Chapter 3 - Key Issues
Introduction
3.1
This chapter discusses the key issues and
concerns raised in submissions on the Family Law Amendment (Shared Parental
Responsibility) Bill 2005 (the bill). Most submissions received by the
Committee were focussed on the amendments to Part VII (Children) of the Family
Law Act 1975 (the Act) contained in Schedule 1 of the bill, which contains the
key amendments relating to the presumption of equal shared parental
responsibility and consideration of equal time, or substantial and significant
time arrangements.
3.2
The majority of submissions received by the
Committee favoured the policy initiatives underlying the bill – namely, the
sharing of parental responsibility following separation and the opportunity for
children to develop meaningful relationships with both parents – where those
initiatives could be achieved without harm to the child or their parents. For
example, the joint submission of Domestic Violence and Incest Resource Centre and
No to Violence, Male Family Violence Prevention
Association, (referred to hereafter as DVIRC) said:
We endorse reforms to the Family Law Act which promote
children’s opportunities to have meaningful relationships with both parents,
where there is no risk of harm. We support responses that facilitate
co-operative parenting where it reflects the best interests of children.[12]
3.3
Many submissions raised issues concerning the
practicality of some provisions of the bill, particularly those provisions
which were not included in, or have been substantially amended from, the
exposure draft of the bill considered by the House of Representatives Legal and
Constitutional Affairs Committee (LCAC). It is these issues which are the focus
of this chapter, in particular:
-
the presumption of 'equal shared parental responsibility';
-
the considerations to be taken into account by
the court in determining what is in a child's best interests;
-
the consideration of equal time, or substantial
and significant time, arrangements for parenting orders or parenting plans;
-
the definition of 'family violence';
-
cost orders for false allegations;
-
the certification by family dispute resolution
practitioners that parties have made a 'genuine effort' to resolve a dispute; and
-
access to, and costs of, dispute resolution.
Parenting time v parental responsibility
3.4
Proposed section 61DA states that when making a
parenting order in relation to a child, the 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 the child. The presumption does not apply if
there are reasonable grounds to believe that a child's parent has engaged in
abuse of the child (or another child in their family) or family violence. The
presumption in 61DA is not a presumption about the amount of time that a child
spends with each of the parents.
3.5
Proposed section 65DAA requires that in making a
parenting order, the court must consider whether an equal time, or substantial
and significant time, arrangement is in the best interests of the child and
reasonably practicable. If such arrangements are in the best interests or the
child and reasonably practicable, then the court must make an order for those
arrangements.
3.6
Many submissions received by the Committee
suggested that the bill should go further than the presumption of equal 'shared
parental responsibility' and include a presumption of equal 'parenting time'.[13] Mr
Williams from the Lone Fathers Association (Australia)
argued:
We believe the whole bill must be entitled ‘Equal parenting
time’. It is of the utmost importance that in this bill the words must be
entrenched that the children in separated and divorced families have a natural
paramount right to equal parenting time with both their parents and that both
parents have a natural paramount right to equal parenting time with their
children.[14]
3.7
The Committee understands that there are many
terms used to describe arrangements where separated parents share both the
responsibility for their children and the time the child spends with each parent.
The Committee notes the distinction between 'parenting time', and 'shared
parental responsibility'. 'Parenting time' refers to the time a child spends
with a parent, either living with the parent or otherwise in contact with the
parent. 'Shared parental responsibility' encompasses shared guardianship and
decision-making responsibility for a child in relation to important matters in
the child's life,[15] but does not refer
to the living arrangements for the child.
3.8
The Committee acknowledges the many submissions
it received, including from the Nuance Exchange Network,[16] Fathers4Equality[17] and Festival of Light Australia[18] which addressed the benefits to the
children of shared parenting time. The
Committee also received an extensive bibliography compiled by Fathers4Equality
on research showing the benefits of shared residence over sole residence.[19]
3.9
The Committee also received submissions from
people describing their own experiences with shared parenting time
arrangements.[20] Mr
James from Fathers4Equality gave the
Committee an insight into the benefits of the shared parenting arrangements for
his daughter:
I work a four-day work. My daughter’s mother works a four-day
week. I have my daughter two and a bit days each week and two and a bit nights
each week. I have had her shared in this arrangement since she was about nine
months old. I love it. It is very rare for a father to have a work-life balance
...
My daughter seems to be very happy, and I love spending time
with her.[21]
3.10
Advocates of equal parenting time stressed that
there should be a rebuttable presumption in favour of such an arrangement, with
the presumption rebutted in cases of abuse or neglect.[22] Other submissions also acknowledged
that while an equal parenting time arrangement may not always be practical, it
should at least be the starting point when determining post separation
parenting arrangements.[23]
Committee view
3.11
The Committee acknowledges the support in the
community, which is reflected in submissions to the inquiry, for a presumption
of equal parenting time to be included in the Act. The Committee is also
grateful to those who shared their stories and experiences in submissions and
at the public hearing.
3.12
The Committee notes that the presumption in
proposed section 61DA and the direction to the court in its considerations set
out in proposed section 65DAA apply in situations where a court is considering
making a parenting order. Where parents who are able to come to an agreement
outside of the court system, for example using a parenting plan, each parent
has parental responsibility for the child[24]
and it is open to parents to agree to the parenting time arrangements that are
in the best interests of the child.
3.13
The Committee also heard the concern expressed
in a number of submissions that the reforms in the bill will 'suffer the same fate
as the unfulfilled 1995 reforms that were also intended to usher in an era of
shared care arrangements'.[25] In this
respect, the Committee notes that the Government is also introducing the Family
Relationships Centres (FRCs) in order to assist with the implementation of the
reforms in the bill.[26] This issue is
discussed further below.
3.14
The Committee is mindful that these issues were
covered at length by the inquiry which resulted in the Family and Community
Affairs Committee's Every Picture Tells a
Story report (FCAC Report). The FCAC Report concluded that while 50/50
shared residence should be considered as a starting point for discussion and
negotiation of post separation parenting plans, in the end, the time spent by a
child with each parent should be a decision made in the best interests of the
child concerned and on the basis of the arrangement that works best for that
family. Ultimately, the FCAC Report did not recommend the inclusion of a presumption
of equal parenting time in the Act and the Committee does not intend to revisit
this particular issue.
A presumption of parental responsibility
3.15
The introduction of a presumption of equal
shared parental responsibility in making parenting orders is one of the key
provisions in the bill.[27]
3.16
The provision arises from a recommendation of
the FCAC Report:
The committee recommends that Part VII of the Family Law Act 1975 be amended to create
a clear presumption, that can be rebutted, in favour of equal shared parental
responsibility, as the first tier in post separation decision making.[28]
3.17
The Government agreed with this recommendation,
stating:
The government ... will introduce amendments to Part VII of
the Act to require the court to apply a presumption (or starting point) of
joint parental responsibility. Joint parental responsibility will mean that
parents will continue to share the key decisions in a child’s life after
separation, regardless of how much time the child spends with each parent.[29]
3.18
A number of submissions argued that there should
not be a presumption of equal shared parental responsibility. Peninsula Women's
Information and Support Services Inc, was one of a number of submissions which
raised the following concern about a presumption:
We do not agree that it should be presumed that shared parental
responsibility is the starting point for the process. Ascertaining the facts of
the situation and all the variables involved should determine responsibilities,
for the benefit of the children.[30]
3.19
Women's Legal Services Australia (WLSA) noted
that the current principles underlying the objects of Part VII of the Act
require, except where it is contrary to the best interests of the child, that
'parents share duties and responsibilities concerning the care, welfare and
development of their children' and that each parent has parental
responsibility, subject to court orders.[31]
Accordingly, the submission continues:
[t]he current provisions are clear enough to require and make
specific orders in relation to sharing of parental responsibility or to make
any other order that meets the best interests of the child.
A ‘rebuttable presumption’ might create greater pressure than
already exists to share responsibility for children in inappropriate cases ...[32]
Committee view
3.20
The Committee agrees with the FCAC Report that
there is a need for a clear presumption in the Act relating to the sharing of
parental responsibility.
3.21
As noted above, section 61C of the current Act,
deals with parental responsibility in the context of arrangements made in the
absence of parenting orders. The Committee therefore believes that the
presumption inserted by proposed section 61DA does add to the current
legislative framework. The Committee believes that, given the Government's
intention to promote meaningful relationships between children and both their
parents, it is appropriate that there be some form of presumption in the Act in
relation to parental responsibility for parents who require parenting orders.
3.22
However the Committee is concerned at the form
of words used in the presumption. This is addressed in the next section.
Equal parental responsibility v joint parental responsibility
3.23
The exposure draft of the bill provided for a
presumption of 'joint parental responsibility'.[33] The LCAC recommended that the term
'joint parental responsibility' be replaced with the term 'equal shared
parental responsibility', in order to be consistent with recommendation of the
FCAC Report.[34] A presumption of 'equal
shared' parental responsibility was raised in many submissions as a matter of
concern.
