Bills Digest no. 99 2005–06
Family Law Amendment (Shared Parental
Responsibility) Bill
2005
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 (Shared Parental Responsibility)
Bill
2005
Date
Introduced: 8
December 2005
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 (Shared
Parental Responsibility) Bill 2005 (the Bill) makes a wide range of
amendments to the Family Law Act 1975 implementing a
number of recommendations of the 2003 report,
Every picture tells a story. The changes aim to bring
about a cultural shift in how family separation is managed: away
from litigation and towards co-operative parenting.
The report of the House of Representatives Standing Committee on
Family and Community Affairs (the FCAC) inquiry into child custody
arrangements in the event of family separation, entitled Every
picture tells a story was released on 29 December 2003 (the
FCAC Report). The impetus for that inquiry is evident from the
Prime Minister s statement on 23 June 2003:
The member for Macquarie [Kerry Bartlett MP], in
common with many members on this side of the House and, I am sure,
many members on the other side of the House is aware that within
the Australian community there is a level of concern about and
unhappiness with the operation of matters relating to the custody
of children following marriage breakdown and a measure of
unhappiness with the operation of the Child Support Agency.
[ ]
I have expressed before, and I will say it again,
that one of the regrettable features of society at the present time
is that far too many young boys are growing up without proper male
role models. They are not infrequently in the overwhelming care and
custody of their mothers, which is understandable. If they do not
have older brothers or uncles they closely relate to and with an
overwhelming number of teachers being female, in primary schools in
particular many young Australian boys are at the age of 15 or 16
before they have a male role model with whom they can identify.
I do not imagine that any one legislative change
or pronouncement can alter that, but I think as a national
parliament because this is a national responsibility there are
things that we can do about it. Having regard to that, and
particularly to the recent response to the report of the Family Law
Pathways Advisory Group, I will be sending a reference to the House
of Representatives Standing Committee on Family and Community
Affairs. That reference will, amongst other things, while noting
that the best interest of the child is the paramount consideration,
be asking the committee to investigate what other factors should be
taken into account in deciding the respective time each parent
should spend with their children post separation, in particular
whether there should be a presumption that children will spend
equal time with each parent and, if so, in what circumstances such
a presumption could be rebutted.
The committee will also be asked to investigate in
what circumstances a court should order that children of separated
parents have contact with other persons, including their
grandparents. This is an issue that I think is quite properly in
the same genre as the other matters I have discussed. We will also
be asking the committee to examine whether the existing child
support formula works fairly for both parents in relation to their
care of, and contact with, their children, because as members on
this side of the House and particularly the member for Macquarie
will know there are many non-custodial parents in Australia who are
profoundly unhappy with the existing formula used by the Child
Support Agency and wish that matter to be examined.
We are asking the committee to report to the
parliament by 31 December. There is no point giving it two or three
years. I think that six months, given the intensity and amount of
public interest in this matter, is an appropriate period of
time.(1)
As indicated by the Prime Minister s statement, one focus of the
FCAC inquiry was whether there should be a rebuttable presumption
of joint custody in family law. There are various meanings of joint
custody , one of which is that a child would spend equal amounts of
time with both parents.
Most family law matters are resolved without court orders (about
95%). Statistics from the Child Support Agency indicate that where
parents agree by themselves on issues of residence and contact, in
90% of such cases a decision is made that the child will be in the
sole principal care of one person (usually the
mother).(2)
Of matters that do proceed to a residence order:
-
the percentage of residence orders made in favour of the mother
was 74.6% in 2000-2001 (down from 77.8% in 1994-95)
-
the percentage of residence orders made in favour of fathers was
19.6% in 2000-2001 (up from 15.3% in 1994-95).(3)
Advantages are said to include:
-
ideally each parent should be equally involved in caring
for their children
-
it would be in the child s best interests (the
foundational principle on which family law in Australia
operates)
-
it would underline the fact that both parents should have a
continuing role in their children s lives
-
it may increase the amount of contact children have with both
parents even if equal time is not agreed or ordered. A spin off of
this may be that fathers may be more willing to pay child
support
-
it may promote greater parental co-operation.(4)
Among the disadvantages identified are:
-
it derogates from the principle of the child s best
interests
-
it does not adequately recognise problems associated with family
violence
-
it may increase parental conflict with a consequent
negative impact on the child
-
the need to rebut/argue the presumption would impose burdens on
court resources and parents finances
-
there are practical difficulties with the concept for
instance, it could mean that separated parents would probably have
to live close to each other.(5)
The FCAC did not endorse a rebuttable presumption of joint
custody. It made 29 recommendations, some of them multi-part
recommendations. They included the following:
-
amendment of the Family Law Act to create a clear (rebuttable)
presumption in favour of equal shared parental responsibility
(except where there is entrenched conflict, family violence,
substance abuse or established child abuse). It was recommended
that shared parental responsibility be defined in the Act as
involving a requirement that parents consult with each other about
major issues relevant to care, welfare and development of their
children (including education, religion, culture, health, surname
and usual place of residence) and that these matters should be
contained in a parenting plan.
-
require mediators, counsellors, and legal advisers to assist
parents for whom the presumption of shared parenting responsibility
is applicable, develop a parenting plan
-
require courts/tribunals to consider the terms of any parenting
plan in making decisions about the implementation of parental
responsibility in disputed cases
-
require mediators, counsellors, and legal advisers to assist
parents for whom the presumption of shared parenting responsibility
is applicable, to first consider a starting point of equal time
where practicable; and require courts/tribunals to first consider
substantially shared parenting time when making orders in cases
where each parent wishes to be the primary carer.
- replacement of the language of residence and contact in the
Family Law Act with family friendly terms such as parenting
time
-
amendment of the Family Law Act to require separating
parents to undertake mediation or other forms of dispute resolution
before they make an application for a parenting order (except where
there is entrenched conflict etc.)
-
establishment of a Families Tribunal with power to decide
disputes about shared parental responsibility. The Committee
recommended that the role of the courts in deciding parenting
matters should be limited to occasions where there is entrenched
conflict; to the enforcement of Families Tribunal orders and to
review of Families Tribunal orders (but only on limited grounds,
like denial of natural justice). The Families Tribunal would
consist of a mediator, child psychologist and a lawyer.
-
the streamlining of courts with family law jurisdiction so there
is one federal court dealing with family law (rather than, as at
present, two federal courts, the Family Court and the Federal
Magistrates Court)
-
amendment of the Family Law Act so that section 68F explicitly
refers to grandparents.(6)
The report also made a number of recommendations about child
support. For instance:
-
an increase in the minimum child support liability payable under
section 66 of the Child Support (Assessment) Act 1989 from
$260 per year to $520 per year
-
a reduction in the cap on the income of the paying parent on
which child support is calculated, so that high income earners are
not contributing at a rate in excess of cost of children
-
elimination of any direct link between the time that each parent
spends with the child and the amount of child support
-
an increase in the enforcement powers of the Child Support
Agency
-
the establishment of a Ministerial taskforce to re-evaluate the
Child Support Scheme.(7)
The Government released its
response to the FCAC recommendations on 23 June 2005. In
releasing the response, the Attorney-General described the proposed
changes as the most significant changes to the family law system in
30 years .
The Government s response to the FCAC s recommendations has a
number of components. The most significant are:
-
a commitment of $397 million over four years in the
2005-06 Budget, including for 65 Family Relationship Centres (FRCs)
to be rolled out over the next four years
-
establishment of the Child Support Taskforce, which has
now reported to the Government,(8) and
-
major changes to the Family Law Act, as set out in the Exposure
Draft of the Family Law Amendment (Shared Parental Responsibility)
Bill 2005, also released on 23 June 2005, and referred to the House
of Representatives Standing Committee on Legal and Constitutional
Affairs (LACA Committee) for inquiry.
The LACA Committee was asked to inquire into the
provisions of the Exposure Draft Bill and consider whether they
implemented the measures set out in the Government s response to
the Every picture tells a story report, namely to:
-
encourage and assist parents to reach agreement on parenting
arrangements after separation outside of the court system where
appropriate
-
promote the benefit to the child of both parents having a
meaningful role in their lives
-
recognise the need to protect children from family violence and
abuse, and
-
ensure that the court process is easier to navigate and less
traumatic for the parties and children.
The Committee was specifically directed not to
re-open discussions on policy issues such as the rejection of the
proposal of 50/50 custody in favour of the approach of sharing of
parental responsibility.
The Bill implements many of the recommendations
made by the LACA inquiry in its report on the Exposure Draft Bill
(the
LACA report). Analysis of the LACA report and the
Government s response to it is provided under the Main
Provisions section of the Digest.
The amendments in Schedule 1 commence six
months after Royal Assent unless commenced earlier by proclamation
(clause 2).
Schedule 1, Part 1 makes amendments to the
provisions of Part VII of the Family Law Act, the Part that deals
with children. In particular it makes amendments to the provisions
dealing with parental responsibility, the best interests of the
child principle, parenting plans, and parenting orders. The
Explanatory Memorandum states the amendments in this schedule:
[ ] recognise the need for a cooperative approach
to parenting. The amendments promote the object of ensuring that
children have a right to have a meaningful relationship with both
their parents and that parents continue to share responsibility for
their children after they separate. The amendments also reinforce
the primary importance of the object of ensuring that children live
in an environment where they are safe from violence or abuse.
The amendments in Schedule 1 also advance the
Government s long standing policy of encouraging people to take
responsibility for resolving disputes themselves, in a non
adversarial manner.(9)
Items 1-7 insert new definitions relevant to
Schedule 1 into section 4, the interpretation section of the Family
Law Act.(10)
Item 8 repeals and replaces the objects and
principles of Part VII as set out in section 60B.
New subsection 60B(1) states that the objects
of Part VII are to ensure that the best interests of children are
met by:
a) ensuring that children have the
benefit of both parents having a meaningful involvement in their
lives to the maximum extent consistent with the best interests of
the child
b) protecting children from
physical or psychological harm from being subjected to, or exposed
to, abuse, neglect or family violence
c) ensuring children receive
adequate and proper parenting to achieve their full potential,
and
d) ensuring that parents fulfil
their duties, and meet their responsibilities, concerning the care,
welfare and development of their children.
Objects a) and b) are new whereas objects c) and d) replicate
the current objects.
The principles underlying the objects are set out in new
subsection 60B(2). They replicate the principles in the
existing provision with some modification in terminology. For
example, children have a right to spend time on a regular basis
with, and communicate on a regular basis with both
their parents and other people significant to their care, welfare
and development (such as grandparents and other
relatives). In contrast, the existing section refers to the
right to have contact on a regular basis with both their parents
and with other people significant to their care . The specific
reference to grandparents was a recommendation of the LACA
report.(11)
The principles underlying the objects are also expanded to
include the right of all children to enjoy their culture
(new paragraph 60B(2)(e)) and more specifically
the right of Aboriginal or Torres Strait Islander children to enjoy
their culture (new subsection
60B(3)).(12)
The best interests of the child have been the paramount
consideration in making of parenting orders since the Family Law
Act came into force.
Division 10 of Part VII of the Family Law Act deals, in part,
with how a court determines what is in the child's best interests.
The Division applies in any proceedings under Part VII (Children)
where the best interests of the child are the paramount
consideration. Item 9 relocates these provisions
to Division 1, new Subdivision BA replicating some
and modifying others. The LACA report recommended that these
provisions be moved to the beginning of Part VII to give them
greater emphasis and visibility. Evidence to the inquiry suggested
that the key provision, namely the best interests of the child
principle is currently difficult to locate in the Family Law
Act.(13)
New section 60CA replicates existing section
65E and moves it into new Subdivision BA. It
states that the paramount consideration for a court when making a
parenting order is the child s bests interests.
The key provision, new section 60CC replaces
section 68F which sets out how a court is to determine the best
interests of a child. The current provision provides that in making
a determination a court must consider such things as any wishes
expressed by the child, the nature of the relationship between the
child and his or her parents, the child's needs and
characteristics, and the need to protect the child from harm.
In contrast new section 60CC establishes a two
tiered approach primary and additional
considerations that a court must consider to determine the best
interests of children. The primary considerations a court
must have regard to are:
-
the benefit to the child of having a meaningful
relationship with both of the child s parents, and
-
the need to protect the child from physical or psychological
harm, or from being subjected to, or exposed to, abuse, neglect or
family violence.
