EXPLANATORY STATEMENT
Issued by the authority of the Attorney-General
Family Law Act 1975
Family Law (Part VII order application – Phase 3 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 the application is made on or after 1 July 2007 and before the date fixed by Proclamation and none of the parties have applied for a Part VII order in relation to the child before 1 July 2007. That Proclamation fixes 30 June 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.
The Proclamation fixes 1 July 2008 as the date on which Phase 3 commences. It is anticipated that sufficient family dispute resolution services will be available by this date.
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 3 date) Proclamation 2008 was issued under the authority of the Attorney-General to implement the next phase of the requirements for family dispute resolution as introduced by the Family Law Act 1975. This Act was amended in 2006 to foster a culture of agreement-making and reduce the reliance on adversarial court processes for resolving family disputes related to children. The primary objective was to enhance the outcomes for children involved in family breakdowns. The 2006 amendments, particularly the introduction of section 60I, mandated that parties must engage in family dispute resolution before applying for a Part VII order, aiming to resolve children's matters outside the court system. The phased implementation of these requirements is designed to ensure that adequate family dispute resolution services are available. The Proclamation sets 1 July 2008 as the commencement date for Phase 3, following the completion of Phase 1 and Phase 2, which concluded on 30 June 2008. This legislative instrument does not require consultation as it is considered to be of a machinery nature and does not significantly alter existing arrangements.
Scope and Application
The Family Law (Part VII Order Application – Phase 3 Date) Proclamation 2008 applies to all applications for Part VII orders under the Family Law Act 1975, which deals with parenting matters, and mandates the attendance at family dispute resolution for those seeking such orders. This legislation pertains to individuals involved in family disputes concerning children, ensuring that parties attempt to resolve such disputes through mediation before resorting to court processes. The Act's application is national, extending across Australia, as it is a Commonwealth Act. The proclamation is part of a phased implementation, with Phase 3 commencing on 1 July 2008, following the completion of Phase 1 and Phase 2. This legislative instrument does not require consultation as it is deemed to be of a machinery nature and does not substantially alter existing arrangements. The Act's reach is comprehensive, applying to all relevant applications made after the specified dates, with no exclusions or exemptions outlined in the proclamation itself, though specific conditions may be detailed in subordinate instruments.
Key Provisions
The Family Law Act 1975, as amended in 2006, introduces a mandatory family dispute resolution requirement for parents seeking to resolve disputes about children's matters through a court process. This requirement is articulated in the new section 60I (subsections 60I(2) to (6)) and is implemented in phases to ensure a smooth transition. Phase 1, which took place from 1 July 2006 to 30 July 2007, required compliance with dispute resolution procedures relevant to parenting orders as outlined in the Family Law Rules 2004. Phase 2, commencing on 1 July 2007 and ending on 30 June 2008, mandated that applicants for a Part VII order in relation to a child must engage in dispute resolution if they had not previously applied for such an order before 1 July 2007. The latest phase, Phase 3, applies to all applications made on or after 1 July 2008, ensuring that all applicants must attend a dispute resolution process before seeking a Part VII order.
Under the new provisions, parties involved in a family dispute about children's matters must attend a family dispute resolution process before making an application to the court. This requirement is designed to promote agreement-making and reduce adversarial proceedings, thereby improving outcomes for children. The dispute resolution process must be undertaken in accordance with the Family Law Rules 2004 and must involve a registered family dispute resolution practitioner. Failure to comply with this requirement can result in the court refusing to hear the application, unless an exemption applies.
Breach of the mandatory dispute resolution requirement can lead to significant consequences. If a party fails to comply with the family dispute resolution process as mandated by section 60I, the court may refuse to hear the application for a Part VII order. This refusal is a strong disincentive designed to ensure compliance with the legislative intent to minimise adversarial court processes in family disputes. Additionally, any attempt to circumvent the dispute resolution process by directly filing an application without first attending a resolution process can result in the application being dismissed by the court, further emphasising the seriousness of the requirement.
While the Act does not explicitly state penalties for non-compliance, the primary consequence is the court's refusal to process the application, which can be particularly impactful given the importance of timely resolution in family law matters. This approach underscores the legislative intent to foster a culture of agreement-making and the avoidance of unnecessary court proceedings, ultimately aiming to protect the interests of children in family disputes.