House of Representatives Committees

House Standing Committee on Legal and Constitutional Affairs

Committee activities (inquiries and reports)

Report on the Exposure Draft of the Family Law Amendment (Shared Parental Responsibility) Bill 2005

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August 2005

Canberra

© Commonwealth of Australia 2005
ISBN 0 642 78690 9 (HTML Version)

ISBN 0 642 78652 6 (Print Version)


Contents

Foreword
Membership of the Committee
Terms of reference
List of abbreviations
List of recommendations

Foreword

Family Law is one of the most challenging policy issues that parliamentarians deal with in their day to day interaction with the Australian public. It is not surprising that many individuals have strongly held views on whether the current system operates equitably and impartially. Relationship break-down and all that follows from it are among the most traumatic events in a person’s life. How he or she emerges from that experience, and the degree it is possible to continue to have a positive relationship with any children from the relationship depend on a large number of factors, not all of which can be addressed by government through legislation. It is a sad but true observation that the Parliament cannot legislate to make people respond to family breakdown reasonably, rationally or co-operatively.

In 2003 the House of Representatives Standing Committee on Family and Community Affairs (the FCAC), released its report, Every picture tells a story. That report unequivocally advocated the concept of shared parental responsibility, within the context that the best interests of the child are paramount. The government released its response to the FCAC recommendations on 23 June 2005, and simultaneously referred to the Standing Committee on Legal and Constitutional Affairs the Exposure Draft of the Family Law Amendment (Shared Parental Responsibility) Bill 2005, the legislative implementation of the response of the government. The Committee has responded to the challenge posed by the Attorney-General to review the Exposure Draft in a limited time frame with a strong desire to make the proposed legislation the best it can possibly be.

The Family Law Act 1975 is a complex piece of legislation and has been subject to regular review and amendment since its enactment. The Exposure Draft under review by the Committee is another attempt to revise and update the bill to implement changing government policy and public demands for a less adversarial system in family law matters. While the Exposure Draft had its critics, most people who contacted the Committee acknowledged the merit in what the Attorney-General and government were attempting to do. The arguments largely focused on whether the proposed changes went far enough, or too far.

The Committee was conscious that its Terms of Reference specifically directed that we not 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 Committee accepted this direction and conducted the inquiry accordingly. In keeping with the FCAC report and the government response, the Committee has commented on equal shared parental responsibility, and the importance of ensuring consideration as an option, whether it is in the best interests of the child, and reasonably practicable, for both parents to spend equal time with the child.

I would like to thank the members of the Committee for their hard work in conducting this inquiry under very tight time constraints and for their non-partisan and objective approach to the difficult issues involved. The fact that so many were able to participate in hearings on short notice is a reflection of the importance that family law matters has for all parliamentarians because of its impact on Australian families.

The corporate knowledge brought to the inquiry by Mrs Kay Hull MP, the Hon Alan Cadman MP and the Hon Roger Price MP, former Chair and members of the House of Representatives Family and Community Affairs Committee, was invaluable.

I would also like to place on record my thanks to all of the individuals and organisations who contacted the Committee to express their views on the Exposure Draft and on family law issues more generally. It was a matter of some frustration to many that the time frame did not permit the Committee to conduct public hearings and consultations around Australia with all who wished to have their say in person. The Committee did attempt to hear from a representative range of views. I would like to assure all who made submissions to the inquiry that all views were taken into account by the Committee.

