Chapter 1 - Introduction
Introduction and referral of bill
The Family Law Amendment (Shared Parental
Responsibility) Bill 2005 (the bill) was introduced into the House of
Representatives on 8 December 2005.
On 8 February 2006, the
provisions of the bill were referred to the Legal and Constitutional
Legislation Committee for inquiry and report by 27 March 2006.
Conduct of the Inquiry
The inquiry was advertised in The Australian newspaper on 15
February 2006, and the Committee also wrote to 56 organisations and
individuals. Interested persons were invited to provide submissions by 24 February 2006. Details of the
inquiry, the bill, and associated documents were placed on the Committee's
The Committee received 212 submissions in total with 29
supplementary submissions. A list of submissions is at Appendix 1.
The Committee held one public hearing on 3 March 2006 in Canberra.
A list of witnesses who appeared at the hearing is at Appendix 2 and copies of
the Hansard transcript are available through the Internet at http://aph.gov.au/hansard.
The Committee thanks those organisations and
individuals who made submissions and gave evidence at the public hearings,
particularly in view of the short timeframes involved. In particular, the
Committee wishes to record its thanks to the individuals who shared their
personal stories and circumstances. In many cases, for reasons of privacy,
these have been accepted by the Committee as confidential submissions and not
published, however this information has been useful to the Committee in
understanding the complexity and impact on individuals of decision making in
family law matters. 
Readers should also note that the Committee undertook
this inquiry in the context of two preceding House of Representatives
inquiries. These inquiries were substantial and resulted in detailed reports.
The first was the House of Representatives Standing
Committee on Family and Community Affairs inquiry resulting in the Every picture tells a story report, tabled
in December 2003. The committee received 1716 submissions (not including form
letters from 355 people). There were 21 public hearings, held in Canberra,
Gunnedah, Coffs Harbour,
Wyong, Perth, Darwin,
Keperra, Robina, Bankstown, Wollongong,
Launceston, Wantirna and Geelong.
The House of Representatives Standing Committee on
Legal and Constitutional Affairs then inquired into the exposure draft of the bill,
tabling its report in August 2005. That committee received 88 submissions and
held four public hearings in Sydney,
Melbourne and Canberra,
with further evidence taken by video link from other areas in Australia.
(Further details of the findings of these inquiries are provided below).
The Committee has deliberately not attempted to
replicate these inquiries, and instead has sought to focus on matters that
arose after these reports were handed down. Similarly, there are some matters
in which the findings and recommendations of these earlier committees were
based on detailed consideration of the evidence and a fine balancing of the
issues. In the short time frame available, this committee has been reluctant to
second guess these findings. Again, the Committee has generally confined itself
to addressing new issues or areas in which the bill differs from the findings
and recommendations of the earlier reports.
Readers should also note that on 27 February 2006, after the referral of the
provisions of the bill to this Committee, the government introduced into the
House of Representatives amendments that addressed a number of the issues
raised in submissions. The Committee's consideration of this bill includes the
impact of these amendments.
Purpose of the bill
The bill amends the Family
Law Act 1975 (the Act). The Explanatory Memorandum states that the
amendments are part of the Government's reform agenda representing a
'generational change in family law and aim to bring about a cultural shift in
how family separation is managed; away from litigation towards cooperative
The key changes to the family law system introduced by
the bill are:
a requirement that a court must apply a
presumption that equal shared parental responsibility is in the best interests
of the child when making a parenting order;
a new gradated regime for dealing with
contraventions of orders, or obligations, with respect to children;
changes in the conduct of child-related
proceedings to support a less adversarial approach;
the establishment of two distinct types of
dispute resolution procedures: community-based services, comprised of family
counsellors, family dispute resolution and arbitration, and court-based family consultants;
the creation of a role for an 'independent
children's lawyer' to represent the child's interest in proceedings (as
distinct from representing the child);
the clarification of the relationship orders
providing for a child to spend time with a person which are inconsistent with
family violence orders;
the removal of the limit on the Federal
Magistrates Court which restricted the exercise of that Court's jurisdiction to
property proceedings where the value of the property did not exceed $700,000;
the removal of the terms 'contact' and
'residence' from the Act.
Note on references
References in this report are to individual submissions
as received by the Committee, not to a bound volume. References to the
Committee Hansard are to the proof Hansard: page numbers may vary between the
proof and the official Hansard transcript.
Background to the bill
In June 2003, the Prime Minister, in response to
general community concern about the operation of child custody arrangements
following marriage breakdown and separation and the operation of the Child
Support Agency, announced an inquiry into those issues by the House of
Representatives Standing Committee on Family and Community Affairs (FCAC). The
terms of reference for the FCAC inquiry were:
- given that the best interests of the child are the paramount
- 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; and
- in what circumstances a court
should order that children of separated parents have contact with other
persons, including their grandparents.
- whether the existing child support formula works fairly for
both parents in relation to their care of, and contact with, their children.
The FCAC report,
Every Picture Tells a Story,
was released on 29 December 2003.
The FCAC report recommended a significant number of changes to the family law
system in relation to proceedings involving children, including inclusion of a
presumption of equal shared parental responsibility in the Act and the
introduction of a less adversarial process for child-related proceedings under
from the Attorney-General's Department summarised for the Committee the next steps
in the process:
In July 2004 the Prime Minister made announcements in relation
particularly to the family relationship centres. In November 2004 my colleagues
issued a discussion paper on the proposed changes. Around 400 submissions were
received in response to that. Face-to-face consultations took place between
November and January 2005. In May 2005 there was a budget announcement of a
$400 million or $397 million package.
In June 2005, the Government responded to the FCAC
report, outlining substantial changes to the family law system. Those changes were comprised of three
the establishment of 65 Family Relationship
Centres (FRC) over 4 years;
the establishment of a Child Support Taskforce;
major changes to the Family Law Act, which were
encompassed in an exposure draft of the current bill.
The exposure draft of the bill was referred to the
House of Representatives Standing Committee on Legal and Constitutional Affairs
(LCAC) in June 2005. The LCAC reported in August 2005. The Government's
response to the LCAC report was tabled on 8 December 2005.
In July 2005, the locations of the first 15 FRCs were
announced. Between July and December 2005 the Attorney-General (and the
Attorney-General's Department) conducted information sessions throughout Australia.
In September an information paper on the operation of the FRCs was released,
and in October the locations of the remaining FRCs were announced.
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