These primary considerations intentionally mirror
the wording of the new objects provision thus providing a direct
link between the objects of Part VII and the list of factors the
court must consider in determining the best interests of the
child.(14) The Explanatory Memorandum states that the
purpose of the two tiered approach is to elevate the importance of
the primary factors and to better direct the court s attention to
the revised objects of Part VII.(15)
The additional considerations a court must consider
include those currently set out in existing subsection 68F but with
some modification in terminology. For example new section
60CC states that the court could consider:
-
'... any views expressed by the child (new
paragraph 60CC(3)(a)) (in contrast to any wishes expressed
by the child ),
-
the nature of the relationship of the child with
other persons including grandparents or other relatives
(new subparagraph 60CC(3)(b)(ii)).
There is also a new consideration that a court is to take
account of: the willingness and ability of each of the child s
parents to facilitate, and encourage, a close and continuing
relationship between the child and the other parent (new
paragraph 60CC(3)(c)).
The LACA report noted that a number of groups expressed concern
about the impact of this so called friendly parent provision. The
submission of the National Council of Single Mothers and their
Children stated:
The friendly parent provision has been a manifest
boon, wherever it has been implemented, to parents who use violence
or abuse. Parents who use violence and abuse welcome the
opportunity to threaten and harm their targets whilst protective
parents seeking to avoid threats and injury have every reason to
avoid the violent parent.(16)
The Committee concluded, however that it is appropriate for the
court to have to consider the willingness to maintain a
relationship with the other parent:
This is only one factor of the numerous secondary
factors that the court is considering. Concerns about the impact on
violence are unwarranted given that the court must consider the
safety of the child as a primary consideration in determining the
best interests.(17)
The Bill includes an additional consideration that was not in
the Exposure Draft Bill, which arguably would also help balance the
effect of this friendly parent provision.
New subsection 60CC(4)) requires
the court when making parenting orders must also consider the
extent to which each of the parents has fulfilled or failed to
fulfil their parental obligations. The Shadow Attorney-General,
Nicola Roxon, MP has welcomed this provision arguing that this
would alleviate some of the concerns she expressed in her
dissenting LACA report.(18)
The additional considerations for a court to consider also
include a child s right (including an Aboriginal or Torres Strait
Island child) to enjoy his or her culture and the likely impact of
a parenting order on that culture (new paragraph
60CC(3)(h)). These changes are consistent with similar
amendments made to the objects provision.(19)
New sections 60CD and 60CE deal with how a
court may inform itself of a child s views when making parenting
orders. They replace the current sections 68G and 68H which use the
term wishes of a child. The Explanatory Memorandum explains that
this change of terminology recognises that a child may not
necessarily want to express a wish about which of his or her
parents the child will live with or spend time with. It is intended
that views will also capture a child s perceptions and feelings,
and will allow for any decision to be made in consultation with the
child without the child having to make a decision
or express a wish as to which parent he or she is to live with or
spend time with. It is intended that references to a child s views
will not exclude a child expressing his or her wishes
.(20)
New paragraph 60CD(2)(b) makes explicit
reference to the court informing itself of the child s views by
appointing an independent children s lawyer.
New sections 60CF and 60CG replicate sections
68J and 68K respectively. They deal with the obligation on parties
to inform the court of any relevant family violence orders and the
obligation on the court to ensure that the parenting order is
consistent with any family violence orders.
Item 10 is a consequential amendment resulting
from the transfer of provisions regarding the best interests of the
children to the beginning of Part VII.
As stated above, the FCAC report recommended changes to the
family law system in order to encourage separating couples,
wherever possible, to resolve disputes without recourse to the
court system. The FCAC report recommended:
that the Family Law Act 1975 be amended
to require separating parents to undertake mediation or other forms
of dispute resolution before they are able to make an application
to a court/tribunal for a parenting order, except when issues of
entrenched conflict, family violence, substance abuse or serious
child abuse, including sexual abuse, require direct access to
courts/tribunal.(21)
The Government agreed to this recommendation, although it
altered some of the exceptions to the requirement, particularly the
recommended exemption in cases involving entrenched conflict or
substance abuse.
Item 11 adds to Division 1 a new
Subdivision E Family Dispute resolution. Its effect is to
place an obligation on a court to ensure that parties to a court
order, subject to certain exceptions, must have attended family
dispute resolution. The objective is expressly stated:
To ensure that all persons who have a dispute
about matters that may be dealt with by [ ] a Part VII order make a
genuine effort to resolve that dispute by family dispute resolution
before the Part VII order is applied for (new subsection
60I(1))
New subsection 60I(7) is the key
provision. Its effect is that a court, subject to certain
exceptions, must not hear an application for a Part VII order
unless the applicant also files a certificate stating that the
applicant had attended or attempted to attend family dispute
resolution. Details of the certificate requirements are set out in
new subsection 60I(8).
New subsection 60I(9) sets out the exceptions
to attending family dispute resolution. Family dispute resolution
is not required where:
-
the applicant is seeking a consent order
-
the application has been made by another party
-
there are reasonable grounds to believe that there has been (or
there is a risk of) abuse of the child or family violence
-
there is contravention of an existing Part VII order that
is less than 12 months old and about which the court is satisfied
that there are reasonable grounds to believe the contravener shows
a serious disregard for obligations under the order
-
the application is made in circumstances of urgency
-
one or more of the parties is unable to participate effectively
due to reasons such as incapacity or physical remoteness, or
-
other circumstances specified in the regulations.
Even where a person satisfies the court on
reasonable grounds that their case is one in which one of the
exceptions can be claimed, the court is directed to consider making
an order that the parties attend dispute resolution nonetheless
(new subsection 60I(10)).
As stated above, family dispute resolution is not
required where there are reasonable grounds to believe
that there has been (or there is a risk of) abuse of the child or
family violence.
The requirement to show reasonable grounds in
relation to child abuse or family violence was a matter of concern
in some of the submissions to the LACA inquiry. It was noted that
the reasonable grounds test was seen as too great an onus to place
on persons wishing to seek an exemption, particularly in light of
the evidentiary problems associated with family violence and child
abuse, which generally occurs behind closed doors and without
independent witnesses .(22)
However the Attorney-General s Department stated
that it is necessary to establish a significant threshold for
satisfying the court that there is family violence or abuse in
order to deter parties from making false allegations for the
purpose of avoiding attendance at dispute
resolution.(23)
The LACA report noted with some concern:
that the provision would create a new species of
litigation, with the associated imposition on judicial time and
resources. The creation of new hearings would, far from simplifying
the process, more likely create delays, and provide a disincentive
for people without funding to claim the exemption. The disincentive
may then result in compelling some parties to attend dispute
resolution, where they have a genuine need to avoid such a process
with a violent or abusive ex partner
[ ]
The Committee is mindful of the balance being
sought by the government, but is concerned that the application of
the provision will create an unnecessarily high burden on
applicants in violent or abuse domestic situations, particularly as
the provision is procedural in nature.(24)
The Committee proposed an alternative model that
an exception to attendance at compulsory dispute resolution on the
basis of family violence or abuse be available where an applicant
provides a sworn statement that the dispute is not suitable for
family dispute resolution on the basis of family violence or abuse.
In addition the Act would expressly impose penalties where the
court is satisfied that there are reasonable grounds that the
applicant has knowingly made a false allegation. The exception
would therefore be dealt with on the papers, without the need for a
hearing. The Government did not accept this recommendation.
There are other provisions also dealing with this exception.
New section 60J provides that where an exemption
from attending dispute resolution is successfully claimed on the
basis of family violence or abuse, the court must not hear the
application unless the applicant has indicated in writing that
he/she has received advice on the relevant services and options
available in circumstances of abuse and violence.
Again, an exception to this requirement is available where the
court has reasonable grounds to believe that there would be a risk
of family violence or abuse in delaying the application for the
order. New section 60K requires a court to take
prompt action in relation to allegations of child abuse or family
violence.
New subsections 60I(2) (6) provide that the
requirement to attend dispute resolution be phased in over a three
year period.
Phase 1 will apply to proceedings filed from commencement of the
provisions until 30 June 2007. During this phase the dispute
resolution provisions of the Family Law Rules 2004, which currently
operate in the Family Court, will be extended to applications made
in the Federal Magistrates Court and other courts exercising
jurisdiction in family law for that period. These rules impose
requirements for dispute resolution to be complied with before an
application is made for a parenting order.
Phase 2 will apply the new dispute resolution requirement
provisions contained in new section 60I to
applications made from 1 July 2007 to a day fixed by
proclamation.
Phase 3 will commence after a second proclamation date and the
compulsory dispute resolution provisions will apply to all
applications made to the court.
The rationale for this phased implementation is to provide
appropriate time to establish the services necessary (i.e. to
establish the Family Relationship Centres) to match the dispute
resolution provisions. The LACA report noted with some concern that
the Department of Family and Community Services, one of the two
implementing agencies, is already sounding warnings about the
timeframe for establishing these services.(25) The LACA
recommendation was that Phases 2 and 3 should be implemented by
replacing references to time with references to outcomes, in
particular that:
Phase 2 is to commence once 40 Family Relationship
Centres are operational, and
Phase 3 is to commence after all 65 Family
Relationship Centres are operational.(26)
The Government did not accept this recommendation.
The concept of parental responsibility was introduced in the
Family Law Act in 1995 and is dealt with in Division 2 of Part VII.
It is defined in section 61B to mean all the duties, powers,
responsibilities and authority which, by law, parents have in
relation to children. Section 61C states that each parent has
parental responsibility (subject to court orders) for a child under
18 and that marital status, divorce or separation in the parental
relationship has no impact on this responsibility. The Bill does
not change these definitions, however item 12
inserts notes into section 61C clarifying the legal effect and
directing readers to other provisions that affect parental
responsibility. Item 7 also inserts two new
definitions into section 4, the interpretation section, clarifying
the meaning of parental responsibility and shared parental
responsibility within the Act. Where a person has shared parental
responsibility with another person it means a person shares some or
all of the parental responsibility for the child with that other
person.
Item 13 inserts new section
61DA and creates a presumption of equal shared parental
responsibility in relation to making parenting orders. It provides
that a court, when making a parenting order in relation to a child
must apply a presumption that it is in the best interests of the
child for the child s parents to have equal shared parental
responsibility for the child. The presumption does not apply if
there are reasonable grounds to believe a parent of the child or a
person who lives with a parent of the child, has engaged in family
violence or abuse of the child (or another child who is a member of
the parent s family) (new subsection 61DA(2)). The
presumption may be rebutted by evidence that satisfies the court
that it is not in the best interests of the child for the parents
to have equal shared parental responsibility (new
subsection 61DA(4)). The note to section 61DA attempts to
clarify that the presumption relates solely to the allocation of
parental responsibility and does not deal with the amount of time
spent with the child.
The presumption also applies in relation to interim orders
unless the court considers it inappropriate (new subsection
61DA(3)). However in making final parenting order the
court must disregard the allocation of parental responsibility made
in the interim order (new section 61DB).
Where there is equal shared parental responsibility then
new section 65DAC (item 31) provides that both
parents jointly make decisions about major long-term issues in
relation to the child. This requires that the parties must consult
one another and make a genuine effort to come to a joint decision
about the issue. Major long term issues are defined as including
decisions relating to the child s education, religious and cultural
upbringing, health, name and changes to the child s living
arrangements that make it significantly more difficult for the
child to spend time with a parent (item 4, new subsection
4(1)). The note to this definition clarifies that a
decision by a parent of the child to form a relationship with a new
partner will not, of itself, involve a major long-term issue in
relation to the child. However the decision will involve a major
long-term issue, if, for example, the relationship with the new
partner involves the parent moving to another area and the move
will make it significantly more difficult for the child to spend
time with the other parent.(27) New section
65DAE clarifies that there is no requirement to make
decisions jointly about issues that are not major-long term issues.
The note to this section states that this will mean that the person
with whom the child is spending time will usually not need to
consult on decisions about such things as what the child eats or
wears because these are usually not major long-term issues this
exception would however be subject to anything set down in a
parenting order.
The LACA report noted that a number of submissions raised
concerns that the requirement to consult on major long-term issues
may increase the level of litigation. The Law Society of NSW in its
submission stated:
to impose joint parental responsibility on parents
who did not parent in this fashion before separation is a recipe
for conflict. It is also potentially de-stabilising for a child.
