Bills Digest No. 12 2003-04
Family Law
Amendment Bill 2003
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Family
Law Amendment Bill
2003
Date Introduced:
12 February 2003
House: House of Representatives
Portfolio: Attorney-General
Commencement:
The formal provisions
commence on Royal Assent. The substantive provisions commence on
various dates. Details are provided in the Main Provisions section
of this Digest.
The Family Law
Amendment Bill 2003 (the Bill) makes a wide range of amendments to
the Family Law Act 1975 (the Principal Act). These include
amendments dealing with parenting plans, the use of video and audio
links by the Family Court, the parenting compliance regime,
financial agreements, court orders affecting third parties, the
admissibility of disclosures made in counselling sessions, and
child representatives.
Prior to the commencement of the Family
Law Reform Act 1995, parents could make child agreements which
became legally enforceable once they were registered. However,
registration occurred as of right, that is, without judicial
scrutiny. The Family Law Reform Act amended the Principal Act to
enable parents to make parenting plans about their parental
responsibilities. Like child agreements they are enforceable on
registration. Unlike the old child agreements , however,
registration can only occur after judicial scrutiny. Parenting
plans might cover matters such as who children will live with and
who they will have contact with.
Once registered, a parenting plan has the
effect of a court order and its terms can be enforced by a court. A
registration application must be accompanied by a statement that
each parent has obtained independent legal advice or consulted a
counsellor or mediator. Additionally, before registration can
occur, the court must be satisfied that registration is in the best
interests of the child. It must look at the information
accompanying the application. It may, but is not required to, look
at the matters set out in subsection 68F(2) of the Principal Act.
These matters include the child s wishes, the nature of the child s
relationship with each of their parents and other persons, the
capacity of each parent to cater for the child s needs, issues of
family violence and child protection, each parent s attitudes to
the child and parental responsibility.
In 1997, the Family Law Council advised the
Attorney-General that provisions in the Family Law Act enabling
parenting plans to be registered should be removed. The
Attorney-General expressed concern about this advice. In 1998, the
Attorney asked the Family Law Council and the National Alternative
Dispute Resolution Advisory Council (NADRAC) to examine the issue
of parenting plans and the continuing need for section 63E of the
Act the section that deals with the registration of parenting
plans. In 2000, a
Letter of Advice was provided to the Attorney-General which
affirmed the Council s earlier position.
In that Advice, the Council and NADRAC
concluded that parents should be encouraged to develop parenting
plans in order to:
ensure that the best interests of their
children are addressed
minimise conflict, and
encourage them to regard the legal system as a
last rather than as a first resort.
The Council and NADRAC opposed the
registration of parenting plans on the grounds that it made them
too inflexible and difficult to change, family lawyers were said to
oppose registration, little use is made of registration, and the
way that parenting plans are registered is cumbersome and
expensive.
The Council and NADRAC concluded that parents
who want enforceable arrangements should obtain consent orders
because they allow sufficient opportunity to change the
arrangements where necessary , they contain only the essential
elements of parenting agreements, they are relatively easy to put
in place; and they have the support of the legal profession.
The Letter of Advice recommended that:
Division 4 of Part VII of the Act be amended
to:
encourage the use of parenting plans, and the use of consent orders
where a party requires an element or elements of the plan to be
enforceable, and
repeal the registration provisions.(1)
While the removal of registrability appears to
be generally supported, it has not been universally embraced. In a
submission to the Senate Legal and Constitutional Legislation
Committee, the Women s Legal Resources Centre said:
We are concerned that if the requirement to
register Parenting Plans is removed, clients will agree to the
Plans without any legal advice and without scrutiny by the Court.
We are concerned that Parenting Plans will be promoted through
mediation services and agreed to in the shadow of the law and we
would not support such an outcome. An alternative to
non-registration may be a reduction in the level of detail required
for registration of a Parenting Plan together with provision which
allows parties to vary the Plan without needing to revoke
it.(2)
The amendments contained in Schedule
1 of the Bill repeal provisions in the Principal Act that
enable parenting plans to be registered in a court.
The court can make a range of orders affecting
children including parenting orders(4), certain injunctions, registered
parenting plans and certain bonds.
There are various ways in which compliance
with these orders can be secured including consensus following
counselling or mediation, use of location and recovery orders,
contempt proceedings, proceedings to vary a substantive order and
use of the parenting compliance regime found in Part VII, Division
13A of the Principal Act.(5) The parenting compliance
regime is a three-tiered approach to promoting compliance with
orders affecting children.(6) These measures were
inserted by the Family Law Amendment Act 2000 and were
designed to be a more sophisticated response to non-compliance than
the traditional approaches of fines, community service orders,
custodial sentences or bonds.
Stage 1 contains preventive measures.
It aims to improve communication between separated parents and
educate them about their parental responsibilities. The court is
required to explain the obligations created by registered parenting
plans or orders and the consequences of non-compliance. People must
also be given information about the availability of programs that
can assist them in complying with a parenting plan or meeting their
responsibilities under a parenting order.
Stage 2 is a remedial regime designed
to help parents negotiate issues of conflict. It applies where a
person has contravened a parenting order without reasonable excuse.
