EXPLANATORY STATEMENT

 

Select Legislative Instrument 2007 No. 82

 

ISSUED BY AUTHORITY OF THE ATTORNEY-GENERAL

 

Family Law Act 1975

 

Family Law Amendment Regulations 2007 (No. 1)

 

 

Subsection 125(1) of the Family Law Act 1975 (the Act) provides, in part, that the Governor‑General may make regulations prescribing all matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

 

The purpose of the Regulations is to update the Family Law Regulations 1984 (the Principal Regulations) to reflect changes introduced by the Family Law Amendment (Shared Parental Responsibility) Act 2006. In particular the Regulations:

·      establish the Family Dispute Resolution Register;

·      introduce interim Accreditation Rules for family dispute resolution practitioners;

·      prescribe information to be given to people prior to family dispute resolution;

·      prescribe information to be provided by legal practitioners and courts under the Act;

·      prescribe matters for the purpose of section 60I of the Act, which requires a certificate from a family dispute resolution practitioner to be filed with an application for an order under Part VII of the Act; and

·      make minor technical amendments to align the numbering of the regulations with the numeric order of the sections of the Act to which they relate.

 

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

The Regulations commenced on the day after they were registered on the Federal Register of Legislative Instruments.

 

 

Details of the Regulations are as follows:

Regulation 1 - Name of Regulations

Regulation 1 provides that the name of the Regulations is the Family Law Amendment Regulations 2007 (No. 1).

Regulation 2 – Commencement

Regulation 2 provides for the commencement of the Regulations on the day after they are registered on the Federal Register of Legislative Instruments.

Regulation 3 - Amendment of the Family Law Regulations 1984

Regulation 3 provides that Schedule 1 amends the Principal Regulations.

The amendments to the Principal Regulations further the policy objectives of the new provisions of the Act introduced by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (the Shared Parental Responsibility Act). This is achieved by:

·   implementing interim Accreditation Rules under new section 10A of the Act that apply during the transition period established by item 118 of Part 4 of Schedule 4 to the Shared Parental Responsibility Act;

·   establishing the Family Dispute Resolution Register to assist the public, the courts and the Department to efficiently manage the introduction of compulsory family dispute resolution under new section 60I of the Act;

·   prescribing the information to be provided by legal practitioners and courts under new sections 12B and 12D of the Act;

·   prescribing the form of the certificate that will need to be filed with the court under new section 60I, in cases to which the compulsory dispute resolution requirement applies; and

·   prescribing other matters related to the practical operation of new section 60I.

Schedule 1 – Amendments

 

Item [1]: Subregulation 3(1), before definition of Act

 

This item inserts a definition of ‘accredited family dispute resolution practitioner’ into subregulation 3(1) of the Principal Regulations, which sets out the definitions of terms used in the Principal Regulations.

 

New Part 4A of the Regulations prescribes Accreditation Rules for family dispute resolution practitioners, pursuant to section 10A of the Act. The definition of ‘accredited family dispute resolution practitioner’ explains that a person who is accredited under Part 4A is an ‘accredited family dispute resolution practitioner’.

 

Item [2]: Subregulation 3(1), after definition of conference

 

This item inserts definitions of two terms into subregulation 3(1) of the Principal Regulations, which sets out the definitions of terms used in the Principal Regulations. The terms are ‘family dispute resolution applicant’ and ‘Family Dispute Resolution Register’.

 

New Part 4B of the Regulations establishes a ‘Family Dispute Resolution Register’. The Family Dispute Resolution Register is being established in anticipation of the phased introduction, from 1 July 2007, of the requirement for people to file a certificate from a family dispute resolution practitioner before a court may hear an application for an order under Part VII of the Act (subject to some exceptions). This requirement is set out at section 60I of the Act.

The Family Dispute Resolution Register will perform three main functions:

·   allow people seeking family dispute resolution to identify and locate professionals who come within the definition of ‘family dispute resolution practitioner’ in the Act and who are therefore able to provide certificates under section 60I;

·   provide a mechanism by which courts with jurisdiction under the Act can confirm that any family dispute resolution certificate filed with an application for Part VII orders has been issued by a legitimate practitioner; and

·   enable the Attorney-General's Department (the Department) to check that people are properly qualified to deliver family dispute resolution services, and exclude practitioners who might compromise the safety of family dispute resolution participants or the integrity of the family dispute resolution process.

 

The definition of ‘family dispute resolution applicant’ inserted by this item, refers to a person who has applied for registration in the Family Dispute Resolution Register, on either a permanent or transitional basis (this is explained further in relation to new regulation 60D, at item 9, below).

 

Item [3]: Subregulation 3(1), after definition of Secretary

 

This item inserts a definition of ‘Shared Parental Responsibility Act’ into subregulation 3(1) of the Principal Regulations, which sets out the definitions of terms used in the Principal Regulations. ‘Shared Parental Responsibility Act’ refers to the Family Law Amendment (Shared Parental Responsibility) Act 2006, which sets out the arrangements for the ‘transition period’ (explained at item 5, below) and is thus crucial to the operation of the accreditation and registration systems in new Parts 4A and 4B of the Regulations.

 

Item [4]: Subregulation 3(1), after definition of State Family Court

 

This item inserts a definition of ‘supervised family dispute resolution’ into subregulation 3(1) of the Principal Regulations, which sets out the definitions of terms used in the Principal Regulations. The definition of ‘supervised family dispute resolution’ inserted here directs the reader to new regulation 3AA, where the full definition of the term is set out. This approach has been taken as, due to its length, the definition of supervised family dispute resolution warrants its own provision.

 

Item [5]: Subregulation 3(1), after definition of the former Regulations

 

This item inserts a definition of ‘transitional family dispute resolution practitioner’ into subregulation 3(1) of the Principals Regulations, which sets out the definitions of terms used in the Principal Regulations.

 

The amendments made to the Act by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (which, pursuant to item 3 will be referred to as the Shared Parental Responsibility Act) introduced section 10A into the Act. Section 10A allows Accreditation Rules for family counsellors, family dispute resolution practitioners and others to be prescribed in the Principal Regulations. New Part 4A of the Regulations, at item 9, introduces Accreditation Rules for family dispute resolution practitioners.

 

To ensure that professionals who are currently delivering family dispute resolution are able to continue to offer these services without interruption on the introduction of the Accreditation Rules, the Shared Parental Responsibility Act provides for a period of transition to the new requirements. The transition period runs from 1 July 2006 to 30 June 2009 (as per item 118 of Schedule 4 to the Shared Parental Responsibility Act and regulation 82 of the Principal Regulations).

 

Item 124 of Schedule 4 to the Shared Parental Responsibility Act provides that, during the transition period, the following people are taken to be family dispute resolution practitioners within the meaning of section 10G of the Act (which defines ‘family dispute resolution practitioner’):

·   people who are authorised by an approved family dispute resolution organisation to offer family dispute resolution on behalf of the organisation, and

·   people who, by 30 June 2007, meet the requirements set out at regulation 83 of the Principal Regulations.

 

This item provides that, in the Principal Regulations, a person who is a family dispute resolution practitioner in the transition period because he or she comes within one of these categories is referred to as a ‘transitional family dispute resolution practitioner’.

 

Item [6]: After regulation 3

 

Item 6 will insert new regulation 3AA into the Principal Regulations. As explained in relation to item 4, regulation 3AA provides a definition of ‘supervised family dispute resolution’.

 

This definition is relevant to the Accreditation Rules for family dispute resolution practitioners, which will be set out at new Part 4A of the Principal Regulations. New regulation 58 in Part 4A sets out interim Accreditation Rules, which require people to have engaged in at least 30 hours of supervised family dispute resolution.

 

The definition of ‘supervised family dispute resolution’ is also relevant to the registration of family dispute resolution practitioners, set out at new Part 4B of the Principal Regulations. As explained in relation to new regulation 60F in Part 4B, registered family dispute resolution practitioners must undertake at least 24 hours education, training or professional development in family dispute resolution (which may include supervised family dispute resolution) in every 24 month period from the date on which they are registered.

 

This item explains that ‘supervised family dispute resolution’, is dispute resolution that is supervised by:

·   a family dispute resolution practitioner who has at least 12 months experience in providing family dispute resolution; or

·   a person who gives training in family dispute resolution on behalf of an education and training provider.

 

‘Family dispute resolution practitioner’ is defined in section 10G of the Act as a person who is:

·   accredited as a family dispute resolution practitioner under the Accreditation Rules (paragraph 10G(a));

·   authorised to act on behalf of an organisation designated by the Minister (paragraph 10G(b)); or

·   authorised or engaged by the Family Court of Australia, the Federal Magistrates Court or the Family Court of Western Australia (paragraphs 10G(c), (d) and (e)).

 

In addition, item 124 of Schedule 4 to the Shared Parental Responsibility Act provides that, during the transition period (explained in relation to item 5, above), a person who:

·   is authorised by an approved family dispute resolution organisation to offer family dispute resolution on the organisation’s behalf; or

·   by 30 June 2007 meets the requirements set out at regulation 83 of the Regulations;

is also taken to be a family dispute resolution practitioner within the meaning of section 10G of the Act.

 

‘Education and training provider’ is defined at new regulation 57.

 

The definition of ‘supervised family dispute resolution’ recognises that one way in which practitioners learn how to successfully deliver family dispute resolution and how to identify and address problems that may arise, is through receiving feedback and advice from experienced practitioners not only in the actual conduct or observation of a family dispute resolution session, but also through:

·   The supervisor providing guidance on how to prepare for a family dispute resolution session (eg by identifying issues that may arise, explaining family dispute resolution to the people who will participate so that all parties have the same expectations, etc). This ensures that family dispute resolution practitioners will be well prepared for the family dispute resolution session and will receive the benefit of the experience of their supervisor in looking at a case from different angles and being advised of common issues that arise in the conduct of family dispute resolution.

·   De-briefing of the person by the supervisor after the person has conducted or attended family dispute resolution. De-briefing enables them to identify issues that arose, techniques that were successful and/or unsuccessful, and ways that the family dispute resolution session could have been improved, etc. It provides an opportunity for people to actively consider the practice of family dispute resolution and work to continually improve their service delivery.

·   Giving presentations to the supervisor or a group on the family dispute resolution session. This allows practitioners to share their insights on the matters dealt with in the family dispute resolution session and their views on the conduct and outcome of that session. It also recognises the value of having such discussions in a group context, as this allows a wider range of experiences and learnings to be shared.

 

The definition of ‘supervised family dispute resolution’ also provides that, unless the person who must comply with the supervised family dispute resolution requirement in regulations 58 and 60F and his or her supervisor determine that it is impractical, the supervised family dispute resolution should include either direct supervision of the person during the conduct of family dispute resolution or attendance by the person at family dispute resolution conducted by the supervisor. This recognises that, as part of the supervision process, conducting or attending a family dispute resolution session is extremely valuable in preparing a new family dispute resolution practitioner to deliver services in a professional manner and in providing a family dispute resolution practitioner who has been working for some time an opportunity to have an independent party identify behaviours that they may have inadvertently adopted, or make suggestions to assist in more effective delivery of family dispute resolution. However, the provision also recognises that, particularly for people in rural or remote areas, the ability to access direct supervision may be limited or non-existent. It would be unfortunate if the supervised family dispute resolution requirement was to result in a situation where family dispute resolution practitioners in such areas, which already face challenges in attracting and retaining skilled workers, were unable to meet the Accreditation Rules or continue to meet registration requirements, due to an inability to access direct supervision. This provision allows people for whom direct supervision is impractical to meet the supervised family dispute resolution requirement in one of the other ways set out above.

Item [7]: Regulations 7 and 8

It is customary for regulations that refer to sections of the Act under which they are prescribed to appear in the same numerical order as the sections of the Act. The Principal Regulations currently contain numbering which is inconsistent with this custom. Existing regulations 7 and 8 relate to sections 12C and 11B of the Act, respectively. As a result, these regulations need to be inverted to ensure that their numbering accords with the section numbering in the Act.

In addition, new regulations are being prescribed under sections 12B and 12D of the Act. These new regulations need to appear immediately before and after the regulation that refers to section 12C of the Act.

This item inserts new regulations that refer to sections 12B and 12D and renumbers previous regulations 7 and 8 to ensure that they accord with the general principle regarding the numbering of regulations in parallel with the sections to which they refer.

Regulation 7: Appointment of family consultants (Act s11B)

 

New regulation 7 reproduces current regulation 8 of the Principal Regulations, in order to ensure that the numbering of regulations accords with the numbering of the sections of the Act to which the regulations refer (as set out above).

There has been no substantive change to the content of this regulation. Only the numbering has been affected.

Regulation 8: Prescribed information about non-court based family services and court’s processes and services (Act s12B)

 

To implement the Government's policy of encouraging people considering, or affected by, separation or divorce to utilise non-court counselling and dispute resolution services, Part IIIA of the Act ensures that people receive useful information on these services, as well as information about the court’s processes and services, early in the process of separation or divorce.

Section 12B of the Act provides that the regulations may prescribe information relating to non-court based family services and the court’s processes and services, which is to be included in the documents provided under Part IIIA of the Act. These documents are required to be provided to people considering instituting proceedings under the Act, by legal practitioners (under subsection 12E(1) of the Act) and the principal executive officer of a court with jurisdiction under the Act (under subsection 12F(1) of the Act).

New regulation 8 prescribes that information relating to non-court based family services and court’s processes and services that is to be included in documents provided under Part IIIA of the Act is information about:

·   the legal and possible social effects of the proposed proceedings (including the consequences for children whose care, welfare and development is likely to be affected by the proceedings);

·   the services provided by family counsellors and family dispute resolution practitioners to help people affected by separation or divorce;

·   the steps involved in the proposed proceedings;

·   the role of family consultants; and

·   the arbitration facilities available to arbitrate disputes in relation to separation and divorce.

Information on these issues is required to be provided to people considering instituting proceedings under the Act as such information will provide people with a clearer understanding of the court process, its potential effects on themselves and their children, the support services that are available to assist people experiencing family law problems and the alternatives to formal court action that may assist in resolving disputes.

In the majority of family law cases, the contact with a court with jurisdiction under the Act will be the first contact with the judicial system for the parties. They may find the process confusing and overwhelming. There is a danger that the stress experienced by the adults will flow on to the children, who may blame themselves for the conflict. Although legal action may be the most suitable mechanism for resolving disputes in some cases (particularly those involving family violence), people considering instituting legal proceedings need to be fully aware of the potential consequences of that course of action so that they can make an informed decision about the best way to proceed, and also be attuned to recognise the possible effects of different processes on their children.

