a range of orders arising outside the context of a dispute between parents, although the scope of the court’s power under s 67ZC is uncertain. [146] Recent reports and early consultations have revealed concerns about how the welfare jurisdiction operates in relation to people with disability (in particular in relation to the sterilisation of young women), and in relation to intersex children.
135 The sterilisation of a young person, including one with an intellectual disability, must usually be authorised by the Family Court pursuant to the exercise of its welfare jurisdiction. [147] Scholarly critiques have suggested that, in these matters, the Court has tended to focus on the person’s disability, including assumptions about their lack of capacity, instead of looking at their social context and capabilities. [148] Organisations such as Women with Disabilities Australia and the Australian Human Rights Commission have argued that forced sterilisation is a serious violation of human rights, and have called for a prohibition of the involuntary or coerced sterilisation of girls unless there is a serious threat to life. [149] However, the Family Court has noted that it is increasingly rare for such applications to be brought. [150] In 2013, the Senate Standing Committee on Community Affairs recommended the development of uniform model legislation to regulate the sterilisation of people with disability. [151]
136 In relation to intersex children, concerns have been raised about the ability of intersex children to participate in decision making about their gender identity and the extent to which court scrutiny on decisions in relation to medical treatment is required to uphold human rights standards. In Re: Carla, [152] the court held that its prior consent to the removal of gonads in a five year old child who was raised as a girl having been born with ‘the external appearance of a girl, but with male gonads not contained within a scrotum’ was not required. [153] This approach has been criticised by human rights advocates, on the basis that significant risks can ensue from the treatment, including infertility and loss of sexual sensation. [154] Intersex people have reported that it is common for medical procedures to be carried out on infants or young children, without their consent. [155] Responding to concerns from intersex organisations, the Senate Community Affairs Reference Committee in 2013 recommended that all proposed intersex medical interventions for children and adults without the capacity to consent should require authorisation from a civil and administrative tribunal or the Family Court. [156]
137 The ALRC also notes the recent appeal decision in Re Kelvin [157] in which the requirement for family court approval was overturned for stage two of medical treatment where the young person was considered to be Gillick [158] competent (of sufficient maturity to give informed consent) and their parents and treating medical practitioners agreed with the course of action.
138 The ALRC invites comment on whether changes should be made to Part VII, the definition of family violence, or any other provisions of the Family Law Act to produce best outcomes for children and better support decision making in relation to the safety of children and their families.
139 The ALRC is also interested in receiving feedback about other sections of the Family Law Act and Rules that affect arrangements for children, including:
Question 16 What changes could be made to Part VII of the Family Law Act to enable it to apply consistently to all children irrespective of their family structure?
140 As noted above in the section, ‘Objectives and principles’, a significant number of Australian families with children do not fit the traditional heterosexual nuclear family model. Since the passage of the Family Law Act, Australia has seen increasing numbers of stepfamilies, blended families, sole-parent families and same-sex families, as well as growing numbers of kinship-care arrangements.
141 Families in Australia also reflect a considerable diversity of cultural practices in relation to the care and raising of children, including among Aboriginal and Torres Strait Islander peoples and culturally and linguistically diverse communities. In many cases these practices incorporate approaches to family structure that are distinct from those of nuclear families. [159] For example, it is not uncommon for Aboriginal children to have multiple caregivers drawn from their wider kinship networks, [160] while many families in Australia’s new and emerging communities take a collectivist approach to child rearing.
142 In addition to this diversity, recent years have seen a growing use of assisted conception processes and surrogacy arrangements by Australian families, increasing the number of potential parents a child may have, including a mix of genetic, gestational, social and intending parents. Together, these developments suggest that for a significant number of Australian children, their family will include carers who are not their biological or legal parents.
143 Reflecting on this context, a number of stakeholders and reports have suggested that many of the provisions of Part VII, which are limited in their application to the child’s biological or adoptive parents, should be amended to better reflect the diversity of families in which children are cared for, and to better support decision making by the courts in cases where children are living in non-traditional families.
144 The ALRC seeks comment on whether Part VII of the Family Law Act should be amended to better reflect the diversity of families in Australia and support a consistent decision-making approach for all children regardless of their family structure.
Question 17 What changes could be made to the provisions in the Family Law Act governing property division to improve the clarity and comprehensibility of the law for parties and to promote fair outcomes?
145 The Family Law Act provides the family courts with broad powers to adjust property interests and make orders for spousal maintenance between current or former married couples, and between former partners from unmarried relationships. The provisions relating to married and unmarried couples are very similar but are not identical.