3.24
In the course of the public hearing the Committee
heard evidence on the interpretations and expectations arising from the use of 'equal
shared parental responsibility'. Mr Butler
from the Shared Parenting Council of Australia (SPCA) said:
So my understanding would be that I would be required to consult
with the other parent. I would be required under law to make sure that the
parent’s views are considered when a decision is made as to, for example, which
school we might send our child to. The big decisions would be made through discussion
and not arbitrarily made by one party.[35]
3.25
Ms Holmes,
from Relationships Australia Tasmania, stated her concerns in relation to the
focus of the presumption:
I think the removal of the word ‘equal’ would help to shift the
focus back to responsibility, because talking about shares in terms of
proportions, such as equal or whatever, gets into the issue of entitlement, in
my experience. So, if you are talking about ‘equal’, the focus - as my
colleagues from both [peak bodies] have said here - is on the parents’
entitlement rather than the child’s best interest, whereas ‘responsibility’ has
a clear focus on the child’s best interest rather than on the parents’
entitlement.[36]
3.26
Ms Jennifer
Hannan of Family Services Australia
highlighted the potential difficulty for those working with separating couples
where there is a presumption of equality, regardless of whether it is equality
of time or responsibility:
It needs to be about
parents taking responsibility and the needs of the child weighed up with what
was the situation prior to separation - what are the needs of the children now,
how can you guys sit down [and] work out a way that is going to be the best possible
way for this child? – rather than looking at parents. The minute you bring in
the situation where you are talking about ‘equal’, it is almost like talking
about property. It becomes exceptionally problematic when, on the ground as a
worker, you are trying to get them to focus on the needs of a child rather than
‘my’ rights to have equal anything. It is truly difficult.[37]
3.27
Ms Fletcher
of WLSA raised the concern that the use of the term 'equal' in this context 'tends
to encourage people to focus on how they are going to precisely equally divide
their responsibilities for their children'.[38]
Ms Fletcher accepted that in most cases parents should be sharing
responsibility for children, it would not be constructive to force people to
see that they are sharing exactly equally because this, in turn, would lead to
a focus on equal time, despite that not being the intention of the provisions.[39]
3.28
Mr Kennedy
from the Family Law Section of the Law Council of Australia stated that in his
view the presumption was not a practical one, making the following observations:
[t]he mere inclusion of the word ‘equal’ seems to have led, in
the media at least, to the generation of a false expectation as to what is
going to flow from that.
... it does change the broader, more flexible situation that parents
had beforehand and almost locks them together to require them to exercise equal
decision-making power at a time of their lives when they have a very limited
ability to communicate. That is, by and large, not good for children or for the
relationship between the parents, particularly where you have a power imbalance
or a history within the relationship where one person can use being empowered
in that way to influence and control the other person.[40]
3.29
The Family Issues Committee of the Law Society
of NSW highlighted a further three issues with respect to the presumption of
equal shared parental responsibility, namely:
[First] that the presumption of equal shared parental
responsibility is imposed irrespective of whether it is what the parents themselves
want. In this regard it is legislative paternalism at its worst.
Second, the presumption applies when making a parenting order,
even though the parenting order may only relate to a very discrete aspect of
parental responsibility such as how much time the child spends with each
parent. In other words the presumption applies even to cases where there is no
dispute between the parents about broader issues of decision-making.
Third, it is somewhat incongruent that if there is a dispute
about broad issues of parental responsibility, the imposition of equal shared parental
responsibility potentially creates more problems, not less. The experience of
members of the Law Society’s Family Issues Committee indicates that parents who
experience relationship breakdown, and who are not able to resolve their
differences without litigation, often experience high levels of communication
difficulties. For these parents, whilst they were severally yoked about parental responsibility before coming to
Court, they are now equally yoked by
virtue of this presumption in section 61DA. And yet these parents are the least
capable of sharing responsibility and making decisions as equals.[41]
3.30
The Lone Fathers Association (Australia)
objected to changing the presumption from equal shared parental responsibility
to joint parental responsibility, describing such a move as a 'fundamental
attack on the legislation' which would be 'unacceptable to the great majority
of separated fathers, and damaging to their children'.[42]
3.31
The Attorney-General's Department state that:
[t]he Government is aware of concerns that the term 'equal
shared parental responsibility' may be thought by some to imply 50/50 time
sharing and that use of the term 'equal' may focus people on issues of time
rather than sharing parenting in decision making. The note related to section 61DA
...makes clear that 'equal shared parental responsibility' is about the sharing
of major long-term decisions and not time. Further, the Explanatory Memorandum
...makes clear that equal shared parental responsibility is not a presumption of
equal shared parenting time.'[43]
Committee view
3.32
The Committee recognises that the terms 'joint' parental
responsibility versus 'shared' parental responsibility have received ongoing
discussion over the history of this bill. The FCAC originally recommended the
use of the term 'equal shared'; the government response to the report referred
to 'joint shared' and that term appeared in the exposure draft of the bill; and
the LCAC report then recommended the change back to 'equal shared' so as to
better implement the recommendation of the FCAC Report.
3.33
The Committee recognises that the FCAC Report's
recommendation for a presumption of 'equal shared parental responsibility' has
been accepted by the Government. The Committee also notes the conclusion of the
LCAC that the term 'joint' parental responsibility does not properly implement
Recommendation 1 of the FCAC Report.
3.34
The Committee is also mindful of the view of the
Attorney-General's Department that the words 'equal shared parental
responsibility' have been endorsed by two Parliamentary Committees having
received submissions and oral evidence from hundreds of people and
organisations.[44]
3.35
The criticism of the term 'equal shared parental
responsibility' received during this inquiry, and particularly the view of the
Family Law Section of the Law Council of Australia that the presumption is
impractical, indicates that the meaning of the term needs to be clarified.
Recommendation 1
3.36
The Committee recommends that there be a
definition of 'equal shared parental responsibility' inserted in the bill.
Determining the best interests of the child
Primary and Additional
Considerations
3.37
When a court is making a parenting order in
relation to a child, the child's best interests are the paramount
consideration.[45] The bill provides
that in determining a child's (or children's) best interests the court must consider
the 'primary' and 'additional' considerations listed in proposed subsections
60CC(2) and (3).
3.38
The primary considerations in determining a
child's best interests are:
-
the benefit to the child of having a meaningful
relationship with both of their parents; and
-
the need to protect the child from physical or
psychological harm from being subjected to, or exposed to, abuse, neglect or
family violence.
3.39
There are 13 additional considerations listed in
proposed subsection 60CC(3).
3.40
This two-tier approach for determining the best
interests of the child was included in the exposure draft of the bill which was
considered by the LCAC. As was the case with the exposure draft, concerns were
raised in submissions to the current inquiry over framing the considerations as
'primary' and 'additional', particularly the relationship between the two sets
of considerations.
3.41
The Family Law Section of the Law Council of
Australia reiterated its opposition to the two-tier approach:
splitting the considerations into primary and additional is
likely to create unnecessary debate and tension about the relationship between
each set of considerations – with the potential to give rise to sterile, costly
and unnecessary disputes which take the focus off the fundamental issue before
the Court (i.e. the determination of the children’s best interests).
... [we recommend] that all considerations should be brought
together in the one subsection, without differentiation between them, with the court
to apply discretion and to give such weight to each of the relevant factors as
it considers appropriate in the particular circumstances of each case.[46]
3.42
WSLA raised the concern that the two primary
considerations listed in proposed subsection 60CC(2) would be in direct
conflict with each other whenever violence or abuse is alleged. In cases where
both primary considerations apply it is anticipated that the court will give
consideration to the additional factors.[47]
In WLSA's view this approach further increases the risk of safety being
de-prioritised in decision making.[48]
3.43
The Human Rights and Equal Opportunity Commission
(HREOC), amongst others, expressed disappointment that the views of the child
were categorised as an additional consideration, which, in HREOC's view, meant
that the child's views may be of lesser weight than the primary considerations.[49] However, HREOC noted that the Explanatory
Memorandum provided that the additional considerations listed in proposed
subsection 60CC(3) may outweigh primary considerations. HREOC suggested that
this be explicitly provided for in the legislation.[50]
3.44
The Attorney-General's Department outlined the
Government's reasons for distinguishing between primary and additional
considerations:
[t]he government takes the view that it is appropriate to link
the objects of part VII, for example, the provisions at the beginning of the
part which talk about what it is intended to do, to those which are the
critical elements of part VII. Clearly the best interests of the child is a
critical element of part VII. The government takes the view that it is
appropriate to link those provisions together and make it clear what the
object’s provision is.
... the government believes that they are the most important considerations;
they are more important than other considerations. That is the view the
government has taken. The government has considered the views of a range of
stakeholders, including the family law section, and throughout a number of
iterations of this legislation these issues were dealt with directly by the
legal and constitutional affairs committee in the other place. The government
strongly takes the view that these are the critical elements that it sees as
determining the decision about what is in the best interests of the child. In particular,
the government is keen to raise the issue about ongoing relationships,
particularly with non-resident parents. That is one of the reasons why that
provision is there. At the same time, of course, the government is acutely
aware of the need to protect children and give them a safe environment.[51]
The extent to which a parent has
fulfilled their responsibilities as a parent
3.45
Two additional subsections of proposed section
60CC, which were not in the exposure draft considered by the LCAC, were also
the subject of comment in submissions. Proposed subsections 60CC(4) and (4A)
provide direction to the court in its consideration of the extent to which each
of the child's parents has fulfilled, or failed to fulfil, their
responsibilities as a parent.[52]
3.46
On a positive note, the Family Issues Committee
noted:
section 60CC(4) has the potential to introduce into Australian family
law a new “friendly parent doctrine” ie the friendly parent - the one who has always
participated in the life of the child and facilitated the other parent’s participation
– gets the advantage under section 60CC(4) of the bill. This hopefully changes
the culture of disputation between parents and brings about better outcomes for
their children too. As parents start to realise that their conduct will potentially
be the subject of such scrutiny, they may think twice about actions such as
abuse, violence, or restricting the time spent between children and their
parent.[53]
3.47
Although the Committee is encouraged by this
view, there were three problems identified with the provisions which the
Committee found concerning. These are
outlined below.