Family counsellors provide ‘family counselling’, as defined at section 10B of the Act. Family counselling is a process in which a family counsellor helps one or more people to deal with personal or interpersonal issues relating to marriage, separation or divorce, including issues relating to the care of children.

Family dispute resolution practitioners provide ‘family dispute resolution’, as defined at section 10F of the Act. Family dispute resolution is a process in which a family dispute resolution practitioner, who is independent of all the parties involved in the process, helps people affected, or likely to be affected, by separation or divorce to resolve issues in dispute.

Attendance at family counselling or family dispute resolution services may assist people considering instituting proceedings under the Act by providing a controlled forum in which personal or interpersonal issues, or matters in dispute, can be discussed and explored.

‘Family consultants’ are appointed by the Family Court of Australia, the Federal Magistrates Court and the Family Court of Western Australia under section 11B of the Act.

Family consultants assist the court and the parties in cases involving children, and provide a continuing service as the case moves through the court process. They are psychologists and/or social workers who specialise in child and family issues after separation and divorce.

Arbitration is a process in which parties to a dispute present arguments and evidence to an arbitrator, who then makes a determination to resolve the dispute. Arbitration is only used in relation to matters for which an order may be sought under Part VIII of the Act, which deals with property, spousal maintenance and maintenance agreements; Part VIIIA of the Act, which deals with financial agreements and Part VIIIB of the Act, which deals with superannuation interests.

Regulation 8A: Prescribed information about reconciliation (Act s12C)

 

New regulation 8A reproduces current regulation 7 of the Principal Regulations, in order to ensure that the numbering of regulations accords with the numbering of the sections of the Act to which the regulations refer (as set out above).

There has been no substantive change to the content of this regulation. Only the numbering has been affected.

Regulation 8B: Prescribed information about Part VII proceedings (Act s12D)

 

To implement the Government's policy of encouraging people considering, or affected by, separation or divorce to utilise non-court counselling and dispute resolution services, Part IIIA of the Act ensures that people receive useful information on these services, as well as information about the court’s processes and services, early in the process of separation or divorce.

Section 12D of the Act provides that the regulations may prescribe information that is to be included in documents provided under Part IIIA of the Act to people involved in proceedings under Part VII of the Act. Part VII of the Act deals with matters concerning children. The documents are required to be provided by legal practitioners to people they are representing as a party in proceedings under Part VII (under subsection 12E(3)).

New regulation 8B prescribes that information to be provided to people involved in proceedings under Part VII of the Act is information about the family counselling services available to assist the parties, and the child or children concerned, to adjust to the consequences of orders made under Part VII.

Attendance at family counselling may help adults understand, accept and comply with court orders. It may also help children, or assist the adults involved to help children, understand the reason why the order was sought and made, and what it means for them. Exploring the court order and its consequences with a family counsellor in a calm, non-confrontational manner may assist people to comply with the order and avoid further court action for contravention of orders.

 

Item [8]: After regulation 12CA

 

Item 8 will insert new regulation 12CAA into the Principal Regulations.

 

Section 60I of the Act provides for compulsory attendance at 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 that can be dealt with under Part VII of the Act, before commencing a court process. This will assist people in resolving family relationship issues outside the court system, which is costly and can lead to entrenched conflict.

 

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. Subsection 60I(8) of the Act sets out the types of certificates that may be provided by a family dispute resolution practitioner.

 

This item provides that a certificate provided by a family dispute resolution practitioner under subsection 60I(8) must be in accordance with the form prescribed in Schedule 7A.

 

New subregulation 12CAA(2) provides that the validity of proceedings for a Part VII order, and any order made pursuant to those proceedings, is not affected by a failure to provide a certificate in accordance with the prescribed form. This will prevent appeals based on technical defects with a certificate after the court has already considered the case. This is appropriate if parties have already gone to the trouble and expense of having a matter heard.

 

Item [9]: After Part IV

 

Item 9 inserts new Parts 4A, 4B and 4C into the Principal Regulations. Part 4A introduces Accreditation Rules for family dispute resolution practitioners. Part 4B introduces the Family Dispute Resolution Register. Part 4C sets out offences related to, and provides for AAT review of decisions on, registration and accreditation of family dispute resolution practitioners.

 

Part 4A Accreditation Rules

 

Part 4A sets out the interim Accreditation Rules for family dispute resolution practitioners. The interim Accreditation Rules are prescribed under section 10A of the Act, which allows for Accreditation Rules to be prescribed in the Principal Regulations for family counsellors, family dispute resolution practitioners and people performing others prescribed roles.

 

Although section 10A of the Act provides for accreditation for family counsellors and family dispute resolution practitioners, at this stage it is only intended to prescribe accreditation requirements for family dispute resolution practitioners. Family dispute resolution practitioners are being dealt with as a matter of priority due to the introduction of the requirement, set out at section 60I of the Act, for attendance at 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). This requirement is being phased in from 1 July 2007.

 

Division 1 Preliminary

 

Regulation 57: Definitions

 

New regulation 57 contains definitions used in new Part 4A of the Principal Regulations.

 

Definition of ‘appropriate degree, diploma or other qualification’

 

The definition of ‘appropriate degree, diploma or other qualification’ at new regulation 57 is relevant to new regulation 58, which sets out interim Accreditation Rules. The interim Accreditation Rules require people to have been awarded an ‘appropriate degree, diploma or other qualification’.

 

The definition of ‘appropriate degree, diploma or other qualification’ is based on the definition of this term in current subregulation 83(2) of the Principal Regulations. This is because, as explained in relation to new regulation 58, the interim Accreditation Rules for family dispute resolution practitioners are based on the requirements set out in current regulation 83 of the Principal Regulations.

 

The new definition of ‘appropriate degree, diploma or other qualification’ differs from the existing definition at subregulation 83(2) as follows:

·   Changes relating to ‘social science’

Currently, an ‘appropriate degree, diploma or other qualification’ is defined as a course of study that is, or is the equivalent of, at least three years full time study in law or social science (such as psychology or social work) or which includes the equivalent of two years full time study in social science. ‘Social science’ is a broad term that encompasses a wide range of subjects, including geography, accounting, statistics, psychology and sociology.

 

Clearly, only some of these areas of study have relevance to the provision of family dispute resolution. Others (such as accounting and statistics) have no more relevance than areas of study that are excluded from the current regulation 83 requirements, such as engineering or chemistry. In order to ensure that regulation 83 works in a more logical manner to exclude all areas of study that are not relevant to family dispute resolution, qualifications in a social science are only recognised as ‘appropriate’ if they are in an area that is relevant to the provision of family dispute resolution. The note after the definition of ‘appropriate degree, diploma or other qualification’ explains that examples of social sciences relevant to the provision of family dispute resolution include psychology (including behavioural science) and sociology (including social work).

·   Conflict management

The new definition recognises qualifications in conflict management, as this area of study provides a grounding for provision of family dispute resolution that is comparable to the other qualifications recognised as appropriate.

·   Post-graduate qualifications

The existing requirement set out in regulation 83 is unclear as to whether higher qualifications such as a Graduate Diploma or Masters degree come within the definition of ‘appropriate degree, diploma or other qualification’. As such qualifications provide a grounding for provision of family dispute resolution that is comparable to the other qualifications recognised as appropriate, the definition has been adjusted to explicitly recognise graduate or post graduate diplomas, masters degrees and doctorates in relevant areas of study.

 

Definition of ‘education and training provider’

 

The definition of ‘education and training provider’ at new regulation 57 is relevant to new regulation 58, which sets out the interim Accreditation Rules. These interim Accreditation Rules require people to have been awarded an appropriate degree, diploma or other qualification by ‘an education and training provider’. The interim Accreditation Rules also require people to have engaged in at least 30 hours of supervised family dispute resolution. As set out in relation to item 6, ‘supervised family dispute resolution’ may be supervised by a person who gives training in family dispute resolution on behalf of an ‘education and training provider’.

A definition of ‘education and training provider’ will be inserted in the Principal Regulations by this item in order to address the disquiet and misunderstanding in the family dispute resolution sector as to the bodies that are eligible to deliver the tertiary qualifications required in the pathways to accreditation. The definition clarifies that delivery of appropriate qualifications is not restricted to any particular type of educational institution, but rather encompasses universities, colleges of advanced education, higher education providers and Registered Training Organisations.

 

Definition of ‘Registered Training Organisation’

 

The definition of ‘Registered Training Organisation’ at new regulation 57 is relevant to the definition of ‘education and training provider’. The definition of ‘Registered Training Organisation’ inserted in regulation 57 repeats the definition of Registered Training Organisation at section 3 of the Skilling Australia’s Workforce Act 2005.

 

Division 2 Accreditation of persons as family dispute resolution practitioners

 

Regulation 58: Family dispute resolution practitioners under paragraph 10G(1)(a) of the Act

Section 10G of the Act defines ‘family dispute resolution practitioner’ as a person who is:

·   accredited as a family dispute resolution practitioner under the Accreditation Rules (paragraph 10G(a));

·   authorised to act on behalf of an organisation designated by the Minister (paragraph 10G(b)); or

·   authorised or engaged by the Family Court of Australia, the Federal Magistrates Court or the Family Court of Western Australia (paragraphs 10G(c), (d) and (e)).

 

(As explained in relation to the definition of ‘supervised family dispute resolution’, at item 6, above, item 124 of Schedule 4 to the Shared Parental Responsibility Act sets out two additional categories of people who are family dispute resolution practitioners in the transition period.)

 

The first category of family dispute resolution practitioner, set out at paragraph 10G(1)(a) of the Act, is a person who is accredited as a family dispute resolution practitioner under the Accreditation Rules. Section 10A of the Act allows Accreditation Rules to be prescribed in the Principal Regulations for family dispute resolution practitioners (among others).

 

New regulation 58 provides that a person who meets the requirements set out at subregulation 58(2) and is accredited by the Secretary of the Attorney-General's Department (the Secretary) under regulation 58A is a family dispute resolution practitioner under paragraph 10G(a) of the Act.

 

The requirements set out at subregulation 58(2) are interim, rather than final, Accreditation Rules for family dispute resolution practitioners. It is expected that the final Accreditation Rules will be based on the competency-based Vocational Graduate Diploma for Family Dispute Resolution Practitioners (the Vocational Graduate Diploma) that has recently been developed by the Community Services and Health Industry Skills Council (the Skills Council). It is not possible to include references to the Vocational Graduate Diploma in the Principal Regulations at this time as the qualification has not yet been endorsed by the Ministerial Council for Vocational and Technical Education (the Ministerial Council), and therefore is not yet a part of the Australian Qualifications Framework. When the Vocational Graduate Diploma is endorsed and becomes an officially recognised qualification, the Principal Regulations will be amended to establish the final Accreditation Rules, which are expected to be based on that qualification.

 

Until the Vocational Graduate Diploma is officially recognised the Principal Regulations need to provide a mechanism through which potential individual entrants (i.e. those who are not authorised by a designated or approved organisation or by the courts) to the family dispute resolution workforce may be recognised. This mechanism is needed due to the terms of item 124 of Part 4 of Schedule 4 to the Shared Parental Responsibility Act, which identifies the people who are taken to be family dispute resolution practitioners within the meaning of section 10G of the Act in the transition period (which, as explained in item 5, above, runs from 1 July 2006 to 30 June 2009). Apart from recognising people authorised by approved family dispute resolution organisations, item 124 of Part 4 of Schedule 4 to the Shared Parental Responsibility Act only allows people who meet the requirements in regulation 83 by 30 June 2007 to be recognised as family dispute resolution practitioners during the transition period.

 

As a result of that provision, individual practitioners who do not meet the requirements of regulation 83 by 30 June 2007 will not have an alternative mechanism by which they can be recognised as a family dispute resolution practitioner unless and until Accreditation Rules are prescribed under the Regulations. Therefore, in order to allow people to enter the family dispute resolution workforce in the period prior to the endorsement of the Vocational Graduate Diploma, subregulation 58(2) sets out interim accreditation requirements that people can meet in order to be recognised as a family dispute resolution practitioner in the transition period. At the end of the transition period all individual practitioners will need to meet the final Accreditation Rules, which will be prescribed in the Regulations when the Vocational Graduate Diploma is endorsed by the Ministerial Council.

 

The interim Accreditation Rules are based on current regulation 83 of the Principal Regulations. Regulation 83 sets out the requirements that people must meet, by 30 June 2007, in order to be taken to be family dispute resolution practitioners in the transition period if they do not fall within the definition of family dispute resolution practitioner in section 10G of the Act and are not authorised by an approved organisation under item 124 of Schedule 4 of the Shared Parenting Act.

Items 12-15 amend current regulation 83 to ensure that it better reflects qualifications and skills that are relevant to the provision of family dispute resolution and does not exclude people who the Government regards as suitably qualified to deliver family dispute resolution services. The interim accreditation requirements set out at subregulation 58(2) differ from the amended regulation 83 as follows:

·   Change to definition of ‘appropriate degree, diploma or other qualification’

The definition of ‘appropriate degree, diploma or other qualification’ has been amended, as set out above in relation to new regulation 57, to:

o        include only those social sciences that are relevant to the provision of family dispute resolution;

o        recognise qualifications in conflict management; and

o        explicitly include post-graduate qualifications.

·   Timeframe for completion of supervised family dispute resolution

The requirement to complete the supervised family dispute resolution requirement in the 12 months immediately following completion of training in family dispute resolution has been removed. This recognises, and allows for, the diverse work patterns of the family dispute resolution workforce and will remove a barrier to workforce participation of people who may not be able to complete the supervised practice requirement within a set timeframe, for example due to pregnancy, absence from the workforce for family, health or personal reasons.

·   New definition of ‘supervised family dispute resolution ’

As set out above, a definition of ‘supervised family dispute resolution’ has been inserted at new regulation 3AA.

The definition of ‘supervised family dispute resolution’ in current subregulation 83(2) refers to dispute resolution that is supervised by an ‘experienced family dispute resolution practitioner’. However, no guidance is provided as to which family dispute resolution practitioners are regarded as ‘experienced’, which could result in practitioners who we would not regard as having sufficient experience supervising new practitioners. To address this concern the definition of ‘supervised family dispute resolution’ at new regulation 3AA, at item 6, above, provides that supervised family dispute resolution must be supervised by a family dispute resolution practitioner who has at least twelve months experience conducting family dispute resolution, or by a person who regularly gives training in family dispute resolution on behalf of an education and training provider (the last category of supervisor is the same as that currently provided for under paragraph (b) in the definition of supervised dispute resolution in subregulation 83(2).