Among other things, the court may order such a person to attend a
post-separation parenting program, make a compensatory contact
order or allow the parties to apply for an order discharging,
varying or suspending the order that has been breached. The
Attorney-General is required to publish an annual list of
post-separation parenting programs.
Stage 3 enables sanctions to be
imposed. It covers the situation where a parent has contravened a
parenting order and either the contravention is a first-time but
serious contravention or the person has previously contravened the
order. A parent who is caught by the Stage 3 regime can be ordered
to do community service or enter into a bond. A court can also vary
the parenting order, fine the person or impose a custodial
sentence.
The new parenting compliance regime has not
been in operation for long. In 2001, the Family Law Pathways
Advisory Group remarked that it was too early to tell how effective
it will be in addressing concerns about enforcement and recommended
that its impact be closely monitored.(7) In 2002, the
Chief Justice of the Family Court said:
Our figures show that since the implementation of
the [parenting compliance] amendments in January 2001 the Court has
made 71 post-separation parenting orders. Subsequently, 21 notices
were received from providers informing the Court that the person
ordered to attend was found to be unsuitable or failed to attend.
In all, 30% of the orders made did not result in the parent
actually attending a program.(8)
Other comments that have been made about the
new regime are that:
insufficient funding or training has been
available to agencies involved and some are uncertain about what
their function is(9)
program providers have difficulties providing
current and exhaustive lists of programs so that the
Attorney-General can publish annual and updated lists of
programs(10)
the court has had difficulty obtaining and
maintaining accurate lists of what programs are available from what
agencies(11)
it imposes quite onerous obligations on the
Court to explain the nature and consequences of its orders,
especially in the context that many orders are made in the absence
of the parties. Written explanations must therefore be provided and
the attention paid to them by the parties has been
questioned(12)
even if effective, the new regime continues to
rely on the capacity of people to take their enforcement
application to a court. Non-litigious alternatives should be more
readily available.(13)
The amendments in Schedule 4
of the Bill remove the requirement that a court order a person to
attend a particular post-separation parenting program and replace
it with a requirement that court referrals are to a particular
provider of post-separation parenting programs. They also extend
the range of Stage 2 orders a court can make.
An ongoing issue in family law has been the
restricted ability of the Family Court to make orders that bind
third parties. The Court may need to make such orders if a third
party holds property to which the husband or wife has a legitimate
claim for instance, the husband or wife may have an interest in a
company or be the beneficiary of a trust.(14)
As Professor Anthony Dickey points out, there
is no specific provision in the Principal Act which gives courts
the power to issue injunctions against third parties and, more
fundamentally, questions have been raised about the Commonwealth s
constitutional power to pass such laws.(15)
In Ascot Investments Pty Ltd v. Harper and
Harper (1981) 148 CLR 337 the High Court held that the Family
Court had, in general, no power to issue an injunction under
section 114 to affect an existing right of a third party or to
impose a duty on a third party. The Court said that the exceptions
to this general rule were shams and companies controlled by one of
the parties to the marriage. In Re Ross Jones; Ex parte
Green (1984) 156 CLR 185 the High Court held that the Family
Court could not make interim orders against third parties, unless
the third parties were shams or alter egos .
As one commentator has remarked:
Ex Parte Green clearly restricted the
ability of the Court to effectively deal with family trusts and
family companies. While it is clear that where the third party
submits to jurisdiction to have the claim heard, the court may
proceed to deal with it, the Court continues to struggle with
limitations imposed by cases such as Ascot
Investments and Ex Parte Green. The Family Court
must take account of the legitimate rights of third parties.
However, as a matter of policy, it should also be able to determine
more effectively the competing claims of the parties to a marriage
as against the third parties.
It [the Court] reaches into the third party
structures by a series of devices such as section 85 orders, the
puppet, alter ego and sham doctrines, the financial resources
doctrine, and actions under section 85A.
Despite the avenues just described for dealing
with third party interests, there remain a number of significant
limitations on the court s powers. It cannot, for example, order
company directors to transfer shares where the company directors
have the ultimate discretion. Further, where one of the parties is
determined not to put property in the hands of their former
partner, a successful shield can be constructed even to the point
where the party is prepared to serve a term of imprisonment for
contempt.(16)
Apart from the Commonwealth s constitutional
powers over marriage and divorce and matrimonial causes,
constitutional power over corporations may help extend the power of
courts operating under the Family Law Act to make orders and grant
injunctions relating to third parties. Accrued jurisdiction might
also come to the court s assistance. However, the Commonwealth s
constitutional powers may not be complete.
The amendments in Schedule 6
are designed to allow the court to make orders binding third
parties in property adjustment proceedings under the Principal
Act.
The Principal Act prevents anything said
in:
family and child counselling or mediation
(section 19N)
conferences with family and child counsellors
or welfare officers (section 62F)
being admitted in court or other legal
proceedings.
Additionally, anything said by a person
ordered to attend a post-separation parenting program as part of
the Stage 2 parenting compliance regime, cannot be admitted in
court or other legal proceedings (section 70NI).
These provisions raise competing public policy
issues relating to the benefits of confidentiality for participants
and professionals on the one hand and the need to ensure the court
has information that will enable it to protect children from abuse
on the other.