3.48
Firstly, the Family Issues Committee of the Law
Society of NSW commented that section 60CC(4) may have an unintended
consequence of generating more acrimonious disputes and litigation between
parents:
section 60CC(4) has the potential to unsettle that balance by
explicitly directing attention to adult centric considerations, particularly in
self-represented litigation.
... Section 60CC(4) is a statutory invitation to all litigants,
represented or unrepresented, to produce evidence about matters relating,
ultimately, to a parent’s conduct. For some self-represented litigants, section
60CC(4) will be read as a statutory licence to 'have a go at the ex'.[54]
3.49
The Family Law Section of the Law Council of
Australia also noted that subsection 60CC(4) had the potential to become
litigation-generating, because it invited a 'trawl' through the history of the
couple with evidence being led as to the conduct of each parent, rather than
focussing on the present and the future.[55]
3.50
Secondly, the Family Issues Committee, along
with a number of submissions, went on to highlight the potential adverse
application of section 60CC(4). The NSW Women's Refuge Resource Centre makes
the following observation:
[t]he 'friendly parent' provision also militates against women
disclosing abuse and domestic violence, as they would risk being seen as
“non-cooperative” and not prepared to facilitate contact with the other party.
An abusive partner on the other hand, would be more than happy
to 'facilitate' contact with their ex-partner in order to use it as an
opportunity to continue to abuse.[56]
3.51
Finally, it was also drawn to the Committee's
attention, that despite the amendments made by subsection 60CC(4A) it was still
not clear that in applying subsection 60CC(4) the court was to consider a
parent's fulfilment of their parental responsibilities in both a pre- and post-separation
context.
3.52
Ms Fletcher
of WLSA pointed out that subsection 60CC(4) is couched in post-separation
terminology. The specific direction in subsection 60CC(4A) for the court to
consider events and circumstances since the separation served only to focus
attention on a parent's conduct and circumstances in the post-separation
environment.[57] In contrast, Mr
Kennedy of the Family Law Section of the Law
Council of Australia thought that the provisions were overly focussed on a
parent's pre-separation fulfilment of their parental responsibility.[58]
Consent orders
3.53
Subsection 60CC(5) provides that the court is
not required to give consideration to the primary and additional considerations
in subsections 60CC(2) and (3), where the parties are seeking parenting orders
by consent. This provision already exists in the Act as subsection 68F(3).
3.54
Ms Holmes
of Relationships Australia spoke to the Committee of her concerns that consent
orders were a potential 'blind spot' in the Act:
... because a lot of abuse is quite well hidden and it is a matter
of reading the clues. I am very concerned about consent orders. A couple, where
there is a lot of intimidation, can present consent orders. I have done a
little bit of scoping around one of the registries ... and I understand some
judges and registrars who approve consent orders read them and some do not. I
think there is a whole area that this act is failing to address ... with domestic
violence, there is a real risk that consent orders might slip through without
anyone identifying that this seems a peculiar arrangement.[59]
Committee view
3.55
The Committee notes the concerns raised in
relation to the two-tier approach to determining the child's best interests set
out in proposed section 60CC. The
Committee has also considered the Explanatory Memorandum, which provides that:
-
[t]he safety of the child is not intended to be
subordinate to the child's meaningful relationship with both parents; and
-
there may be some instances where [the]
secondary considerations may outweigh the primary considerations.[60]
3.56
The Committee appreciates the explanation by the
Attorney-General's Department as to why this particular approach has been
adopted in the bill, namely:
-
the need to link the objects of Part VII (as set
out in proposed subsection 60B(1)) with the critical elements of the Part VII;
and
-
the primary considerations are the most
important considerations, more important than the additional considerations.
3.57
However, the Committee does not believe that the
relationship between the primary and additional considerations in proposed
subsection 60CC(2) and (3) is sufficiently clear. The Committee understands that
while each consideration is, in and of itself, a discrete element of
determining the best interests of the child, a better explanation should be
provided as to the interaction of these considerations, particularly how each
consideration is weighted against, limited by, or negatived by any other
consideration. The Committee is concerned that without any clarification to
these issues, the bill will become litigation generating. The Committee has taken
into consideration that, in relation to other sections of the bill, readers (particularly
self-represented litigants) are guided by signposting in Notes. The Committee
believes that this would be one way in which the relationship between the
considerations in proposed subsection 60CC(2) and (3) could be clarified.
Recommendation 2
3.58
The relationship between the considerations in
proposed subsections 60CC(2) and (3) be clarified in the bill.
3.59
The Committee notes the concerns raised in submissions
and in evidence that subsections 60CC(4) and (4A) have the potential to provide
additional acrimony to contested proceedings, and to adversely impact on
parents who seek to protect their child(ren) from an abusive parent. However,
the Committee is encouraged by the view that subsection 60CC(4) may also result
in a change of the culture of dispute in child-related proceedings.
3.60
The Committee is concerned about the potential
impacts of subsections 60CC(4) and (4A), particularly the apparent lack of
clarity as to how the provisions apply to a parent's pre- and post- separation conduct
and circumstances.
3.61
The Committee believes that pre- and post-separation
conduct and circumstances may be relevant to the best interests of the child(ren).
Recommendation 3
3.62
Subsections 60CC(4) and (4A) should be amended
to make it clear that a court should consider a parent's pre- and
post-separation conduct and circumstances. The revised provisions should use
appropriate terminology for the pre-separation conduct and considerations, and
avoid using post-separation terminology such as 'the parent's obligation to
maintain the child'. The revised provisions should also direct the court that
while pre-separation considerations are important, the focus should be on
determining the child's best interests in relation to a parent's present and
future conduct and circumstances.
3.63
The Committee appreciates Relationships
Australia's views on how provisions excluding the operation of court
consideration where consent orders are lodged are open to abuse by parties,
particularly in cases of domestic violence. The Committee believes that the
operation of these exclusionary provisions should be further investigated by
Government.
Recommendation 4
3.64
That the Government undertake a review of the
application of provisions which may operate to exclude the Court's
consideration in situations where consent orders are lodged by the parties.
Equal time or substantial and significant time parenting arrangements
3.65
The amendments in the bill are aimed at having
separated parents, and courts, consider equal time, or substantial and
significant time parenting arrangements. This section discusses two provisions
which implement that aim.
Obligation on Advisors
3.66
Proposed section 63DA creates an obligation on
advisers (legal practitioners, family counsellors, family dispute resolution
practitioners and family consultants) to inform people considering entering a
parenting plan that they could consider equal time, or substantial and
significant time parenting arrangements, for those parenting plans, where such
arrangements are in the best interests of the child and reasonably practicable.
3.67
Family Services Australia raised three specific
issues in its submission with respect to this provision:[61]
-
such information may maintain a focus on the
parents rather than the child, whose experiences, developmental stage, emotional
and physical bonds and relationship with friends and pets may be compromised by
an arrangement that does not take these considerations into account;
-
the place of assessment in the process is not
clear. While implied through the use of terms such as 'reasonably practicable',
a comprehensive assessment of a family is a pre-requisite of any family work
and is the basis on which any information of the type required by section 63DA
would be given; and
-
the specific nature of the requirement for
family advisers to inform parents of the possibility of equal time, or
substantial and significant time jeopardises the adviser’s neutrality and impartiality.
Advisors hold a position of power, and parents may understand the advice to be
an endorsement of a specific arrangement. The preference would be for parents
to be presented with a range of options, and allow the parents to consider
their own needs.
Requirement for court to consider
equal time, or substantial and significant time
3.68
Proposed section 65DAA requires the court to
consider, in situations where parents have equal shared parental responsibility
for a child, an equal time or substantial and significant time parenting
arrangement. Such arrangements must only be ordered where it would be in the
best interests of the child and reasonably practicable.
3.69
Mr Butler
of the SPCA described proposed section 65DAA as 'an opportunity – or a door
that opens' for parents wanting to spend equal or substantially equal time with
their children. The Family Issues Committee of the Law Society of NSW described
the amendments in proposed section 65DAA as:
a significant development in Australian Family Law and will, in
all likelihood, set new benchmarks in terms of shared parenting arrangements
after separation.
3.70
A number of other submissions found these
provisions problematic.
3.71
The Non Custodial Parents Party argued that the
term 'substantial and significant' should be defined as 'around 120 days a
year'. The Non Custodial Parents Party considered the changes were too vague
and provided too much of an opportunity not to change current decision making
processes.[62]
Reasonable practicality
3.72
One particular aspect of subsection 65DAA(5),
which outlines how the court determines whether an arrangement is reasonably
practical, was brought to the Committee's attention. Proposed paragraph 65DAA(5)(b) requires the
court to have regard to the parents' current and future capacity to implement
an arrangement for the child spending equal time, or substantial and
significant time, with each of the parents.