As also set out in relation to new section 3AA, at item 6, above, supervised family dispute resolution is now defined in a way that provides greater guidance to practitioners about the activities that are considered to be ‘supervised family dispute resolution’.

·   Grandfathering arrangements in current regulation 83

The substance of current subparagraph 83(1)(a)(ii) was first inserted into the Principal Regulations in 1996 as subregulation 60(3). (It was inserted by Family Law Regulations (Amendment) 1996, Statutory Rule No. 71 of 1996). It was designed to allow experienced family dispute resolution practitioners who had been providing family dispute resolution services for some time but did not have any formal qualifications, time to gain appropriate tertiary qualifications as required under subparagraph 83(1)(a)(i) (then subregulation 60(1)). In order to be regarded as a family dispute resolution practitioner in the transition period people must meet the requirements of regulation 83 by 30 June 2007. In addition, people who meet subparagraph 83(1)(a)(ii) must have met the considerable practice requirements and have enrolled in a course of study by 31 August 2001. There is therefore no need for the interim Accreditation Rules to reflect current subparagraph 83(1)(a)(ii), as it would not provide a pathway for new entrants to the family dispute resolution workforce.

·   Eligible for registration

In order to be meet the requirements of subregulation 58(2), a person must be eligible for registration as a family dispute resolution practitioner under new subregulation 60D(1). In order to be eligible for registration a person must:

o        be a family dispute resolution practitioner;

o        have applied for registration in accordance with the regulatory requirements;

o        not be prohibited under a law of a State or Territory from working with children;

o        have complied with the laws for employment of people working with children in the States and Territories where they provide family dispute resolution services;

o        have access to a complaints mechanism; and

o        not have been convicted of an offence involving violence to a person or a sex related offence.

These requirements are explained in detail in relation to regulation 60D, below.

Regulation 58A: Accreditation of persons who meet requirements in subregulation 58(2)

As set out in relation to new regulation 58, above, a person who meets the requirements set out at subregulation 58(2) and is accredited by the Secretary under new regulation 58A is a family dispute resolution practitioner under paragraph 10G(a) of the Act. New subregulation 58(2) sets out the interim Accreditation Rules for family dispute resolution practitioners.

New subregulation 58A(1) provides that the Secretary must accredit a person as a family dispute resolution practitioner as set out at paragraph (a) of the definition of family dispute resolution practitioner in section 10G of the Act if the person meets the requirements set out at subregulation 58(2). These requirements are explained in relation to new regulation 58 (above) and new regulation 60D (below).

New subregulation 58A(2) provides that if the Secretary decides not to accredit a person as a family dispute resolution practitioner, he or she must give the person written notice of that decisions and the reasons it was made and inform the person of their review rights under regulation 61E.

Regulation 61E provides that various decisions relating to accreditation and registration, including the Secretary’s decision not to accredit a person under new regulation 58A, may be reviewed by the Administrative Appeals Tribunal (the AAT). Such provision is required as the Administrative Appeals Tribunal Act 1975 (the AAT Act) provides that the AAT may only review decisions that have been identified in legislation as appellable to it.

It is important, that people receive written notice of a decision and the reasons for it from a natural justice perspective. Written notification allows people to ensure that they are able to properly understand why a decision has been made and have a firm foundation on which to base an appeal of the decision, if they seek to do so. This is reflected in the AAT Act, which allows any person entitled to apply for review of a decision by the AAT to request the person who made the decision to furnish a written statement setting out findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.

 

Further detail is provided on appeal processes in relation to new regulation 61E.

 

Regulation 58B: Conditions of accreditation

New regulation 58B provides that the accreditation of a person as family dispute resolution practitioner is subject to compliance with a number of conditions. It is appropriate that accredited family dispute resolution practitioners be required to adhere to these conditions as, due to the introduction of a requirement to attend family dispute resolution before making an application to the court for an order under Part VII of the Act (as set out in relation to item 8, above), the Government may be seen as having some responsibility for ensuring that people are able to access quality services. As a result, in addition to ensuring that people are properly qualified to deliver family dispute resolution services (which will be achieved through the interim Accreditation Rules) it is equally important to ensure that people who might compromise the safety of family dispute resolution participants or the integrity of the family dispute resolution process are excluded from recognition as family dispute resolution practitioners.

Family dispute resolution practitioners will be working with families who are experiencing one of the most stressful periods of their lives, when they may be particularly vulnerable. The conditions of accreditation aim to ensure, to the greatest extent possible, that accredited family dispute resolution practitioners are appropriate people to provide the important and sensitive service of family dispute resolution.

The conditions of accreditation set out at new regulation 58B require an accredited family dispute resolution practitioner to:

·   Register on the Family Dispute Resolution Register

Accredited family dispute resolution practitioners must be registered on the Family Dispute Resolution Register within six months of being accredited under new regulation 58A. In order to be registered on the Family Dispute Resolution Register a person must meet the requirements set out at new regulation 60D. These requirements are explained in detail in relation to regulation 60D, below.

·   Comply with any request for information by the Secretary.

This will allow the Department to check that people are complying with the conditions of accreditation and obtain other relevant information from accredited practitioners.

·   Notify changes to name or contact details

Accredited practitioners must notify the Secretary about any change to their name or contact details within 28 days of the change, to ensure that the Department maintains up to date and accurate records of accredited family dispute resolution practitioners.

·   Notify matters that may affect eligibility for accreditation

Accredited practitioners must notify the Secretary, within seven days, about any matter that may affect their eligibility to continue to be accredited. The time period for notification of these matters is seven days, rather than the 28 days allowed for notification of changes to a practitioner’s name or contact details, as the matters that may affect continued accreditation may render the family dispute resolution practitioner inappropriate to deliver family dispute resolution services to vulnerable families. The matters that must be communicated to the Secretary within seven days include:

o     if the practitioner has been prohibited under a law of a State or Territory from being employed in child-related employment or working with children.

All States and Territories except Tasmania and South Australia have legislation that makes it an offence for those convicted of a sexual offence against a child to apply for or engage in child-related employment. People who have been prohibited under such laws from working with children are not eligible to be accredited as practitioners. It would obviously not be appropriate for such people to provide family dispute resolution services to families. If an accredited practitioner becomes prohibited from working with children he or she no longer meets the eligibility requirements for accreditation.

o     if the practitioner has failed to comply a law of a State or Territory relating to employment of people working with children.

A number of States have legislation that sets out requirements with which people who wish to work with children must comply. For example, people seeking such work in Queensland must obtain a ‘blue card’, which involves a detailed national check of a person’s criminal history, including any charges or convictions. People must have complied with such requirements in order to be eligible for accreditation. If an accredited practitioner has failed to comply with those requirements, he or she no longer meets the eligibility requirements for registration, and must be removed from the Register.

o     if the practitioner is charged with, or convicted of:

- an offence involving violence to a person; or

- a sex related offence, including rape, sexual assault, indecent assault, unlawful sexual acts with or upon minors, child pornography, procuring or trafficking of a child for indecent purposes or being knowingly concerned with the prostitution of a child.

This requirement recognises the importance of ensuring that the safety of vulnerable families is not compromised The Government considers that people who have convictions for offences of a violent or sexual nature are not appropriate to provide family dispute resolution.

o     the practitioner has ceased to provide family dispute resolution and the reasons for it.

It is important that the Department is notified when family dispute resolution practitioners cease to provide family dispute resolution services, and the reasons why they have done so. This will allow the Department to monitor the family dispute resolution practitioner workforce and, if necessary, act to address any problems which might arise in relation to the number and distribution of family dispute resolution practitioners.

·   Accreditation cannot extend beyond 30 June 2009.

As set out above in relation to new regulation 58, the interim Accreditation Rules are being introduced in order to provide a mechanism through which potential new entrants to the family dispute resolution workforce may be recognised in the period before the Vocational Graduate Diploma is officially endorsed and incorporated into the Principal Regulations. The interim Accreditation Rules are not intended to be a permanent means by which people can become accredited. As a result, paragraph 58B(1)(d) provides that the accreditation of a person under the interim Accreditation Rules cannot extend beyond 30 June 2009, which is the end of the transition period (as explained above in relation to item 5).

 

Subregulation 58B(2) provides that the Secretary may add, vary or revoke a condition of accreditation by giving the accredited family dispute resolution practitioner notice in writing. This provides the Department with flexibility to adjust the requirements placed on accredited practitioners in response to emerging issues, or to address problems which are identified through continuing practice. Accredited practitioners must comply with all conditions of accreditation, whether they are set out in subregulation 58(1) or added at a later date.

 

If an accredited practitioner does not comply with any conditions of accreditation his or her accreditation may be revoked under new regulation 58C. (In addition, the person’s registration on the Family Dispute Resolution Register may be cancelled under new regulation 60H.)

 

Regulation 58C: Revocation of accreditation

 

New regulation 58C sets out the circumstances in which the Secretary may revoke the accreditation of an accredited family dispute resolution practitioner. Subregulation 58C(1) provides that the Secretary may do so if he or she is satisfied that the accredited practitioner:

·   Fails to meet the requirements of subregulation 58(2)

Subregulation 58(2) sets out the interim Accreditation Rules. As set out above, a person must meet the requirements set out at subregulation 58(2) in order to be accredited by the Secretary under new regulation 58A. Clearly, if a family dispute resolution practitioner does not meet the requirements of subregulation 58(2), they do not meet the requirements for accreditation. If the Secretary is satisfied that an accredited practitioner does not, in fact, meet the requirements of those subregulations it is appropriate that the accreditation of that practitioner be revoked.

·   Knowingly gave false or misleading information, or failed to disclose material information, in order to be accredited.

Due to the introduction of the requirement under section 60I of the Act for compulsory attendance at 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, family dispute resolution practitioners have a new centrality within the family law system. It would be inappropriate to allow people who have been deliberately dishonest in order to gain accreditation, to continue to be accredited.

·   Fails, or ceases, to be registered as a family dispute resolution practitioner in the Family Dispute Resolution Register.

In order to be meet the requirements of the interim Accreditation Rules, a person must be eligible for registration as a family dispute resolution practitioner under new subregulation 60D(1). In addition, the conditions of accreditation set out at new regulation 58B require an accredited family dispute resolution practitioner to be registered on the Family Dispute Resolution Register within six months of being accredited as a family dispute resolution practitioner by the Secretary under new regulation 58A. In order to be registered on the Family Dispute Resolution Register a person must meet the requirements set out at new regulation 60D. These requirements include compliance with laws relating to working with children and the absence of convictions for offences of a violent or sex-related nature. If a person is unable to meet these requirements in order to become registered, or contravenes these requirements when registered, they may not be suitable to provide family dispute resolution services to families, and therefore it is appropriate that the Secretary may revoke their accreditation as a family dispute resolution practitioner.

·   Has failed to comply with any other condition of the accreditation.

As set out in relation to new regulation 58B, above, the accreditation of a person as a family dispute resolution practitioner is subject to compliance with a number of conditions, which may be changed, added to or revoked at any time. The conditions are imposed in order to ensure that those accredited as family dispute resolution practitioners are appropriate people to be delivering sensitive services to vulnerable families. If accredited practitioners do not comply with these conditions, it may be appropriate to revoke their accreditation.

 

New subregulation 58C(2) provides that if the Secretary is of the opinion that a family dispute resolution practitioner’s accreditation should be revoked, he or she must notify the practitioner in writing of that belief and the reasons for it, and ask the practitioner to show cause why his or her accreditation should not be revoked. This process will ensure that a family dispute resolution practitioner receives comprehensive information about the circumstances that have led to the Secretary’s belief that the practitioner’s accreditation should be revoked. This will allow the practitioner, if he or she chooses, to fully explain the situation, which may involve correcting misconceptions or detailing extenuating circumstances. For example, a practitioner may have failed to notify the Secretary of a change to his or her name or contact details within 28 days as required under new paragraph 58B(1)(c) due to the death of a family member. This would obviously be relevant to the Secretary’s decision on whether that person’s accreditation should be revoked. The practitioner must provide the written information that he or she believes shows cause as to why his or her accreditation should not be revoked within a period specified in the Secretary’s notice, which must be at least 28 days from receipt of the notice.

 

If the practitioner does not respond during the specified period, or if he or she does attempt to show cause as to why his or her accreditation should not be revoked but fails to satisfy the Secretary, the Secretary may revoke the practitioner’s accreditation.

 

Subregulation 58C(4) provides that if the Secretary decides to revoke the practitioner’s accreditation he or she must give the practitioner written notice of the decision, including reasons for the decision. The Secretary must also inform the person of their review rights under regulation 61E.

 

New regulation 61E provides that various decisions relating to accreditation and registration, including the Secretary’s decision not to accredit a person, may be reviewed by the AAT. Such provision is required as the AAT Act provides that the AAT may only review decisions that have been identified in legislation as appellable to it.

 

It is important that people receive written notice of a decision and the reasons for it from a natural justice perspective. Written notification allows people to ensure that they are able to properly understand why a decision has been made and have a firm foundation on which to base an appeal of the decision, if they seek to do so. This is reflected in the AAT Act, which allows any person entitled to apply for review of a decision by the AAT to request the person who made the decision to furnish a written statement setting out findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.

 

Further detail is provided on appeal processes in relation to new regulation 61E.

 

If a family dispute resolution practitioner’s accreditation is revoked, they will no longer be eligible for inclusion on the Family Dispute Resolution Register.

 

Part 4B Registration or listing of family dispute resolution providers

 

From 1 July 2007 a requirement will be phased in, under section 60I of the Act, for compulsory attendance at 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. From that time, people seeking family dispute resolution will need to be able to identify and locate professionals who come within the definition of ‘family dispute resolution practitioner’ in the Act and are therefore able to issue certificates under section 60I of the Act. Courts with jurisdiction under the Act will need a mechanism to confirm that any family dispute resolution certificates filed with applications for Part VII orders have been issued by a legitimate practitioner.

 

In addition, due to the introduction of the compulsory dispute resolution requirement, the Government may be seen as having some responsibility for ensuring that people are able to access quality services. As a result, in addition to ensuring that people are properly qualified to deliver family dispute resolution services (which will be achieved through the interim Accreditation Rules) it is equally important to ensure that people who might compromise the safety of family dispute resolution participants or the integrity of the family dispute resolution process are excluded from recognition as family dispute resolution practitioners.

 

To address these needs, new Part 4B of the Regulations will establish the Family Dispute Resolution Register (the Register). The Register, which will contain details of individuals and organisations who offer family dispute resolution, is prescribed under section 10A of the Act.

