Chapter 2 - Outline of the Bill
This Chapter outlines the key provisions of the Bill.
Schedule 1 - Shared Parental
A child's best interests are the paramount
consideration of a court in making a parenting order. Clause
60CC sets out primary considerations and additional considerations that a
court must have regard to in determining what is in a child's best interests.
inserts into the Act a requirement that, except in the circumstances outlined
in subclause 60I(9), persons involved
in a child-related dispute must make a genuine effort to resolve the dispute
through family dispute resolution before applying for a court order.
provides that in making a parenting order, a court 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
Clause 63DA creates
obligations on 'advisors' (defined as legal practitioners; family counsellors;
family dispute resolution practitioners; or family consultants) who are giving
assistance to people in relation to parental responsibility for a child following the breakdown of a relationship. Two of the
things that advisors must advise people in those situations are that they could
consider equal time, or substantial and significant time, parenting
arrangements, where those arrangements would be reasonably practicable and in
the best interests of the child.
provides that when a parenting order provides that the parents of a child have
equal shared parental responsibility for a child, the court must consider whether spending equal
time (or substantial and significant time) which each parent is in the best
interests of the child, and reasonably practicable. If the court finds such arrangements
are in the best interests of the child, and reasonably practicable, then the
court must make an order that the
child spend equal time (or substantial and significant time) with each
Clauses 61DA and 65DAA only apply to parenting orders
made in proceedings initiated on or after the commencement of Schedule 1 (item 43(2) and (8) of Schedule 1).
Clause 117AB requires
that, where the court is satisfied that a party to the proceedings knowingly made a false allegation or
statement in the proceedings, the court must
order that party to pay some or all of the costs of another (or other)
Schedule 2 – Compliance Regime
Schedule 2 repeals the current Division 13A of Part VII
of the Act – Consequences of failure to comply with orders and other
obligations that affect children – and replaces it with a new compliance
regime. The new Division 13A (inserted by item 6 of Schedule 2) establishes a
regime where consequences are classified
by reference to 4 situations, namely where there is:
an allegation of contravention, but
contravention is not established (Subdivision
a contravention with a reasonable excuse (Subdivision D)
a contravention without reasonable excuse - less
serious contravention (Subdivision E),
a contravention without reasonable excuse - more
serious contravention (Subdivision F)
The court also has the power to vary a parenting order
regardless of whether subdivisions C, D, E and F also apply (Subdivision B).
Where there is an allegation of a contravention, but
the court does not find that the contravention is established (Subdivision C), the court may consider
making an order for some or all of the costs of the parties to the proceedings
to be paid by the applicant (see clause 70NCB).
For contraventions with a reasonable excuse (Subdivision D) the court may make an
order compensating a person for time not spent with a child as a result of the
contravention (see clause 70NDB). If the court does not make an order under
clause 70NDB, it may consider making an order for some or all of the costs of
the parties to the proceedings to be paid by the applicant (see clause 70NDC).
The court has a range of powers in respect of the
orders that it may make with respect to contraventions under subdivision E and
F (see clauses 70 NEB and 70NFB), and includes the power to order
a sentence of imprisonment in relation to contraventions dealt with under Subdivision F.
Schedule 3 – Amendments relating to
the conduct of child-related proceedings
sets out the principles that the court must have regard for in conducting
child-related proceedings, including:
the courts is to consider the needs of the child
concerned and the impact the conduct of
the proceedings may have on the child in determining the conduct of the
the court is to actively direct, control and
manage the conduct of proceedings, and
the proceedings are to be conducted without
undue delay and with as little formality and legal technicality and form as
Clause 69ZT provides
that, unless the court decides otherwise, the rules of evidence do not apply to
Clause 69WZ gives
the court the power to order prescribed State or Territory agencies to provide
the court with documents or information about:
notifications to the agency of suspected abuse
of a child, or family violence relating to the child to whom the proceedings
assessments by the agency of investigations into
a notification or the outcomes of an investigation, and
reports commissioned by the agency in the course
of investigating a notification.