Moreover, there is no guarantee that an uninvolved parent will
become involved just because of the presumptions. The presumption
places the committed parent in a position where he or she is
subject to the power of the uncommitted parent. The presumption
will, however, work best for committed parents who can communicate
with each other and who are able to satisfactorily manage their
conflict.(28)
The Bill and the Explanatory Memorandum state that a presumption
of equal shared parental responsibility does not provide
for a presumption about the amount of time the child
spends with each parent. Shared time is dealt with in new
section 65DAA. It provides that where a parenting order is
to provide for equal shared parental responsibility for the child,
the court must consider whether spending equal time with
each of the parents would be both in the best interests of the
child and reasonably practical and if so, then it is to consider
making an order for equal time. Where equal time is not
appropriate, the court is to consider making an order for
substantial and significant time with parents providing it
would be in the best interests of the child and reasonably
practicable to do so. Substantial and significant time requires the
child to spend both some time on weekends and holidays and some
time on other days. It must also include time in daily routine and
allow for participation in events that are significant to the child
and events that are significant to the parent. The court may also
consider other factors in determining the meaning of significant
and substantial time (new subsections 65DAA(3) and
(4)).
The factors the court is to take into account in determining
what is reasonably practicable in terms of equal time or
substantial and significant time include:
-
how far apart the parents live from each other
-
the parents current and future capacity to implement such an
arrangement
-
the parents current and future capacity to communicate with each
other and resolve difficulties that might arise in implementing an
arrangement of that kind
-
the impact that an arrangement of that kind would have on the
child, and
-
such other matters as the court considers relevant (new
subsection 65DAA(5)).
Item 18 repeals and replaces section 63DA.
New section 63DA significantly expands the
obligations on advisors (defined as legal practitioners, family
counsellors, family dispute resolution practitioners and family
consultants) when advising separating couples about options for
developing a parenting plan. An advisor must inform separating
couples about:
-
the possibility of the child spending equal time or spending
substantial and significant time with each of the parents where it
is practicable and in the best interests of the child
-
the need to consider the best interests of the child when
developing parenting plans
-
the matters that may be dealt with in a parenting plan
-
the operation of any pre-existing parenting order
-
the desirability of including provisions concerning the form of
consultations, the process for resolving disputes and the process
for changing the plans in the terms of the plan
-
the availability of programs to help people who have difficulty
complying with a parenting plan, and
-
that pursuant to new section 56DAB the court must have
regard to the terms of the most recent parenting plan (new
subsection 63DA(2)).
The note to this section clarifies that when
advising about the option of a child spending equal time, or
substantial and significant time with each parent, the advisor may,
but is not obliged, to advise whether such an option is appropriate
in the circumstances.
The court s obligation to consider that the child
spend equal time with both parents was not part of the
Exposure Draft Bill. The Draft Bill required only that the court
consider the child spending substantial time . The LACA
Committee did not consider that the use of the term substantial
adequately implements the recommendations of the FCAC report as
accepted by the Government. On this matter, the LACA Committee saw
particular merit in the submission of the Shared Parenting Council
of Australia (supported by a number of other submissions) that:
Recommendation 5 of the Report,(29) was
a fundamental and key recommendation arrived at after extensive
community and departmental consultation, which has been accepted by
the Government. The [FCAC] Committee did not reject the notion of
50/50 shared time in certain circumstances. It rejected the idea of
a presumption of equal shared custody
The Shared Parenting Council argued that the Exposure Draft Bill
did not directly provide for a court to make equal or substantially
equal parenting time orders in appropriate
circumstances.(30)
The LACA Committee had sympathy with submissions
and witnesses who expressed concerns that substantial time may not
operate to facilitate shared parenting. It therefore recommended
that proposed section 65DAA be amended to provide that the court
shall, in making parenting orders in situations where there is
equally shared parental responsibility, consider whether equal time
with both parents is in the best interests of the child and
reasonably practicable.(31) The Government accepted this
recommendation.
A parenting plan as defined in section 63C of the Family Law Act
is an agreement, made in writing between parents that deals with
arrangements about their children. Parenting plans are simply an
agreement between parents and are currently not legally
enforceable.
Parenting orders, defined in section 64B are court orders that
may cover such matters as who a child will live with (residence
order), who a child will have contact with (contact order), and
matters concerning the care, welfare and development of a child
(specific issues order). In contrast to parenting plans, parenting
orders are legally enforceable. A parenting order may be applied
for by either or both of the child s parents, the child, a
grandparent of the child, or any other person concerned with the
care, welfare or development of the child (section 65C).
New subsection 63C(2) expands the list of
matters that can be included in a parenting plan to include one or
more of the following:
-
the person with whom the child is to live
-
the time a child is to spend with a person
-
the allocation of parental responsibility
-
the form of consultation to be had on the exercise of shared
parental responsibility
-
communications that a child is to have with another
person (i.e. including parents, grandparents or relatives)
-
maintenance
-
the process of resolving disputes about the terms of the
parenting plan
-
the process for changing the plan where circumstances require
it, and
-
any aspect of the care, welfare or development of the
child.
Items 22 24 amend section 64B to provide a
similar expanded list of matters that can be included in parenting
orders and to reflect the new terminology. Parenting orders are no
longer described as residence orders , contact orders or specific
issues orders but rather parenting orders that provide with whom a
child is to live, spend time, communicate or that allocate parental
responsibility or a component of parental responsibility.
The relationship between parenting plans and parenting
orders
In contrast to court orders, parenting plans can be varied or
revoked by agreement in writing between the parties to the plan
(except where they have been registered under the
Act).(32) Advantages of parenting plans are their
flexibility and affordability. They are a cost effective way of
handling changing circumstances. Against that, it can also be
argued that the lack of court supervision or scrutiny of a
parenting plan can mean that any power imbalance in the
relationship would be manifested in any agreement.
The Bill contains a number of amendments to the parenting plan
provisions which give parenting plans a new legal effect.
New section 65DAB provides that where a court is
making a parenting order it must have regard to the terms of the
most recent parenting plan, if doing so would be in the best
interests of the child. More significantly new section
64D is a default provision which would have the effect of
making parenting orders subject to any subsequent parenting plan.
It provides that unless a court determines otherwise, a parenting
order in relation to a child is taken to include a provision that
the order is subject to a parenting plan that is:
-
entered into subsequently by the child s parents, and
-
agreed to, in writing by any other person (other than the child)
to whom the parenting order applies.
New subsection 64D(2) provides that the court
may in exceptional circumstances provide that a parenting order may
only be varied by a subsequent order of the court (and not by a
parenting plan).
The Attorney-General s Department in its submission to the LACA
Committee in explaining this provision stated:
The intention of section 64D is that, to the
extent of any inconsistency, a parenting order should cease to have
effect in circumstances where parents subsequently make a parenting
plan that deals with a matter in a court order. This does not mean
that the parenting plan itself is enforceable (parenting plans have
no legal enforceability), but does mean that where this default
provision is included in the parenting order, there will no longer
be a right to enforce the previous court order (to the extent of
inconsistency with the new parenting plan).(33)
Item 41 inserts new
section 117AB. It provides that a court must order
a party to pay some or all of the costs of another party, where the
court is satisfied that that party has knowingly made a false
allegation in the proceedings. This provision implements
recommendation 10 of the LACA report. It attempts to address
concerns that have been expressed, in particular that allegations
of family violence and abuse can be easily made and may be taken
into account in family law proceedings.(34) It is of
note that the Government s reason for not proceeding with a costs
measure in the Exposure Draft Bill was that it might discourage
people raising genuine instances of violence and
abuse.(35)
The Explanatory Memorandum notes that the provision is broader
than family violence or abuse allegations and would apply to any
false statement knowingly made. Item 40 is
consequential to this amendment.
Items 19 21 and 34 39 are consequential
amendments resulting from the transfer of the provisions dealing
with the best interests of the child into new Subdivision
BA of Division 1.
Item 28 repeals and replaces section 65AA. The
current section 65AA contains an explanation of the three tiered
compliance regime for parenting orders and is no longer required
because of changes to that regime (made by Schedule
2 of the Bill). New section 65AA is a
sign post back to new section 60CA when making
parenting orders the best interests of the child are paramount.
Item 32 repeals existing section 65E Child s
best interests paramount. This section has been transferred to
new Subdivision BA and is now new section
60CA (item 9).
Section 65G deals with the special requirements for making
consent orders in favour of non parents (such as grandparents or
relatives). Before making such orders parties must have attended
counselling and the court must receive a report on that
counselling. Item 33 amends section 65G to remove
the requirement to present the counselling report.
The amendments in Schedule 2 commence six
months after Royal Assent unless commenced earlier by proclamation
(clause 2).
Schedule 2 repeals and replaces the existing
Division 13A of Part VII of the Family Law Act that deals with the
consequences of the failure to comply with orders that affect
children. The new Division 13A includes amendments
that:
-
aim to expand the powers of the court in order to strengthen the
existing enforcement regime
-
remove the terminology referring to a three stage
compliance regime, and
-
restructure and reorder the provisions in order to
improve clarity.(36)
The court can make a range of orders affecting children
including parenting orders,(37) certain injunctions, 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 Family Law
Act. The parenting compliance regime is a three-tiered approach to
compliance with orders affecting children.(38) 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 preventative measures. It aims to improve
communication between separated parents and educate them about
their parental responsibilities.
-
Stage 2 is a remedial regime designed to enable parents to
resolve issues of conflict about parenting and to help in the
negotiation of improved parenting.
-
Stage 3 enables sanctions to be imposed. It covers
situations of serious or repeated breaches of orders. The person
who is caught by the stage 3 regime can be ordered to do community
service or enter a bond.
The FCAC report expressed concern that this enforcement regime
needed to be strengthened and recommended the implementation of a
number of additional contact enforcement options including
reasonable but minimum financial penalties for first and subsequent
breaches and consideration of a parenting order in favour of the
other parent in cases of repeated and deliberate defiance of court
orders. The Government in its response agreed on the need to
strengthen the scheme but proposed a different range of options. In
addition to the financial penalties and cumulative list of
consequences already in the Act, the Government proposed the
introduction of the following new measures:
-
a requirement that the courts consider make-up contact if
contact has been missed through a breach of an order. Unlike most
enforcement provisions, it will not be necessary to prove that the
breach was intentional
-
a power to award compensation for reasonable expenses
incurred by a person but which were wasted due to a breach of an
order
-
that legal costs will be awarded against the party that has
breached the order, unless it is not in the best interests of the
child, and
-
a discretion to impose a bond for all breaches of
orders.(39)
The Bill generally implements these measures and proposes a
compliance regime based on the following categories:
-
where a contravention is alleged to have occurred but is not
established, then new Subdivision C applies
-
where the court makes a finding that a contravention has
occurred but there is a reasonable excuse, then new
Subdivision D applies
-
where the court finds that the contravention has occurred and
there is no reasonable excuse, the new Subdivisions E and
F apply. Whether Subdivision E or F applies is a matter
for the court to determine and will depend on the seriousness of
the contravention.
Items 1 5 are consequential amendments
resulting from the restructure of Division 13A and the removal of
references to the three stage compliance regime . The Explanatory
Memorandum states that this terminology is not well understood as
there is confusion about the fact that stage 1 (remedial) is
located in Division 6 of Part VII, while stages 2 and 3 are in
Division 13A.
New Subdivision A within Division 13A deals with
preliminary matters and includes definitions of terms used in the
Division. Several provisions replicate existing provisions in
Division 13A with minor drafting changes. For example new
sections 70NAB Application of the Division and
70NAC Meaning of contravened an order, replicate
sections 70NBA and 70NC respectively.
New section 70NAD refers to the general
obligations that are created by parenting orders. It replicates
existing section 70ND but replaces the terms residence order ,
contact order and specific issues order with references to orders
relating to with whom a child is to live, spend time and
communicate.
New section 70NAF replaces section 70NEA. It
provides clarification of the standard of proof to be applied by
the court in considering enforcement applications. The general
standard to be applied is the civil standard of proof on the
balance of probabilities. This is subject to new subsection
70NAF(3) which requires the court to apply the stricter
standard proof beyond reasonable doubt, in matters when a court is
considering a criminal consequence for the contravention under new
Subdivision F (for example when imposing a community service order,
a fine, or a sentence of imprisonment).