3.73
The Family Issues Committee of the Law Society
of NSW made the following comment on the use of the word 'capacity' in this
context:
[t]here is some risk that this may be interpreted, particularly
by self-represented litigants, as also referring to financial capacity, as well
as emotional and physical capacity. The reality is that greater levels of
shared parenting after separation will inevitably lead to financial
implications not only in relation to maintenance, child support and property
settlement, but as regards to social security as well. The potential changes in
the workplace are also enormous. Specifically in the context of this
sub-section, however, the Committee queries whether the intention was to
potentially invite a closer connection between financial matters and parenting
matters, especially for self-represented litigants.[63]
3.74
The Family Issues Committee of the Law Society
of NSW was also of the view that parents' past capacity, more so than their
future capacity, was a better indicator of reasonable practicality.[64]
3.75
The Committee put the concerns in relation to
proposed paragraph 65DAA(5)(b) to the Attorney-General's Department and
received the following response:
These provisions ... are a potted summary of factors that have
been listed in an existing case before Magistrate Ryan. So they actually come from
under the existing law. And the government, to make it clear to the court the
sorts of things it needs to take into account, put them in the legislation.[65]
3.76
The Attorney-General's Department was not
concerned that 'capacity' might be interpreted as financial arrangements and
stated that the situation would be monitored to ensure that such an
interpretation was not adopted. Further, the Attorney-General's Department did
not consider that inserting an express provision in the bill, excluding
consideration of financial capacity was warranted:
We do not necessarily put it in other provisions either. That is
the difficulty sometimes. When you amend one provision which ... is quite similar
to another provision, you start tinkering ... Once we make a change to the law
then we potentially have flow-on effects that may, for example, impact on other
parts of the legislation ... I would have thought that the provision is clear
enough in itself. It flows from case law, so it is dealt with under the
existing law. We do not think there is a need.[66]
Committee view
3.77
The Committee appreciates the concerns raised by
Family Services Australia in relation to proposed section 63DA. The Committee
notes that although the wording section 63DA states that an advisor 'must'
advise parents they can consider equal time and substantial and significant time
arrangements where those arrangements are reasonably practicable and in the
best interests of the child the provision does not preclude advisors from
informing separating parents of other parenting arrangements.
3.78
Further, the Committee understands the provisions
of the section to mean that advisors are obligated to inform parents they could consider equal time, or
substantial and significant time, arrangements where those arrangements are reasonably practicable and in the best
interests of the child. The
Committee understands that advisors may, but are not obligated, give an opinion
as to whether the option is appropriate in the particular circumstances of the
parents.
3.79
The Committee believes that proposed section
63DA is sufficiently broad to address the concerns raised by Family Services
Australia.
3.80
The Committee notes the position put forward by
the Non Custodial Parents Party in relation to the definition of substantial
and significant time. 'Substantial and significant time' is defined in proposed
section 63DA and 65DAA by reference to the time:
-
including both weekends and weekdays;
-
allowing a parent to be involved in the child's
daily routine and occasions or events which are of significance to the child;
-
allowing the child to be involved in occasions
or events which are significant to the parent.
3.81
The Committee has considered the explanation
that the definition in the bill is intended to focus on both the quantity of
time and the quality of time that a parent spends with the child, and feels
that this is a better definition than may cause the parties to focus solely on
the quantity of time that a child spends with a parent.[67]
3.82
The Committee is grateful to the Family Issues
Committee of the Law Society of NSW, Mr Kennedy from the Family Law Section of
the Law Council of Australia and the Attorney-General's Department for their
contributions on the interpretation of 'capacity' in proposed subsection
65DAA(5)(b). The Committee is mindful of the caution expressed by the
Attorney-General's Department regarding potential flow on effects from
so-called 'tinkering'. The Committee accepts the explanation given by the
Attorney-General's Department that 'capacity' in this context is a term derived
from case law and is understood to not mean 'financial' capacity.
Parenting Plans
3.83
Proposed section 63C(2) sets out the issues
which may be dealt with in a parenting plan. The key differences between
section 63C(2) and the equivalent provision in the Act, is that the new
provision:[68]
-
sets out in greater detail the matters which may
be covered in a parenting plan;
-
facilitates the removal of the terms 'residence
and contact' from the Act;
-
provides that a parenting plan may deal with the
process for resolving disputes about the terms and operation of the plan;
-
clarifies that a parenting plan may allocate
parental responsibility for making decisions about major long term issues in a
child's life; and
-
gives a greater recognition to the role of
grandparents in the life of a child.
3.84
A number of submissions raised the interaction
of proposed section 64D and the operation of parenting plans. Under section
64D, in all but exceptional circumstances, a parenting order could be subject
to a later parenting plan. The particular concern was that one party may enter
into a parenting plan under duress or coercion. The effect of that 'coerced'
parenting plan could be to overturn a judicially considered and determined
parenting order.[69]
Committee view
3.85
The Committee notes that a number of solutions
to this issue have been raised, including certifying that the parties have
received independent legal advice on the plan or a 7-day cooling off period
following parties entering into a parenting plan.[70]
3.86
The Committee concurs with the view of the
Attorney-General that the application of contract law principles, such as a
cooling off period, to parenting plans may potentially stifle what is intended
to be a flexible document which can be amended by the parties to suit their
changing circumstances.[71]
3.87
The Committee is satisfied that Government
amendments introduced into the House of Representatives on 27 February 2006,
which provide that an agreement is not a parenting plan unless it is made free
from threat, duress or coercion, should be sufficient to address this concern. The
Committee also believes the Government amendments to proposed section 64D, clarifying
what is meant by 'exceptional circumstances' for the purposes of that section, addresses
these concerns. Specifically, the amendments provide that exceptional
circumstances include:[72]
-
circumstances giving rise to a need to protect
the child from physical or psychological harm from being subjected to, or
exposed to, abuse, neglect or family violence; and
-
the existence of substantial evidence that one
of the child's parents is likely to seek to use coercion or duress to gain the
agreement of the other parent to a parenting plan.
Definition of 'family violence'
3.88
The bill inserts a new definition of 'family
violence' into the Act:
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 reasonably to be apprehensive about, his or her personal wellbeing or
safety.[73]
3.89
The term 'family violence' is an important
defined term in the bill because it is relevant to a number of key sections
throughout the bill, including:
-
one of the primary considerations for the court
in determining what is in the child's best interests is the need to protect the
child from physical or psychological harm from being subject to family
violence;[74]
-
two exceptions to the requirement to attend
dispute resolution are that there has been family violence or there is a risk
of family violence;[75] and
-
the presumption of equal shared parental
responsibility when making parenting orders does not apply if there are
reasonable grounds to believe that a parent of the child has engaged in family
violence.[76]
3.90
The definition of 'family violence' was not
raised as an issue by either the FCAC Report, or the Government response to
that report. The revised definition comes as a result of a recommendation by
the LCAC, on the basis of the Committee's concerns that false allegations could
be made and that the definition of family violence would be better qualified by
inserting an objective element.[77]
3.91
The Committee received many submissions
addressing the impact that this amendment to the definition of family violence
may have.
3.92
Some submissions argued that violence was not a
matter for family law at all. Mr
Adams stated:
Violence is not a matter of Family Law. Domestic violence and
common assault are matters for the local court and should remain in the local
court.[78]
3.93
The SPCA stated:
that left unqualified the notion of family violence is too wide
and vague and fabrication and allegations of violent behaviors are often made
by one party during a case to leverage parenting outcomes that would
disadvantage the other.
We have proposed the addition of the word 'serious' to be added
to 'violence'. Leaving the word violence unqualified is capable of a wide
definition and interpretation, whereas the reality is that it varies from
raised voices to serious injury. Violence without any definition might lead to
an enormous amount of litigation, and would prevent many fruitful mediation
sessions from taking place.[79]
3.94
The Lone Fathers Association (Australia)
argued that an objective test was necessary:
[l]aws affecting the rights of a person cannot in justice be
based on a subjective state of mind of another person. The description of
domestic violence needs, in fact, to be tightened up, as it is at present too
all-embracing.[80]
3.95
However, a number of submissions expressed
concern at the objective requirement being imported into the definition of
family violence. For example, the NSW Women's Refuge Resource Centre argued
that an objective requirement could potentially exclude consideration of a
perpetrator's pattern of previous violent behaviour.
[a] woman who has experienced domestic violence, possibly over a
number of years, may experience fear over an incident or event that would not
“reasonably cause” fear in an outsider. This is because the incident may be
part of a pattern of abuse and control that outsiders have no insight into.
This approach does not take into consideration that the effect of domestic
violence is accumulative.[81]
3.96
WLSA stated that an objective test sends an
unfortunate message to the community, that the use of violence and the
experience of violence is only a problem if it causes someone 'reasonably' to
be in fear.[82]
3.97
Dr Elspeth
McInnes of the National Council of Single
Mothers and their Children (NCSMC) gave the following example of how an
objective test might operate against a victim of family violence:
We had a case where a mother detailed how her ex partner had
brutally murdered the family pet, a cat, in front of the child and the mother.
It was in an episode of high agitation and aggression and he had threatened
that this would happen to other family members who defied him. He used to like
to send kitten cards to the child and the mother when she was attending court.
Everybody would look at that on the outside and say, ‘Isn’t that nice, he’s
sending a lovely card with a kitten.’ But the message was ‘remember the cat’.