Section 19N has been reviewed by the National
Alternative Dispute Resolution Advisory Council(17)
(NADRAC) and by a Working Party comprising officers of the
Attorney-General s Department, the Family Court, the Law Council
and the former Family Services Council.
The NADRAC review was part of a wider review
of the alternative dispute resolution provisions in the Family Law
Regulations. NADRAC commented that section 19N of the Family Law
Act protected mediators from legal action but that the principal
purpose of the confidentiality clause should be to protect the
participants in mediation rather than the mediator . That said,
NADRAC reported that mediators considered section 19N to be
integral to the integrity of the mediation process because it
enabled participants in mediation to express themselves honestly
and openly. Further, it was said that if the mediator was called to
give evidence about what was said in mediation then trust in the
mediator could be compromised and that the costs of mediation would
increase because new training and record keeping would be needed.
NADRAC did not examine the impact that section 19N might have in
preventing disclosure of child abuse allegations in family law
proceedings. NADRAC concluded that it did not want to pre-empt the
deliberations of the Working Party established by the
Attorney-General to consider the issues of inadmissibility and
confidentiality.(18)
Most recently, the confidentiality provisions
were considered in a report by the Family Law Council,
Family Law and Child Protection. The Council remarked that a
major issue in child protection in the context of family law
proceedings is whether judges should be allowed to hear evidence
which is vital to the protection of children but which arises from
disclosures in the course of confidential counselling and
mediation. (19)
One effect of this legal regime is to prevent
a judge, whose duty in children s matters is to regard the best
interests of the child as the paramount consideration, from being
presented with evidence of child abuse. The rationale for the
prohibitions on disclosure is so that parties undergoing
counselling or mediation will discuss issues openly, without fear
of legal action resulting and counselling files being routinely
subpoenaed in fishing expeditions .(20)
The Family Law Council commented:
7.21 It is conceded that there may well be some
diminution in the incidence of otherwise unguarded comments or
candid exchanges as a result of allowing an exception to section
19N. It is right to say that the drafting of appropriate prefatory
remarks to make to clients and time taken to explain the exception
to clients would be required. Similarly the encouragement of
alternative dispute resolution mechanisms, what the Pathways report
describes as the supported pathway , is to be commended and
encouraged. Taking away the blanket prohibition may be considered
undesirable in terms of promoting such services.
7.22 But these consequences and costs, are of a
different type compared with child protection. They should not be
reckoned against, or traded off with the protection of a child from
serious harm, where a real and present danger has been shown to
exist. The policy of the Family Law Act with respect to
children is largely premised on firstly recognising and thereafter
advancing their best interests - the so called paramountcy
principle .(21) This should be in the forefront of the
minds of all decision-makers in the family law system. Council
agrees with the proposition that prevention of harm to children
should be the primary goal of public institutions and publicly
funded services in the family law system and this approach should
underpin institutional responses where a choice of public goods is
to be made.(22)
The Council recommended that all three
confidentiality provisions be amended along similar lines so that
the general prohibition on the admissibility of information
obtained in counselling, mediation or post-separation parenting
programs should not apply where:
(a) any admission of an adult or disclosure of a
child which indicates a child under eighteen years of age has been
seriously abused; or
(b) any admission of an adult or disclosure of a
child which indicates a child under eighteen years of age is at
risk of serious abuse
unless in the opinion of the Court there is
sufficient other evidence of an admission of the adult or
disclosure of the child relating to such abuse which is available
to the Court.(23)
Amendments in Schedule 7 of
the Bill provide limited exceptions to the general prohibitions on
the admission of disclosures made in counselling and mediation
sessions and in post-separation parenting programs.
In August 1996, the Family Law Council
reported on
Involving and Representing Children in Family Law. It
remarked that involving children included giving them an
opportunity to express their wishes about decisions that will
affect them, involving them as far as appropriate in Family Law Act
processes, and ensuring that they do not feel excluded from
decisions about matters that directly affect
them.(24)
The Family Law Act contains a number of
provisions that enhance the involvement of children in family law
matters. For instance, the court can hear evidence of statements
made by children that would otherwise be inadmissible because of
the rule against hearsay(25), the Principal Act provides
for interviews and reports by family and child
counsellors(26), and a child can institute proceedings
in matters relevant to their own welfare.(27)
Additionally, section 68L of the Family Law Act enables the Court
to appoint a child representative in proceedings which involve the
interests or welfare of a child. Such an order may be made at the
court s own initiative or on the application of the child, a child
welfare organisation or any other person.
The child representative is appointed to
represent and promote the child s best interests. While the child
representative will normally involve the child in decision making,
the Family Court s guidelines state:
this does not mean that the child is the decision
maker. Among the factors that indicate the appropriate degree of
involvement in an individual case are:
the extent that the child wishes to become
involved; and
the extent that is appropriate for the child
having regard to the child s age, developmental level, cognitive
abilities, emotional state and the child s wishes
(28)
In 1994, the Full Court of the Family Court
handed down its decision in
Re K.(29) As one commentator has remarked:
The judgment in Re K establishes a broad
general rule that the appointment of a child representative will be
made when the court considers that the child s interests require
independent and objective representation. The Re K
criteria makes it more likely than not that whenever a significant
issue of dispute exists concerning a child, the court will
favourably consider the appointment of a child
representative.(30)
When appointed, child representatives are
generally funded from legal aid commission budgets. In recent
years, there has been a significant increase in the appointment of
child representatives. For instance, in 1998-99, 2,561 legally
aided separate representatives were appointed. In 2001-02, the
figure was 3,508.(31)
While the extent of child representation
flowing from the decision in
Re K(32) is said to be in substantial
compliance with the Convention on the Rights of the Child, it does
not necessarily represent full compliance with that
convention.(33) Nevertheless, the issue of the impact of
child representative appointment on legal aid commission budgets is
an ongoing one.