The Explanatory Memorandum states that the current test provided
by section 140 of the Evidence Act 1995 is the civil
standard of proof, the balance of probabilities, with the court to
take account of the gravity of matters. The purpose of this
amendment is to assist practitioners and self-represented litigants
by clarifying the circumstances in which the court will apply a
different standard of proof.(40)
The effect of new section 70NBA is that in all
contravention proceedings under Division 13A the court has the
power under Subdivision B to vary the parenting order. New
subsection 70NBA(2) provides that in cases involving more
serious breaches, that would otherwise be dealt with under
Subdivision F, the court must take account of certain
considerations if it decides to vary the order under section 70NBA.
The Explanatory Memorandum states that the intention of this
provision is to ensure that, when varying an order involving
serious or repeated contraventions, the court considers whether
there are other viable options (such as a post separation parenting
program) or whether they have been tried before without
success.(41)
When considering whether to vary a parenting order, new
section 70NBB requires the court to consider the terms of
any subsequent parenting plan the parents have made and consider
varying the order to include some or all of the provisions of that
parenting plan (new paragraph 70NBB(2)(d)).
New Subdivision C deals with
situations where a contravention of a primary order is alleged to
have occurred but is not established by the court (new
section 70NCA). In such cases the court may vary the
primary order (new section 70NBA) and it may order
that the person who brought the contravention proceedings pay some
or all of the costs of the other parties (new section
70NCB) the intention here is to deter people from making
nuisance claims of breaches. A primary order is defined as an order
under the Family Law Act affecting children, or a variation of such
an order.(42)
New subdivision D deals with situations where a
court finds that a person has committed a contravention of a
primary order,(43) but that the person had a reasonable
excuse for the contravention (new section 70NDA).
The meaning of reasonable excuse is defined in new section
70NAE and includes a belief on the part of the respondent
that it was necessary to contravene the order to protect the health
or safety of either the respondent or the child.(44)
In such cases the court may make any or all of the following
orders:
-
vary the primary order (note to new section
70NDA)
-
compensate for time with the child forgone as a result of the
contravention, (except where it would not be in the best interests
of the child for the court to do so) (new section
70NDB)),
-
make an order that the person who brought the contravention
proceedings pay some or all of the costs of the other parties
(new section 70NDC) the intention here is to deter
people from making nuisance claims of breaches.
New Subdivision E equates to stage 2 of the
existing compliance regime with an expanded list of discretionary
orders available to the court. It deals with situations where a
court finds that a person has contravened a primary order with no
reasonable excuse, and the contravention is of a less serious
nature (new subsection 70NEA(1)). Less serious is
where there have been no previous breeches or where there have been
previous breaches and the court considers it appropriate to apply
this Subdivision (new subsections 70NEA(2) and
(3)).
In these cases the court is able to make any or all of the
following orders (new section 70NEB):
- direct the person/s to participate in a post-separation
parenting program (new paragraph 70NEB(1)(b)).
Before making such an order the court must consider seeking the
advice of a family and child specialist about the services
appropriate to the person s needs.
- compensate for the lost time with the child as a result of the
contravention concerned (new paragraph
70NEB(1)(a)) (except where it would not be in the best
interests of the child for the court to do so (new
subsection 70NEB(5))
-
require the person to enter into a bond (new
paragraph 70NEB(1)(d)). The bond may be for up to 2 years
and may include conditions requiring the person to attend family
counselling or to be of good behaviour (new section
70NEC).
-
enable an application to be made to revise, discharge or vary
the earlier parenting order (new paragraph
70NEB(1)(c))
-
require that the person who committed the
contravention pay some or all of the legal costs of the other
parties (new paragraph 70NEB(1)(f))
-
award compensation for reasonable expenses that resulted
from the contravention (new paragraph 70NEB(1)(e))
for example lost air fares etc.
-
require the person who brought the proceedings to pay some or
all of the costs of the person who committed the contravention
(only in cases where the court makes no other orders) (new
paragraph 70NEB(1)(g)).
-
The discretion to impose a bond or award compensation for
expenses wasted due to a breach of an order are new discretionary
powers.
Should a court order attendance at a post separation parenting
program then the program provider must report any failure to attend
the program or situations where it considers the person ordered to
attend is unsuitable (new section 70NED). Where a
person does not attend or is considered unsuitable for such a
program then the Court may make further appropriate orders
(new section 70NEG).
Evidence of anything said by a person attending a parenting
program is not admissible in a court, except where there has been
admission or disclosure of abuse or risk of abuse of a child under
18 (new section 70NEF).
New subdivision F equates to stage 3 of the
existing compliance regime but expands the list of options
available to the court. It deals with situations where a court
finds that a person has contravened a primary order with no
reasonable excuse, and the contravention is of a more serious
nature (new subsection 70NEA(1)). More serious is
where there has been a serious disregard for the primary order, or
where there have been repeated breaches of orders (new
subsections 70NFA(2) and (3)). The Explanatory Memorandum
states that, by way of example, a serious disregard could include
the removal of a child to another place despite orders of the
court, or harassment despite repeated warnings and the terms of the
parenting order. In these cases the court s powers and obligations
are set out in new section 70NFB.
Where there is a serious contravention, the court must
make an order for costs against the person who breached the order
unless it is not in the best interest of the child to do so
(new paragraph 70NFB(1)(a)). Where the court does
not make an order for costs, then the court must make at
least one other order from the following:
-
impose a community service order (new paragraph
70NFB(2)(a))
-
require the person to enter into a bond in accordance
with new section 70NFE (new paragraph
70NFB(2)(b)). The bond may be for up to 2 years and may
include conditions requiring the person to attend family
counselling or to be of good behaviour
-
compensate for the lost time with the child resulting from the
contravention concerned (new paragraph
70NFB(2)(c)) (except where it would not be in the best
interests of the child for the court to do so)
-
impose a fine of up to 60 penalty units
(new paragraph 70NFB(2)(d))
-
impose a sentence of imprisonment (new
paragraph 70NFB(2)(e) although only as a penalty
of last resort (see new section 70NFG(2))
-
award compensation for reasonable expenses that resulted from
the contravention (new paragraph 70NFB(1)(f)) for
example lost air fares etc.)
-
require that the person who committed the contravention pay some
or all of the legal costs of the other parties (new
paragraphs 70NFB(2)(g) and 70NFB(2)(h)).
Sanctions involving fines, bonds, community
service orders or imprisonment are currently available to the court
under existing subsection 70NJ(3). Options of compensatory orders
for time lost and expenses incurred are new sanctions.
The mandatory imposition of costs sanctions for
serious and continual breaches was a matter of concern raised in
some submissions to the LACA inquiry. The Family Law Section of the
Law Council of Australia argued:
it is highly inappropriate to impose automatic
costs sanction in children s cases, even on a prima facie
basis. The court already has sufficient discretion to order costs
in appropriate circumstances. (45)
The Committee however, with the support of the
Family Court thought it not inappropriate, given that the court
still has the discretion not to make an order for costs if this
would not be in the best interests of the child. Further, the
Committee felt it a suitable provision to include in the final
stage of the Act s compliance regime where cases involving repeated
breaches of orders or serious disregard for orders will come before
the Court.(46)
New sections 70NFC NFG establish
the mechanisms for imposing the sanctions of community service
orders, bonds and imprisonment under new Subdivision
F. They replicate existing sections 70NK 70NO with minor
drafting changes.
New sections 70NFH, 70NFI and
70NFJ replicate sections 70NP, 70NQ and 70NR
respectively.
Item 7 is a consequential amendment resulting
from the new presumption to order costs in cases of serious
breaches under new subsection 70NFB(1).
Schedule 3 amendments commence on 1 July 2006
(clause 2).
As stated earlier in this Digest, FCAC recommended the
establishment of a statutory Families Tribunal.(47) The
Government rejected this suggestion but said it would introduce a
less adversarial approach to family law proceedings and establish a
network of Family Relationship Centres.
The amendments in Schedule 3 are intended to
promote a less adversarial, more flexible and more child focused
approach to child-related proceedings. They largely reflect the
approach taken by the Family Court of Australia in its pilot of
Children s Cases Program.(48) They include provisions
already contained in Federal Magistrates Act 1999 and they
reflect case management provisions in the United Kingdom Civil
Procedure Rules and the Children and Young Persons (Care and
Protection) Act 1998 (NSW). Schedule 3 gives
a court a more active, case management role in proceedings. It also
sets out principles, duties and powers that a court must be guided
by and exercise in child-related proceedings.
The LACA Committee made a number of recommendations for the
amendment of Schedule 3 when it considered the
Exposure Draft Bill and came to the following conclusion:
The Committee believes that Schedule 3 of the
draft Bill has much to commend it. The new
provisions will help to ensure that child-related proceedings under
the Family Law Act 1975 will be child-focused, less adversarial,
less traumatic and easier to navigate. The principle of active
judicial management combined with the other operative provisions
will mean that the court will be able to conduct proceedings in a
manner that is appropriate and comprehensible for the parties and
children in each case. The Committee s recommendations are,
however, necessary to ensure that Schedule 3 is properly equipped
to fulfil its purpose.(49)
LACA Committee recommendations and Government responses are
described below.
Item 4 of Schedule 3 inserts
new Division 12A into Part VII of the Family Law
Act. The new Division deals with and applies to child-related
proceedings . The expression child-related proceedings means:
-
proceedings wholly under Part VII (children s
matters)
-
proceedings partly under Part VII the parties
non-coerced consent is required for those parts of the proceedings
that are non-Part VII proceedings
-
proceedings arising from the breakdown of the parties marital
relationship if the parties consent and the consent is free from
coercion (new section 69ZM).
The consent of a party can be withdrawn with the leave of the
court.
The Exposure Draft Bill did not specify that consent must be
free from coercion. As a result of evidence it received, the LACA
Committee inquiry into the Exposure Draft Bill recommended
amendments so that weaker parties in non-children s matters (eg
proceedings for property alteration, spousal maintenance etc) are
not coerced into consenting with the consequence that certain rules
of evidence do not apply to their proceedings.(50) The
Government accepted this recommendation and the Bill has been
amended accordingly.(51)
The Exposure Draft Bill examined by the LACA Committee contained
four principles for conducting child-related proceedings. The
Committee s report recommended the insertion of an additional
principle stating that proceedings be conducted in a way that
safeguards the child and the parties against family violence, child
abuse and child neglect.(52) The Government responded as
follows:
The Government agrees with the Committee in
considering that this change will not only assist the court in
dealing with allegations of violence, abuse and neglect, but with
actual incidences of these things also. This is consistent with the
greater emphasis on the safety of children in the objects provision
of Part VII.(53)
The Committee s recommendation has been adopted by the
Government and a fifth principle added to the Bill.
The five principles for conducting child-related proceedings
itemised in new section 69ZN are:
-
in determining how to conduct proceedings, the court must
consider the child s needs and the impact that the conduct of
proceedings may have on the child
-
the court is to actively direct and manage the proceedings
-
the proceedings are to be conducted in a way that safeguards the
child and the parties against family violence,(54) child
abuse(55) and child neglect
-
proceedings are to be conducted in a way that promotes
cooperative and child-focused parenting by the parties, and
-
the proceedings are to be conducted without undue delay
and with as little formality and legal technicality as
possible.
Failure to give effect to these principles does not invalidate
proceedings or court orders. The active involvement of judicial
officers in child-related proceedings is further emphasised by
new section 69ZP, which provides that a court can
exercise its powers at the request of a party or on its own
initiative.
New section 69ZQ sets out the general duties a
court has in child-related proceedings. For instance, a court must
decide which issues need full investigation and which can be
summarily disposed of, make appropriate use of technology and,
where appropriate, deal with a matter without requiring the parties
to be physically present.
The LACA Committee made a number of recommendations about what
is now new section 69ZT. This section provides
that certain rules of evidence do not apply to
child-related proceedings unless a court sees fit. The provision is
designed to ensure that child-related proceedings are conducted
with as little formality as possible.
In brief, rules that are ousted include general rules about
giving evidence and examining witnesses, rules about documents, and
rules about hearsay, opinion evidence, admissions, and evidence of
convictions, credibility and character. The Committee recommended
that:
-
the Bill be amended so that a court can only apply those
rules of evidence in child-related proceedings in exceptional
circumstances
-
in making a decision to use those rules of evidence, a court
should take four factors into account the importance of the
evidence, the nature and subject matter of the proceedings, the
probative value of the evidence and the powers of the court to
adjourn the hearing or make another order.(56) The court
may also take other matters into account.