 

The Register will contain details of all persons who come within the definition of family dispute resolution practitioner in section 10G of the Act (except those authorised by the Family Court of Australia, the Federal Magistrates Court or the Family Court of Western Australia under paragraphs 10G(c) – (e) of the Act). The details of organisations that are designated by the Attorney-General for the purposes of paragraph 10G(b) of the Act will also appear on the Register, as people authorised by these organisations to provide family dispute resolution on the organisations’ behalf are family dispute resolution practitioners under the Act, and therefore may provide certificates under section 60I of the Act.

 

In the transition period, which runs from 1 July 2006 to 30 June 2009, people who are taken to be family dispute resolution practitioners under section 10G of the Act as a result of the operation of Item 124 of Schedule 4 to the Shared Parental Responsibility Act will also be included on the Register. These are people who:

·   are authorised by an approved family dispute resolution organisation to offer family dispute resolution on behalf of the organisation; or

·   who, by 30 June 2007, meet the requirements set out at regulation 83 of the Principal Regulations.

 

In addition, approved family dispute resolution organisations, as defined in Part 4 of Schedule 4 to the Shared Parental Responsibility Act will also appear on the Register.

 

Division 1 Preliminary

 

Regulation 59: Definition

 

The definition of ‘approved family dispute resolution organisation’ at new regulation 59 is relevant to new regulations 59A and 61B. New regulation 59A provides for the establishment of the Family Dispute Resolution Register. New regulation 61B provides that the Secretary must maintain, as part of the Register, a list of approved family dispute resolution organisations.

 

As set out in relation to item 5, the Shared Parental Responsibility Act provides for a period of transition to the new Accreditation Rules for family dispute resolution practitioners. The transition period runs from 1 July 2006 to 30 June 2009 (as per item 118 of Schedule 4 to the Shared Parental Responsibility Act and regulation 82 of the Principal Regulations). Prior to the amendment of the Act by the Shared Parental Responsibility Act, organisations could be ‘approved’ as family and child mediation organisations under previous section 13B of the Act. One of the main functions of approved organisations was to guarantee the quality of services provided by the practitioners they authorised to provide services on their behalf. Due to the focus shifting from organisation-based quality assurance to individual quality assurance, as evidenced by the introduction of section 10A into the Act (which provides the framework for the creation of Accreditation Rules for practitioners) the concept of approved organisations was removed from the Act on 1 July 2006. However, in order to ensure that the delivery of services was not interrupted during the conversion to the new accreditation system, the Shared Parental Responsibility Act maintains approved organisations in the transition period. Item 128 of Schedule 4 to the Shared Parental Responsibility Act provides that, if an organisation was approved as a family and child mediation organisation immediately before 1 July 2006 (when Schedule 4 to the Shared Parental Responsibility Act commenced) it is taken to be approved as a family dispute resolution organisation under item 125 in the transition period. Item 125 of Schedule 4 to the Shared Parental Responsibility Act allows the Minister to approve certain organisations as family dispute resolution organisations in the transition period.

 

The definition of ‘approved family dispute resolution organisation’ at new regulation 59 includes both these categories of organisations.

 

Regulation 59A: Family Dispute Resolution Register

 

New regulation 59A provides for the establishment of the Family Dispute Resolution Register (the Register).

 

From 1 July 2007 a requirement will be phased in, under section 60I of the Act, for a certificate from a family dispute resolution practitioner to be filed with applications for orders under Part VII of the Act, which deals with matters concerning children. (This requirement is subject to certain exceptions, including situations involving violence or child abuse.) The Register is being introduced to address the following needs, which are related to the introduction of that requirement:

·   people seeking family dispute resolution will need to be able to identify and locate professionals who come within the definition of ‘family dispute resolution practitioner’ in the Act and are therefore able to issue certificates under section 60I of the Act;

·   courts with jurisdiction under the Act will need a mechanism to confirm that any family dispute resolution certificates filed with applications for Part VII orders have been issued by a legitimate practitioner; and

·   the Department seeks to exclude practitioners who might compromise the safety of family dispute resolution participants or the integrity of the family dispute resolution process.

 

New subregulation 59A(2) provides that the Register must include:

·   Names and contact details of registered family dispute resolution practitioners.

In order to be registered, a person must meet the requirements set out at new regulation 60D. The first requirement is that a person is a family dispute resolution practitioner. Pursuant to section 10G of the Act, a ‘family dispute resolution practitioner’ is a person who is:

o        accredited under new regulation 58;

o        authorised to provide family dispute resolution on behalf of an organisation that has been designated by the Attorney-General under paragraph 10G(b) of the Act; or

o        authorised by the Family Court of Australia, the Federal Magistrates Court or the Family Court of Western Australia under paragraph 10G(c), (d) or (e) of the Act.

 

However, as the courts’ delivery of family dispute resolution is decreasing in parallel with the increasing provision of family dispute resolution by the community sector, it is not expected that the courts will use their power to authorise family dispute resolution practitioners in many cases. The courts will usually only authorise people to provide family dispute resolution when this service is unavailable from any other source. In view of this, it is not necessary for the family dispute resolution practitioners authorised by the courts to appear on the Register as:

o        the public should not be given the impression that family dispute resolution is a service that the court routinely offers;

o        if the court does authorise a person to provide family dispute resolution and that person issues a certificate under section 60I, the court will not need to verify the credentials of the practitioner, as this will be known by the court prior to authorisation; and

o        the courts will ensure that all the people they authorise as family dispute resolution practitioners are suitable to provide services to vulnerable families.

·   Designated organisations

The Register must include a list of organisations designated by the Attorney-General for the purposes of paragraph 10G(b) of the Act (this list is established by new regulation 61A).

·   Transitional family dispute resolution practitioners and approved organisations

In the transition period, which concludes on 30 June 2009, the Register must include:

o       the names and contact details of transitional family dispute resolution practitioners; and

o       a list of approved family dispute resolution organisations.

A definition of ‘transitional family dispute resolution practitioner’ is inserted into subregulation 3(1) of the Principal Regulations by item 5. As set out in relation to item 5, a ‘transitional family dispute resolution practitioner’ is a person who, in the transition period (which, as per item 118 of Schedule 4 to the Shared Parental Responsibility Act and regulation 82 of the Principal Regulations, runs from 1 July 2006 to 30 June 2009):

o        is authorised by an approved family dispute resolution organisation to offer family dispute resolution on behalf of the organisation; or

o        by 30 June 2007, meet the requirements set out at regulation 83 of the Principal Regulations.

 

A definition of ‘approved family dispute resolution organisation’ appears in new regulation 59. New regulation 61B provides that the Secretary must maintain a list of approved family dispute resolution organisations.

 

As set out above in relation to new regulation 59, the concept of ‘approved organisations’ will be removed from the legislation at the end of the transition period.

 

Regulation 59B: Powers and functions of Secretary in relation to Family Dispute Resolution Register

 

New regulation 59B sets out the Secretary’s powers in relation to the Register. These are additional to the powers and functions conferred on the Secretary by other provisions of the Principal Regulations. Under regulation 59B the Secretary may:

·   Monitor compliance with registration requirements.

New regulation 60D (explained in detail below) sets out the eligibility requirements for registration as a family dispute resolution practitioner. New paragraph 59B(1)(a) of the Regulations ensure that the Secretary has power to monitor the compliance of registered practitioners with the requirements set out in new regulation 60D. This will ensure that registered practitioners genuinely meet the requirements that have been established to ensure that only those who are suitable to provide family dispute resolution are listed on the Register.

·   Ensure that people comply with the conditions of registration and make enquiries relating to compliance with these conditions.

New regulation 60F (explained in detail below) sets out the conditions to which a family dispute resolution practitioner’s registration is subject. New subregulation 60F(4) provides that the Secretary may also add, vary or revoke conditions of registration. New paragraphs 59B(1)(b) and (c) of the Regulations ensure that the Secretary has power to monitor compliance of registered practitioners with the conditions of their registration. This enables the Secretary to ensure that people are meeting ongoing requirements (such as the requirement for continuing training, education or professional development) and are not registered in situations where their circumstances may have changed in a way that renders them inappropriate to continue to provide family dispute resolution (for example, they may have been convicted of a crime of violence or a sex related offence).

·   Request information from persons or organisations.

There are a number of circumstances in which it may be necessary for the Secretary to request information from a person or organisation in relation to the registration of a person as a family dispute resolution practitioner. It may be necessary in order to enable the Secretary to obtain all the information needed in order to make a decision as to whether a person should be registered under new regulation 60B (explained in detail below), or to establish whether a registered practitioner has complied with the conditions of registration at new regulation 60F (explained in detail below).

Under new paragraph 59(1)(d) the Secretary may request information from any individual or organisation. New paragraph 60F(1)(a) provides that it is condition of registration that a registered person must comply with any request for information by the Secretary. If the individual does not comply with such a request his or her registration may be suspended (under new paragraphs 60G(1)(a) or (2)(a)) or cancelled (under new paragraphs 60H(1)(a) or (2)(a)). Registered organisations must comply with a request for information by the Secretary under new regulation 61C.

·   Determine the form in which the Register is to be maintained, the details it must include, how people may gain access to their information in the Register, and the manner in which this information will be given and make corrections to the Register.

Paragraphs 59B(1)(e) to (j) allow the Secretary to establish the administrative requirements for the Register. These details include the form in which the Register will be kept (new subregulation 59A(3) provides that the Register may be maintained in any form, including electronically) and to determine the form of, and manner of providing, extracts from the Register (new subregulation 60E(4) provides that a registered family dispute resolution practitioner is entitled to an excerpt from the Register showing that he or she is registered).

New subregulation 59B(2) provides that, in addition to the specific powers and functions of the Secretary that are spelt out in subregulation 59B(1), the Secretary has the power to do anything that is necessary or convenient for performing his or her functions under new Part 4B of the Regulations, which deals with the registration of family dispute resolution practitioners and the listing of designated and approved organisations.

 

Division 2 Registration of family dispute resolution practitioners

 

Regulation 60: Form of application

 

New regulation 60 sets out the requirements with which applications for registration as an individual family dispute resolution practitioner must comply. New paragraph 60(1)(a) provides that the application must be in writing and in a form approved by the Secretary. New paragraph 60(1)(b) provides that the application must include the information set out at new regulation 60A (set out below).

 

New subregulation 60(2) provides that the application form may require applicants for inclusion on the Register to make a statutory declaration about information, documents or other matters given by the applicant in or with the registration application. As the statutory declaration will require applicants to attest to the veracity of information and evidence provided in their application, this requirement will enable the Department to have a higher degree of confidence in that information. The Statutory Declarations Act 1959 provides that intentionally making a false statement in a statutory declaration is an offence, with a maximum penalty of four years imprisonment.

 

Regulation 60A: Information to be included in application

 

As set out above, new paragraph 60(1)(b) provides that an application for registration as a family dispute resolution practitioner in the Register must include the information mentioned in new regulation 60A. Importantly, paragraph 60A(1)(d) provides that the application must include a statement that the applicant:

·   is not prohibited under a law of a State or Territory from working with children;

·   has complied with the laws relating to employment of people working with children in the State(s) or Territory(s) in which he or she will be providing family dispute resolution; and

·   has not been convicted of a violent or sex-related offence.

 

These requirements are explained in detail in relation to new regulation 60F, below.

Regulation 60B: Decision on application

 

New regulation 60B provides that on receiving an application for registration that complies with the requirements of new regulation 60, the Secretary must either:

·   register the applicant - if he or she complies with the requirements for registration set out at new regulation 60D;

·   refuse to register the applicant- if he or she is clearly ineligible for registration under new regulation 60D; or

·   ask the applicant to provide additional information necessary to enable the Secretary to determine whether the applicant meets the requirements of new regulation 60D.

 

If the Secretary asks the applicant to provide additional information he or she must do so in writing and must specify a time in which the additional information must be provided. If the requested information is not provided in the specified time, the application for registration will be considered to have been withdrawn.

 

In keeping with well established administrative law principles, new subregulation 60B(4) provides that in deciding an application for registration the Secretary must have regard to the information in the application (including any evidence, documents etc that accompany the application) and any additional information provided by the applicant in response to a request from the Secretary. In addition, the Secretary may have regard to any other information that is relevant to deciding whether the applicant meets the requirements for registration set out at new regulation 60D.

 

An applicant for registration who does not apply in accordance with new regulations 60 and 60A is not eligible for registration as a family dispute resolution practitioner or a transitional family dispute resolution practitioner, due to paragraphs 60D(1)(b) and (2)(b) (set out below).

 

Regulation 60C: Notice of decision

 

New regulation 60C sets out the procedures that must be followed when the Secretary has reached a decision as to whether an applicant should be registered as a family dispute resolution practitioner.

 

If the Secretary decides to register the applicant he or she must notify the applicant in writing, stating that the registration is subject to the conditions set out in new regulation 60F (explained in detail below) and any other conditions specified in the notice.

 

New subregulation 60C(2) provides that if the Secretary decides not to register a person as a family dispute resolution practitioner, he or she must give the person written notice of that decision and the reasons it was made and inform the person of their review rights under new regulation 61E.

 

Regulation 61E provides that various decisions relating to accreditation and registration, including the Secretary’s decision not to register a person, may be reviewed by the AAT. Such provision is required as the AAT Act provides that the AAT may only review decisions that have been identified in legislation as appellable to it.

 

It is important, that people receive written notice of a decision and the reasons for it from a natural justice perspective. Written notification allows people to ensure that they are able to properly understand why a decision has been made and have a firm basis on which to base an appeal of the decision, if they seek to do so. This is reflected in the AAT Act, which allows any person entitled to apply for review of a decision by the AAT to request the person who made the decision to furnish a written statement setting out findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.

 

Further detail is provided on appeal processes in relation to new regulation 61E.

 

Regulation 60D: Who is eligible for registration?

 

New regulation 60D provides sets out the requirements with which applicants must comply in order to be included on the Register. It is appropriate that registered family dispute resolution practitioners be required to meet certain requirements as, due to the introduction of a requirement to attend family dispute resolution before making an application to the court for an order under Part VII of the Act (as set out in relation to item 8, above), the Government may be seen as having some responsibility for ensuring that people are able to access quality services. It is important to ensure that people who might compromise the safety of family dispute resolution participants or the integrity of the family dispute resolution process are excluded from recognition as family dispute resolution practitioners.

 

Family dispute resolution practitioners will be working with families who are experiencing one of the most stressful periods of their lives, when they may be particularly vulnerable. It is important that these families are not put at risk by participation in a family dispute resolution process. The requirements set out at new regulation 60D aim to ensure, to the greatest extent possible, that family dispute resolution practitioners included on the Register are appropriate people to provide important and sensitive family dispute resolution services.

