EXPLANATORY STATEMENT
Issued by the authority of the Attorney-General
Family Law Act 1975
Family Law (Part VII order application – Phase 2 date) Proclamation 2008
The Family Law Act 1975 (the Act) was amended in 2006 to encourage a culture of agreement making and avoidance of an adversarial court system to resolve family disputes about children’s matters. The intention behind the changes was to improve outcomes for children involved in family breakdowns.
The 2006 amendments included the insertion of new section 60I into Part VII of the Act which provides for attendance at family dispute resolution in a range of circumstances, prior to lodging an application with the court. The object of section 60I is to ensure that parties attempt to resolve disputes about children’s matters that can be dealt with under Part VII of the Act before commencing a court process.
There is a staged commencement of the requirement for people to attend a dispute resolution process before applying for a Part VII order under the Act. The three phases are set out in subsections 60I(2) to (6) of the Act.
Phase 1 is for proceedings filed from 1 July 2006 to 30 July 2007. It provides that during that time, people who have a dispute about matters which may be dealt with by a parenting order must comply with the dispute resolution procedures relevant to a parenting order that are set out in the Family Law Rules 2004. That phase is now completed.
Phase 2, as set out in subsection 60I(5), provides that subsections 60I(7) to (11) apply to an application for a Part VII order in relation to a child if: (a) the application is made on or after 1 July 2007 and before the date fixed by Proclamation; (b) and none of the parties have applied for a Part VII order in relation to the child before 1 July 2007. Subsections 60I(7) to (11) sets out the framework for attendance at family dispute resolution before commencing a court process. The Proclamation fixes 1 July 2008 as the date on which Phase 2 ends.
Phase 3, as set out in subsection 60I(6), applies subsections 60I(7) to (11) to all applications for a Part VII order that are made on or after a further Proclamation. That Proclamation fixes 1 July 2008 as the date on which Phase 3 commences.
The Proclamation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Consultation was unnecessary for this legislative instrument, as this instrument is of a machinery nature. It does not substantially alter existing arrangements.
Overview
The Family Law (Part VII order application – Phase 2 date) Proclamation 2008 was issued under the authority of the Attorney-General to implement a staged approach to mandatory family dispute resolution as part of the Family Law Act 1975. This Act was originally enacted to provide a comprehensive legal framework for family law matters in Australia, and subsequent amendments in 2006 introduced a new culture of agreement making and avoidance of adversarial court processes to improve outcomes for children in family disputes. Specifically, section 60I was introduced to require parties to attempt to resolve parenting disputes through family dispute resolution before initiating court proceedings. The Proclamation sets the date for Phase 2 of this staged implementation, which applies to applications made between 1 July 2007 and the date fixed by the Proclamation, 1 July 2008. This legislative instrument is intended to facilitate a smooth transition to mandatory dispute resolution practices and does not require consultation as it does not significantly alter existing legal arrangements.
Scope and Application
The Family Law Act 1975, amended in 2006 to promote agreement-making and reduce adversarial court proceedings for family disputes concerning children, introduces a phased approach to the requirement of attending family dispute resolution before applying for a Part VII order. Specifically, the Act applies to individuals who seek a Part VII order relating to a child, with the phased implementation beginning on 1 July 2006 and continuing until 1 July 2008. Phase 2, effective from 1 July 2007 to the date fixed by proclamation (1 July 2008), applies to applications made within this period if neither party had previously applied for a Part VII order before 1 July 2007. This phase enforces the attendance at family dispute resolution as outlined in the Family Law Rules 2004. Phase 3, which commences on 1 July 2008, extends the requirement to all applications for a Part VII order. The Act's jurisdiction is national, applying across Australia, and there are no specified exclusions, exemptions, or thresholds within the text provided. The proclamation, being a legislative instrument under the Legislative Instruments Act 2003, does not necessitate consultation as it pertains to procedural adjustments rather than substantive changes.
Key Provisions
The Family Law Act 1975 (the Act) has been amended to incorporate a phased approach to the implementation of family dispute resolution (FDR) requirements before parties can lodge an application for a Part VII order concerning children. This is to ensure that disputes about children's matters are resolved through agreement making rather than an adversarial court process. Section 60I, which was introduced in 2006, outlines the mandatory FDR requirements and is divided into three phases. Phase 1, which ran from 1 July 2006 to 30 July 2007, required parties to comply with FDR procedures relevant to a parenting order as set out in the Family Law Rules 2004. Phase 2, applicable to applications made from 1 July 2007 until the date fixed by the Proclamation, imposes the FDR framework on new applications. This phase ends on 1 July 2008, as fixed by the Proclamation. Phase 3, which starts on 1 July 2008, will extend the FDR requirements to all applications for a Part VII order.
The Act imposes specific obligations on parties involved in family law disputes. Under section 60I(7) to (11), parties must attend FDR before lodging a Part VII order application, unless an exception applies. This requirement is contingent on the application being made after 1 July 2007 and before 1 July 2008, and that neither party has previously applied for a Part VII order before 1 July 2007. The FDR process aims to facilitate agreement on children's matters and mitigate the need for court intervention. Parties must comply with the FDR procedures as outlined in the Family Law Rules 2004, which include attending a mediation session and attempting to reach an agreement.
Breach of the FDR requirements can have legal consequences. While the Act does not explicitly state penalties for non-compliance, failure to attend FDR as required may impact the court's consideration of the application. Courts may take into account the parties' efforts to resolve disputes through FDR when making decisions, which could potentially disadvantage parties who do not comply with the FDR requirements. Although there are no specified penalties in the Act, the court's discretion to consider compliance with FDR procedures underscores the importance of adhering to these obligations to achieve favourable outcomes in family law disputes.