In 1996, the Family Law Council looked at ways
in which funding issues could be addressed including:
1.
making statutory provision for the circumstances in which a court
can appoint a child representative
2.
the development, by the court, of a consistent approach to the
appointment of child representatives
3.
provision of dedicated funding by the Commonwealth to legal aid
commissions for the appointment of separate representatives,
and
4.
empowering the court to make orders for the recovery of costs of
separate representation from parties where the parties are able to
meet those costs.(34)
With the exception of the first option, the
Family Law Council endorsed all these approaches.
Evidence to the Senate Legal and
Constitutional Legislation Committee s inquiry into the Bill was
that legal aid funding agreements contain a condition requiring
legal aid commissions, except in the case of legally aided parties,
to seek to recover costs [of appointing child representatives] from
parties or advise parties that they may be asked for a contribution
towards those costs. (35) However, it appears that some
State legal aid commissions attempt to recover their costs from the
parties, while others do not.(36)
Amendments in Schedule 7
empower the court to divide the costs of the child representative
between the parties. Some concerns have been expressed that the
amendments about the funding of child representatives have the
potential to make the parties to Family Law Act proceedings hostile
to the child representative.(37) Concerns have also been
expressed that the amendments transfer the responsibility of
protecting children from the Commonwealth to private
citizens.(38)
The amendments in Schedule 1
commence 28 days after the date of Royal Assent
(clause 2).
Section 63B of the Principal Act encourages
parents to agree about matters concerning their children rather
than litigate and to regard the best interests of the child as the
foremost consideration when reaching an agreement. Item
3 amends section 63B to encourage parents to additionally
take responsibility for their parenting arrangements and for
resolving parental conflict and to minimise potential conflict by
making an agreement.
Other amendments in Schedule
1 flow from the repeal of provisions enabling parenting
plans to be registered in a court. Although the heading of
Schedule 1 is Removal of requirement to register
parenting plans , there is no requirement at present to register a
parenting plan in a court. However, failure to register means that
the plan is not enforceable.
Item 5 provides that a
parenting plan that is not registered can be varied or revoked if
the parties agree in writing.
Item 6 repeals and replaces
section 63DA of the Principal Act. As presently worded, section
63DA requires the person advising in the making of a parenting plan
to explain:
1.
the obligations of the plan
2.
the consequences that flow from failure to comply with it, and
3.
the availability of programs that help those experiencing
difficulties in complying with parenting plans.
As a result of the repeal of the registration
provisions, the amendments remove the requirement to explain items
1 and 2.
Item 8 repeals and replaces
section 63E of the Principal Act, the section that deals with the
registration of parenting plans. However, existing
registered parenting plans can remain in force until set aside,
varied or discharged by a court or until revoked by written
agreement between the parties (new section 63DB).
In the latter case, registration is necessary to make the
revocation effective.
New section 63E, which is
inserted by item 8, sets out how to register a
revocation. An application for revocation must be lodged with a
court and accompanied by a statement that each party has obtained
independent legal advice about the effect of the revocation. The
court may register the revocation agreement if it considers it is
in the best interests of the child. In making this decision the
court must look at the information accompanying the revocation
application. It may, but is not required to look at the matters set
out in subsection 68F(2) of the Principal Act. These matters
include the child s wishes, the nature of the child s relationship
with their parents and others, the capacity of each parent to cater
for the child s needs etc.
The amendments in Schedule 2
commence 28 days after the date of Royal Assent (clause
2).
The Explanatory Memorandum comments:
Schedule 2 facilitates the use of video and audio
technology for the taking of submissions and evidence. It is
expected that it will be common for parties to live, or have their
place of business, in different towns or even different States. Use
of audio and video links will reduce the need for parties to travel
long distances to attend directions hearings or final hearings of
their cases. It will also allow for different judges of the Court
to be in different places in Australia for
proceedings.(39)
Items 1 and 3 insert
definitions of audio link and video link , respectively.
New subsection 27(2) defines
the term split court ie a court sitting at different places at the
same time using video link, audio link or some other means. The law
that applies in such a case is the law that applies where the
presiding judge is sitting [new subsection
27(3)].
Item 5 amends subsection
93A(2) of the Principal Act so that an appeal court can hear
evidence by video link, audio link or some other means.
Item 7 inserts new procedures
dealing with the use of video or audio link to give testimony,
appear or make submissions to the Family Court (new
Division 2 of Part XI). New
section 102C will allow a person s testimony to be given
by video link, audio link or other means. A party to proceedings
can apply to the court for their evidence to be given in this way
or the court can exercise its own initiative. Additionally, persons
can appear and submissions can be made by video link (new
sections 102D and 102E).