 

 

The Hon Peter Slipper MP

Chairman

Membership of the Committee

Chairman

The Hon Peter Slipper MP

 

Deputy Chairman

Mr John Murphy MP

 

Members

Mrs Kay Hull MP

 

 

The Hon Duncan Kerr SC MP

 

 

Mr Daryl Melham MP

 

 

Ms Sophie Panopoulos MP

 

 

Ms Nicola Roxon MP

 

 

Mr Patrick Secker MP

 

 

Mr David Tollner MP

 

 

Mr Malcolm Turnbull MP

 

 

Hon Alan Cadman MP

(appointed to the Committee on 7 July 2005 for this inquiry)

 

Hon Roger Price MP

(appointed to the Committee on 13 July 2005 for this inquiry)

Committee Secretariat

Secretary

Ms Joanne Towner

Inquiry Secretary

Dr Nicholas Horne

Research Officer

Ms Emily Howie

Adviser

Ms Alison Playford

Administrative Officers

Ms Emily Davis (until 24/6/2005 )

Ms Kate Tremble (from 27/6/2005 )

Ms Jazmine De Roza

 

 

Terms of Reference

The Committee will inquire into the provisions of the draft Bill.

Specifically, the Committee will consider whether these provisions are drafted to implement the measures set out in the Government’s response to the House of Representatives Standing Committee on Family and Community Services inquiry into child custody arrangements in the event of family separation, titled Every Picture Tells a Story, namely to:

  1. encourage and assist parents to reach agreement on parenting arrangements after separation outside of the court system where appropriate
  2. promote the benefit to the child of both parents having a meaningful role in their lives
  3. recognise the need to protect children from family violence and abuse, and
  4. ensure that the court process is easier to navigate and less traumatic for the parties and children.

The Committee should not 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 inquiry was referred to the Committee by the Commonwealth Attorney-General, the Hon Philip Ruddock MP, on 23 June 2005.

List of abbreviations

ALSWA

Aboriginal Legal Service of Western Australia

CCP

Children’s Cases Program

FCAC

House of Representatives Standing Committee on Family and Community Affairs

FaCS

Family and Community Services Department (Commonwealth)

FLC

Family Law Council

FLS

Family Law Section of the Law Council of Australia

FRC

Family Relationship Centre

SPCA

Shared Parenting Council of Australia

List of recommendations

2 Facilitating shared parenting

Recommendation 1 (paragraph 2.13)

The Committee recommends that to be consistent with the recommendation of the FCAC, which the government agrees to, that all references to the term ‘joint parental responsibility’ in the Exposure Draft be replaced with references to ‘equal shared parental responsibility’.

Recommendation 2 (paragraph 2.29)

The Committee recommends that paragraph (e) of the definition of major long term issues, proposed for inclusion in section 60D(1) (item 6 of Schedule 1 of the Exposure Draft), be amended to ‘changes to the child’s living arrangements that make it significantly more difficult for a child to spend time with a parent’ and that a note be added to this provision to make it clear that major long term issues do not include decisions that parents make about their new partners.

Recommendation 3 (paragraph 2.36)

The Committee recommends that the final sentence of the note following subsection 61DA(1) (item 11 of Schedule 1 of the Exposure Draft), dealing with the presumption of equal shared parental responsibility, be deleted.

Recommendation 4 (paragraph 2.59)

The Committee recommends that 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.

Recommendation 5 (paragraph 2.67)

The Committee recommends that the obligation on advisers at proposed subsection 63DA(2) (at item 14 of Schedule 1 of the Exposure Draft) should include (additional to other obligations) to:

Recommendation 6 (paragraph 2.68)

The Committee recommends that section 63DA (at item 14 of Schedule 1 of the Exposure Draft) be amended to better focus attention on ensuring decisions made in developing parenting plans are made in the best interests of the child.

Recommendation 7 (paragraph 2.71)

The Committee recommends that the note attached to proposed section 63DA (item 14 of Schedule 1 of the Exposure Draft) be redrafted as follows:

Recommendation 8 (paragraph 2.80)

The Committee recommends an additional provision be included in the Family Law Act 1975 that should a parent wish to change the residence of a child in such a way as to substantially affect the child’s ability to either:

the court must be satisfied on reasonable grounds that such relocation is in the best interests of the child.

Recommendation 9 (paragraph 2.120)

The Committee recommends that the existing definition of ‘family violence’ be amended by qualifying it to ensure that there is an objective element as follows:

Family violence means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or to be reasonably apprehensive about, his or her personal well being or safety.