How do you deal with those situations in the court? The reality is that would
be disregarded under the current regime, let alone what is ahead.[83]
3.98
Other submissions linked the operation of this
amended definition of family violence to the new provision for costs orders
against a person who knowingly makes a false allegation of violence (discussed below).
It was stated that the overall effect of
the two provisions would be to 'silence' victims of family violence who were
unable to substantiate their allegations.[84]
3.99
The Attorney-General's Department had the
following to say on the amendment:
The only change to the current definition that has been made is
the addition of that word – ‘reasonable’ – and that only relates to an
apprehension or fear of violence, not to where there has been actual violence.
The Attorney has not undertaken a major rewrite of the definition of violence.[85]
3.100
The Attorney-General's Department was of the
view that the amendment was not a major change, and that a fundamental change
to the definition was not thought to be appropriate. The Department indicated
further consideration may be given to this issue once the research from the Australian
Institute of Family Studies is available.[86]
3.101
The Attorney-General's Department noted that
that there is a 'very extensive jurisprudence' about the current definition,
and stated that the test is a 'reasonable' person in the shoes of the
individual:
[i]t is not some person on the Clapham omnibus – the average man
in the street – that we are dealing with; it is the reasonable person in the
shoes of the individual and whether they would fear or have an apprehension of
violence.[87]
Committee view
3.102
The Committee understands that the issue of
family violence is one of the most difficult in family law, and therefore any
proposed amendment to the definition of the term family violence is not a
matter to be undertaken lightly.
3.103
The Committee heard evidence, and received
submissions from those who were both for and against the inclusion of an
objective test in the Act. On one hand
some people have the view that the current definition of family violence is all-
embracing. As one witness pointed out to the Committee:
[s]houting on one occasion and slamming a door on one occasion
have been cited as proof of violence.[88]
3.104
On the other hand, the Committee was told of the
importance and validity of a subjective view that:
police and anybody who is working with family violence victims
need to ask the victim, ‘How frightened are you of what the perpetrator is
doing?’ rather than some objective person, who may say: ‘So what?...'[89]
3.105
The Committee notes the concerns raised about
the potential interpretations that may arise from the inclusion of the word 'reasonably'
in the definition. The Committee received a number of submissions and heard
evidence that the proposed objective test will potentially exclude a history or
pattern of violent behaviour.
3.106
The Committee notes that objective tests are not
uncommon in different areas of the law. In this regard, the Committee was
particularly interested in the evidence given by the Attorney-General's
Department, which indicated the interpretation in this instance would be the reasonable
person 'in the shoes of the individual' (presumably with the complainant's
knowledge). The Committee understands from this that the Government intends
that a history or pattern of behaviour, to some extent, may be taken into
account in the application of the test.
3.107
Despite this, the Committee has reservations
that this position is not expressed in the definition in the bill, and may
therefore not be clear, particularly for self-represented litigants.
3.108
In considering this particular issue the
Committee has taken into account the history to this amendment. It is the
Committee's understanding that the amendment was recommended by the LCAC to address
concerns that false allegations of violence could
be made and that a better qualified definition of family violence may address
this concern. Therefore, the purpose of the amendment is to raise the burden of
proof on allegations of family violence – a purpose which is reliant on a view
about the frequency of vexatious complaints of violence.
3.109
Further the Committee has also considered the
statements by the Attorney-General's Department to the effect that there is
extensive jurisprudence about the current definition of family violence and
that a fundamental change to the definition was not thought to be appropriate
at this time.
3.110
If the Government does feel it is necessary at
this point in time to amend the definition, the Committee believes that the definition
should be clarified to include the intention that the test applies to a
reasonable person in the shoes of the individual, and with the individual's
knowledge.
Recommendation 5
3.111
The proposed definition of family violence
should be redrafted to clarify that the test is the 'reasonable person in the
shoes of the individual and whether they would fear or have an apprehension of
violence'.
Recommendation 6
3.112
The Government should use the results of the
Australian Institute of Family Studies research it has commissioned into family
violence and, if necessary, review definitions of family violence across all
State and Territory jurisdictions as soon as possible.
Costs orders for false allegations
3.113
Proposed new section 117AB provides that, where
the court is satisfied that a party 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 party to the proceedings.
3.114
The provision was inserted in the bill as a
result of a recommendation by the LCAC in relation to exceptions to the
requirement to attend dispute resolution on the basis of family violence and
child abuse. The LCAC recommended that:
-
there be an exception to attendance at dispute resolution
where an affidavit is made asserting the existence of family violence or child
abuse; and
-
there should be an express statement in the
proposed exception provision of penalties to apply if the court is satisfied on
reasonable grounds that a false allegation was knowingly made in the affidavit.[90]
3.115
In its response to the LCAC Committee, the
Government stated that it did not agree with the recommendation that an
exception to dispute resolution should be granted where an affidavit asserting
family violence or child abuse is filed. The Government did agree with the
second part of the recommendation, noting that it considered a cost provision
appropriate in circumstances where it was established that a false allegation
was 'knowingly made'.[91] The provision
attempts to address concerns that allegations of family violence can be easily
made and may be taken into account in family law proceedings. The approach has
been adopted as it avoids the need for criminal proceedings for perjury, which
are inappropriate where parents need to maintain an ongoing parenting
relationship.[92]
3.116
Mr Williams
of the Lone Fathers Association (Australia)
indicated his concerns about the role that allegations of violence played in
dispute resolution. Mr Williams
stated that allegations of violence should be 'proven – the accused convicted
and charged' before the exception to mandatory dispute resolution could be
invoked by a party.[93]
3.117
The Attorney-General's Department noted that
knowingly making a false allegation would probably constitute the criminal
offence of perjury. However, rather than pursue the criminal offence via a
costly and long-running prosecution, the Government has proposed section 117AB,
obligating courts to make a costs order.[94]
3.118
The Attorney-General's Department also drew the
Committee's attention to the other purpose that the provision serves – to give
resolution to the party against whom an allegation has been made:
because our court is not required necessarily to make absolute
findings in relation to whether an allegation took place or not – its major
task is to look at risk to the child – there are circumstances in a number of
cases where the allegation is made and is not substantiated and it just remains
there. So someone who vehemently opposes or denies the allegation does not have
a finding in his or her favour.[95]
3.119
The principal criticism of the proposal is that
it is based on an, as yet unproven, view that there is a problem with false
allegations in the family law system. Dr McInnes of the NCSMC raised the
concern that 'the mere fact that there are penalties for false allegations of
violence writes into the minds of everybody that false allegations are a likely
and common outcome of allegations of violence'.[96]
3.120
As noted above in relation to the definition of
family violence, there were some submissions concerned that the combination of
the two provisions would result in people being reluctant to report domestic
violence for fear that if they were unable to substantiate the claim, there
would be a costs order made against them. Ms
Fletcher of the WLSA said:
these provisions will pressure women to keep quiet about
violence or abuse and lead to the victim’s experience not being properly
factored into decision making. This would undermine one of the central objects
proposed in the bill and one of the primary considerations for making decisions
about children – that is, the need to protect children from harm. It would also
send a dangerous message to the community about family violence that is inconsistent
with one of the key messages of the ‘Violence against women: Australia
says no’ campaign that women should speak up about violence and their fears
will be taken seriously and acted upon.[97]
3.121
Ms Fletcher
stated that at best the provisions could be described as 'premature' because
they were designed at addressing a perceived problem of false allegations and
the Government was still awaiting findings on research it had commissioned on
this issue.[98]
3.122
Ms Mertin-Ryan
of Relationships Australia stated that false denials, as well as false
allegations, should be the subject of the study commissioned by the Government.[99]
Committee view
3.123
The Committee understands that the issue of
allegations of violence is a difficult area for those involved who have
experienced relationship breakdowns and for those assisting families following
separation. The Committee appreciates the material provided in submissions on
this particular issue which highlights the tensions in this particular area.
3.124
The Committee notes that this particular provision
represents the Government's agreement to one part of a two-part recommendation
by the LCAC. The Committee is concerned that the LCAC recommendation was made
in the more limited context of an affidavit having been filed asserting family
violence or child abuse in order to trigger the exception provisions to
mandatory dispute resolution. The current provision dispenses with the
framework in which the recommendation was made, namely the assertion of family
violence in an affidavit filed to exempt a party from mandatory dispute
resolution. In addition, the provision applies generally to false allegations
in the proceedings, and is not limited to false allegations of family violence
or child abuse.
3.125
The Committee is mindful of the delicate balance
which must be struck in situations where there are allegations of family
violence. On one hand the Committee sees that the provision may, in concert
with the proposed definition of family violence, cause some victims of family
violence to be reluctant to come forward and speak out against the perpetrator.
In this regard, the Committee notes Recommendation 5 of this Report, being that
the proposed definition of family violence be amended.
3.126
On the other hand, the Committee sees that the
provision may provide resolution for other victims, being those who are falsely
accused of perpetrating violence, but who feel that those false allegations are
not fully dealt with in the current environment.