Schedule 4 – Changes to dispute
New Parts II
(Non-court based family services) and III
(Family consultants) are inserted into the Act as part of a restructure of
the dispute resolution processes.
Non-court based family services are family counselling
(Division 2 of Part II), family
dispute resolution (Division 3 of Part
II) and arbitration (Division 4 of
family services are 'family consultants'.
The functions of family consultants are set out in clause 11A and include:
assisting and advising people involved in the
assisting and advising courts and giving
evidence in relation to proceedings, and
advising the court about appropriate family
counsellors, family dispute resolution practitioners and courses and programs
services to which the court may refer the parties to the proceedings.
A key difference between the non-court based and the
court based services are that communications with and in the presence of family
counsellors and family dispute resolution practitioners are not admissible in
the proceedings, except in cases of abuse or risk of abuse of a child under 18
(see clauses 10E and 10J).
Communications involving family consultants are admissible in proceedings
(see clause 11C).
Clause 12B provides for regulations that can prescribe
information to be given to persons relating to non-court based family services
and court processes and services, including information about the legal and
possible social effect of the proposed proceedings, services provided by family
counsellors and family dispute resolution practitioners and the role of family
consultants. Clause 12C provides for regulations that prescribe information to
be included in documents to be given to persons in relation to services
available to help with reconciliation of a marriage. Clause
12D provides for regulations to prescribe information to be included in
documents given to people involved in child-related proceedings, including
information about family counselling services to assist the parties and the
child(ren) with the consequences of those proceedings.
Clauses 12E, 12F
and 12G place obligations on legal practitioners, principle executive
officers of courts, family counsellors, family dispute resolution practitioners
and arbitrators to provide to people the information prescribed in clauses 12B,
12C and 12D, in various circumstances.
A new Part IIIB
sets out the courts powers in relation to non-court based family services,
including: orders referring parties to counselling and family dispute
resolution or arbitration (clauses 13C
and 13E); and orders to review and set aside registered awards (clauses 13J and 13K).
Schedule 5 – Representation of a
child's interests by independent children's lawyer
Clause 68L provides
that the court may, where it is satisfied that the child's interests in the
proceedings ought to be independently represented by a lawyer, appoint an
'independent children's lawyer'. The
role of the independent children's lawyer is (subclause 68LA(2)):
to form an independent view, on the evidence
available, of what is in the best interests of the child and inform the court
of that view, and
in relation to the proceedings, act in the best
interests of the child.
The independent children's lawyer is not the child's legal representative,
and is not obliged to act on the instructions of the child (see subclause 68LA(4)).
Schedule 6 – Family violence
Clause 68P sets
out the obligation of a court in making an order or granting an injunction that
is inconsistent with an existing family violence order. The court must, amongst other things:
specify that the order or injunction is
inconsistent with the existing family violence order,
give a detailed explanation in the order or
injunction of how the contact that it provides for is to take place,
explain the injunction to the parties to the
proceedings, the person to whom the family violence order is directed and the
person whom it protects.
Where an order is made or an injunction is granted that
is inconsistent with an existing family violence order, the family violence
order is invalid to the extent of the inconsistence (subclause 68Q(1)).
gives courts which are dealing with an application for a family violence
order the power to revive, vary, discharge or suspend family law orders,
injunctions and other arrangements that provide for a child to spend time with
Schedule 7 – Jurisdiction of courts
Item 1 of
Schedule 7 repeals section 45A of the Act. Section 45A requires the Federal
Magistrates Court to transfer matrimonial proceedings to the Family Court when
the value of the property exceeds $700,000, unless the parties consent to the
proceedings remaining in the Federal Magistrates Court.
Schedule 8 – Removal of references
to residence and contact
Schedule 8 amends a number of Acts, such as the Australian Citizenship Act 1948, the Australian Passports Act 2005, and the Child Support (Assessment) Act 1989 to
remove the terms 'residence', 'contact' and 'specific issues orders'.
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