Recommendation 10 (paragraph 2.130)

The Committee recommends that the Family Law Act 1975 should be amended to include an explicit provision that courts exercising family law jurisdiction should impose a costs order where the court is satisfied that there are reasonable grounds to believe that a false allegation has been knowingly made.

Recommendation 11 (paragraph 2.146)

The Committee recommends where allegations of family violence or abuse are made in a family law proceeding that there should be an explicit provision in the Family Law Act 1975 giving the court power to seek reports from State and Territory agencies about the investigations by those agencies into those allegations of family violence or abuse.

Recommendation 12 (paragraph 2.149)

The Committee recommends that the Government provide parliament a report on its progress in its discussions with the States and Territories about the better coordination of the Australian Government family law system and the domestic violence and child protection systems in the States and Territories.

Recommendation 13 (paragraph 2.152)

The Committee recommends that a reference be given to an appropriate Parliamentary Committee to inquire into the impact of the following matters with particular reference to measures that the Commonwealth may initiate on its own or with the cooperation of States and Territory Governments to:

Recommendation 14 (paragraph 2.154)

The Committee recommends that the government commission longitudinal research into the issue of the impact of family violence and abuse in family law proceedings.

Recommendation 15 (paragraph 2.162)

The Committee recommends that the presumption of equal shared parental responsibility should generally be applied at an interim hearing although the court should retain discretion not to apply the presumption if it thought it to be inappropriate. The court should continue to have regard to all the circumstances that are in the best interests of the child when making both interim and final orders. This should be made explicit in the Exposure Draft.

Recommendation 16 (paragraph 2.172)

The Committee recommends:

  1. co-locating section 65E related to the best interests of the child as the paramount consideration in parenting orders and section 68F related to how the court determines what is in the best interests of the child at the start of subdivision 5 of Part VII about parenting orders; and
  2. proposed Division 1A come later in the Act.

Recommendation 17 (paragraph 2.176)

The Committee recommends that the objects set out in proposed subsection 60B(1) of Part VII be amended to:

  1. make more explicit reference to the need for consistency and the paramountcy of the best interests of the child; and
  2. to recognise as an object the safety of the child (as currently set out in proposed paragraph 60B(2)(b) of the Bill (as amended by recommendation 16).

Recommendation 18 (paragraph 2.179)

The Committee recommends that paragraph (b) of proposed subsection 60B(2) be amended to provide that children need to be protected from physical or psychological harm from exposure to abuse, neglect or family violence. (Consistent with recommendation 17 this should become an object of Part VII rather than a principle)

Recommendation 19 (paragraph 2.195)

Consistent with Recommendation 18, the Committee recommends that paragraph 68F(1A)(b) of the Exposure Draft be redrafted to provide as a primary consideration in determining the best interests of the child:

the need to protect children from physical or psychological harm, or from exposure to abuse, neglect or family violence.

Recommendation 20 (paragraph 2.213)

The Committee recommends that Division 11 of the Family Law Act 1975 be redrafted into clear and concise language as recommended by the Family Law Council in its letter of advice to the Attorney-General of November 2004.

3 Resolution outside the legal system

Recommendation 21 (paragraph 3.58)

The Committee recommends that:

  1. the exception to attendance at dispute resolution on the basis of family violence and child abuse in proposed paragraph 60I(8)(b) be permitted upon the swearing and filing of an affidavit asserting the existence of family violence or child abuse; and
  2. the provision that contains this exception expressly state the penalties to be applied if the court is satisfied on reasonable grounds that a false allegation was knowingly made in the above affidavit.

Recommendation 22 (paragraph 3.67)

The Committee recommends that the time limit in proposed paragraph 60I(8)(c) be removed so that all cases involving serious disregard for court orders are exempted from compulsory attendance at dispute resolution under proposed subsection 60I(7).