A court cannot allow video link to be
used unless satisfied that:
the courtroom is equipped with facilities that
enable all eligible persons present in the courtroom to see and
hear the remote person who is testifying, appearing or making a
submission
the place where the remote person is located
is equipped with facilities that enable all eligible persons
present in that place to see and hear each eligible person present
in the courtroom
any relevant Rules of Court are complied with,
and
any other conditions imposed by the court are
complied with [new subsection 102F(1)].
If audio link is to be used, the court
must be similarly satisfied in terms of people being able to
hear the testimony, appearance or submission [new
subsection 102F(3)].
If other electronic means ie means other than
video or audio link are used, then any relevant Rules of Court and
any additional conditions imposed by the court must be met
[new subsection 102F(5)].
The expression eligible person is defined as a
person that the court thinks should be treated as an eligible
person [new subsection 102F(6)].
If the court is sitting as a split court, then
each of the places where the court is sitting is a courtroom for
the purposes of new section 102F. If the court is
not sitting as a split court then the place where the court is
sitting is the courtroom [new subsection
102F(7)].
New sections 102G and 102H
deal with how documents are put to a person when a court is sitting
as a split court. Normally a person cannot be questioned about a
document unless they are given a copy of the document. The new
provisions mean that when a person is attending a court via video
or audio link or when the court is sitting as a split court, a
document can be put to the remote courtroom or person by being
transmitted to them. New section 102J deals with
the administration of oaths and affirmations when testimony is to
be given by video link, audio link or other means.
New section 102K provides
that the court may make such orders as the court considers just for
the payment of expenses, including the court s expenses, incurred
in connection with the use of video or audio link etc or in
connection with the court sitting as a split court. New
section 102K has effect subject to the regulations
[new subsection 102K(2)].
If proceedings are to be heard and determined
by two or more judges, then the Chief Justice or the Presiding
Judge ( the directing Judge ) decides whether the Family Court will
sit as a split court in a particular case and which form of
electronic communication will be used to facilitate the proceedings
(new section 102M). Before determining what sort
of electronic communication for example, video link or audio link
is to be used, the directing Judge must be satisfied that each
courtroom is equipped with facilities that enable eligible persons
in one courtroom to communicate with (40) eligible
persons in the other courtrooms using the particular form of
electronic communication and that any conditions set down in
relevant Rules of Court are met (new section
102N).
Item 9 of Schedule
2 provides that the split court amendments apply in
relation to proceedings instituted in the Family Court after the
commencement of item 9 (ie the 28th day
after the date on which the legislation receives Royal Assent). The
expression split courtroom amendments is defined in
sub-item 9(3).
Schedule 3 commences 28 days
after the date of Royal Assent (clause 2).
The amendments in Schedule 3
do a number of things:
insert new definitions
reflect restructuring that is occurring in the
Family Court by replacing references to obsolete positions (such as
Principal Director of Court Counselling of the Family Court)
reassign duties previously carried out by the
holders of the obsolete positions to either new professional
positions (such as Principal Mediator) or to administrative
officeholders (such as Registry Managers(41)), and
transfer some administrative duties from
Registrars(42) to Registry Managers.
Item 29 of Schedule
3 enables transitional and savings regulations to be made
dealing with the above. In general, regulations take effect from
their date of notification in the Gazette. However,
item 29 enables regulations to be made with
retrospective effect.
As stated in the Background section of this
Digest, the parenting compliance regime is a three-stage approach
to securing compliance with orders affecting children. Stage 1 is
preventive. Stage 2 is remedial. Stage 3 involves the use of
traditional sanctions.
Items in Schedule 4 have
various commencement dates (clause 2).
Item 1 of Schedule
4 inserts new section 65LA into the
Principal Act. It will enable a court dealing with proceedings for
a parenting order to make an order directing a party to:
attend a provider to be assessed to determine
their suitability to attend a post-separation parenting program ,
and
attend that program (if the party is found to
be suitable to attend a particular program).
At present, orders can only be made when
proceedings are taken under the Division 13A compliance regime (ie
when parenting orders have been made and breached and enforcement
action is taken).
A post-separation parenting order is defined
to mean a program designed to help people resolve problems that
adversely affect their parenting responsibilities and which
consists of lectures, discussions or other activities [new
subsection 65LA(3)].
A provider is a provider of post-separation
parenting programs who is on a list compiled by the
Attorney-General [new subsection 65LA(3)].
At present, the Attorney-General is required to
produce an annual list of post-separation parenting programs.
Amendments in Schedule 4 replace this requirement
with a requirement that the Attorney-General publish a list of
providers of post-separation parenting programs (see, for
example, items 3, 7, 8, 17 and 19). As a
consequence, when Stage 2 of the compliance regime is activated, a
court will order a person to attend a provider for assessment
rather than order a person to go to a provider of a specified
appropriate post-separation parenting program.
Items 11-13 amend provisions of
the Principal Act that deal with the operation of Stage 2 of the
compliance regime. They are designed to ensure that Stage 2 will
operate if no court has previously determined that the person has
contravened the primary order or previously adjourned proceedings
in respect of a contravention of the primary order irrespective of
whether a contravention occurred before or after the Family Law
Amendment Act 2000 came into force.(43)
One of the Stage 2 actions that a court can take
if a person contravenes an order affecting children is to make a
compensatory contact order [paragraph 70NG(1)(b)].