The Government accepted these recommendations(57) and
the Bill has been amended accordingly.
New section 69ZV also deals with evidence. It
provides that a child s hearsay evidence is not inadmissible in
child-related proceedings merely because it is hearsay. A court can
give a child s hearsay evidence such weight as it thinks fit.
New section 69ZW enables a court in
child-related proceedings to make an order requiring a prescribed
State or Territory agency to provide it with specified documents or
information relating to suspected child abuse or family violence
affecting the child. It may also order assessments, findings or
reports to be provided.
Item 8 applies the Schedule 3
amendments to proceedings commenced on or after 1 July 2006.
Most of Schedule 4 commences on proclamation or
six months after Royal Assent, whichever is earlier (clause
2).
The FCAC envisaged a new family law system with single entry
points attached to an existing Commonwealth body.(58)
The Government decided instead that it would establish 65 Family
Relationship Centres. While these Centres are not statute-based,
persons operating within them and certain other professionals will
have certain statutory obligations. These are set out in
Schedule 4. Schedule 4 also aims
to distinguish services provided in the community from services
provided by the courts and to clarify the different roles played by
each.(59) Further, it contains many changes to
terminology.
Items 1-3 and 5-6 of Schedule
4 amend the Family Law Act so that Ministerial approval
and funding can be given to counselling and mediation organisations
irrespective of whether they are voluntary (ie not for profit) or
for profit . Currently, only voluntary organisations can be
approved.
The LACA Committee considered that accreditation and quality
standards were a critical issue for counsellors and dispute
resolution practitioners and recommended that:
the government introduce a system of accreditation
and evaluation for all Family Relationship Centres and all family
dispute resolution practitioners as a matter of
urgency.(60)
The Government responded as follows:
The Government agrees with this recommendation.
The Government has already commissioned the Community Services and
Health Industry Skills Council (CSHISC) to develop competency-based
standards and a suite of qualifications for family counsellors and
family dispute resolution practitioners across the family law
system, including in the Family Relationship Centres. The CSHISC
project is due to be completed before the introduction of
compulsory dispute resolution. In the meantime, the current
provisions in the Act with respect to qualifications will continue
to apply.(61)
New section 10A enables Accreditation Rules to
be made for family counsellors, family dispute resolution
practitioners and workers in Government funded children s contact
services. (62) Accreditation Rules may deal with matters
such as standards, who is responsible for monitoring compliance
with ongoing requirements, how accreditation can be suspended or
cancelled, processes for handling complaints against accredited
persons, who can deliver recognised training to accredited persons
and how to deal with persons who falsely represent that they are
accredited. The Rules will be prescribed by regulation.
The Explanatory Memorandum states that accreditation standards
are expected to be in place by mid-2006 and that, in the transition
period, courts, approved organisations and organisations designated
by the Attorney-General will be able to authorise family
counsellors and family dispute resolution practitioners.
Professionals so authorised will be taken to be accredited during
the transition period. (63)
Item 8 inserts new
Part IA into the Family Law Act.
This new Part makes it an offence for a person, without Ministerial
consent, to use a protected name or symbol or a name or symbol that
could be mistaken for a protected name or symbol. The maximum
penalty is 30 penalty units (ie $3300).(64) Protected
names and symbols will be prescribed by regulation.
The rationale for these provisions is set out in the Explanatory
Memorandum:
The Part will ensure that the names of services
funded by the Government to provide assistance and support to
people in the family law system (such as Family Relationship
Centres), and the symbols (or logos) used to identify these
services are not used in an unauthorised manner that might mislead
or deceive the public.
As the field of family law is a highly emotional
area in which people may not always be in a position to objectively
or thoroughly assess the credentials of service providers, consumer
protection is of critical importance.(65)
Items 11-12, 15-22, 28, 30-31 and 34 repeal
existing terms and definitions in the Family Law Act relating to
what is currently called primary dispute resolution . So, for
example, the terms primary dispute resolution , family and child
counsellor and family and child mediator will be removed. New
terminology will be used instead for instance, family counsellor
and family dispute resolution practitioner (see, for instance,
items 25 and 27).
The Explanatory Memorandum describes the reasons for the
changes:
At present the Act uses the umbrella term primary
dispute resolution to cover almost every form of non-judicial
intervention in family conflicts, including counselling, mediation
and arbitration. The term is poorly understood in the community and
its use in legislation makes it difficult to differentiate specific
types of intervention.
To assist understanding, the Bill removes the term
primary dispute resolution and clearly identifies more specific
forms of intervention. As part of this change, the terms in these
items will be removed from the Act and new terms family counselling
.. and family dispute resolution will be
introduced.(66)
The new terms are designed to clearly distinguish those who
provide services dealing with personal and interpersonal
relationships and those who provide dispute
resolution services.
Item 36 repeals Parts II and III of the Family
Law Act and inserts new Parts II, III, IIIA and
IIIB. Parts II and III currently deal with counselling and
mediation organisations and primary dispute resolution.
New Part II deals with non-court based family
services that is, family counselling services, family dispute
resolution services and arbitration. Note, however, that
court staff may also be appointed as family counsellors or family
dispute resolution practitioners (new section
38BD).
Family counselling is defined as a process in which a family
counsellor helps:
-
a person deal with personal and interpersonal issues relating to
marriage, or
-
adults and children affected by separation or divorce to deal
with personal, interpersonal or child care issues (new
section 10B).
Family counsellors must be accredited under the proposed
Accreditation Rules or authorised (for example, authorised under
the Family Law Act, by the Family Court of Western Australia or
under the Federal Magistrates Act) new section
10C.
The issue of confidentiality of communications in
family counselling was the subject of a number of recommendations
by the LACA Committee. In brief, the Committee recommended
that:
the circumstances in which family counsellors can
disclose in the discharge of their functions be limited to
circumstances relating to a serious threat to the welfare of the
child (recommendation 26)(67)
disclosure provisions distinguish between
mandatory and discretionary disclosures (recommendation 27). The
Committee concluded that disclosure should be mandatory where it
could prevent or lessen a serious risk to life or health or where
the disclosure related to the commission of an offence involving
serious harm to a child
disclosure provisions be amended so that
disclosure can occur with the consent of participants to the
process (recommendation 28).
The Government responded:
-
agreeing in principle with recommendation 26. The Government
proposed two changes which it said would amend the legislation in a
manner consistent with the Committee s recommendation. One of those
amendments enables a disclosure to occur where a family counsellor
believes that it is necessary to protect a child from harm or
risk of harm.(68) The Government response is
reflected in the Bill.
-
agreeing that mandatory and discretionary disclosures be
distinguished in the legislation (recommendation 27). However, the
Government took the view that disclosure should only be mandatory
when required to comply with a Commonwealth, State or Territory
law.(69) The Government s response is reflected in the
Bill.
-
agreeing to amend the Bill to provide for consensual disclosures
(recommendation 28). The Government noted that, in relation to
disclosure of communications made by children, the Bill would be
amended so that such disclosures could only be made with the
consent of each person who has parental responsibility for the
child or with the consent of a court.(70) The Government
s response is reflected in the Bill.
New section 10D contains a general prohibition
on family counsellors disclosing information they obtain when
counselling.(71) Exceptions are provided to this general
rule. For instance:
-
disclosure is mandatory if the counsellor reasonably
believes that the disclosure is required by law
-
disclosure is discretionary with consent or if
the counsellor reasonably believes the disclosure is necessary to
protect a child from harm or the risk of harm or is necessary to
prevent a serious and imminent threat to a person s life or health,
or
-
the disclosure is of non-identifying information for
research relevant to families.
New section 10E generally prevents admissions
made to family counsellors during counselling being admitted as
evidence in any court.(72) This rule also applies to
professionals to whom a family counsellor refers a person. There
are some exceptions to this general rule for instance, in the case
of an admission by an adult that a child has been abused or a
disclosure by a child that indicates they have been abused.
Additionally, disclosures made in a professional consultation
pursuant to a referral from a family counsellor are
inadmissible.
Importantly, the fact that information must or can be
disclosed under new section 10D does not
necessarily make it admissible in court under new section
10E.
In September 2005, the Attorney-General asked the National
Dispute Resolution Advisory Council (NADRAC) and the Family Law
Council (FLC) to provide joint advice on whether family counsellors
should be granted immunity when conducting family counselling under
the Family Law Act. NADRAC and the FLC advised the Attorney in
November 2005 that the grant of such immunity was not
appropriate.(73)
The Bill defines family dispute resolution as a non-judicial
process in which an independent family dispute resolution
practitioner helps people affected by separation or divorce to
resolve some or all of their disputes with each other (new
section 10F).
Family dispute resolution practitioners will be accredited under
the proposed Accreditation Rules or authorised in prescribed ways
for example, under the Family Law Act, by the Family Court of
Western Australia or under the Federal Magistrates Act (new
section 10G). The same rules about confidentiality of
communications and admissibility of evidence that apply to family
counsellors also apply to family dispute resolution practitioners
(new sections 10H and 10J).
LACA Committee recommendations about confidentiality and
admissibility encompassed family dispute resolution practitioners
as well as family counsellors as did the Government s responses.
For a brief description of the recommendations and the Government s
responses see above.
The Exposure Draft Bill conferred judicial immunity on family
dispute resolution practitioners in the circumstances set out in
proposed section 10M of the draft.(74) The LACA
Committee recommended that the question of immunity for such
practitioners should be referred to an appropriate Government
advisory body for research and consideration. (75) As a
result of advice from NADRAC and the FLC (referred to above), the
Government has removed the immunity provision.(76)
New section 10K provides that regulations may
be made prescribing requirements to be complied with by family
dispute resolution practitioners. New section 10K
generally reflects existing section 19P of the Family Law Act.
Among other things, existing regulations provide that family and
child mediators must have suitable qualifications, training and
experience; undertake continuing training; make an assessment about
whether mediation is appropriate before commencing mediation and
ensure that the mediation process is suited to the parties
needs.(77) The Government proposes to amend the relevant
regulations to reflect the new terminology introduced by the
Bill.(78)
The Bill repeals the term private arbitration and substitutes
the expression relevant property or financial arbitration (see
items 30, 32 and new
subsection 10L(2)). The content of the definition remains
the same.
The Bill also inserts a definition of arbitration a process,
other than a judicial process, in which parties to a dispute
present evidence to an arbitrator who makes a determination to
resolve the dispute (new subsection
10L(1)).
While new sections dealing with arbitration replace existing
sections, no substantive changes are made to the existing
arbitration provisions of the Family Law Act. Thus:
-
an arbitrator will continue to be a person who meets
requirements prescribed by regulation (new section
10M)
-
arbitration remains a process in which an arbitrator determines
a dispute between the parties (new section
10L)
-
arbitrators will continue to be able to charge for their
services (new section 10N)
-
arbitrators will continue to have the same immunity as Family
Court judges (new section 10P), and
-
communications with arbitrators are not confidential and may be
admissible in court.
New section 69ZS (see Schedule
3) enables the court to appoint a family consultant in
child-related proceedings. In brief, these consultants assist and
advise people involved in family law proceedings.
New Part III, inserted by Schedule
4, deals in detail with family consultants. Family
consultants can be appointed by the Family Court of Australia, the
Federal Magistrates Court and the Family Court of Western
Australia. It is anticipated that they will be assigned by the
court in each case involving children and will manage the
case.(79)
Unlike family counsellors and family dispute resolution
practitioners, communications with family consultants are not
confidential and may be admitted into evidence. The Explanatory
Memorandum explains the rationale for differences in title and the
status of communications involving these three groups:
Under the Act in its present form court staff or
persons engaged by a court may provide confidential or
non-confidential services but do so under the title mediators,
counsellors or welfare officers. Under the Bill the title of the
person who provides court services will differ depending upon
whether the process is confidential or not.(80)
Among other things, these consultants assist and advise people
involved in family law proceedings and help those involved in such
proceedings to resolve disputes (new section 11A).
Family consultants may be appointed under the Family Law Act, the
Federal Magistrates Act, under the regulations or under State law
(new section 11B). In general, anything said to a
family consultant is admissible in proceedings under the Family Law
Act (new section 11C). Like arbitrators, family
consultants have the same immunity as a Family Court judge
(new section 11D).