146 The Act provides two key powers to judicial officers in relation to parties to a current or former marriage and parties to a former ‘de facto’ relationship: a power to declare the title or rights that a party has in respect of property, [161] and a power to alter the interests of the parties in property. [162] Orders may be made that affect third parties in certain circumstances. [163] ‘Property’ is interpreted broadly to include all the property of the parties, and to include both legal and equitable interests, and tangible as well as intangible property such as shares or debts. [164] The Act also provides detailed provisions allowing for the division of superannuation interests. [165]
147 The power to alter property interests is broadly framed as a power to ‘make such order as [the court] considers appropriate’. [166] However, this power may only be exercised where the court is satisfied ‘that, in all the circumstances, it is just and equitable to make the order’. [167] The court’s discretion must also be exercised in accordance with legal principles, including those in the Act itself. [168]
148 In considering an application to alter property interests, the court must:
149 The law in a number of overseas family law systems takes a less discretionary approach to this issue. For example, the legislation in some countries employs default rules, such as a presumption of equal sharing (for example, New Zealand), [169] or uses a ‘community of property’ approach, where property acquired during the relationship is presumed to be jointly owned, but property acquired before or after the relationship belongs solely to the person who acquired it. [170]
150 A survey of separating parents conducted by the AIFS indicates that key factors affecting the division of their property were the extent of the assets, liabilities, and financial resources of the parties, who initiated the separation and who left the family home, family violence, and care-time arrangements for children. [171] The research found that a majority (62%) of respondents thought that their property arrangement was fair. [172]
151 However, this research suggests that for those affected by family violence or other risk factors, there is a greater likelihood of an outcome in which the person who has experienced violence will not achieve a fair outcome and may suffer long-term financial disadvantage. [173]
152 A number of suggestions have been made for changes to the Family Law Act’s property regime. These have included:
153 The ALRC invites comment on whether these or any other changes should be made to the provisions in the Family Law Act governing property division.
Question 18 What changes could be made to the provisions in the Family Law Act governing spousal maintenance to improve the clarity and comprehensibility of the law for parties and to promote fair outcomes?
154 The Family Law Act vests the family courts with power to order a party to a marriage or a ‘de facto’ relationship to pay spousal maintenance to the other party if that person is unable to support him or herself due to caring responsibilities for a child of the marriage, disability, or ‘any other adequate reason’. [182] The court can make ‘such order as it considers proper’ for the provision of maintenance, [183] having regard to the person’s capacity to pay.
155 The Act provides a list of 19 matters that may be taken account in determining what order to make, including the age and health of the parties, their income, property, financial resources and capacity for employment, and whether a party has the care and control of a child of the relationship who is under the age of 18. Orders for maintenance can either provide for lump sum maintenance, or for periodic payments. [184]
156 There is limited data available on the incidence of maintenance orders. However, surveys of court judgments have indicated that orders for maintenance are rare and are generally limited to cases involving high income families and made on an interim basis or for a limited period of time. [185]
157 Research suggests that this profile is in line with community attitudes in Australia, with one 1999 study indicating very limited community support for the payment of private spousal support after separation. [186]
158 However, a number of the early consultations for this Inquiry and submissions to the SPLA Inquiry have suggested that there should be greater consideration of spousal maintenance orders in cases involving family violence. These include a suggestion that family violence be included as a relevant factor in determining needs for the purposes of spousal maintenance applications. [187] Some stakeholders also proposed the development of a system of administrative determination of maintenance claims, in a similar fashion to child support.
159 The ALRC is interested in comment about whether changes are needed to the spousal maintenance provisions, particularly in relation to people who have experienced family violence.
Question 19 What changes could be made to the provisions in the Family Law Act governing binding financial agreements to improve the clarity and comprehensibility of the law for parties and to promote fair outcomes?
160 The Family Law Act provides for both married couples and unmarried cohabiting couples to settle their financial affairs by way of a binding financial agreement (BFA). A BFA may be entered into before, during or after a relationship, [188] and may set out how part or all of the parties’ property or financial resources, and maintenance, should be dealt with in the event that the marriage or relationship ends. [189]
161 Assuming a BFA is validly made, its effect is to ‘oust’ the jurisdiction of the family courts to make orders adjusting the parties’ property in accordance with the provisions of the Family Law Act. [190] Because of this effect, the Act provides a number of safeguards to protect parties who enter into a BFA. These include:
162 Over the years, the courts have overturned a number of agreements because of failure to meet the Family Law Act’s entry requirements, or previous versions of them. [193] In response to this, two sets of amendments [194] have been enacted to strengthen the enforceability of BFAs, including by:
163 Despite these changes, members of the legal profession have expressed concerns about their exposure to professional negligence liability resulting from the continuing uncertainty about the advice they are required to give clients. [196] Other issues that have been raised during consultations include concerns about:
164 The ALRC is interested in comment on whether any further changes are needed to the provisions governing BFAs.