3.127
Another factor influencing the Committee is that
false allegations made in proceedings are already a criminal offence, and may be
prosecuted as perjury. The Committee also takes into account the evidence by
the Attorney-General's Department that in its view, even under the current Act,
it would expect the Court to make costs orders in a situation where there is
evidence that someone has knowingly made a false allegation.[100]
3.128
On balance, the Committee believes that until
the research commissioned by the Government into this area is complete, it is
unclear whether this is a problem that needs solving. Therefore, the proposed
obligation on the Court to make cost orders against parties found to have
knowingly made false allegations should not be included in the Act.
Recommendation 7
3.129
Proposed subsection 117AB should be removed from
the bill pending any relevant results of the Australian Institute of Family
Studies research into the prevalence of false allegations of family violence in
family law proceedings.
Certify that a 'genuine effort' has been to resolve a dispute
3.130
The Committee received a number of submission
raising concerns with the provisions in proposed subsection 60I(8). Subsection
60I(8) deals with the certificates given by family dispute resolution
practitioners in relation to the mandatory dispute resolution attendance before
applying to the court for orders under Part VII of the Act.
3.131
There are 4 certificates which a family dispute
resolution practitioner may give to those attending dispute resolution:
-
a certificate that the party did not attend
dispute resolution, but that non-attendance was as a result of the refusal or
failure of other parties to the proceedings to attend; or
-
a certificate that the person did not attend
dispute resolution, because the practitioner considers that it would not be
appropriate to conduct the proposed dispute resolution;[101] or
-
a certificate that the person attended with the
other parties to the proceedings, and all attendees made a genuine effort to
result the dispute; or
-
a certificate that the person attended with the
other parties to the proceedings, but that the person, or other parties, did
not make a genuine effort to result the dispute.
3.132
The requirement that a family dispute resolution
practitioner certify that parties had, or had not, made a genuine effort to
resolve their disputes caused concern for a number of reasons. Family Services
Australia stated that it was concerned with the concept of a 'genuine effort'
which was reliant on a subjective judgement by the practitioner. Family
Services Australia gave examples of how problematic the term is:
Sometimes a party can feel protective of him- or herself or a
child but still have a ‘genuine’ wish to resolve the issues. Others may not
feel ready to work towards resolving the issues at that specific time, feeling coerced
into attending dispute resolution. This may not necessarily mean that that
person will not be ready for a ‘genuine effort’ in another month or two. A
person might also have a ‘genuine’ wish to resolve issues but feel unable to
resolve them at the time of dispute resolution because of fear or confusion
over what is best at the time. Nevertheless, a person’s demeanour might be interpreted
as not ‘genuine’.
3.133
It was Family Services Australia's view that
certificates judging a party's efforts at dispute resolution jeopardised that
party’s wish to enter into family dispute resolution at some later stage. Further
Family Services Australia felt that requiring a practitioner to give a 'genuine
effort' certificate undermined the role of the practitioner as a neutral and
impartial facilitator of the dispute resolution process.[102]
3.134
Mr Butler from the SPCA stated that although he
did not have an opinion one way or the other on requiring that the court be
provided with a report on how a mediation or counselling progressed:
perhaps some heads-up view to the judge, arbitrator or judicial
officer that one parent is certainly not as cooperative in respect of promoting
a shared parenting or a relationship for the other parent with the child or children
is certainly something that I would be particularly keen to see go forward.[103]
3.135
The Attorney-General's Department explained that
these provisions are:
really aimed at the situation where perhaps one party or both
parties are intent on going through the court process and are basically seeing
the dispute resolution process as a speed bump on the way to court. What we are
trying to do here is really focus the parties on trying to give this a real go
– to make sure they can resolve their issues and have a genuine attempt at it.[104]
Committee view
3.136
The Committee is aware that, following the
initial introduction of the bill into the House of Representatives, some groups
supported the introduction of a mechanism that enabled family dispute
resolution practitioners to indicate to the Court that particular cases were
inappropriate for dispute resolution, for example when domestic violence is a
significant issue.[105] The Committee
understands that these concerns have been addressed by the amendments
introduced by the Government which provide for a certificate to the effect that
the parties did not attend dispute resolution because, in the view of the
practitioner, dispute resolution would not be appropriate.[106]
3.137
The Committee notes concerns that the
certificates envisioned in proposed subsections 60I(8), which require a
subjective judgement of a party's efforts in mediation, may potentially
undermine future attempts at dispute resolution and the neutrality and
impartiality of family dispute resolution practitioners.
3.138
However, ultimately, the Committee accepts the
position put forward by the Attorney-General's Department that the requirement
to make a genuine effort is designed to stop people from circumventing the
compulsory dispute resolution processes by either attending and making no
effort or approaching the dispute resolution as a means of obtaining a court
order, rather than as an opportunity to resolve the dispute.[107]
3.139
While the Committee does not believe that judges
or magistrates should be relying solely on the contents of the certificate,
Committee also understands that early advice to a judge or magistrate may also
be beneficial in some circumstances. It is the Committee's understanding that
these certificates form only one element of a number of factors the court may
consider.
3.140
The Committee notes that these certificates may
form the basis of a costs order against a party. However, the Committee is also
conscious that the court has the discretion to refer parties to family dispute
resolution under proposed section 13C, which provides an alternative to a cost
order to encourage parties to resolve their disputes. While the certificates
may have cost implications for parties, the Committee believes that the court
will exercise this discretion with sufficient caution so as not to unreasonably
burden any party.
Access to, and costs of, dispute resolution services
3.141
Proposed subsection 60I(7) requires that parties
attend dispute resolution prior to a court hearing any application under Part
VII of the Act.
3.142
Notwithstanding paragraph 60I(9)(e), which indicates
that the physical remoteness of the parties from dispute resolution services may
mean they are exempt from the requirement in subsection 60I(7), the Committee
was interested to hear from a number of witnesses about the delivery of dispute
resolution services to regional, rural, remote and very remote areas of
Australia.
3.143
The SPCA welcomed the initiatives of the
relationship centres, particularly in remote communities where it would offer
the opportunity for parties to consult with experienced mediators and bypass the
formal court process.[108]
3.144
In evidence to the Committee, Family Services
Australia, noted that models used in remote areas are quite different to those
used in rural towns:
[t]he service needs to go to the communities, not the other way
around, and the communities need to accept and invite that service in and see a
benefit from that service. They need to be a part of the solution in terms of
how the service is actually set up.[109]
3.145
Ms Hannan
provided the Committee with an example of a service delivery model used by Anglicare
WA for the provision of a comprehensive
sexual abuse counselling and education service to towns and communities in the Kimberley
region of WA. [110] Ms
Hannan believes that in order for the FRCs
to work well a similar model of both town and community service provision would
be necessary.
3.146
The basic tenets of Anglicare
WA's counselling and education service to
the Kimberley region are :
-
to be respectful of Aboriginal culture and ways
of working;
-
to be seen as part of the community;
-
to work alongside communities in identifying
their own needs;
-
to have service providers in key towns;
-
to provide clinical input and information as
required and requested; and
-
to visit communities and outlying towns
regularly.[111]
3.147
The
Committee was also grateful for Ms Hannan's
frank assessment as to whether the new Family Relationships Centres (FRC) were
adequately funded to provide these types of services:
As for what we are really talking about, I know, for example,
that in WA there is a family relationship centre for Broome but, looking at
where other rural FRCs are being set up, the amount of funding around that for
outreach has been quite minimal even for those areas – and when you get to the
north-west of Western Australia you can multiply that three or four times. So
there are real concerns about people understanding that the models in rural and
remote areas in particular need to be very different and that there needs to be
sufficient funding to do it properly otherwise it will be worse than not doing
it at all.[112]
3.148
The Attorney-General's Department stressed that
face-to-face outreach would be available for parties in rural and regional
centres, and the size and geographical area of a catchment area for an FRC
would be taken into account in allocating funding:
Those centres with a rural catchment or an Indigenous population
in their catchment have been given additional funding, which is specifically
worked out on the basis of how big that catchment is and how far people in
those catchments are going to have to travel ... The centre for that region of
Western Australia – the Pilbara and the Kimberley – whether it is Broome or
Port Hedland, will certainly be given more funds than you would give, say,
Joondalup, which is a city; it is essentially a metropolitan based centre. It
needs to be kept in mind that more resources will be put into centres where
people have to travel further to get the face-to-face services. This is to get
those services to as many people as possible in the more rural parts of the
community.[113]
3.149
The Attorney-General's Department also noted,
that while it would not be appropriate in all cases, access to dispute
resolution via video link or telephone would also be available.[114]
Committee view
3.150
The Committee appreciates the Government's
efforts in providing dispute resolution services to regional, rural, remote and
very remote communities.
3.151
The Committee was also pleased to hear that in
situations where services are provided by telephone or videolink there may be
the flexibility to increase the number of free hours of dispute resolution
services to which people are entitled. However, the Committee is concerned
about the potential issues surrounding the provision of dispute resolution via
telecommunications services, without an initial face-to-face outreach, which Ms
Budivari of the WLSA referred to:
[i]t is certainly the experience of
workers in our centres, particularly in very remote areas, that that is not an
effective means of delivering a service. There needs to be some resources put
into face-to-face delivery before telecommunications can be effective.[115]
3.152
The
Committee is unable to comment on the adequacy of resources allocated by the
Government to the FRCs that will service the remotest areas of Australia.
The Committee can only urge the Government to consult widely with other service
providers in those areas, on the types of services and costs of providing those
services, to ensure that the reforms to be put in place by the bill are able to
be accessed by those in all areas of Australia.