The amendments also enable courts to seek advice from family
consultants and to order parties to see a family consultant
(new sections 11E and 11F). New section
11E has been amended in accordance with recommendation 31
made by the House of Representatives Committee. It requires a court
seeking advice from a family consultant to inform the person in
relation to whom the advice is sought whom the court is seeking
advice from and the nature of the advice. The basis of the
recommendation was the need for transparency and so that parties
can be heard.(81)
The Family Law Act currently imposes certain information and
advice giving obligations on courts and lawyers. However, no
obligations are imposed on counsellors, mediators or arbitrators.
Existing provisions are repealed (see item 36),
more detailed provisions are inserted in their place and
obligations are imposed on family counsellors, family dispute
resolution practitioners and arbitrators.
New Part IIIA deals with obligations to inform
people about non-court based family services and about court
processes and services. Its objects are to ensure that people are
aware of:
-
services that may assist them to reconcile or adjust to
separation or divorce, and
-
non-litigious ways of resolving disputes (new
section 12A).
It consolidates and expands existing requirements relating to
the provision of information.
Regulations made under the Family Law Act may prescribe
information to be provided to parties about non-court based family
services, court processes and services; reconciliation and Part VII
proceedings (new sections 12B-12D).
In relation to court and non-court based
services, any regulations must include, but are not limited
to, information about:
-
the legal and possible social effects of the proposed
proceedings (including consequences for children). This provision
partially replicates paragraph 17(a) of the Family Law Act, which
requires a court to give a document containing this information to
the parties
-
services provided by family counsellors and family dispute
resolution practitioners. This provision substantially replicates
paragraph 17(b) of the Family Law Act.
-
the steps involved in the proposed proceedings
-
the role of family consultants, and
-
arbitration facilities (new section 12B).
In relation to:
-
reconciliation, regulations may prescribe information
about relevant services (new section 12C)
-
Part VII proceedings (children s matters), any
regulations must include information about family counselling
services (new section 12D).
Under the Family Law Act, lawyers must consider the possibility
that their clients will reconcile (section 14D). Additionally,
lawyers must consider whether to advise parties about the existence
of non-litigious means of dispute resolution (section 14G) and
about marital breakdown counselling (subsection 16C(3)).
Under new section 12E, lawyers are, in general,
obliged to provide prescribed information to their clients about
non-court based family services, court processes and services,
reconciliation, and Part VII proceedings. There are exceptions to
this general rule. For instance, prescribed information need not be
provided if a lawyer reasonably believes that his or her client has
already been given the information. Nor is a lawyer required to
provide prescribed information about reconciliation services if he
or she considers there is no real possibility of the parties
reconciling.
The Family Law Act currently imposes information giving
obligations on court staff.(82) These provisions are
repealed and, instead, new section 12F requires
principal executive officers of courts to provide any information
prescribed under:
-
new section 12B (about non-court based
services and court processes and services), and
-
new section 12C (about
reconciliation)
to any person considering instituting Family Law Act proceedings
on the first occasion the person deals with a registry of the court
.
These officers are also obliged to provide information about
family counselling or family dispute resolution services to any
person involved in proceedings who asks for it. The expression
people involved in proceedings means any of the parties, any child
affected by the proceedings and any person whose conduct is having
an effect on the proceedings (item 35 of
Schedule 4).
Family counsellors, family dispute resolution practitioners and
arbitrators are also obliged to provide prescribed information
about reconciliation to married clients considering divorce,
financial or Part VII proceedings. This obligation is waived if the
counsellor etc has reason to believe that the person already has
the information or that there is no reasonable possibility of the
parties reconciling (new section 12G).
The Family Law Act contains general provisions to the effect
that courts must consider the possibility of reconciliation between
the parties, may adjourn proceedings if reconciliation appears
possible and refer parties to counselling that may assist with
reconciliation (section 14C). A court also has a duty to consider
whether the parties should be advised about non-litigious dispute
resolution processes (currently called primary dispute resolution)
(section 14F).(83) Further, under a raft of provisions
the court can order parties to attend counselling, mediation or
other programs.(84) These existing provisions are
repealed (item 36) and new provisions, including
an objects clause, are inserted.
New Part IIIB deals with the court s powers in
relation to court and non-court based family services. The objects
of the Part are to:
-
facilitate access to family counselling
-
encourage people to use non-litigious dispute resolution
mechanisms
-
encourage the use of arbitration if appropriate,
and
-
empower the court to require parties to use family
services appropriate to their needs (new section
13A).
New section 13B generally reflects existing
section 14C of the Family Law Act.
New section 13C reflects and consolidates
existing provisions of the Family Law Act in relation to referrals
and court orders. It also:
-
contains a note referring to new section
11E (obliging the court to consider seeking the advice of
a family consultant about services appropriate to the parties needs
before making an order)
-
enables the court to suggest a particular purpose for
attendance at counselling or dispute resolution services, and
-
enables orders requiring the parties to encourage the
participation of other persons likely to be affected by the
proceedings (the example of grandparents or other relatives is
provided).
If a party fails to comply with a new section
13C order, the failure must be reported to the court and
the court may make whatever orders it considers appropriate
(new section 13D).
New sections 13E-13K deal with arbitration.
They substantially reproduce and consolidate the existing
arbitration provisions in the Family Law Act enabling:
-
a court to refer property or maintenance
proceedings to an arbitrator with the consent of the parties
-
a court to make orders facilitating
arbitration
-
the Family Court, the Family Court of Western
Australia or the Federal Magistrates Court to determine a question
of law referred by an arbitrator
-
arbitrated awards to be registered as
court orders
-
the Family Court, the Family Court of
Western Australia or the Federal Magistrates Court to review and
set aside a registered arbitral award.
As stated earlier in this Digest, there has been a change in
terminology. The Family Law Act currently refers to private
arbitration . This term is replaced by the expression relevant
property or financial arbitration (see items 30, 32 and new
paragraph 10L(2)(b)).
New section 38BA gives the Chief Executive
Officer of the Family Court the functions of a family consultant
under new section 11A. These functions can be
delegated (new section 38BB). New section
38BD enables the CEO to authorise a staff member to act as
a family counsellor or family dispute resolution practitioner.
Item 52 repeals sections 62B, 62C, 62CA, 62D,
62E and 62F of the Family Law Act and replaces them with
new section 62B. Some of these sections have been
replaced. Other sections (sections 62C, 62CA, 62D and 62E) relate
to counselling services provided by courts exercising Family Law
Act jurisdiction. The Explanatory Memorandum explains:
As set out in relation to sections 10C and 10G,
the Family Court, the Family Court of Western Australia and the
Federal Magistrates Court will still be able to provide these
services where necessary, but it is intended that most counselling
and dispute resolution services will be provided outside the
court.(85)
Items 61-64 amend section 65LA of the Family
Law Act, which deals with post-separation parenting programs. The
effect of these amendments is that providers of post-separation
parenting programs will need to meet conditions set out in the Act
and accountability requirements set out in funding agreements. At
present, the Attorney-General s Department maintains a list of
post-separation parenting program providers, which according to the
Explanatory Memorandum has no relation to the quality of services
provided. (86)
Consequential amendments are made to the Federal Magistrates Act
to remove current terminology (such as primary dispute resolution
and welfare officer ) and replace it with new terminology ( dispute
resolution ) (see, for example, items 87-91, 94-105,
107-110). The new terms reflect the amendments proposed
for the Family Law Act.
Similarly, amendments are made to the Marriage Act 1961
(for example, to change the expression family and child counsellor
to family counsellor in accordance with amendments proposed to the
Family Law Act (items 116-117).
Schedule 5 commences on proclamation or six
months after Royal Assent, whichever is earlier (clause
2).
The issue of child representatives in family law matters has
been considered in a number of reports, including:
-
Family Law Council Representation of
Children in Family Law Proceedings (1989)
-
Family Law Council Involving and Representing
Children in Family Law (1996)
-
Australian Law Reform Commission and
Human Rights and Equal Opportunity Commission Seen and Heard:
Priority for Children in the Legal Process (1997), and
-
Family Pathways Advisory Group
Out of the Maze: Pathways to the Future for Families
Experiencing Separation (2001), and
-
Family Law Council Pathways for
Children: A review of children s representation in family law
(2004).
It has also been the subject of judicial rulings and guidelines
issued by the Family Court.(87) There has been
considerable confusion the role and functions of the child s
representative not the least, perhaps, because the Family Law Act
itself is silent on these matters. The general view is that the
child representative is a best interests advocate rather than a
representative of the child. However, some of the reports mentioned
above have considered and in some cases recommended other models
for child representation including the direct representative
model(88) and a team approach whereby an appropriately
trained lawyer is assisted by a social worker or
counsellor.(89)
In 2004, the Family Pathways Advisory Group recommended
that:
the development of clearly defined roles for, and
responsibilities of, child representatives be given urgent
priority, with adequate funding allocated to support
implementation.(90)
As a result of this recommendation, the Attorney-General asked
the Family Law Council to review, as a matter of urgency, the role
and the basis of appointment of child representatives. The Council
reported in August 2004. Most of its recommendations for statutory
reform are included in the Bill and are briefly described below.
For convenience, the 2004 report is referred to as the Council s
report.
Item 1 of Schedule 5 repeals
the definition of child representative in the Family Law Act. The
expression independent children s lawyer is used instead. The
Council s report recommended that the expression independent lawyer
be used to clarify that the lawyer does not represent the
child.(91) However, the Government considers that the
term independent children s lawyer is more descriptive and shows
that the lawyer is associated with the child, not the other parties
in the proceedings.(92)
Item 2 defines the independent children s
lawyer as a lawyer appointed by a court who represents the child s
interests. The definition of child representative currently in the
Family Law Act is a person who represents a child in proceedings.
The difference in language is significant. The new definition makes
it clear that the function of the lawyer is to represent the child
s interests and not represent the child. It also accords with the
Family Law Council s recommendation for an amendment specifying
that the lawyer is a best interests advocate.(93)
Item 5 repeals Division 10 of Part VII, the
part currently dealing with the best interests of children and the
representation of children and replaces it with a new Division
entitled Independent representation of child s interests.
New subsection 68L(2) provides that a court can
order the appointment of an independent children s lawyer if it
appears that such representation is necessary. This new subsection
is along the lines of existing subsection 68L(2). The Council s
report endorsed the Family Court s decision in Re K which
contains a detailed list of circumstances in which a child
representative should be appointed.(94) However, it
concluded that such detail should be left to the common law rather
than enshrined in statute so that a flexible approach can be taken
by the courts.
There is little detail in the existing Division about how the
child s representative is to operate. Considerable detail is
provided by the amendments. It is also intended that the Family
Court s guidelines will continue to be used to further flesh out
roles and responsibilities. New section 68LA sets
out the general nature of the lawyer s role and
specific duties that attach to it.
The general nature of the lawyer s role is to:
-
form an independent view of what is in the child s
best interests and inform the court, and
-
act in the proceedings in what the lawyer
believes is in the child s best interests (new subsection
68LA(2)).
New subsection 68LA(4) states that the lawyer
is not the child s representative and is not obliged to act on the
child s instructions.
Specific duties are to:
-
act impartially in dealing with the parties
-
inform the court of any views expressed by
the child
-
analyse any reports relating to the child in
terms of the child s best interests and draw those matters to the
court s attention
-
minimise the trauma to the child
associated with the proceedings, and
-
facilitate an agreed resolution of matters to the extent
that doing so is in the child s best interests (new
subsection 68LA(5)).
For the most part, new subsections
68LA(2)-(5) reflect principles enunciated
by the Family Court in P and P(95) in
accordance with recommendation 1 of the Council s
report.(96)
The Council s report also commented on continuing confusion
about the confidentiality of communications between a child
representative and the child. It recommended that the child
representative should not be compellable to disclose such
communications to a court exercising Family Law Act jurisdiction
but should be able to disclose in the child s best interests, even
if this goes against the child s wishes. New subsections
68LA(6)-(8) encapsulate the Council s recommendations.
Items 6-13 are consequential amendments
reflecting the change in terminology from child representative to
independent children s lawyer .
Parliament may be interested in other recommendations and
suggestions in the Council s report. For instance, the Council
recommended that statutory indemnity be given to the child
representative along the lines of the indemnity enjoyed by
mediators and counsellors. In the Council s view these lawyers face
a significant risk of being sued and if indemnified would still be
subject to professional disciplinary bodies.(97) This
recommendation has not been adopted.