Item 15 will give a court an additional power to
make a compensatory residence order.
Section 70NIA of the Principal Act provides that
where, despite a Stage 2 order, a person has failed to attend all
or part of a program, the court may make further orders about the
person s attendance. Item 18 gives the court a
wider power to make such orders as it considers appropriate and
also to make such orders in respect of a person found to be
unsuitable to attend a program. The amendment does not give the
court power to make the sort of punitive orders that are envisaged
under Stage 3 of the compliance regime.
The amendments made by items 21 and
22 will mean that when a court is considering whether a
person has previously contravened an order for the purposes of
Stage 3 of the compliance regime, it will not matter whether the
contravention occurred before or after the commencement of the
Family Law Amendment Act 2000.
Items in Schedule 5 commence
on a variety of dates (clause 2).
Amendments to the Family Law Act that were
made by the Family Law Amendment Act 2000 enable couples
to enter into legally binding financial agreements before, during
and after marriage.(44)
A financial agreement can be terminated by the
parties or set aside by the court, in certain circumstances. One
such circumstance is where the court is satisfied that:
when the agreement was made(45),
the circumstances of the party were such that, taking into account
the terms and effect of the agreement, the party would have been
unable to support himself or herself without an income tested
pension, allowance or benefit [subsection 90F(1)].
This provision is designed to ensure that the
social security system will not be burdened by people agreeing to
waive their spousal maintenance entitlements. Subsection 90F(1) is
amended so that rather than referring to the circumstances of the
party when the agreement was made, the relevant time will be when
the agreement comes into effect (item 1 of
Schedule 5). This amendment has a retrospective
commencement date 27 December 2000 (clause 2).
This is the date that the financial agreements provisions of the
Family Law Amendment Act 2000 came into effect.
Under the Principal Act, a number of
requirements must be met before a financial agreement is binding.
For instance, it must be signed by both parties. Further,
independent legal advice must have been provided:
1.
about the effect of the agreement
2.
whether it was to the advantage of each party to enter the
agreement
3.
whether it was prudent for each party to do so, and
4.
whether the agreement was fair and reasonable.
Item 2 of Schedule
5 removes the last three requirements and substitutes a
requirement that the advantages and disadvantages of the agreement
have been explained by a lawyer. The Explanatory Memorandum states
that the amendments ensure:
that legal practitioners are not required to
certify that they have provided the party with financial advice
The amendments also remove the requirement for the
legal practitioner to provide advice on whether it was prudent for
the person to enter into the agreement and further whether looking
into the future the terms of the agreement were fair and
reasonable. It is clearly a very heavy onus
on practitioners to provide advice that looks to the future and
what is prudent from one person s view may not be prudent from
another. The provision will now require the practitioner to certify
about those things that they are expert. That is the actual effect
of the agreement and the advantages and disadvantages of the
agreement.(46)
Item
3 makes the same changes to
the provisions governing the termination of financial agreements
[subparagraphs 90J(2)(b)(ii), (iii) &
(iv)].
Items 2 and
3 commence 28 days after
the date of Royal Assent (clause 2).
Schedule 6 commences on the
28th day after the date of Royal Assent (clause
2).
Item 1 of Schedule
6 inserts new Part VIIIAA into the
Principal Act Orders and injunctions binding third parties .
New section 90AA is an
objects provision. It states that the purpose of new Part
VIIIAA is to enable the court in relation to the property
of a party to a marriage to alter property interests and grant
injunctions that affect the rights of third parties.
New section 90AB is a
definitions provision. It defines third party as a person who is
not a party to the marriage.
New section 90AC provides
that new Part VIIIAA overrides Commonwealth, State
or Territory law, trust deeds and other instruments whether made
before or after the commencement of new Part
VIIIAA.
New section 90AD provides
that for the purposes of new Part VIIIAA, a debt
owed by a party to a marriage is property under the definition of
matrimonial cause found in paragraph (ca) of section 4 of the
Principal Act. Section 4 contains a list of proceedings that are
matrimonial causes . The Family Court has jurisdiction over these
matters. The list attempts to keep exercises of jurisdiction within
Commonwealth constitutional power.(47)
New section 90AE will enable
a court, when adjusting the property interests of parties to a
marriage, to:
issue orders directed to a creditor of a party
to a marriage
direct a company to register a share transfer
from one party to the marriage to the other party, or
direct a third party to do something in
relation to the property of a party to a marriage or that alters
the property of a third party in relation to the marriage.
A court may only make such orders if it is
reasonably necessary or reasonably appropriate and adapted
(48) to divide the property of the parties to a marriage
and after according the third party procedural fairness.
Under new section 90AF a
court may make an order or injunction under section 114 of the
Principal Act that:
restrains a third party from repossessing the
property of a party to a marriage
restrains a person from commencing legal
proceedings against a party to a marriage, or
alters the rights of a third party.
Once again, such orders can only be made if
they are reasonably necessary or reasonably appropriate and adapted
to divide the property of the parties to a marriage and after the
third party has been accorded procedural fairness.