Recommendation 23 (paragraph 3.68)

The Committee recommends that proposed paragraph 60I(8)(c) be amended to provide that the court be satisfied on reasonable grounds that a person has showed serious disregard for his or her obligations under the order.

Recommendation 24 (paragraph 3.92)

The Committee recommends that proposed section 60J be redrafted to provide that the Rules of Court will contain a provision requiring an applicant to file, in the preliminary stage of a proceeding, a certificate by a family counsellor or family dispute resolution practitioner to the effect that the family counsellor or family dispute resolution practitioner has given the applicant information about the issue or issues relating to the orders sought by the applicant.

Recommendation 25 (paragraph 3.105)

The Committee recommends that the government amend the commencement provisions contained in the scheme for implementation of Phases 2 and 3 in proposed section 60I by replacing references to time with references to outcomes, in particular that:

Recommendation 26 (paragraph 3.134)

The Committee recommends that the disclosure provisions in the proposed paragraphs 10C(3)(d) and 10K(3)(d) be limited to circumstances relating to a serious threat to the welfare of a child.

Recommendation 27 (paragraph 3.135)

The Committee recommends that proposed subsections 10C(3) and 10K(3) be divided into those circumstances in which disclosure is mandatory and those cases in which disclosure is at the discretion of the practitioner. In particular:

Where disclosure is discretionary the proposed sections should be redrafted to reflect a general presumption against disclosure, coupled with a clear statement that notwithstanding that presumption, where the law permits disclosure, a disclosure should be made if, but only if, the interests of another person or persons substantially outweigh the private interests of the person making the communication.

Recommendation 28 (paragraph 3.139)

The Committee recommends that proposed sections 10C and 10K be amended to provide for disclosure of communications where there is consent of participants to the process.

Recommendation 29 (paragraph 3.155)

The Committee recommends that a consistent approach be taken to immunity for facilitative family dispute resolution practitioners and advisory dispute resolution practitioners. The question of immunity for family dispute resolution practitioners should be referred to an appropriate government advisory body for research and consideration on whether it is appropriate to extend immunity to all dispute resolution practitioners or remove such immunity.

Recommendation 30 (paragraph 3.183)

The Committee recommends that proposed subsection 10H(2) should make clear that legal advice is not to be given by persons who are not qualified to give such advice.

Recommendation 31 (paragraph 3.189)

The Committee recommends that proposed section 11E be amended to ensure that any referral to a family and child specialist made by the court pursuant to that section is made after informing the parties of the source and content of the advice sought.

Recommendation 32 (paragraph 3.211)

The Committee recommends 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.

Recommendation 33 (paragraph 3.228)

The Committee recommends that there be a requirement that parenting plans are signed and dated and that, unless the parenting plan has been demonstrated to have been developed as part of a formal family dispute resolution process, there is a cooling off period of seven clear days prior to a court having the ability to have regard to them.

Recommendation 34 (paragraph 3.246)

The Committee recommends that proposed section 64D should be amended to expressly provide that in exceptional cases the court could make orders that could only be changed by the subsequent order of the court and not by a subsequent parenting plan.

4 Less adversarial court processes for parenting matters

Recommendation 35 (paragraph 4.42)

The Committee recommends that the words ‘and the court is satisfied that the consent was not given under coercion’ be inserted into the proposed paragraph 60KA(2)(b) and the proposed subsection 60KA(3) of the Exposure Draft of the Family Law Amendment (Shared Parental Responsibility) Bill 2005 so that these provisions read as follows:

(2)(b) if the parties to the proceedings consent and the court is satisfied that the consent was not given under coercion – to the extent that they are not proceedings under this Part.

(3) This Division also applies to any other proceedings between the parties that involve the court exercising jurisdiction under this Act and that arise from the breakdown of the parties’ marital relationship, if the parties to the proceedings consent and the court is satisfied that the consent was not given under coercion.