In relation to matters not requiring statutory amendment, the
Council took the view that:
-
the Commonwealth Attorney General s Department, courts
exercising jurisdiction under the Family Law Act, organisations
specialising in counselling and mediation in family law matters and
Legal Aid Commissions should endorse a team based approach to the
representation of children so that the appointed legally trained
child representative is supported by a social scientist; develop a
protocol for cooperation between such lawyers and family and child
counsellors; and provide sufficient funds so that the protocol can
be implemented(98)
-
because of the dearth of research on children s
experience of legal representation, the Australian Institute of
Family Studies should be commissioned to conduct research into the
views of children about their experiences, expectations, and
competence in family law proceedings and to evaluate children s
experiences of child representatives. (99) The Council
highlighted the importance of such research in developing best
practice for the child representative role.
-
practice be developed so that direct representation for
competent children can occur in appropriate
cases.(100)
The amendments in Schedule 6 commence six
months after Royal Assent unless commenced earlier by proclamation
(clause 2).
Schedule 6 repeals and replaces the existing
Division 11. This Division deals with the relationship between
orders made under the Family Law Act that provide for a child to
spend time with a person, and family violence orders made under a
law of a State or Territory to protect a person from family
violence.
The Explanatory Memorandum states that the amendments implement
recommendations to simplify and improve the operation of the
provisions in Division 11, made by the Family Law Council.
The amendments also remove references to the term contact to
ensure the Division s terminology is consistent with the new
terminology introduced in Schedule 8 of this
Bill.
While the amendments seek to make Division 11 clearer, they
do not change the substance of the Division.
Item 1 repeals and replaces the existing
Division 11.
New Section 68N states that the purposes of
Division 11 are to:
-
resolve inconsistencies between State and Territory
family violence orders and orders made under the Family Law Act
that provide for a child to spend time with a person, and
-
achieve the objects and principles set out in new
section 60B. These objects include ensuring that a child
benefits from a meaningful relationship with both parents and
ensuring that the child is protected from harm.
New section 68P
provides that where a court exercising jurisdiction under the
Family Law Act makes an order or injunction which is inconsistent
with an existing State or Territory family violence order, the
court is obliged to explain to the parties affected (or arrange for
someone else to explain to them), the effect and consequences of
the order or injunction and how it is to be complied with. The
relevant orders and injunctions are a parenting order that provides
for a child to spend time with a person, a recovery order (as
defined in section 67Q), or an injunction under sections 68B or 114
(subparagraphs 68P(1)(a)(i), (ii) and (iii)). The
Explanatory Memorandum explains that this could arise, for example,
where the court exercising family law jurisdiction makes an order
that a child spend time with a person even though an earlier family
violence order might prevent this occurring.
New section 68P
corresponds to existing section 68R and uses the new terminology
spend time with a person rather than contact .
New section 68Q
clarifies that where an order which provides for a child to spend
time with a person is inconsistent with a State or Territory family
violence order, the order which provides for a child to spend time
with a person prevails and the family violence order is invalid to
the extent of the inconsistency. The court may make declarations
that clarify that a family law order is meant to be inconsistent
with the earlier family violence order (new subsection
68Q(3)).
When an application for a family
violence order is made in a State or Territory court, new
section 68R gives that court the power to revive, vary,
discharge or suspend an existing family law order, injunction and
arrangements providing for a child to spend time with a person, if
this is necessary to give effect to the family violence order. The
court must not make such an amendment unless:
-
it also makes or varies a family violence order in
the proceedings (new paragraph 68R(3)(a), and
-
has material before it that was not before the court that
made the order, injunction or arrangement (new paragraph
68R(3)(b).
New Section 68R
corresponds to existing section 68T.
The State or Territory court may not exercise its
power to discharge a family law order, injunction or
arrangement when making or varying interim family violence orders
(new subsection 68(4)). New section
68T makes other special arrangements to do with interim
family violence orders.
New subsection
68R(5) clarifies what a State or Territory court making a
family violence order should consider when exercising its power to
amend a family law order, injunction or arrangement.
New section 68S
states that some provisions of the Family Law Act and Family Law
Rules may not apply when a State or Territory court is exercising
its power under new section 68R.
Schedule 7 commences on proclamation or six
months after Royal Assent, whichever is earlier (clause
2).
Item 1 of Schedule 7 repeals
section 45A of the Family Law Act. The effect of section 45A and
regulations(101) made under it is that the Federal
Magistrates Court must transfer contested property proceedings to
the Family Court where the value of the property exceeds $700,000
(unless the parties otherwise agree). Repealing the section means
that there will be no monetary limit on the Federal Magistrates
Court s jurisdiction in property matters.
Item 2 applies the amendment to proceedings
instituted before or after the commencement of item
1.
Most of Schedule 8 commences on proclamation or
six months after Royal Assent, whichever is earlier (clause
2).
Schedule 8 changes the terminology of the
Family Law Act to remove references to the terms residence ,
contact and specific issues orders . Changes to the Act in 1995
adopted the terms residence and contact instead of custody and
access in order to eliminate any sense of ownership of children.
However, the intended change of culture has not been achieved and
the FCAC Report recommended that more family friendly terms such as
parenting time be used.
Items 1 39 and
102 are consequential amendments to the
Australian Citizenship Act 1948, the Australian
Citizenship Act 2005, the Australia Passports Act
2005, the Child Support (Assessment) Act 1989 and the
Migration Act 1958 to take account of the new terminology
that is used in the Family Law Act. Items 40 101
make amendments to the Family Law Act to reflect the new
terminology. In the majority of cases the amendments replace
references to residence with lives with and references to contact
with spends time with and communicates with . The amendments also
remove the current categories of residence, contact and specific
issues orders from parenting orders and refer simply to parenting
orders.
The LACA inquiry reported that the changes were supported by a
number of groups and organisations as another attempt to change the
attitudes that surround the current terms of residence and contact.
However others were critical of the proposed changes, believing
that they will lead to confusion, may make parenting orders harder
to understand, and will be unlikely to change the perception of
parents in conflict who see things in terms of winners and losers
.(102)
Schedule 9 commences on proclamation or six
months after Royal Assent, whichever is earlier (clause
2).
The effect of Schedule 9 is to move all the defined terms from
Part VII of the Act related to children to subsection 4(1) which is
the general definition section for the whole of the Family Law Act.
Its purpose is to improve the readability of the Act and is a
response to recommendation 50 of the LACA report.
The Bill has been described by the Attorney-General as
representing the most significant changes to the Family Law Act
since its inception 30 years ago.(103) It is designed,
along with the Family Relationships Centres, to avoid litigation as
the means of arriving at arrangements for the parenting of children
after separation. The question of whether it will achieve this is a
matter of some debate.
The former Chief Justice of the Family Court has been reported
as saying the Bill is pandering to the strong pressure that s been
put on the Government by various militant fathers groups by
requiring the court to consider whether children in custody
disputes should spend equal time with both parents
.(104)
Some fathers groups expressed disappointment in the Exposure
Draft Bill, suggesting that it did not recognise that both parents
have equal rights to contribute to and share in the lives of their
children.(105)
The LACA Committee noted that considerable concern was expressed
in evidence and submissions that the presumption of equal shared
parental responsibility (and the focus on increasing shared
parenting more generally) will increase the risk of family violence
and abuse occurring.(106)
Similar concerns have been expressed about the compulsory
attendance at family dispute resolution. Some family law academics
have pointed to experiences overseas that suggest compulsory family
dispute resolution is unlikely to be of use to most couples and
that it may simply add to the cost of the family law
system.(107)
There was also concern that the emphasis on equal shared
parental responsibility and the requirement to make decisions on
major long term issues jointly could, and is frequently, used by
abusive non-resident parents to continue a pattern of controlling
behaviour.
Shadow Attorney-General, Nicola Roxon MP, in her dissenting LACA
report called for a system that is fair to both mums and dads. She
argued that the Exposure Draft Bill was a reform full of rights for
non-residential parents, but short on
responsibilities.(108)
Some commentators are arguing that in fact very little will
change. While the court is required to consider children spending
equal time with both parents after separation such arrangements
will only be ordered if reasonably practicable and if the court
considers it satisfies the paramount consideration: the child s
best interests.(109)
The diversity of views about the Bill is indicative of how
family law has the capacity to polarise views.
One commentator, Stephen Bourke has noted that the perceptions
of what the law actually does and what community perceives it to do
can actually affect how it works. He suggests that while the Bill
was designed to minimise litigation it could have the opposite
effect. Those who perceive that the Bill provides them with
something that they did not previously have will pursue what they
believe the Bill now provides. Those that perceive the Bill erodes
what they currently have will behave in a way to protect what they
currently have. What the Bill actually says becomes irrelevant. It
is what people perceive the Bill says that becomes important.
Stephen Bourke suggests that this phenomenon occurred in 1996 when
parenting orders replaced custody orders. The legal effect in 1996
was to give the court greater flexibility in apportioning the
different incidents of parental responsibility to avoid the
perception that the parent who obtained custody was the winner.
However the perceived effect of the change in 1996 was that there
were winners and losers. He believes the same will apply with this
Bill.(110)
Arguably, considerable effort has been made to ensure that the
Bill, which is aimed at bringing a cultural shift towards shared
parenting after separation, does protect the best interests of the
child principle and does protect children and parents from violence
and abuse. The Labor Party has announced it is proposing amendments
to the Bill that it hopes will be accepted to address concerns
relating to family violence. However generally Labour supports the
Bill particularly the aims of encouraging both parents to take more
responsibility for their children after relationship breakdown;
proposing alternatives to the legal system; prioritising children
following family breakdown; and improving the legal process when
children are involved.(111)
Some of the amendments proposed by the Bill raise constitutional
questions. These questions were the subject of advice from the
Australian Government Solicitor (AGS) and were discussed at LACA
Committee hearings. The constitutional issues relate to the
doctrine of the separation of powers and the exercise of power by
Chapter III courts such as the Family Court of Australia.
Under the Commonwealth Constitution, a Chapter III court may
only exercise judicial power or non-judicial power that is
incidental to its exercise of judicial power. Judicial power must
be exercised in accordance with judicial process. In common law
jurisdictions, this process is generally adversarial (where
defining the issues and controlling the process traditionally rests
with the parties and the judge does not play an active role). The
rules of natural justice may also form an irreducible part of
federal judicial process.
The purpose of Schedule 3 of the Bill is to
promote less adversarial proceedings and a more cooperative
approach to matters involving children. To this end, courts are
given a more active, case management role and can also make own
motion orders. It is not clear whether or to what extent an
adversarial approach is a requirement of federal judicial process.
AGS advice is that active case management is consistent with
Chapter III and that provision for own motion orders in Part VII
matters is likely to be consistent with Chapter III of the
Constitution. (112) This conclusion appears to be based
on the view that proceedings involving children under the Family
Law Act are not, in any event, an adversarial contest between the
parties but matters that are decided in the best interests of the
child.
Schedule 3 also contains general rules
excluding certain rules of evidence from child-related proceedings
and directing a court about its duties in such proceedings.
Questions may arise here about whether the legislature is
impermissibly interfering with judicial power. Questions might also
be asked about whether certain provisions such as those excluding
certain rules of evidence and those enabling a court to deal with a
matter without the parties being physically present accord with
judicial process. Federal judicial process may require the rules of
natural justice such as the right to be heard to apply. The
Constitution may also prevent the legislature prescribing rigid
rules for judicial proceedings that prevent judges deciding each
case on its merits. AGS advice is that the amendments are likely to
be valid because the Bill leaves the court with discretion in such
matters.(113)
The expression, child-related proceedings also includes
proceedings that are partly about children s matters and partly
non-Part VII proceedings. While it is possible to characterise
proceedings that are solely about children s matters as
fundamentally non-adversarial, this cannot be said of non-Part VII
proceedings. AGS advice is that the extension of a less adversarial
approach to proceedings, such as property proceedings which involve
the more usual judicial role of adjudicating on existing rights and
altering those rights, is more open to doubt and this is why the
less adversarial approach will only apply to such proceedings by
consent. (114) However, it is not clear whether the
consent of the parties will cure any constitutional defect that
exists.
-
House of Representatives, Hansard, 24 June 2003, pp.
17277 8.
-
Attorney-General s Department.
Submission to the FCAC Inquiry.
-
ibid.