3.153
The Committee is acutely aware that people without
ready access to an FRC may be financially disadvantaged by the requirement to
attend dispute resolution prior to a court hearing any Part VII application. While
the Committee appreciates that it is not necessary for this dispute resolution
to take place at an FRC, the Committee has been informed that the 3 hours of
free dispute resolution is only available from FRCs.[116] The Committee sees no reason why people
should be financially penalised on the basis of their location. The Committee
believes that where people's location prevents them from attending an FRC, the
first 3 hours of dispute resolution should be provided free of charge,
regardless of who provides the service.
Recommendation 8
3.154
That the Government undertake the necessary
consultation with service providers in rural, regional, remote and very remote
areas to ensure that adequate funds are allocated for the provision of dispute
resolution services in those areas. Further, where videolink or telecommunications
are to be used to provide dispute resolution services, the Government is to
ensure that adequate funds are provided so that parties are given the
opportunity to have an initial face-to-face outreach service.
Recommendation 9
3.155
Where parties are in a location which prevents
them from attending an FRC, the first three hours of dispute resolution is
provided to those parties free of charge, regardless of who provides the
dispute resolution service.
Development of accreditation regulations
3.156
Both Family Services Australia and Relationships
Australia raised issues in submissions about the consultation being undertaken
in relation to the development of accreditation rules for family dispute
resolution practitioners and family counsellors.[117] Both organisations were particularly
concerned that the consultation process should involve experienced service
providers, and be conducted in a structured manner.
3.157
The Committee sought a response from the
Attorney-General's Department on these concerns. The Committee was informed
that the Community Services and Health Industry Skills Council (CSHISC) has
been undertaking work on behalf of the Department in developing competency
based accreditation standards to apply to dispute resolution practitioners. CSHISC
has undertaken two rounds of consultation, in November 2005, and in early-March
2006. Those consultations were focussed on the actual development of the accreditation
standards, with existing practitioners providing expertise on the core competencies
required by a mediator. In the future, the Department will undertake further
consultation with industry representative bodies, the courts and other
stakeholders on the accreditation framework set out in the bill.[118]
Committee view
3.158
The Committee is satisfied that the Department
has in place a systematic consultation process for the development of
accreditation rules for family dispute resolution practitioners and family
counsellors. The Committee encourages the Department to consult as broadly as possible
in the development of the accreditation rules.
Amendments only to apply to future applications
3.159
Key amendments in Schedule 1 of the bill,
including:
-
a presumption of equal shared parental
responsibility;
-
the considerations to be taken into account in
determining the best interests of the child; and
-
a requirement that courts consider equal time,
or substantial and significant time parenting arrangements, in making a
parenting order
only
apply to applications under Part VII of the Act lodged after commencement of Schedule
1.
3.160
Two concerns were raised in submissions
regarding the application of the amendment only to future applications: that
the amendments should apply retrospectively to matters currently before the
court; and that there may potentially be an influx of applications to the
courts from parties who wish to have existing parenting orders varied.
Retrospective application of
amendments
3.161
The Committee has received many submissions
which eagerly anticipate the introduction of amendments in the bill.[119] A number of submissions however
expressed disappointment that the amendments would not apply to matters that
are currently before the court.[120]
3.162
The Family Law Section of the Law Council of
Australia is of the opinion that it would be inappropriate to have a situation
where different rules and standards applied to the determination of matters currently
in the system, and new proceedings lodged under the bill, particularly because applications
lodged just prior to the commencement of the bill may not be completed until
2008 or even 2009.[121]
3.163
The Committee heard evidence from the
Attorney-General's Department that one reason that the key amendments in the bill
will not apply to current applications before the court is because of the cost
implications for current litigants.[122]
Potential influx of applications
from parties with existing parenting orders
3.164
The Chief Justice of the Family Court raised her
concerns with the Committee that following the introduction of the amendments,
the Court could experience an influx of applications to change existing
parenting orders. Her Honour noted that the Court would have limited scope to
change existing parenting orders where the changes introduced by the bill were
not accompanied by any change in the parties' relevant circumstances.[123]
3.165
The Attorney-General's Department responded to
these concerns explaining that the Government did not believe that there would
be an influx of applications to the court seeking to vary existing parenting
orders. The Attorney-General's Department stated that it is clear in the
legislation that the bill is only intended to apply to applications made in the
future. In addition, the Attorney-General's Department noted that it was open
to the court to make clear in the first application it heard to vary existing
parenting orders that a piece of legislation of general application (such as
the bill) should not be regarded as a special circumstance for an individual
litigant.[124]
3.166
The Attorney-General's Department also pointed
out the reforms the Government was introducing included the Family Relationship
Centres, which it believed were a more 'family friendly' alternative to
returning to court to vary existing parenting orders.[125]
3.167
The Committee draws the Government's attention
to the submission by the Family Issues Committee of the Law Society of NSW
which states:
It is unlikely that mere legislative change amounts to changed
circumstances. But there are other ways that unhappy parents can take to bring
their parenting order before the court after the Bill
has commenced. The simplest might be to initiate contravention proceedings
under the new Division 13A Compliance Regime, which applies to contraventions
occurring after commencement, not orders made after commencement. Division 13A
strongly emphasises the court’s power to vary the order in question. That
variation could only be in accordance with the law current at that time. Thus,
by virtue of contravention proceedings, the opportunity arises for an old order
to be varied pursuant to the new principles.[126]
Committee view
3.168
The
Committee understands the rationale behind the Government's decision to
restrict the application of key amendments in the bill to new applications,
particularly in light of the view that at least part of the reason was to limit
the cost implications for matters that are already being prepared for hearing
under the current provisions of the Act.
3.169
The Committee believes that this is an issue
that warrants further investigation, specifically whether the cost implications
for litigants who may have already prepared matters for hearing under the
current provisions of the Act outweighs:
-
the additional costs to litigants in seeking
advice on the regime which will apply to their application; and
-
the ongoing cost of the courts administering two
sets of rules and standards for a period of up to three years.
3.170
The Committee is not convinced that the general
public are aware that key amendments in the bill will not apply to current
matters before the court.
3.171
The Committee accepts that the establishment of
the FRCs may go some way to relieving the burden on the court from this
potential influx. However, the Committee does not believe that it is a
satisfactory situation for the government to suggest that the court wait for
the first application to come before it to clarify that the amendments in the bill
are of general application and do not constitute special circumstances for
individual litigants. This is an unfortunate suggestion given one of the key
objectives of the bill is to reduce litigation in child-related proceedings.
Further, such a suggestion places an unwarranted burden on court resources.
3.172
The Committee understands that a change in the
rules is unlikely to amount to a relevant change in individual party's
circumstances to warrant a court amending a parenting order. However, the
Committee accepts the point made by the Family Issues Committee of the Law Society
of NSW that where there is a new set of rules, some parties will inevitably try
to find ways in which to trigger a change in circumstances in order to bring
themselves within the new rules.
3.173
The Committee notes that the Attorney-General
has taken advice on the potential influx of applications to the court to vary
existing parenting orders and is satisfied that there will not be an influx of
cases seeking to vary existing parenting orders. However, from the evidence and
submissions put to the Committee, the Committee does not share the government's
view that the introduction of the amendments in the bill will not result in a
significant increase in applications to the courts to vary existing parenting
orders.
Recommendation 10
3.174
That the Department immediately undertake a
comprehensive analysis of the cost implications on current litigants, future
litigants and the courts on maintaining two regimes for a period of three years
for the determination of Part VII applications.
Recommendation 11
3.175
That the Attorney-General's Department develop
and implement a comprehensive public information campaign to inform people of
the impact of the amendments in the bill on existing parenting orders.
Recommendation 12
3.176
In the event of an increase of applications to
the court to vary existing parenting orders once the amendments in the bill
commence, that the Government provide the court with sufficient resources to
adequately address the increase in applications.
Amendments relating to the conduct of child-related proceedings
3.177
Schedule 3 of the bill implements changes which
will make child-related proceedings less adversarial, introducing a reliance on
active case management by judicial officers.[127] The Family Law Section of the Law Council of
Australia's submission included some concerns regarding provisions which exclude
the application of the rules of evidence.
The Queensland Government raised concerns in relation to proposed
section 69ZW, which allows the court to make an order requiring State and
Territory agencies to provide documents or information relating to child abuse
or family violence.
The rules of evidence in
child-related proceedings
3.178
Proposed section 69ZM defines 'child related
proceedings' as:
-
proceedings that are brought wholly or partly
under Part VII of the Act; and
-
to the extent that the parties consent, other
proceedings (or parts of proceedings) between the parties that relate to the
breakdown of the parties' marital relationship.
3.179
Proposed section 69ZT provides that certain
rules of evidence do not apply to child related proceedings, unless the court
decides. The discretion of the court to apply the rules of evidence to child
related proceedings is set out in section 69ZT(3).