New section 90AH provides
that a third party is not liable for loss or damage suffered by
another person in relation to things that are done by the third
party in good faith in reliance on an order or injunction made
under new Part VIIIAA.
Item 2 of Schedule
6 deals with the application of these amendments. They
wil1 apply to all marriages, including marriages dissolved before
the commencement of Schedule 6 (ie the
28th day after the day on which the legislation receives
Royal Assent). An exception is where a section 79 order (a property
adjustment order) or a section 87 agreement (an approved
maintenance agreement) is already in force. However, if either an
existing section 79 order or an existing section 87 agreement is
later set aside or revoked, then the amendments made by
Schedule 6 apply from the time of the setting
aside or revocation.
The items in Schedule 7
commence on a variety of dates (clause 2).
However, all the amendments described below commence 28 days after
the date of Royal Assent.
A number of the amendments in Schedule
7 (eg, items 2-6, 8, 12, 14, 15, 17, 18, 21 &
23) dispense with the need for the Family Court to have
Rules of Court about a range of matters. For instance, section 68J
enables a person to inform the court if a family violence order
applies to a child or a member of the child s family subject to the
applicable Rules of Court . The amendment effected by item
17 will mean that a person can inform the court of the
family violence order. There will not need to be any Rules of Court
about this subject.
The Bill s Second Reading Speech states that
these amendments:
will assist in the implementation of the work of
the Family Law Rules Revision Committee. The amendments make
provisions relating to the Rule making powers of the court less
proscriptive and reduce the details required in the
Rules.(49)
Items 7, 13 and 19 of
Schedule 7 amend sections 19N, 62F and 70NI,
respectively so that:
admissions by an adult indicating that a child
has been abused or is at risk of abuse, or
disclosures by a child indicating that the
child has been abused or is at risk of abuse
is admissible in a court or in legal
proceedings unless the court considers there is sufficient evidence
of the admission or disclosure available from other sources. Abuse
is defined to mean an assault, including a sexual assault or the
use of a child as sexual object. A child is a person under the age
of 18.
The Explanatory Memorandum states that these
amendments will not enable admission of disclosures by an adult
that indicate that a child has been abused or is at risk of abuse
by another person. It also does not apply to admissions of a child
that indicate that another child has been abused or is at risk of
abuse by that child .(50)
Item 29 amends section 117 of
the Principal Act, the section dealing with costs. In general, the
position under the Principal Act is that each party bears his or
her own costs. However, the court can make costs orders taking into
account subsection (2A) and any Rules of Court. Matters that the
court must look at under subsection (2A) include the financial
circumstances of each party, whether any of the parties is legally
aided and their conduct in the proceedings.
The effect of item 29 is that
in proceedings where a child representative has been appointed, the
court will determine how the costs of the child representative will
be split between the parties. In making its assessment about the
distribution of costs, the court must disregard the fact that the
child representative is funded under a legal aid scheme. A party
will not have to bear the costs of funding a child representative
if they have been legally aided in the proceedings or if the court
considers they would suffer financial hardship.
Section 121 of the Principal Act prohibits the
publication or dissemination of Family Law Act proceedings that
identify parties to the proceedings, witnesses or anyone who is
related to or associated with a party to proceedings. Section 121
also contains exceptions to this general prohibition for example,
the publication of law reports or the provision of information to a
lawyer in the course of their professional duties.
Items 32 and 33 ensure that
no offence is committed if the court publishes lists of proceedings
which identify the parties to those proceedings or if the court
approves the publication of proceedings.
The Bill was
referred to the Senate Legal and Constitutional Legislation
Committee for inquiry and report. Its reporting date is
13 August 2003.
Most of the amendments proposed by the
Family Law Amendment Bill 2003 appear uncontentious. However, some
issues are raised by the Bill. These
include:
The amendments relating to section 63B
of the Principal Act, a section which exhorts parents to reach
agreement about matters concerning their children. The amendments
additionally encourage parents to take responsibility for their
parenting arrangements and for resolving parental conflict and also
encourage them to minimise potential conflict by coming to an
agreement. In a submission to the Senate Legal and Constitutional
Legislation Committee inquiry, the NSW Commission for Children and
Young People has suggested that section 63B also be amended to
encourage parents to involve their children in the process of
reaching their agreement.(51)
The impact of provisions enabling the
court to make orders for expenses incurred (including the court s
expenses) when video or audio link is used or the court sits as a
split court. These orders will be as the court thinks just . Will
they have a disproportionate impact on parties living in regional
or remote Australia or on those
experiencing financial hardship?
Whether provisions for costs orders in
relation to child representatives have the potential to make
parties oppose the appointment of a child representative and to
view the child representative with hostility or
suspicion.
The provisions enabling certain
statements made in counselling or mediation sessions about actual
or potential child abuse to be admitted as evidence. The
Explanatory Memorandum states that the provisions will not cover
disclosures by adults about other persons or, in the case of
disclosures by children, about other children. The NSW Commission
for Children and Young People has suggested that the amendments
should be widened to cover:
- a disclosure by an adult indicating
that a child has been abused or is at risk of abuse by another
person (such as the person s spouse)
- a disclosure by a child indicating
that another child (such as a sibling) has been abused or is at
risk of abuse
- an admission by a child that another
child (such as a sibling) has been abused or is at risk of abuse by
that child.(52)
- Family Law Council & National
Alternative Dispute Resolution Advisory Council, Letter of
Advice to the Attorney-General on Parenting Plans,
16 March
2000.