 

In order to meet the registration requirements a person must:

·   Be a family dispute resolution practitioner or a transitional family dispute resolution practitioner

 

The first requirement for registration is that a person is a ‘family dispute resolution practitioner’ or a ‘transitional family dispute resolution’. The requirements for people seeking registration as a family dispute resolution practitioner or transitional family dispute resolution practitioner are set out at subregulation 60D(1) and subregulation 60D(2) respectively.

 

Section 10G of the Act defines ‘family dispute resolution practitioner’ as a person who is:

o        accredited as a family dispute resolution practitioner under the Accreditation Rules (paragraph 10G(a));

o        authorised to act on behalf of an organisation designated by the Minister (paragraph 10G(b)); or

o        authorised or engaged by the Family Court of Australia, the Federal Magistrates Court or the Family Court of Western Australia (paragraphs 10G(c), (d) and (e)).

 

The first category of family dispute resolution practitioner – an accredited family dispute resolution – is a person who is accredited by the Secretary under new regulation 58A (set out above).

 

Item 5, above, inserts a definition of ‘transitional family dispute resolution practitioner’ at subregulation 3(1) of the Regulations. A ‘transitional family dispute resolution practitioner’ is a person who (during the transition period):

o        is authorised by an approved family dispute resolution organisation to offer family dispute resolution on behalf of the organisation; or

o        by 30 June 2007, meet the requirements set out at regulation 83 of the Principal Regulations.

 

Transitional family dispute resolution practitioners are only able to be registered until 30 June 2009. After that date, family dispute resolution practitioners will need to come within one of the categories of family dispute resolution practitioner set out at section 10G of the Act. That is, unless they are authorised by a designated organisation or one of the courts specified at paragraphs 10G(1)(c), (d) or (e), practitioners will need to meet the final Accreditation Rules (which will be prescribed in the Principal Regulations when the Vocational Graduate Diploma receives official endorsement).

·   Have applied in accordance with new regulations 60 and 60A.

As set out above, these new regulations set out the requirements with which applications for inclusion on the Register must comply, and the information that is to be included in such applications. An applicant for registration who does not apply in accordance with those regulations is, due to paragraphs 60D(1)(b) and (2)(b), not eligible for registration as a family dispute resolution practitioner or a transitional family dispute resolution practitioner.

·   Not be prohibited under a law of a State or Territory from working with children.

All States and Territories except Tasmania and South Australia have legislation that makes it an offence for those convicted of a sexual offence against a child to apply for or engage in child-related employment. People who have been prohibited under such laws from working with children are not eligible to be registered as practitioners. It would obviously not be appropriate for such people to provide family dispute resolution services to families. If a registered practitioner becomes prohibited from working with children he or she no longer meets the eligibility requirements for registration, and must be removed from the Register.

·   Have complied with the law relating to employment of people working with children in the State(s) or Territory(s) in which he or she will provide family dispute resolution services.

A number of States have legislation that sets out requirements with which people who wish to work with children must comply. For example, people seeking such work in Queensland must obtain a ‘blue card’, which involves a detailed national check of a person’s criminal history, including any charges or convictions. People must have complied with such requirements in order to be eligible for registration. If a registered practitioner has failed to comply with those requirements, he or she no longer meets the eligibility requirements for registration, and must be removed from the Register.

·   Have access to a complaints mechanism accessible by clients.

The ability of clients of family dispute resolution practitioners to make complaints about the services they receive is an essential consumer protection mechanism. In the initial stages of the implementation of compulsory dispute resolution (from 1 July 2007), family dispute resolution services will largely be provided by the currently available practitioners. The majority of these practitioners (with the exception of private practitioners) already have well established mechanisms for dealing with complaints.

Organisations that receive funding under the Family Relationship Services Program are required, through their funding agreements, to provide an internal complaint mechanism that is accessible to clients. Where a client is not satisfied with the outcome of a complaint to the service, the client is able to complain to the relevant state and territory office of the Department of Families, Community Services and Indigenous Affairs, where the complaint will be dealt with under an established process.

Similar arrangements are in place for other government funded organisations (such as legal aid commissions, community justice centres or community legal centres) with many having established internal complaints mechanisms, or recourse to other complaint mechanisms such as State and Territory ombudsmen.

Individuals or organisations that do not receive government funding may meet the requirement to have access to a complaints process in a number of ways, including through individual membership of an appropriate professional association that has an appropriate mechanism for investigating complaints. Private sector organisations could also implement their own complaint handling processes.

·   Not have any convictions for violent or sex-related offences.

In order to be eligible for registration a person must not have been convicted of:

o       an offence involving violence to a person; or

o       a sex-related offence, including rape, sexual assault, indecent assault, unlawful sexual acts with or upon minors, child pornography, procuring or trafficking of a child for indecent purposes or being knowingly concerned with the prostitution of a child.

This requirement recognises the importance of ensuring that the safety of vulnerable families is not compromised by family dispute resolution practitioners who have convictions of a violent or sexual nature. The Government considers that such people are not appropriate to provide family dispute resolution.

Convictions that are ‘spent’ under Commonwealth, State or Territory law do not need to be disclosed. Spent convictions laws allow the criminal records of offenders to be amended after a certain period of time, usually subject to no future convictions. The idea behind spent convictions schemes is to allow people with a criminal record to ‘wipe the slate clean’ after a certain period of time. They assist people with a criminal record rehabilitate by providing them with a legally sanctioned means of ‘moving on’ with their lives and putting their past behind them.

Spent convictions schemes usually apply to certain convictions only, mostly offences with short custodial sentences or lesser penalties. The schemes exclude people sentenced for more serious crimes or for long periods of imprisonment.

 

Regulation 60E: Registration

 

New regulation 60E sets out the administrative arrangements that follow registration of an applicant. New subregulation 60E(3) allows the Secretary to allocate a registration number to a person who is accepted onto the Register. All registered family dispute resolution practitioners will be issued a registration number, except those who are registering on the basis that they are authorised by, and provide services exclusively for, a designated or approved organisation (as defined at new regulation 59).

 

Registered practitioners who are issued a registration number will be required to include that number on certificates they provide under subsection 60I(8) of the Act. Registered practitioners who are not issued with a registration number (because, as above, they are authorised by, and provide services exclusively for, a designated or approved organisation) will be required to use the identification number allocated to that organisation under new regulation 61A or 61B in certificates they issue under subsection 60I(8) of the Act.

 

As set out above, section 60I of the Act provides for compulsory attendance at 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).

 

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. As set out in relation to new regulation 12CAA, a certificate provided by a family dispute resolution practitioner under subsection 60I(8) must be in accordance with the form prescribed in Schedule 7A. That prescribed form requires the practitioner to include, as appropriate, his or her registration number, or the identification number of a designated or approved organisation.

 

Regulation 60F: Conditions of registration

 

New regulation 60F provides that the registration of a person as family dispute resolution practitioner is subject to compliance with a number of conditions. It is appropriate that registered family dispute resolution practitioners be required to adhere to these conditions as, due to the introduction of a requirement to attend family dispute resolution before making an application to the court for an order under Part VII of the Act (as set out in relation to item 8, above) the Government may be seen as having some responsibility for ensuring that people are able to access quality services. As a result, in addition to ensuring that people are properly qualified to deliver family dispute resolution services, it is important to ensure that people who might compromise the safety of family dispute resolution participants or the integrity of the family dispute resolution process, are excluded from recognition as family dispute resolution practitioners.

 

Family dispute resolution practitioners will be working with families who are experiencing one of the most stressful periods of their lives, when they may be particularly vulnerable. The requirements for registration set out at new regulation 60D and the conditions set out at regulation 60F assist in ensuring, to the greatest extent possible, that family dispute resolution practitioners included on the Register are appropriate people to provide important and sensitive family dispute resolution services.

 

The conditions of registration set out at new regulation 60F require registered family dispute resolution practitioners (subregulation 60F(1)) and registered transitional family dispute resolution practitioners (subregulation 60F(2)) to:

·   Comply with any request for information by the Secretary.

This will allow the Department to check that people are complying with the conditions of registration and obtain other relevant information from registered practitioners.

·   Notify changes to name or contact details

Registered practitioners must notify the Secretary about any change to their name or contact details within 28 days of the change, to ensure that the Department maintains up to date and accurate records of registered family dispute resolution practitioners.

·   Notify matters that may affect eligibility for accreditation

Registered practitioners must notify the Secretary, within seven days, about any matter that may affect their eligibility to continue to be registered. The time period for notification of these matters is seven days, rather than the 28 days allowed for notification of changes to a practitioner’s name or contact details, as the matters that may affect continued registration may render the family dispute resolution practitioner inappropriate to deliver family dispute resolution services to vulnerable families. The matters that must be communicated to the Secretary within seven days include:

o     if the practitioner has been prohibited under a law of a State or Territory from being employed in child- related employment or working with children.

All States and Territories except Tasmania and South Australia have legislation that makes it an offence for those convicted of a sexual offence against a child to apply for or engage in child-related employment. People who have been prohibited under such laws from working with children are not eligible to be registered as practitioners. It would obviously not be appropriate for such people to provide family dispute resolution services to families. If a registered practitioner becomes prohibited from working with children he or she no longer meets the eligibility requirements for registration, and must be removed from the Register.

o     if the practitioner has failed to comply a law of a State or Territory relating to employment of people working with children.

A number of States have legislation that sets out requirements with which people who wish to work with children must comply. For example, people seeking such work in Queensland must obtain a ‘blue card’, which involves a detailed national check of a person’s criminal history, including any charges or convictions. People must have complied with such requirements in order to be eligible for registration. If a registered practitioner has failed to comply with those requirements, he or she no longer meets the eligibility requirements for registration, and must be removed from the Register.

o     if the practitioner is charged with, or convicted of:

- an offence involving violence to a person, or

- a sex related offence, including rape, sexual assault, indecent assault, unlawful sexual acts with or upon minors, child pornography, procuring or trafficking of a child for indecent purposes or being knowingly concerned with the prostitution of a child.

This requirement recognises the importance of ensuring that the safety of vulnerable families is not compromised.

 

If a person is charged with such a violent or sex-related offence his or her registration will be suspended under new paragraph 60G(1)(b) or (2)(a) while the case is dealt with. If the charge is dropped by the prosecution or the practitioner is found not guilty after a trial his or her registration will be reactivated. If the practitioner is convicted of the offence, his or her registration will be cancelled, under new paragraph 60H(1)(b) or (2)(b). The Government considers that people who have been convicted of violent or sex-related offences are not appropriate to provide family dispute resolution.

o     if the practitioner has ceased to provide family dispute resolution and the reasons for it.

It is important that the Department is notified when family dispute resolution practitioners cease to provide family dispute resolution services, and the reasons why they have done so. This will allow the Department to monitor the family dispute resolution practitioner workforce and, if necessary, act to address any problems which might arise in relation to the number and distribution of family dispute resolution practitioners.

o       if the practitioner has ceased to have access to a complaints mechanism, as required under paragraphs 60D(1)(e) and (2)(e).

The ability for clients of family dispute resolution services to make complaints about the services they receive is an essential consumer protection mechanism. The Government considers that it is not appropriate for a practitioner to be included on the Register if he or she is not able to offer clients access to a process to deal with grievances

·   The practitioner must undertake at least 24 hours education, training or professional development in family dispute resolution.

The family law sector is a dynamic environment with continual evolving practice. It is important that family dispute resolution practitioners remain up to date on the legal environment in which they provide services, and developments in the theory and practice of dispute resolution. Paragraphs 60F(1)(d) and (2)(d) ensure that registered practitioners undertake regular relevant training. This training may include supervised family dispute resolution, which is defined at new regulation 3AA at item 6.

 

Subregulation 60F(4) provides that the Secretary may add, vary or revoke a condition of registration by giving the registered practitioner notice in writing. This provides the Department with flexibility to adjust the requirements placed on registered practitioners in response to emerging issues, or to address problems which are identified through continuing practice. Registered practitioners must comply with all conditions of registered, whether they are set out in subregulations 60F(1) and (2), or added at a later date.

 

Regulation 60G – Suspension of registration

 

New regulation 60G sets out the circumstances in which the Secretary may suspend the registration of a family dispute resolution practitioner (subregulation 60G(1)) or a transitional family dispute resolution practitioner (subregulation 60G(2)). The Secretary may suspend either type of practitioner’s registration if he or she is satisfied that the practitioner:

·   Has failed to comply with a condition of registration.

As set out in relation to new regulation 60F, above, the registration of practitioner is subject to compliance with a number of conditions, which may be changed, added to, or revoked at any time. The conditions are imposed in order to ensure that people who are registered as family dispute resolution practitioners are appropriate people to be delivering sensitive services to vulnerable families. If registered practitioners do not comply with these conditions, is may be appropriate to revoke their registration.

·   Is charged with an offence involving violence against a person or a sex-related offence

The detail of the relevant offences is spelt out in detail in relation to new regulation 60D, above. If a person is charged with such a violent or sex-related offence his or her registration will be suspended while the case is dealt with. If the charge is dropped by the prosecution or the practitioner is found not guilty after a trial his or her registration will be reactivated. If the practitioner is convicted of the offence, his or her registration will be cancelled under paragraph 60H(1)(b) or (2)(b).

·   Has ceased to have access to a complaints mechanism.

As set out above, the ability for clients of family dispute resolution services to make complaints about the services they receive is an essential consumer protection mechanism, and is a registration requirement paragraphs 60D(1)(e) and (2)(e).

The Government considers that it is not appropriate for a practitioner to be included on the Register if he or she is not able to offer clients access to a process to deal with grievances. A practitioner who ceases to have access to a complaints process will be suspended form the Register in order to give him or her an opportunity to arrange for his or her clients to have access to another complaints mechanism. If a practitioner fails to gain access to an alternative complaints mechanism within a period specified by the Secretary, his or her registration may be cancelled under paragraphs 60H(1)(a) and (2)(a).

·   Has failed to undertake the required training, education or professional development.

As set out in relation to new regulation 60F, above, paragraphs 60F(1)(d) and (2)(d) ensure that registered practitioners undertake regular relevant training. This training may include supervised family dispute resolution, which is defined at new regulation 3AA at item 6.

There may be cases where a practitioner has failed to complete the required training in circumstances where the Secretary considers that, rather than suspend the practitioner’s registration under paragraph 60G(1)(d), or cancel the registration under paragraph 60H(1)(e), it would be appropriate to give the practitioner extra time to complete the required hours of training, education or professional development. New regulation 60N allows the Secretary to provide a specified extra period in which the registered practitioner must complete the required training.