Recommendation 36 (paragraph 4.50)

The Committee recommends that a new principle stating that ‘proceedings are to be conducted in a way that will safeguard the child or children concerned and the parties against family violence, child abuse, and child neglect’ be inserted into the proposed section 60KB of the Exposure Draft of the Family Law Amendment (Shared Parental Responsibility) Bill 2005.

Recommendation 37 (paragraph 4.67)

The Committee recommends that the proposed section 60KG of the Exposure Draft of the Family Law Amendment (Shared Parental Responsibility) Bill 2005 be amended to include an additional requirement that the court may only apply one or more of the provisions of the Evidence Act 1995 mentioned in the proposed subsection 60KG(1) to an issue in child-related proceedings in exceptional circumstances.

The Committee also recommends that a new provision be inserted into the proposed section 60KG(2) requiring the court to take the following factors into account when deciding whether to apply one or more of the specified provisions of the Evidence Act 1995 to an issue in child-related proceedings:

Recommendation 38 (paragraph 4.72)

The Committee recommends that the set of technical amendments to the proposed sections 60KA, 60KB, 60KC, 60KE, 60KF, 60KG, and 60KI of the Exposure Draft of the Family Law Amendment (Shared Parental Responsibility) Bill 2005 suggested by the Family Court of Australia in paragraphs 38, 40-42, 44-46, 54.1, 54.3-54.4, and 55-57 of its submission be given careful consideration by the government.

5 Compliance regime

Recommendation 39 (paragraph 5.75)

The Committee recommends that the Exposure Draft of the Family Law Amendment (Shared Parental Responsibility) Bill 2005 be amended so as to insert a single provision at the appropriate point at the beginning of Division 13A of the Family Law Act 1975 which applies to all Subdivisions in Division 13A and which contains the following elements:

The existing note in the proposed sections 70NEC, 70NGB and 70NJA should be retained in the single section.

Consequentially, the proposed sections 70NEC, 70NGB and 70NJA of the Exposure Draft of the Family Law Amendment (Shared Parental Responsibility) Bill 2005 should be deleted from the draft Bill.

Recommendation 40 (paragraph 5.81)

The Committee recommends that, as the phrase ‘if the current contravention is not of a minor or technical nature-’ in the proposed subsection 70NG(1) is unnecessary and has the potential to unduly complicate court process and increase litigation:

  1. the phrase be deleted from the proposed paragraphs 70NG(1)(d) and 70NG(1)(f) of the Exposure Draft of the Family Law Amendment (Shared Parental Responsibility) Bill 2005; and
  2. the proposed subparagraph 70NG(1)(e)(iv) of the Exposure Draft of the Family Law Amendment (Shared Parental Responsibility) Bill 2005 be deleted.

The Committee also recommends that a provision be inserted into Division 13A of the Family Law Act 1975 enabling the court to make a costs order against a party to proceedings where:

  1. the court is satisfied that the party has made more than one contravention application for minor or technical contraventions of a primary order(s); and
  2. relief for those applications has not been granted.

6 Other issues

Recommendation 41 (paragraph 6.11)

The Committee recommends that the government assess whether the proposed changes in terminology, to remove the terms ‘residence’ and ‘contact’ will affect recognition of parental rights under international law, and consider including a specific provision or a dictionary of definitions in the Act to clarify this.

Recommendation 42 (paragraph 6.20)

The Committee recommends that sections 62G, 68G and 68L be amended to specifically include that the views of the child be sought by Child Representatives and family and child specialists unless not appropriate due to the child’s age, maturity or unless there is a specific circumstance that makes this inappropriate.

Recommendation 43 (paragraph 6.35)

The Committee recommends that the proposed subparagraph 60B(2)(a)(ii) be amended to include specific reference to grandparents and other relatives.

Recommendation 44 (paragraph 6.39)

The Committee recommends that the definition of relative in subsection 60D(1) be amended, to replace ‘step-father or step-mother’ with ‘step-parent’.