- Women s Legal Resources Centre,
Submission to the Senate Legal and Constitutional Legislation
Committee Inquiry into the Family Law Amendment Bill 2003,
19 June
2003.
- For a discussion of the background
to the parenting compliance regime see Bills
Digest No. 88, 1999 2000, Family Law Amendment Bill
1999.
- Parenting orders are court orders that may
cover such matters as who a child will live with, who a child will
have contact with, and matters concerning the care, welfare and
development of a child.
- Ian Loughnan, Enforcement and contravention ,
Family Law Updates, UNSW Faculty of Law. Centre for
Continuing Legal Education Seminar, 20 March 2003.
- This expression is defined in
section 70NB of the Principal Act.
- Family Law Pathways Advisory
Group,
Out of the Maze. Pathways to the future for families experiencing
separation, July 2001.
- Chief Justice Alastair Nicholson, Australian
initiatives: Enforcement in difficult contact cases , Address to
the Royal Society, London, 27 March 2002.
- ibid.
- Attorney-General, Second Reading
Speech, Family Law Amendment Bill 2003, House of Representatives,
Hansard, 12 February 2003, p. 11572.
- Nicholson, op.cit.
- ibid.
- Family Law Pathways Advisory
Group, op.cit.
- Stephen Parker, Patrick Parkinson & Juliet Behrens, Australian Family Law in
Context. Commentary and Materials, 2nd
ed, LBC Information Services,
1999.
- Anthony Dickey, Family Law,
4th edition, Lawbook Co, 2002.
- Stephen Bourke, Property and superannuation. An
update , in 9th National Family Law Conference.
Proceedings, July 2000, pp. 25 7.
-
Primary Dispute Resolution in Family Law. A Report to the
Attorney-General on Part 5 of the Family Law
Regulations, March 1997.
- However, it suggested that section 19N should
be retained but that it should be qualified by a relatively simple
exception with respect to proceedings against the mediator for
serious misconduct. ibid., p. 34.
- Family Law Council, Family Law
and Child Protection, September 2002, p. 96.
- ibid., see the discussion at pages
102 107.
- Section 65E
provides that In deciding whether to make a particular parenting
order in relation to a child, a court must regard the best
interests of the child as the paramount consideration. Section 68F
sets out how a court determines what is in a child s best
interests, and includes the need to protect the child from physical
or psychological harm : subsection 68F(2)(g). See also section 68K
- court to consider risk of family violence.
- Family Law Council, 2002, op. cit,
p. 106.
- ibid., p. 108.
- Family Law Council, Involving
and Representing Children in Family Law, August
1996.
- Section 100A, Family
Law
Act.
- Section 62G, Family
Law
Act.
- Section 63C, Family
Law
Act.
- Family Court of Australia,
Guidelines for Child Representatives, http://www.familycourt.gov.au/html/child_representative.html
- (1994) FLC 92-461.
- WJ Keough, Child Representation in
Family Law, LBC Information Services, 2000, p. 56.
- Evidence to the Senate Legal and
Constitutional Legislation Committee Inquiry into the Family Law
Amendment Bill 2003, 22 July 2003, Transcript of Hearing p.
L&C 28.
- (1994) FLC 92-461.
- See the decision in Re K
and also Keough, op. cit.
- Family Law Council, 1996, op.
cit.
- Philippa Lynch, Evidence to the
Senate Legal and Constitutional Legislation Committee Inquiry into
the Family Law Amendment Bill 2003, Transcript of Hearing, 22 July
2003, p. L&C 29.
- Women s Legal Resources Centre,
op. cit.
- Denis Farrar, Evidence to the Senate Legal and
Constitutional Legislation Committee Inquiry into the Family Law
Amendment Bill 2003, Transcript of Hearing, 22 July 2003,
pp. L&C 2-3.
- Women s Legal Resources Centre,
op. cit.
- Explanatory Memorandum, p. 8.
- Defined in new subsection
102N(4).
- Registry Managers are responsible
for the administrative management of Family Court
registries.
- Registrars exercise delegated
quasi-judicial functions.
- Explanatory Memorandum, p.
19.
- For a discussion of the background
to the financial agreements provisions see Bills
Digest No. 88, 1999 2000, Family Law Amendment Bill
1999.
- Emphasis added.
- Explanatory Memorandum, pp. 22 3.
- Parker et al, op. cit.
- This language appears designed to
signal that the purpose of the law and its legislative expression
have a sufficient connection with relevant Commonwealth
constitutional powers.
- Attorney-General, Second Reading
Speech, Family Law Amendment Bill 2003, House of Representatives,
Hansard, 12 February 2003, p. 11572.
- For example, Explanatory
Memorandum, p. 30 (in relation to the amendments to section
70NJ).
- NSW Commission for Children and
Young People,
Submission on the Family Law Amendment Bill 2003,
17 July
2003.
- ibid.
Jennifer Norberry
11 August 2003
Bills Digest Service
Information and Research Services
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ISSN 1328-8091
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