Regulation 60N does not apply to transitional family dispute resolution practitioners, as these practitioners have until May 2009 to complete the required training and, as their registration will cease on 30 June 2009 in any case, it would not be appropriate to allow these practitioners extra time in which to comply with the training requirement.

·   Has engaged in conduct that is likely to bring family dispute resolution into disrepute

Paragraphs 60G(1)(e) and (2)(c) allow the Secretary to suspend the registration of a practitioner who has engaged in conduct that is likely to bring family dispute resolution into disrepute. An example might be where a family dispute resolution practitioner disseminates racist propaganda in family dispute resolution sessions. Legislative prescription of behaviour that is ‘likely’ to bring a profession or body into ‘disrepute’ is not unusual, at both the Commonwealth and State and Territory level.

 

With the phased introduction of compulsory attendance at family dispute resolution before applying to the court for an order under Part VII of the Act, as set out above, family dispute resolution has a new centrality in the family law system. New paragraphs 60G(1)(e) and (2)(c) will allow the Department to ensure that family dispute resolution practitioners who behave in a manner that may negatively affect the public’s perception of family dispute resolution are able to be removed, on a temporary basis, from the Register. (New paragraphs 60H(1)(i) and (2)(i) allow such practitioners to be removed from the Register permanently. The Secretary will decide whether the behaviour in question warrants permanent or temporary removal from the Register.)

 

The Macquarie Concise Dictionary defines disrepute as ‘ill repute; discredit’. The Shorter Oxford English Dictionary defines disrepute as 'loss or absence of reputation; ill repute', and also defines it as 'to disesteem; to bring into discredit; to defame; to bring an evil name upon (by one's conduct)'. In Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, the High Court saw ‘disrepute’ as being akin to forfeiture of the respect of the community.

The Australian Concise Oxford Dictionary defines 'likely' to mean:

‘such as might well happen, or be or prove true, or turn out to be the thing specified, probable; to be reasonably expected to; probably.... ‘

 

In Boughey v The Queen (1986) 161 CLR 10 at 22, the High Court interpreted ‘likely’ to mean ‘a good chance, or a substantial, or real chance, as opposed to a remote possibility’.

Based on case law,[1] in order for behaviour to be regarded as ‘likely to bring family dispute resolution into disrepute’, the behaviour must not be trivial and must have a reasonably direct and clearly perceived effect upon the reputation of family dispute resolution. In addition, there must be a good chance that the behaviour will become public knowledge.

 

Regulation 60H – Cancellation of registration

 

New regulation 60H sets out the circumstances in which the Secretary may cancel the registration of a family dispute resolution practitioner (subregulation 60H(1)) or a transitional family dispute resolution practitioner (subregulation 60H(2)). The Secretary may cancel either type of practitioner’s registration if he or she is satisfied that the practitioner:

·   Has failed to comply with a condition of registration.

As set out in relation to new regulation 60F, above, the registration of practitioner is subject to compliance with a number of conditions, which may be changed, added to, or revoked at any time. The conditions are imposed in order to ensure that people who are registered as family dispute resolution practitioners are appropriate people to be delivering sensitive services to vulnerable families. If registered practitioners do not comply with these conditions, it may be appropriate to revoke their registration.

·   Has ceased to have access to a complaints mechanism.

As set out above, the ability for clients of family dispute resolution services to make complaints about the services they receive is an essential consumer protection mechanism, and is a registration requirement paragraphs 60D(1)(e) and (2)(e).

The Government considers that it is not appropriate for a practitioner to be included on the Register if he or she is not able to offer clients access to a process to deal with grievances. As set out in relation to paragraphs 60G(1)(c) and (2)(a), above, a practitioner who ceases to have access to a complaints process will be suspended form the Register in order to give him or her an opportunity to arrange for his or her clients to have access to another complaints mechanism. If a practitioner fails to gain access to an alternative complaints mechanism within a period specified by the Secretary, his or her registration may be cancelled under paragraphs 60H(1)(a) and (2)(a).

·   Has been convicted of a violent or sex-related offence.

The detail of the relevant offences is spelt out in detail in relation to new regulation 60D, above. As set out in relation to paragraphs 60G(1)(b) and (2)(a), if a person is charged with such an offence his or her registration will be suspended while the case is dealt with. If the charge is dropped by the prosecution or the practitioner is found not guilty after a trial, his or her registration will be reactivated. If the practitioner is convicted of the offence, his or her registration will be cancelled under paragraph 60H(1)(b) or (2)(b).

·   Has ceased to be a family dispute resolution practitioner or a transitional family dispute resolution practitioner.

As set out in relation to new regulation 60D, above, in order to be registered, a person must be a ‘family dispute resolution practitioner’ or a ‘transitional family dispute resolution’.

If a person ceases to come within the definition of family dispute resolution practitioner or transitional family dispute resolution practitioner, they are no longer eligible for inclusion on the Register.

·   Knowingly gave false or misleading information, or failed to disclose material information, in order to be accredited.

Due to the introduction of the requirement under section 60I of the Act for compulsory attendance at 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, family dispute resolution practitioners have a new centrality within the family law system. It would be inappropriate to allow people who have been deliberately dishonest in order to gain registration, to continue to be registered.

·   Has failed to undertake the required training, education or professional development.

As set out in relation to new regulation 60F, above, paragraphs 60F(1)(d) and (2)(d) ensure that registered practitioners undertake regular relevant training. This training may include supervised family dispute resolution, which is defined at new regulation 3AA at item 6.

There may be cases where a practitioner has failed to complete the required training in circumstances where the Secretary considers that, rather than suspend the practitioner’s registration under paragraph 60G(1)(d), or cancel the registration under paragraph 60H(1)(e), it would be appropriate to give the practitioner extra time to complete the required hours of training, education or professional development. New regulation 60N allows the Secretary to provide a specified extra period in which the registered practitioner must complete the required training.

Regulation 60N does not apply to transitional family dispute resolution practitioners, as these practitioners have until May 2009 to complete the required training and, as their registration will cease on 30 June 2009 in any case, it would not be appropriate to allow these practitioners extra time in which to comply with the training requirement.

·   A serious complaint against the person is upheld

As set out in relation to paragraphs 60D(1)(e) and 60D(2)(e), above, in order to be eligible for registration a person must have access to a complaints mechanism that clients may use if they wish to complain about the family dispute resolution services provided to them. Paragraphs 60H(1)(f) and (2)(f) provide that if a complaint against the practitioner for conduct that may be an offence mentioned in subregulation 60D(3), or that is likely to being family dispute resolution into disrepute, is substantiated though that complaints mechanism, his or her registration may be cancelled.

As set out above in relation to section 60D, a person is ineligible for registration if they have been convicted of an offence involving violence to a person, or a sex related offence. If a complaint that involves behaviour that could constitute a violent or sex-related offence is substantiated through a complaints process it would not be appropriate for the practitioner to continue to be registered and provide services to vulnerable families.

In addition, a practioner’s registration may be cancelled if a complaint is substantiated that involves conduct by the practitioner that is likely to being family dispute resolution into disrepute. How a decision is made as to whether conduct is ‘likely to bring family dispute resolution into disrepute’ is set out in detail below.

·   Has been prohibited under a law of a State or Territory from working with children.

All States and Territories except Tasmania and South Australia have legislation that makes it an offence for those convicted of a sexual offence against a child to apply for or engage in child-related employment. As set out in relation to new regulation 60D, above people who have been prohibited from working with children under such laws are not eligible to be registered as practitioners. It would obviously not be appropriate for such people to provide family dispute resolution services to families. If a registered practitioner becomes prohibited from working with children he or she no longer meets the eligibility requirements for registration, and must be removed from the Register.

·   Has failed to comply a law of a State or Territory relating to employment of people working with children.

A number of States have legislation that sets out requirements with which people who wish to work with children must comply. For example, people seeking such work in Queensland must obtain a ‘blue card’, which involves a detailed national check of a person’s criminal history, including any charges or convictions. As set out in relation to new regulation 60D, people must have complied with such requirements in order to be eligible for registration. If a registered practitioner has failed to comply with those requirements, he or she no longer meets the eligibility requirements for registration, and must be removed from the Register.

·   Has engaged in conduct that is likely to bring family dispute resolution into disrepute

With the phased introduction of compulsory attendance at family dispute resolution before applying to the court for an order under Part VII of the Act, as set out above, family dispute resolution has a new centrality in the family law system. New paragraphs 60H(1)(i) and (2)(i) will allow the Department to ensure that family dispute resolution practitioners who behave in a manner that may negatively affect the public’s perception of family dispute resolution are able to be removed, on a permanent basis, from the Register. (New paragraphs 60G(1)(e) and (2)(c) allow such practitioners to be removed from the Register on a temporary basis. The Secretary will decide whether the behaviour in question warrants permanent or temporary removal from the Register.)

 

Regulation 60J: Notice to show cause and decision

 

New regulation 60J provides that if the Secretary is of the opinion that a practitioner’s registration should be suspended or cancelled, he or she must notify the practitioner in writing of that belief and the reasons for it, and ask the practitioner to show cause why his or her registration should not be suspended or cancelled. This process will ensure that a family dispute resolution practitioner receives comprehensive information about the circumstances that have led to the Secretary’s belief that the practitioner’s registration should be suspended or cancelled. This will allow the practitioner, if he or she chooses, to fully explain the situation, which may involve correcting misconceptions or detailing extenuating circumstances. For example, a practitioner may have failed to notify the Secretary of a change to his or her name or contact details within 28 days as required under new paragraph 60F(1)(b) or (2)(b) (for family dispute resolution practitioners and transitional family dispute resolution practitioners respectively) due to the death of a family member. This would obviously be relevant to the Secretary’s decision on whether that person’s registration should be suspended or cancelled. The practitioner must provide the written information that he or she believes shows cause as to why his or her registration should not be revoked within a period specified in the Secretary’s notice, which must be at least 28 days from receipt of the notice.

 

If the practitioner does not respond during the specified period, or if he or she attempts to show cause as to why his or her registration should not be suspended or cancelled, but fails to satisfy the Secretary, the Secretary may suspend or cancel the practitioner’s registration.

 

New subregulation 60J(3) provides that nothing in regulation 60J prevents the Secretary from immediately suspending a person’s registration if the person is convicted of an offence of violence or a sex-related offence; is prohibited from working with children; or fails to comply with a law relating to employment of people working with children. In these circumstances it would be inappropriate for the family dispute resolution practitioner to remain on the Register as, for the protection of vulnerable families and children, they should not continue to provide family dispute resolution services.

 

Regulation 60K: Notice of suspension

 

New regulation 60K provides that if the Secretary decides to suspend a practitioner’s registration, he or she must give the practitioner written notice of the decision, including reasons for the decision. The Secretary must also inform the person of their review rights under regulation 61E.

 

New regulation 61E provides that various decisions relating to accreditation and registration, including the Secretary’s decision to suspend a person’s registration, may be reviewed by the AAT. Such provision is required as the AAT Act provides that the AAT may only review decisions that have been identified in legislation as appellable to it.

 

It is important for people to receive written notice of a decision and the reasons for it from a natural justice perspective. Written notification allows people to ensure that they are able to properly understand why a decision has been made and have a firm basis on which to base an appeal of the decision, if they seek to do so. This is reflected in the AAT Act, which allows any person entitled to apply for review of a decision by the AAT to request the person who made the decision to furnish a written statement setting out findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.

 

Further detail is provided on appeal processes in relation to new regulation 61E.

 

Regulation 60L: Notice of cancellation

 

New regulation 60L provides that if the Secretary decides to cancel a practitioner’s registration, he or she must give the practitioner written notice of the decision, including reasons for the decision. The Secretary must also inform the person of their review rights under regulation 61E.

 

New regulation 61E provides that various decisions relating to accreditation and registration, including the Secretary’s decision to cancel a person’s registration, may be reviewed by the AAT. Such provision is required as the AAT Act provides that the AAT may only review decisions that have been identified in legislation as appellable to it.

 

It is important for people to receive written notice of a decision and the reasons for it from a natural justice perspective. Written notification allows people to ensure that they are able to properly understand why a decision has been made and have a firm basis on which to base an appeal of the decision, if they seek to do so. This is reflected in the AAT Act, which allows any person entitled to apply for review of a decision by the AAT to request the person who made the decision to furnish a written statement setting out findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.

 

Further detail is provided on appeal processes in relation to new regulation 61E.

 

Regulation 60M: Automatic cancellation

 

Regulation 60M provides that the Secretary must cancel a person’s registration if the person requests the Secretary, in writing, to do so, or if the person dies.

 

The Secretary must also cancel an accredited family dispute resolution practitioner’s registration if the practitioner’s accredited is revoked. New regulation 58C sets out the circumstances in which an accredited family dispute resolution practitioner’s accredited may be revoked.

 

Regulation 60N: Extension of time for education, training or professional development

 

As set out in relation to new regulation 60F, above, paragraphs 60F(1)(d) and (2)(d) ensure that registered practitioners undertake regular relevant training. This training may include supervised family dispute resolution, which is defined at new regulation 3AA at item 6.

 

There may be cases where a practitioner has failed to complete the required training in circumstances where the Secretary considers that, rather than suspend the practitioner’s registration under paragraph 60G(1)(d), or cancel the registration under paragraph 60H(1)(e), it would be appropriate to give the practitioner extra time to complete the required hours of training, education or professional development.

New regulation 60N allows the Secretary to provide a specified extra period in which the registered practitioner must complete the required training. Regulation 60N does not apply to transitional family dispute resolution practitioners, as these practitioners have until May 2009 to complete the required training and, as their registration will cease on 30 June 2009 in any case, it would not be appropriate to allow these practitioners extra time in which to comply with the training requirement.

 

Division 3 List of organisations

 

Regulation 61A: Designated organisations

 

New regulation 61A provides that the Secretary must maintain a list of organisations designated by the Minister for paragraph (b) of the definition of family dispute resolution practitioner in section 10G of the Act. This list will form part of the Register.

 

Subregulation 61A(2) allows the Secretary to allocate an identification number to an organisation included in the list. The people who are authorised by the designated organisation to provide services on the organisation’s behaviour will need to include this identification number on certificates they provide under paragraph 60I(8) of the Act.

 

As set out above, section 60I of the Act provides for compulsory attendance at 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).