-
ibid.
-
ibid.
-
House of Representatives Standing Committee on Family and
Community Affairs (FCAC), Every picture tells a story. Report
of the inquiry into child custody arrangements in the event of
family separation, December 2003. See:
http://www.aph.gov.au/house/committee/fca/childcustody/report.htm,
-
ibid. As the Bill does not deal with child support, the Digest
does not provide further analysis on these recommendations.
-
At 22 February 2006 the Government response to that report had
not been released.
-
Explanatory Memorandum, p. 1.
-
Schedule 9 relocates other defined terms used
in Part VII to section 4 the aim being to improve the readability
of the Act.
-
House of Representatives, Standing Committee on Legal and
Constitutional Affairs (LACA Committee), Report on the Exposure
Draft of the Family Law Amendment (Shared Parental Responsibility)
Bill 2005, recommendation 43, paragraph 6.35.
See:
http://www.aph.gov.au/house/committee/laca/familylaw/report.htm.
-
The Explanatory Memorandum states that this change implements a
recommendation of the Family Law Council s December 2004 Report,
Recognition of Traditional Aboriginal and Torres Strait
Islander Child-Rearing Practices: Response to Recommendation 22:
Pathways Report, Out of the Maze.
-
LACA Committee, op. cit., paragraph 2.172.
-
ibid., paragraph 2.166.
-
Explanatory Memorandum, paragraph 48.
-
LACA Committee, op. cit., paragraph 2.199.
-
ibid., paragraph 2.204.
-
He sneers and snarls, but Ruddock is not too proud to steal
Labor ideas , Press Release, 9 February 2006.
-
See p. 8 of the Digest.
-
Explanatory Memorandum, paragraph 55.
-
FCAC, op. cit., paragraph 3.72.
-
National Network of Women s Legal Services, Submission 23, p 7
in LACA Committee, op.cit, paragraph 3.32.
-
LACA Committee, op. cit., paragraph 3.22.
-
ibid., paragraph 3.46.
-
ibid., paragraphs 3.99 3.105.
-
ibid., paragraph 3.105.
-
This was a recommendation of the LACA report.
-
LACA Committee, op. cit., paragraph 2.21.
-
Recommended in part that the Act be amended to require
mediators, counsellors, and legal advisers to assist parents for
whom the presumption of shared parenting responsibility is
applicable, to first consider a starting point of equal time where
practicable.
-
LACA Committee, op. cit., paragraph 2.55.
-
Recommendation 4, LACA Committee, op.cit., paragraph 2.59.
-
Section 63D. Parenting plans were previously registrable under
the Principal Act, however registered plans were not often used and
the registration provisions of the Act were repealed in 2003.
-
LACA Committee, op. cit., paragraph 3.234.
-
Explanatory Memorandum, paragraph 215.
-
LACA Committee. op. cit., paragraph 2.128.
-
The LACA inquiry noted the complexity of the provisions and
therefore recommended a complete redrafting of Division 13A
recommendation 53.
-
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.
-
This expression is defined in section 70NB of the Family Law
Act.
-
See Government Response to the Recommendations of the House of
Representatives Standing Committee on Legal and Constitutional
Affairs on the Family Law Amendment (Shared Parental
Responsibility) Bill 2005, p. 16. At:
-
Explanatory Memorandum, paragraph 248.
-
Explanatory Memorandum, paragraph 255.
-
That definition, currently in Division 13A will be moved to
section 4, the interpretation section (item 46, Schedule
9).
-
A primary order is defined as an order under the Family Law Act
affecting children, or a variation of such an order.
-
The provision essentially replicates section 70NE except that
the terms residence order , contact order and specific issues order
are replaced with references to orders relating to with whom a
child is to live, spend time and communicate.
-
LACA Committee, op. cit., paragraph 5.67.
-
ibid., paragraph 5.70.
-
FCAC, op. cit., recommendation 12, paragraph 4.157.
-
As at mid-2005, 126 cases had been finalised (out of 200) in
this Program and none of the finalised cases had appealed. A full
evaluation is expected to be completed in early 2006.
-
LACA Committee, op. cit., paragraph 4.73. Emphases added.
-
ibid., recommendation 35, paragraph 4.42.
-
Government Response, op. cit., p. 26.
-
LACA Committee, op. cit., recommendation 36, paragraph 4.50.
-
Government Response, op. cit., p. 17.
-
A definition of family violence is inserted by item
3 of Schedule 1.
-
Child abuse is defined by item 9 of
Schedule 4. It means an unlawful assault,
including a sexual assault, against a child or a person involving a
child in sexual activity where the child is used as a sexual object
and there is unequal power in the relationship between the child
and the person. This definition reflects the definition currently
in the Family Law Act.
-
LACA Committee, op. cit., recommendation 37, paragraph 4.67.
-
Government Response, op. cit., p. 18.
-
FCAC, op. cit., recommendation 11, paragraph 4.156.
-
Attorney-General s Department, Submission to the House of
Representatives Legal and Constitutional Affairs Committee inquiry
into the Exposure Draft of the Family Law Amendment (Joint Parental
Responsibility) Bill, submission no. 46.1, paragraph 159. At:
http://www.aph.gov.au/house/committee/laca/familylaw/subs/Sub46.1.pdf
-
LACA Committee, op. cit., recommendation 32, paragraph
3.211.
-
Government Response, op. cit., p. 15.
-
Explanatory Memorandum, paragraph 463.
-
Explanatory Memorandum, paragraph 407. Transitional matters
relating to family counselling and family dispute resolution are
dealt with in Part 4 of Schedule
4.
-
The effect of section 4B of the Crimes Act 1914 is that
in the case of a body corporate the maximum penalty is five times
this amount.
-
Explanatory Memorandum, paragraph 422.
-
ibid., paragraphs 441 2.
-
The relevant paragraph of the Exposure Draft (paragraph
10C(3)(d)) read: (d) enabling the counsellor to properly discharge
his or her functions as a counsellor.
-
Government Response, op. cit., pp. 12 13.
-
ibid., p. 13. Most States and Territories have laws that require
certain professionals to report child abuse or mistreatment.
-
ibid., p. 14.
-
Currently, family and child mediators and family and child
counsellors take an oath of confidentiality, which is set out in
the regulations. The terms of the oath have been moved to the Act
and new provisions included for instance, in relation to certain
disclosures and disclosures for non-identifying research
purposes.
-
Rules about the admissibility of communications with family and
child counsellors and family and child mediators are found in
section 19N of the Family Law Act. There are some differences
between the current provision and the new provisions. For instance,
at present evidence arising from a professional consultation
following a referral from a counsellor or mediator is only
inadmissible if the person attending the consultation is a party to
a marriage. See Attorney-General s Department, Submission to the
House of Representatives Legal and Constitutional Affairs Committee
inquiry into the Exposure Draft of the Family Law (Joint Parental
Responsibility) Bill, submission no. 46.1.
-
National Dispute Resolution Advisory Council and Family Law
Council, Joint Letter of Advice on the Requirement for Immunity
for Family Counsellors and Family Dispute Resolution Practitioners
under the Family Law Act 1975 at:
http://www.ag.gov.au/agd/WWW/flcHome.nsf/Page/Letters_of_Advice_Letters_Final_Joint_Letter_of_Advice_on_immunity_for_family_counsellors_and_family_dispute_practitioners_under_the_family_law_act_1975
-
The Exposure Draft Bill distinguished between facilitative
dispute resolution and advisory dispute resolution. This
distinction has been removed in the Bill.
-
LACA, op. cit., recommendation 29, paragraph 3.155.
-
Government Response, op. cit., p. 14.
-
See Family Law Regulations 1984.
-
Explanatory Memorandum, paragraph 523.
-
ibid., paragraph 539.
-
ibid., paragraph 541.
-
LACA, op. cit., paragraph 3.188. See also Government Response,
op. cit., p. 16.
-
See sections 17, 19J, 62H and 62B(2), Family Law Act.
-
Section 14F, Family Law Act.
-
See sections 16A, 16B, 19B, 19BAA, 19BA, 62F, 65F, 65LA and
70NG, Family Law Act.
-
Explanatory Memorandum, paragraph 653.
-
ibid., paragraph 666.
-
Family Court of Australia, Guidelines for the Child s
Representative at:
http://www.familycourt.gov.au/presence/connect/www/home/directions/guidelines_for_child_representatives/
The Guidelines state: The role of the Child's Representative is
unique. The lawyer appointed to represent and promote the best
interests of a child in family law proceedings has special
responsibilities. p. 1.
-
The Australian Law Reform Commission and the Human Rights and
Equal Opportunity Commission recommended in their Seen and
Heard report that where a child representative is appointed
and the child is willing and able to provide instructions, then the
representative should act on the child s instructions. See Seen
and Heard: priority for children in the legal process, Report No.
84, 1997, recommendation 70.
-
A team approach was endorsed by the Family Law Council s 1989
and 2004 reports.
-
Family Pathways Advisory Group, Out of the Maze: Pathways to
the Future for Families Experiencing Separation, 2001,
recommendation 21, p. 89. See:
http://www.ag.gov.au/agd/WWW/agdHome.nsf/D2801B61EABE80A2CA256809001328BA/8A2385D2574570FECA25706D0013248A
-
Family Law Council, Pathways for Children: A review of
children s representation in family law, 2004, recommendation
7, p. 43. See:
http://www.ag.gov.au/agd/WWW/flcHome.nsf/Page/Publications_Reports_to_the_AG_All_Reports_Pathways_for_Children
-
Explanatory Memorandum, paragraph 818.
-
Family Law Council, op. cit., recommendation 6, p. 43.
-
Re K (1994) FLC 92 461. In Re K, the court
enumerated 13 situations in which a child representative should be
appointed. These included where allegations of child abuse have
been made, where there is intractable conflict between the parents,
where it is proposed to separate siblings and where there are real
cultural and religious differences affecting the child.
-
P and P (1995) FLC 92-615.
-
Family Law Council, op. cit., recommendation 1: The basic
elements of the role of the child representative, as set down by
the Full Court in P and P, should be incorporated into the
Family Law Act. Two elements of P and P that do
not seem to be incorporated are principles 4 and 5:
4. Arrange for the collation of expert evidence and otherwise
ensure that all evidence relevant to the welfare of the child is
before the court. [Although there is general provision for the
representative to analyse any reports relating to the child and
draw certain matters to the court s attention.]
5. Test by cross-examination where appropriate the evidence of
the parties and their witnesses. P and P (1995) FLC
92-615, 82,157.
-
Family Law Council, op. cit., recommendation 9, p. 60.
-
ibid., recommendation 8, p. 56.
-
ibid., recommendation 4, p. 37.
-
The Family Law Council s report sets out the circumstances in
which it considers direct representation would be appropriate.
-
Regulation 12AC, Family Law Regulations 1984.
-
LACA Committee, op. cit., paragraph 6.6.
-
Philip Ruddock MP, Second reading speech, Family Law Amendment
(Shared Parental Responsibility) Bill, House of Representatives,
Hansard, 8 December 2005, p. 9.
-
Child custody bill flawed: Nicholson , Age, 9 December
2005, p. 6.
-
Men s Rights Agency, Response to the Exposure Draft Bill, 22
July 2005.
-
LACA Committee, op. cit., paragraph 2.86.
-
Cate Banks et al., Review of Exposure Draft of the Family Law
Amendment (Shared Parental Responsibility) Bill 2005 ,
Australian Journal of Family Law, v. 19, 2005, pp. 81
82.
-
LACA Committee, op. cit., p. 214.
-
Aly Waleed, Shared parenting more a mirage than a breakthrough,
Sydney Morning Herald, 2 January 2006, p. 11.
-
Stephen Bourke, When not all things are equal: contentious Bill
set to polarise parents , Canberra Times, 3 January 2006,
p. 11.
-
Nicola Roxon MP, Labor s amendments put safety from family
violence first , Media release, 14 February 2006.
-
Commonwealth Attorney-General s Department, Submission to the
House of Representatives Legal and Constitutional Committee Inquiry
into the Exposure Draft Bill (Submission 46.1), Attachment 3, Pr
cis of the Australian Government Solicitors Advice, paragraph
4.
-
ibid., paragraphs 2 and 7.
-
ibid, paragraph 9.
Mary Anne Neilsen & Jennifer Norberry
28 February 2006
Bills Digest Service
Parliamentary Library
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