Recommendation 45 (paragraph 6.47)

The Committee recommends that the definition of Aboriginal child proposed in Schedule 1, item 3 of the Bill for inclusion in section 60D of the Act be redrafted along the lines of ‘a child who is a descendant of the Aboriginal people of Australia’.

Recommendation 46 (paragraph 6.49)

The Committee recommends that the definition of Aboriginal or Torres Strait Islander culture be amended to include the words ‘of the relevant community/communities’, to reflect the differences in lifestyle and tradition that exist among Australia’s indigenous population.

Recommendation 47 (paragraph 6.54)

The Committee recommends that the definition of ‘relative’ be examined to determine if explicit mention should be made of persons considered under Indigenous customary law to be the equivalent of others mentioned in the definition.

Recommendation 48 (paragraph 6.58)

The Committee recommends that a new subsection 60KI(4) be inserted, to extend the provisions set out in subsection 60KI(3) to all child-related proceedings.

Recommendation 49 (paragraph 6.66)

The Committee recommends that resources be allocated to enable a rewriting of the Family Law Act 1975 as soon as possible.

Recommendation 50 (paragraph 6.71)

That the Family Law Act 1975 be redrafted to provide a consolidated dictionary or glossary of defined terms, to assist in easier comprehension of the Act. The definitions should avoid merely being a cross-reference to another section of the Act.

7 Drafting issues

Recommendation 51 (paragraph 7.3)

The Committee recommends that the headings to proposed sections 10C, 10D, 10K and 10L be amended to delete ‘etc’.

Recommendation 52 (paragraph 7.8)

The Committee recommends that the headings to sections 10C, 10D, 10K, 10L, 10M, 11C, 11D, 61C, 62B, 65K and 70NEAB be redrafted to ensure that they indicate the subject matter of the section rather than state the law, and to make them as clear as possible.

Recommendation 53 (paragraph 7.12)

The Committee recommends that:

  1. proposed subdivision AAA and subdivision AA be renumbered, to be subdivisions AA and AAA respectively; and
  2. the heading to existing AA be amended to ‘Court’s powers where contravention or contravention without reasonable excuse not established’.

Recommendation 54 (paragraph 7.19)

The Committee recommends that the following minor technical amendments to the Family Law Amendment (Shared Parental Responsibility) Bill 2005, be made:

  1. schedule 2, Part 1, after line 3, of the Exposure Draft, insert a heading Family Law Act 1975;
  2. items 72 and 75 of Schedule 5 be amended to clarify if the existing paragraphs (ca) in sections 67K(1) and 67T are to be deleted or remain;
  3. a new item be inserted in Schedule 1, amending subsection 68F(3) of the Act, to delete ‘in subsection (2)’ and insert ‘in subsections (1A) and (2)’; and
  4. delete the reference to paragraph 70NG(3)(c) in proposed paragraph 70NJA(2)(b) (in Schedule 2, item 12), and replace with 70NJ(3)(c).

8 Wider issues

Recommendation 55 (paragraph 8.7)

The Committee recommends that the Government task an independent organisation to monitor and evaluate the effect of the Family Law Amendment (Shared Parental Responsibility) Bill 2005 after its enactment. The evaluation should have both qualitative and quantitative components.

Recommendation 56 (paragraph 8.46)

The Committee recommends that an independent review of the operations and location of the Family Relationship Centres be conducted after the first centres have been in operation for 12 months.

Recommendation 57 (paragraph 8.54)

The Committee recommends that the government introduce a system of accreditation and evaluation for all Contact Centres as a matter of urgency.

Recommendation 58 (paragraph 8.60)

The Committee recommends that the National Education Campaign associated with the new family law provisions be extended beyond financial year 2006-07, provided that it focuses on objective information explaining government policies, programs and services in this area.

Recommendation 59 (paragraph 8.69)

The Committee recommends that an examination of the impact of case law be included as part of the review of the implementation of these legislative reforms (see Recommendation 55).

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