 

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. As set out in relation to new regulation 12CAA, a certificate provided by a family dispute resolution practitioner under subsection 60I(8) must be in accordance with the form prescribed in Schedule 7A. That prescribed form requires the practitioner to include, as appropriate, his or her registration number, or the identification number of a designated or approved organisation.

 

Regulation 61B: Approved family dispute resolution organisations

 

New regulation 61B provides that the Secretary must maintain a list of approved family dispute resolution organisations.

 

As set out in relation to item 5, the Shared Parental Responsibility Act provides for a period of transition to the new Accreditation Rules for family dispute resolution practitioners. The transition period runs from 1 July 2006 to 30 June 2009 (as per item 118 of Schedule 4 to the Shared Parental Responsibility Act and regulation 82 of the Principal Regulations). Prior to the amendment of the Act by the Shared Parental Responsibility Act, organisations could be ‘approved’ as family and child mediation organisations under previous section 13B of the Act. One of the main functions of approved organisations was to guarantee the quality of services provided by the practitioners they authorised to provide services on their behalf. Due to the focus shifting from organisation-based quality assurance to individual quality assurance, as evidenced by the introduction of section 10A into the Act, which provides the framework for the creation of Accreditation Rules for practitioners, the concept of approved organisations was removed from the Act on 1 July 2006. However, in order to ensure that the delivery of services was not interrupted during the conversion to the new accreditation system, the Shared Parental Responsibility Act maintains approved organisations in the transition period. Item 128 of Schedule 4 to the Shared Parental Responsibility Act provides that, if an organisation was approved as a family and child mediation organisation immediately before 1 July 2006 (when Schedule 4 to the Shared Parental Responsibility Act commenced) it is taken to be approved as a family dispute resolution organisation under item 125 in the transition period. Item 125 of Schedule 4 to the Shared Parental Responsibility Act allow the Minister to approve certain organisations as family dispute resolution organisations in the transition period.

 

Both these categories of organisations will be included in the list of approved family dispute resolution organisations established under new regulation 61B.

 

Subregulation 61B(2) allows the Secretary to allocate an identification number to an organisation included in the list. The people who are authorised by the approved family dispute resolution organisation to provide services on the organisation’s behaviour will need to include this identification number on certificates they provide under subsection 60I(8) of the Act.

 

As set out above, section 60I of the Act provides for compulsory attendance at 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).

 

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. As set out in relation to new regulation 12CAA, a certificate provided by a family dispute resolution practitioner under subsection 60I(8) must be in accordance with the form prescribed in Schedule 7A. That prescribed form requires the practitioner to include, as appropriate his or her registration number, or the identification number of a designated or approved organisation.

 

The list of approved organisations will form part of the Register. However, as approved organisations will cease to exist at the end of the transition period, on 30 June 2009, the list will cease to be part of the Register on 1 July 2009.

 

Regulation 61C: Obligation of organisations

 

New regulation 61C provides that organisations included in the list of designated organisations under new regulation 61A, or the list of approved family dispute resolution organisations under new regulation 61B, must comply with any request for information by the Secretary. This will allow the Department to ensure that the organisations provide relevant information, including the names of the people that the organisations have authorised to provide family dispute resolution on their behalf. This is important as these practitioners will be using the organisation’s identification number on certificates they provide under subsection 60I(8) of the Act. Having a list of authorised practitioners will enable the courts to verify the authenticity of certificates issued by those practitioners.

 

Part 4C Miscellaneous

 

Division 1 Offences

 

Regulation 61D: Offences

 

Regulation 61D sets out a number of offences relating to the accreditation and registration of family dispute resolution practitioners. Regulation 61D is prescribed pursuant to paragraph 10A(2)(l) and section 10K of the Act. Paragraph 10A(2)(l) of the Act provides that the Accreditation Rules may deal with the consequences for people who make false or misleading representations about a person’s status as an accredited family dispute resolution practitioner. Section 10K of the Act provides that the Principal Regulations may prescribe penalties not exceeding 10 penalty units in respect of offences against requirements for family dispute resolution practitioners that are prescribed in the Principal Regulations. (The value of a ‘penalty unit’ is set out at section 4AA of the Crimes Act 1914. It is currently $110. Thus the maximum penalty that may be prescribed in the Principal Regulations pursuant to section 10K is a fine of $1,100).

New subregulation 61D(1) provides that a person is guilty of an offence if they fail to notify the Secretary of a change or matter that may effect their eligibility to continue to be accredited (as per new paragraph 58B(1)(d)) or registered (as per new paragraph 60F(2)(b) or (c)), within seven days of the occurrence of the relevant event. The matters that must be notified under these paragraphs include:

·   if the practitioner has been prohibited under a law of a State or Territory from being employed in child- related employment or working with children;

·   if the practitioner has failed to comply a law of a State or Territory relating to employment of people working with children; and

·   if the practitioner has been convicted of an offence involving violence to a person, or a sex related offence.

 

The time period for notification of these matters is seven days, as the nature of the matters that must be advised are such that they may render the family dispute resolution practitioner inappropriate to deliver family dispute resolution services to vulnerable families. Practitioners who do not comply with the requirements under new paragraphs 58B(1)(d) or 60F(1)(c) or 2(c) may have their accreditation revoked under paragraph 58C(1)(d), or their registration suspended or cancelled under paragraphs 60G(1)(a), 60G(2)(a), 60H(1)(a) or 60H(2)(a). However, as a person who does not comply with the notification requirement may remain on the Register and provide family dispute resolution services longer than they are eligible to do so, a further incentive to comply with the notification requirement is needed. In view of this, this provision provides that a person who knowingly provides false or misleading information on an application for registration is also guilty of an offence with a maximum penalty of 10 penalty units (as above, this is currently $1,100).

 

New subregulation 61D(2) provides that a person is guilty of an offence if they fail to notify the Secretary of a change to their name or contact details (as required under new paragraphs 58B(1)(c), 60F(1)(b) and 2(b)) within 28 days of the change. Practitioners who do not comply with these requirements may have their accreditation revoked under paragraph 58C(1)(d), or their registration suspended or cancelled under paragraphs 60G(1)(a), 60G(2)(a), 60H(1)(a) or 60H(2)(a). As set out above, the details on the Register will enable members of the public to locate family dispute resolution practitioners who can issue certificates under section 60I of the Act, allow courts to confirm the veracity of those certificates, and enable the Department to monitor compliance with accreditation and registration requirements. Thus it is important that information on the Register remains current and correct. In view of this, this provision provides that a person who fails to comply with the notification requirements set out above is also guilty of an offence with a maximum penalty of 5 penalty units (as above, this is currently $550). The penalty for such a breach is lower than the penalties for the other offences set out in new regulation 61D as changes to a person’s name or contact details would not, of itself, render the person inappropriate or ineligible to remain accredited or registered, as the other offences may.

 

New subregulation 61D(3) provides that it is an offence to knowingly make a false or misleading representation about a person’s accreditation or registration. Due to the introduction of the requirement under section 60I of the Act for compulsory attendance at 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, family dispute resolution practitioners have a new centrality within the family law system. As a result of that requirement, many members of the public will only want to attend family dispute resolution with an accredited or registered family dispute resolution practitioner, in case their dispute is not resolved through family dispute resolution and they need to proceed to court. As a result, unscrupulous practitioners who do not meet the eligibility requirements for accreditation or registration of practitioners may have an incentive to misrepresent themselves as coming within one or both of those categories. Other people who have a personal or business relationship with that unaccredited or unregistered practitioner may also have an incentive to spread misinformation. To address this, new subregulation 61D(3) provides that a person who makes such representations is guilty of an offence with a maximum penalty of 10 penalty units (as above, this is currently $1,100).

 

In addition, knowingly making false or misleading representations about a person’s accreditation or registration may also constitute an offence under the Trade Practices Act 1974 or the Fair Trading Acts of the States and Territories.

Sections 136.1 and 137.1 of the Criminal Code Act 1995 provide that it is an offence to knowingly provide false or misleading information to a Commonwealth entity, or in relation to a Commonwealth law. Section 136.1 relates to the provision of such information in connection with an application for registration, while section 137.1 relates to the provision of such information generally. The maximum penalty for either offence is 12 months imprisonment.

 

In addition, new subregulation 60(2) would provide that the registration application form may require applicants to make a statutory declaration about information, documents or other matters given in or with the application. As the statutory declaration will require applicants to attest to the veracity of information and evidence provided in their application, this requirement will enable the Department to have a higher degree of confidence in that information. The Statutory Declarations Act 1959 provides that intentionally making a false statement in a statutory declaration is an offence, with a maximum penalty of four years imprisonment.

 

Division 2 Review of Decisions

 

Regulation 61E: Review by the AAT

 

New regulation 61E sets out the decisions relating to accreditation and registration that may be reviewed by the AAT. Such provision is required as the AAT Act provides that the AAT may only review decisions that have been identified in legislation as appellable to it.

 

When reviewing a decision, the AAT generally has the same powers as the person or body that originally made the decision and may, if it considers it appropriate, vary or substitute its own decision for the original decision. The AAT will look at the merits of the decision, that is, whether it was the ‘the correct and preferable decision’.

 

Decisions of the AAT may be appealed to the Federal Court on questions of law.

 

Item [10]: Regulation 63

 

Item 10 amends existing regulation 63 of the Principal Regulations and inserts new regulation 62A. New regulation 62A introduces requirements relating to certificates provided by family dispute resolution practitioners under section 60I of the Act. Existing regulation 63 is amended to ensure that it is not overly prescriptive and does not reproduce obligations that exist under the Act.

 

Regulation 62A: Family dispute resolution practitioner certificates

 

Section 60I of the Act provides for compulsory attendance at 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 will assist people in resolving family relationship issues outside the court system, which is costly and can lead to entrenched conflict.

The requirement to attend family dispute resolution before applying to the court for an order under Part VII of the Act is being introduced in stages. From 1 July 2007 the requirement will apply to people who wish to make an application to the court for an order under Part VII of the Act where none of the parties have applied for an order in relation to the child before 1 July 2007 (that is, to new parenting matters). From a date to be Proclaimed under subsection 60I(6) of the Act (which is expected to be 1 July 2008) the requirement to attend family dispute resolution will apply to everyone who wishes to make an application to the court for an order under Part VII of the Act (unless the case falls within one of a number of exceptions).

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. This certificate must state that either:

·   as set out in paragraph 60I(8)(a), the person did not attend family dispute resolution due to the refusal or failure of the other party or parties to attend the process;

·   as set out in paragraph 60I(8)(aa), the family dispute resolution practitioner considers, having regard to the matters prescribed in the Principal Regulations, that it would not be appropriate to conduct the proposed family dispute resolution;

·   as set out in paragraph 60I(8)(b), the person attended family dispute resolution, conducted by the practitioner, with the other party or parties to the proceedings, at which they discussed and made a genuine effort to resolve the issue or issues in dispute; or

·   as set out in paragraph 60I(8)(c), the person attended family dispute resolution, conducted by the practitioner, with the other party or parties to the proceedings, but that the applicant, the other party or another of the parties did not make a genuine effort to resolve the issue or issues in dispute. (For example, a party who sits through family dispute resolution without making an effort to engage with the family dispute resolution practitioner or the other party.)

Section 60I was inserted into the Act by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (the Shared Parenting Act). The certificate provided for in paragraph 60I(8)(aa) was intended to accommodate the requirement, imposed on community and private mediators under regulation 62 of the Principal Regulations (as it stood at the time of passage of the Shared Parenting Act) to determine whether mediation was appropriate in the circumstances of the individual case. The Explanatory Memorandum to the Shared Parenting Act envisaged that the regulation to be made for the purposes of paragraph 60I(8)(aa) would reproduce the factors set out in regulation 62. (Current regulation 62 largely reproduces former regulation 62, with appropriate terminological changes.)

Accordingly, subregulation 62A(2) provides that, before issuing a certificate under paragraph 60I(8)(aa) of the Act, a family dispute resolution practitioner must have regard to the matters mentioned in subregulation 62(2). Subregulation 62(2) provides that provides that the family dispute resolution practitioner must be satisfied that consideration has been given to whether the ability of any party to negotiate freely in the dispute is affected by any of the following matters:

·   a history of family violence (if any) between the parties;

·   the likely safety of the parties;

·   the equality of bargaining power among the parties;

·   the risk that a child may suffer abuse;

·   the emotional, psychological and physical health of the parties; and

·   any other matter that the family dispute resolution practitioner considers relevant to the proposed family dispute resolution.

As set out above, subsection 60I(7) provides that a court cannot hear an application for an order under Part VII unless the applicant has also filed, with the application, a certificate by a family dispute resolution practitioner.

Part VII of the Act deals with matters which, unlike property or other traditional legal matters, are not usually suited to a one time only resolution. Rather, because they concern children whose needs and desires change as they grow, matters dealt with under Part VII usually need to be renegotiated over time.

In addition, owing to the emotional nature of family law matters, particularly those concerning children, the ability of parents to negotiate with each other, or participate constructively in family dispute resolution, will vary over time. In order to maximise the opportunities for parents to make arrangements for their children, one attempt at family dispute resolution should not allow people to make an application to the court at any stage in the future, regardless of the length of time that has elapsed since the family dispute resolution. There is a need to recognise that the issues in dispute, and/or the attitudes of the parties, will usually change over time, in a manner that may warrant another attempt at family dispute resolution.

In order to ensure that parties are given maximum encouragement to make their own arrangements for their children, rather than rely on the court to do so, subregulation 62A(3) provides that a family dispute resolution practitioner may not issue a certificate to a person under subsection 60I(8) after 12 months has elapsed since the date of the last attendance (or attempted attendance, as per paragraphs 60I(8)(a) and (aa)) of that person at family dispute resolution, conducted by the family dispute resolution practitioner, in relation to the issue or issues that are the subject of the person’s intended application to the court. To achieve the same objective, subregulation 62A(1) provides that a person who is required, under subsection 60I(7) of the Act, to file a certificate given to that person by a family dispute resolution practitioner under subsection 60I(8), may file that certificate only within 12 months of the date of the last attendance (or attempted attendance, as per paragraphs 60I(8)(a) and (aa)) of that person at family dispute resolution.

As set out above, the certificates that a family dispute resolution practitioner may provide under subsection 60I(8) of the Act include certificates to the effect that:

·   the applicant did not attend family dispute resolution due to the refusal or failure of the other party or parties to attend the process (paragraph 60I(8)(a)); and

·   the applicant attended family dispute resolution with the other party or parties to the proceedings, but that the applicant, the other party or another of the parties did not make a genuine effort to resolve the issue or issues. (paragraph 60I(8)(c)).

