EXPLANATORY STATEMENT
Select Legislative Instrument 2009 No. 18
ISSUED BY AUTHORITY OF THE ATTORNEY-GENERAL
Family Law Act 1975
Family Law (Family Dispute Resolution Practitioners) Amendment Regulations 2009 (No. 1)
Section 125 of the Family Law Act 1975 (the Act) provides, in part, that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters that are required or permitted by the Act to be prescribed or are necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Section 60I of the Act requires parties to attend family dispute resolution (subject to certain exceptions, including situations involving violence or child abuse) before the court may hear an application for an order under Part VII of the Act (which deals with matters concerning children). Section 60I aims to ensure that parties attempt to resolve their disputes about children’s matters under Part VII of the Act, before commencing a court process. This assists people in resolving family relationship issues outside the court system, which is costly and can lead to entrenched conflict.
In particular subsection 60I (7) provides that the court must not hear an application for an order under Part VII made by a person to whom the requirement to attend family dispute resolution in section 60I applies unless the application is accompanied by a certificate from a family dispute resolution practitioner. The Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (the Principal Regulations) currently set out the form of such a certificate in Schedule 1 to those Regulations.
However, subsequently the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 inserted a new paragraph into the Act to add an additional circumstance in which a family dispute resolution practitioner may issue a certificate.
The additional certification covers the situation where a family dispute resolution practitioner becomes aware during the course of the family dispute resolution that it would be inappropriate to continue the family dispute resolution due to factors prescribed in subregulation 25(2) of the Principal Regulations (for example, if it becomes apparent that there is a history of family violence among the parties, or there is a risk that a child may suffer abuse).
The Regulations update the form of the certificate in Schedule 1 to include the additional certification, at paragraph (e) of the certificate.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulations commence on 1 March 2009.
Consultation to update the form of the certificate was undertaken with Family Relationship Services Australia, which is the national peak body for family relationship services. This level of consultation is appropriate and sufficient, as this amendment is of a minor nature only and does not substantially alter existing arrangements.
Authority: Section 125 of the Family Law Act 1975
Overview
The Family Law (Family Dispute Resolution Practitioners) Amendment Regulations 2009 (No. 1) were introduced to address a gap identified in the Family Law Act 1975 regarding the circumstances under which family dispute resolution practitioners could issue a certificate. These regulations, issued by authority of the Attorney-General, amend the Family Law (Family Dispute Resolution Practitioners) Regulations 2008 to incorporate a new form of certification that allows practitioners to attest to situations where it would be inappropriate to continue family dispute resolution. This update responds to the need for practitioners to account for cases where factors such as a history of family violence or risk of child abuse are identified during the resolution process. By making these amendments, the regulations aim to ensure that the family dispute resolution process remains effective and sensitive to the complexities of family relationships, thereby supporting the Act's policy objective of resolving family relationship issues outside the court system, which is typically more costly and can lead to entrenched conflict. The regulations were developed in consultation with Family Relationship Services Australia, reflecting a collaborative approach to minor amendments that do not significantly alter existing arrangements.
Scope and Application
The Family Law (Family Dispute Resolution Practitioners) Amendment Regulations 2009 (No. 1) amends the Family Law (Family Dispute Resolution Practitioners) Regulations 2008 to update the form of the certificate that family dispute resolution practitioners must provide under the Family Law Act 1975. The amendment applies to family dispute resolution practitioners who are required to certify that parties have attended family dispute resolution as a condition of making an application concerning children under Part VII of the Act. The updated form of the certificate, as set out in Schedule 1 to the amended Regulations, includes an additional certification to cover situations where a practitioner becomes aware during the course of the resolution that it would be inappropriate to continue due to factors such as a history of family violence or a risk of child abuse. The Regulations extend to the Commonwealth and are applicable to all family dispute resolution practitioners operating within Australia. These Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003 and commenced on 1 March 2009. The consultation for this amendment was deemed sufficient due to its minor nature, conducted with Family Relationship Services Australia, the national peak body for family relationship services.
Key Provisions
The Family Law (Family Dispute Resolution Practitioners) Amendment Regulations 2009 (No. 1) primarily focus on updating the form of the certificate that family dispute resolution practitioners must issue under Section 60I of the Family Law Act 1975. This update is necessary to incorporate an additional circumstance under which such a certificate may be issued. Specifically, Section 60I(7) of the Act mandates that the court will not hear an application for an order concerning children unless accompanied by a certificate from a family dispute resolution practitioner. The updated form of the certificate, as detailed in Schedule 1 of these Regulations, now includes an additional certification for situations where it becomes inappropriate to continue the family dispute resolution due to specified factors such as a history of family violence or a risk of child abuse.
The Regulations impose certain obligations on family dispute resolution practitioners. Firstly, they must ensure that the updated form of the certificate, which includes the additional certification, is used appropriately. This involves recognising and documenting situations where it would be inappropriate to continue the family dispute resolution. Additionally, practitioners must be diligent in providing accurate and complete certificates to support the court process, ensuring that they cover the new circumstances where the resolution process must be halted. These obligations are critical for maintaining the integrity of the family dispute resolution process and ensuring that the court is properly informed about the circumstances of each case.
Breaches of the obligations imposed by these Regulations can have significant consequences. While the Regulations themselves do not specify particular offences or penalties, non-compliance with the requirements to issue accurate and complete certificates could potentially lead to legal challenges or other forms of recourse under the Family Law Act 1975. Inaccurate or incomplete certificates may result in court applications being dismissed, which could prolong legal disputes and increase costs for the parties involved. Additionally, if the failure to properly certify is found to have caused significant harm, such as by allowing a potentially abusive situation to go unchecked, there could be implications under other sections of the Family Law Act or related legislation, potentially leading to more severe civil or criminal penalties.