 

As the note following subsection 60I(8) makes clear, the court may take the type of certificate filed with an application into account in determining whether to make an order referring parties to family dispute resolution under section 13C or award costs against a party under section 117.

As a result of the cost consequences that may flow from the certificates provided under paragraphs 60I(8)(a) or (c), and the fact that the court may (or may be perceived to) draw negative inferences in relation to a party as a result of these certificates, it is important that people are aware of the consequences that may result from non-attendance at family dispute resolution (or attendance without genuine effort to resolve the dispute).

To ensure that people are properly informed of the potential consequences of not attending family dispute resolution, subregulation 62A(4) provides that a family dispute resolution practitioner must not provide a certificate pursuant to paragraph 60I(8)(a) of the Act unless the party or parties who have failed to attend the process have been contacted at least twice, with at least one of these contacts being made in writing, and have been provided with a reasonable choice of days and times for attendance at family dispute resolution. In these contacts the party or parties must be informed that if they do not attend family dispute resolution, a certificate may be provided by the family dispute resolution practitioner under paragraph 60I(8)(a) and that this certificate may be taken into account by a court when determining whether to make an order referring parties to family dispute resolution under section 13C or awarding costs against a party under section 117 of the Act. (New paragraph 63(h) requires family dispute resolution practitioners to provide information to people, prior to conducting family dispute resolution, on the consequences that may flow from the different types of certificate that the practitioner may give under subsection 60I(8) of the Act.)

The section 60I requirement is based on the fact that often people who attend family dispute resolution will, with the family dispute resolution practitioner’s help, be able to reach agreement on issues that they have previously been unable to resolve. If issues are resolved in family dispute resolution, there will be no need to request a certificate as there will be no reason to apply to the court for an order. However, it is possible that agreements made in family dispute resolution may break down or not be adhered to by one or more parties (as, indeed, occurs even with court orders). In such cases people who attended family dispute resolution may seek a certificate from a family dispute resolution practitioner for filing with the court after some time has elapsed since the family dispute resolution session. As provided by new subregulation 62A(3), the certificate may be issued up to 12 months from the last attendance, or attempted attendance at family dispute resolution. It is possible that, in the period between the family dispute resolution (or attempted family dispute resolution) and the request for a certificate, the practitioner who conducted the family dispute resolution may become incapable of providing the certificate (for example, due to death, loss of accreditation, inability to be contacted, etc). To avoid people needing to reattend family dispute resolution in these circumstances, subregulation 62A(5) allows an organisation for which a family dispute resolution practitioner provides services to issue a certificate on the practitioner’s behalf if he or she is unable to issue the certificate. However, if the issues in dispute have changed since the original family dispute resolution took place, the people involved should be encouraged to attend family dispute resolution again, and organisations should avoid issuing certificates in such circumstances.

 

Regulation 63: Information to be given to parties before family dispute resolution

 

Current regulation 63 of the Principal Regulations requires family dispute resolution practitioners to ensure that specified written information is provided to each party to the family dispute resolution at least one day before the dispute resolution is conducted.

While some of the information that family dispute resolution practitioners are required to provide under regulation 63 is important, other elements of the regulation are overly prescriptive or reproduce obligations that exist under the Act. As a result, regulation 63 is being amended to ensure that consumers receive information to enable them to understand important elements of family dispute resolution (such as the confidentiality and admissibility of communications made in family dispute resolution, the qualifications of the family dispute resolution practitioner and the fees he or she will charge) while removing those requirements that are unnecessarily restrictive (such as the requirement to provide information at least one day prior to the family dispute resolution).

New regulation 63 differs from the existing regulation 63 as follows:

·   The requirement for the information to be provided at least one day prior to the family dispute resolution has been removed.

This requirement had the potential to cause problems for people seeking family dispute resolution urgently, or people in rural or remote areas who may have travelled a considerable distance in order to attend a family dispute resolution process. It would be impractical and inconvenient for these people to be forced to wait an extra day to attend family dispute resolution if they were otherwise able to undertake family dispute resolution immediately. As a result, the provision now requires that relevant information must be provided prior to the commencement of the family dispute resolution. Family dispute resolution practitioners should endeavour to ensure that this information is provided in sufficient time for the recipient to comprehend and, if necessary, seek answers to any questions they may have on, the information.

·   The requirement for the information to be provided in writing has been removed.

While in most cases it will be appropriate for the relevant information to be provided in documentary form, the introduction of telephone and internet-based dispute resolution means that it will not always be possible or appropriate to provide the required information in written form.

·   New information on section 60I

New paragraph 63(g) has been added to require each party to the family dispute resolution to be advised that, should a party wish to apply to the court for an order under Part VII of the Act, the family dispute resolution practitioner may provide one of four types of certificate under section 60I of the Act, which include certificates to the effect that:

o        the person did not attend family dispute resolution due to the refusal or failure of the other party or parties to attend the process (paragraph 60I(8)(a)); or

o        the person attended family dispute resolution with the other party or parties to the proceedings, but that the person, the other party or another of the parties did not make a genuine effort to resolve the issue or issues. (paragraph 60I(8)(c)).

·   New information on certificates issued under subsection 60I(8)

New paragraph 63(h) explains that the type of certificate provided by the family dispute resolution practitioner may be taken into account by the court when determining whether to make an order referring parties to family dispute resolution under section 13C or awarding costs against a party under section 117 of the Act. This will ensure that people are aware of the consequences that may flow from failure to attend, or make a genuine effort to resolve the issue or issues in dispute when attending, family dispute resolution.

·   New information on complaints process

New paragraph 63(i) requires information to be provided on the complaints mechanism to which people may have recourse if they wish to complain about family dispute resolution services provided by the practitioner. The ability for clients of family dispute resolution services to make complaints about the services they receive is an essential consumer protection mechanism.

·   Removal of unnecessary requirements

Due to being overly prescriptive and focussing unnecessarily on process, rather than outcomes, the requirements currently set out at paragraphs 63(1)(a), (b) and (d) to (e), and subregulations 63(2) and (3) have been removed.

Items [11, 12 and 13]: Regulations 82 and 83

 

Items 11, 12 and 13 amend current regulations 82 and 83 of the Principal Regulations. The amendment made by these items does not affect the substance of these regulations, but instead reflects the amendment made by item 3, which inserts a definition of ‘Shared Parental Responsibility Act’ into subregulation 3(1) of the Principal Regulations. That definition states that ‘Shared Parental Responsibility Act’ means the Family Law Amendment (Shared Parental Responsibility) Act 2006. As a result of the inclusion of that definition in subregulation 3(1), regulations 82 and 83 are amended to refer to ‘Shared Parental Responsibility Act’ rather than the Family Law Amendment (Shared Parental Responsibility) Act 2006.

 

Items [14]: Sub-subparagraph 83(1)(a)(i)(A)

 

Regulation 83 of the Principal Regulations sets out the requirements that people must meet, by 30 June 2007, in order to be taken to be family dispute resolution practitioners in the transition period (which runs from 1 July 2006 to 30 June 2009) if they do not fall within the definition of family dispute resolution practitioner in section 10G of the Act and are not authorised by an approved organisation under item 124 of Schedule 4 to the Shared Parenting Act.

 

The current requirement in subparagraph 83(1)(a)(i) of the Principal Regulations for a family dispute resolution practitioner to have completed an appropriate degree, diploma or other qualification at a tertiary institution excludes legal practitioners who do not hold a degree in law (or another relevant area) but have been admitted as barristers and/or solicitors on the basis of completing a period as an articled clerk.

 

These practitioners are regarded as equally qualified as legal practitioners who have gained their skills through tertiary study, as supported by the admission rules in the various jurisdictions which recognise these individuals as barristers and/or solicitors. Accordingly, it is inappropriate for these practitioners to be excluded from recognition as family dispute resolution practitioners by regulation 83. As a result, item 14 amends subparagraph 83(1)(a)(i) to provide that admission as a barrister and/or solicitor in the Commonwealth, a State or a Territory is an acceptable alternative to a degree.

 

Item [15]: Paragraph 83(1)(b)

 

Regulation 83 of the Principal Regulations sets out the requirements that people must meet, by 30 June 2007, in order to be taken to be family dispute resolution practitioners in the transition period (which runs from 1 July 2006 to 30 June 2009) if they do not fall within the definition of family dispute resolution practitioner in section 10G of the Act and are not authorised by an approved organisation under item 124 of Schedule 4 to the Shared Parenting Act.

 

Item 15 amends regulation 83 to provide that, in order to meet the requirements of regulation 83 and thereby be a family dispute resolution practitioner in the transition period, a person must be registered in the Register before 1 July 2007. People who otherwise meet the requirements of regulation 83 are required to be registered before 1 July 2007 as Item 124 of Schedule 4 of the Shared Parenting Act provides that a person must meet all requirements set out in the Regulations by 30 June 2007 in order to be taken to be a family dispute resolution practitioner during the transition period (except if they are authorised by an approved organisation).

 

As set out above in relation to new Part 4B of the Regulations, the Register is being created to allow:

·   people seeking family dispute resolution to identify and locate professionals who come within the definition of ‘family dispute resolution practitioner’ in the Act and are therefore able to issue certificates under section 60I of the Act;

·   courts with jurisdiction under the Act to confirm that any family dispute resolution certificates filed with applications for Part VII orders have been issued by a legitimate practitioner; and

·   the Department to ensure that people who might compromise the safety of family dispute resolution participants, or the integrity of the family dispute resolution process, are excluded from recognition as family dispute resolution practitioners.

 

The requirement for people to be registered in order to meet the requirements of regulation 83 will assist in protecting the safety of vulnerable families and children.

 

Item [16]: After Schedule 7

Schedule 7A Certificate by a family dispute resolution practitioner

Item 16 inserts new Schedule 7A to the Principal Regulations.

 

Section 60I of the Act provides for compulsory attendance at 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 that can be dealt with under Part VII of the Act, before commencing a court process. This will assist people in resolving family relationship issues outside the court system, which is costly and can lead to entrenched conflict.

 

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. Subsection 60I(8) of the Act sets out the types of certificates that may be provided by a family dispute resolution practitioner.

 

New regulation 12CAA, inserted by item 8, provides that a certificate provided by a family dispute resolution practitioner under subsection 60I(8) must be in accordance with the form prescribed in new Schedule 7A.

 

The form prescribed in Schedule 7A requires the family dispute resolution practitioner to record:

·   The names of the person or people who attended, or attempted to attend, family dispute resolution with the practitioner

This information will especially valuable to the court if a certificate of the kind set out in paragraphs (a) or (d) of the form (which reflect the certificates in paragraphs 60I(8)(a) and (d) of the Act is filed with an application to the court. As the note following subsection 60I(8) of the Act makes clear, the court may take the type of certificate filed with an application into account in determining whether to make an order referring parties to family dispute resolution under section 13C or award costs against a party under section 117. The court will need to know which of the parties did not attend, or attended but did not make a genuine effort at, family dispute resolution, if a costs order is being considered.

·   The issue or issues in dispute

A certificate filed that is required to be filed under subsection 60I(7) of the Act must relate to family dispute resolution that dealt with the issue or issues with which the court order sought under Part VII of the Act would deal. It is therefore important that the certificate identify the issues that were discussed in the family dispute resolution session, as if the session did not deal with the relevant issues, the certificate may not meet the requirements of subsection 60I(8) and the people involved may need to attend a further family dispute resolution session to discuss the issues in relation to which a court order is sought.

·   Registration or Identification Number

The certificate requires the family dispute resolution practitioner to include, as appropriate, his or her registration number, or the identification number of a designated or approved organisation.

New subregulation 60E(3) allows the Secretary to allocate a registration number to a person who is accepted onto the Register. All registered family dispute resolution practitioners will be issued a registration number, except those who are registering on the basis that they are authorised by, and provide services exclusively for, a designated or approved organisation (as defined at new regulation 59). Registered practitioners who are issued a registration number will be required to include that number on certificates they provide under paragraph 60I(8) of the Act.

Registered practitioners who are not issued with a registration number (because, as above, they are authorised by, and provide services exclusively for, a designated or approved organisation) will be required to use the identification number allocated to that organisation under new regulation 61A or 61B in certificates they issue under subsection 60I(8) of the Act.

·   Relevant dates

The certificate requires the family dispute resolution practitioner to record both the date on which the certificate was issued and either:

o       the date of the last attempted attendance at family dispute resolution; or

o       the date of the last attendance at family dispute resolution.

There is a need for these dates to be identified on the certificate as, under new subregulation 62A(3) a family dispute resolution practitioner may not issue a certificate to a person under subsection 60I(8) after 12 months has elapsed since the date of the last attendance, or attempted attendance, at family dispute resolution, conducted by the family dispute resolution practitioner, in relation to the issue or issues that are the subject of the person’s intended application to the court. In addition, subregulation 62A(1) provides that a person who is required, under subsection 60I(7) of the Act, to file a certificate given to them by a family dispute resolution practitioner under subsection 60I(8), may file that certificate only within 12 months of the date of the last attendance (or attempted attendance) of that person at family dispute resolution.

The family dispute resolution practitioner will record the date of the last attempted attendance at family dispute resolution if the certificate will indicate that the circumstances in paragraph (a) or (b) occurred in the case. (These paragraphs of the certificate reflect paragraphs 60I(8)(a) and (aa) of the Act.)

The family dispute resolution practitioner will record the date of the last attendance at family dispute resolution if the certificate will indicate that the circumstances in paragraph (c) or (d) occurred in the case. (These paragraphs of the certificate reflect paragraphs 60I(8)(b) and (c) of the Act.)

New subregulation 12CAA(2) provides that the validity of proceedings for a Part VII order, and any order made pursuant to those proceedings, is not affected by a failure to provide a certificate in accordance with the prescribed form. This will prevent appeals based on technical defects with a certificate after the court has already considered the case. This is appropriate if parties have already gone to the trouble and expense of having a matter heard.

 

 

 

 

 

 

 

 

ABBREVIATIONS

 

Act Family Law Act 1975

 

Department Attorney-General's Department

 

FaCSIA Department of Families, Community Services and Indigenous Affairs

 

FRSP Family Relationship Services Program

 

Ministerial Council Ministerial Council for Technical and Further Education

 

Principal Regulations Family Law Regulations 1984

 

Register Family Dispute Resolution Register

 

Secretary Secretary of the Attorney-General's Department

 

Shared Parental

Responsibility Act Family Law Amendment (Shared Parental Responsibility) Act 2006

 

Skills Council Community Services and Health Industry Skills Council

 

Vocational Graduate Diploma Vocational Graduate Diploma in Family Dispute Resolution