3.180
The Explanatory Memorandum states that proposed
section 69ZT is one of the key provisions in achieving a less adversarial
process in child related proceedings.[128]
3.181
The Family Law Section of the Law Council of
Australia reiterated the concerns it raised before the LCAC in relation to the
scope of 'child related proceedings' and its strong objections in relation to a
provision which excludes the operation of the rule of evidence unless the court
decides.[129] The Family Law Council argued that the
coexistence of two systems of hearing cases based on different rules of
procedure and evidence is expensive and wasteful.[130]
3.182
Of particular concern to the Family Law Section
of the Law Council of Australia was the 'broad power' given to the court under
proposed section 69ZT(3), because:
[t]his creates uncertainty, inconsistency, and the risk of
development of a Judge-made evidentiary regime in child related proceedings
which has to been exposed to the scrutiny of, or received the imprimatur of,
Parliament.[131]
Evidence relating to child abuse or
family violence
3.183
Proposed section 69ZW is intended to ensure that
the court has as much information as possible when considering what is in the
best interests of the child in proceedings where there are allegations of
violence and abuse.[132]
3.184
The Queensland Government raised two issues in
relation to section 69ZW. Firstly, given that section 60K requires that courts
act expeditiously in relation to allegations of child abuse and family
violence, section 69ZW should be amended to include a minimum time period in
which the State and Territory have to comply with a court order to provide
documents or information. This would enable agencies to 'concentrate
resources on the collation of material and its appropriate presentation of the
Family Court'.[133]
3.185
Secondly, section 91B of the Act provides that a
court may request that a State or Territory child welfare officer intervene in
proceedings. Where such a request is made the officer is deemed to be a party
to the proceedings. The Queensland Government sought further clarification on
the interaction of section 91B , which, while not a court order, provides the
officer with the rights, duties and responsibilities of a party, and clause
69ZW, which is a court order providing for the gathering of evidence, but does
not allow the State officers and agencies the status of being a party to the
proceedings.[134]
3.186
In response to the first issue, the
Attorney-General's Department stated that it did not believe that provision
would have resource implications for State and Territory agencies because the
provision does not require agencies to create documents or seek additional
information, 'much of the information would currently be obtained through the
subpoena process'.[135]
3.187
In response to the second issue, the
Attorney-General's Department stated that:
[t]he Government does not consider that there is any
inconsistency between the operation of section 69ZW and section 91B ... The
Government does not consider that it is necessary, in every case where the
court requests an agency to produce documents or information under section
69ZW, for the Chief Executive Officer of that agency to become a party to the
proceedings.[136]
3.188
The Western Australian Department for Community
Development indicated that proposed section 69ZW may also have a potential
impact on the operation of Part 10 of the Children
and Community Services Act 2004 (WA).
However the precise nature of the concerns was not provided.[137]
Committee view
3.189
The Committee notes the Family Law Section of
the Law Council of Australia's objections to the exclusion of certain rules of
evidence in relation to child related proceedings. However, the Committee feels that there has
not been a substantive change in the provisions since they were considered by
the LCAC. The Committee is therefore satisfied that the concerns raised by the
Family Law Section of the Law Council of Australia have been given due consideration.
3.190
The Committee notes that in relation to the
issues raised by the Queensland Government the Attorney-General's Department
states that the Government is happy to further consider and consult with the
States about these issues. The Committee
believes that such consultation would be useful.
Recommendation 13
3.191
That the Attorney-General's Department consult
with the relevant State and Territory departments and agencies in relation to
the operation of section 69ZW.
Independent Children's Lawyer
3.192
Schedule 5 of the bill makes provision for
'independent children's lawyers'. The amendments in Schedule 5 arise from
recommendations in the Family Law Council's report Pathways for Children: A review of children's representation in family
law, and are aimed at providing further guidance to lawyers who act as a
child's representative in family law proceedings. In conjunction with the
Family Court's Guidelines for child
representatives: Practice directions and guidelines (the Guidelines), these
amendments are to clarify for parties the role of a child's representative in
family law proceedings.[138]
3.193
The Committee has received submissions from
organisations such as National Legal Aid, the Family Law Section of the Law
Council of Australia and the Law Society of South Australia raising specific
concerns about the role of the independent children's lawyer. Specifically,
those submissions raised the issue of:
-
the role of the independent children's lawyer in
informing the court of the views of the child; and
-
the interaction between proposed section 60K
(Court to take prompt action in relation to allegations of child abuse or
family violence);
Informing the court of the views of
the child
3.194
Submissions raised the conflict between proposed
subsection 68LA(6) and proposed paragraph 68LA(5)(b).[139] Subsection 68LA(6) provides that the
independent children's lawyer is not under an obligation to, and cannot be
required to, disclose to the court any information the child communicates to
them. Paragraph 68LA(5)(b) sets out that the independent children's lawyer must
inform the court of the views that the child has expressed in relation to the
matters to which the proceedings relate.
Relationship between proposed
section 60K and the independent children's lawyer
3.195
Proposed section 60K[140] provides that where a document is
filed alleging:
-
abuse, or risk of abuse, of a child; or
-
family violence, or the risk of family violence
the court must make
appropriate interim or procedure orders to deal with the allegations in the
document as soon as practicable after the document is filed.
3.196
National Legal Aid is concerned that section 60K
will considerably impact on the demand for independent children's lawyers,
which are funded by State and Territory Legal Aid Commissions. In the absence
of any direction to the court to effectively involve an investigation of the
allegation, the court may feel obligated to make an order for the appointment
of an independent children's lawyer in all of these matters. Currently, the appointment
of an independent children's lawyer is ordinarily only made in matters where
there are allegations of child abuse, not in matters where there are
allegations of family violence. Therefore, the inclusion of provisions relating
to family violence in section 60K, will potentially have a considerable impact
on the resources of Legal Aid Commissions.[141]
Committee view
3.197
The Committee notes the concern raised in
submissions about the conflict between the role of the independent children's
lawyer as provided for in subsection 68LA(6) and proposed paragraph 68LA(5)(b).
The Committee believes that this conflict has been resolved by the Government
amendment which removes paragraph 68LA(5)(b) from the bill.
3.198
The Committee is very concerned about the issues
raised concerning the potential impact on the resources of Legal Aid
Commissions as a result of section 60K. The Committee understands that this
issue has been raised with the Attorney-General's Department. The Committee
recommends that the Department consider these issues as a matter of urgency,
and makes arrangements to ensure that Legal Aid Commissions have sufficient
resources to meet any increased demand for independent children's lawyers.
Recommendation 14
3.199
That the Department consult with National Legal
Aid to ensure that the necessary resources are made available to meet any
increased demand for children's lawyers.
The relationship between family violence orders and parenting orders
3.200
Schedule 6 of the bill inserts a new Division 11(Family
Violence) into the Act, which sets out the relationship between family violence
orders (which are made under State and Territory law) and family law orders
made under the Act.
3.201
According to the Explanatory Memorandum, the
amendments are designed to make Division 11 'clearer, more concise and easier
to understand by the people who use and implement it', particularly State and
Territory Magistrates making family violence orders.[142] The amendments implement
recommendations made by the Family Law Council in a letter of advice to the
Attorney-General in November 2004 (FLC Recommendations).
3.202
The WLSA's submission expressed two concerns in
relation to the proposed amendment of Division 11.
3.203
Firstly, WLSA
is concerned that State or Territory courts who may be considering altering
family law orders are required to weigh up a huge number of considerations, and
this would be a disincentive for those courts to use their powers in Division
11 where appropriate.[143] WLSA argued that Division 11 of the bill did
not give effect to the FLC Recommendation to 'provide a clearer and more
succinct statement of the principles to be applied by State and Territory
courts when exercising their powers.'[144]
3.204
Under proposed section 68R, when a State or
Territory court is making a family violence order, the court also has the power
to revive, varying, discharging or suspending
a family law order. The relevant
considerations for a court considering reviving, varying, discharging or
suspending a family law order are set out in subsection 68R(5), and include
that the court must have regard to the purposes of the Division (which are set
out in proposed subsection 68N). Ms Fletcher
explained for the Committee what this process would mean for a court:
the current structure of the bill will require a state
magistrate to consider something like 14 best interests provisions, nine
objects and principles and the purposes of the division. It is just not a
process that a state magistrate in a busy family violence court list, where they
sometimes hear 30 matters in half a day, is going to be willing to do. There is
already a problem with that now. The purpose behind the Law Council’s
recommendations was to promote the use of division 11 so that magistrates could
appropriately, for a short period of time, protect people from family violence
that might occur because of the family law order.[145]
3.205
In particular, WLSA was concerned that, unlike
the current broad focus on protecting people from family violence, the
considerations listed in the bill are focused on protecting children from
family violence.[146] The Committee
notes that Government amendments to the bill have amended the purposes section
of Division 11 to include that the purpose of the Division is to ensure that
orders, injunctions and arrangements for a child to spend time with a person do
not expose people to family violence.[147] Ms
Fletcher addressed these amendments in her
opening statement, saying:
We are aware that one change has been made by the government to
this division since the bill was introduced into parliament and this is
certainly an improvement, but in our view the new division will still make it
harder to change family law orders to protect people from violence and it still
does not truly give effect to the Family Law Council’s recommendations, as it
purports to do.[148]
3.206
Secondly, WLSA raised a specific issue in
relation to proposed paragraph 68R(3)(b) of the bill. Paragraph 68R(3)(b) provides that a State or
Territory court can not revive, vary, discharge or suspend a parenting order,
recovery order or an injunction, unless the court has before it new material,
which was not before the court which made the order or injunction.
3.207
In WLSA's view the provision was unnecessary
because currently courts will not vary an order or injunction where the court
believes that all the evidence before it was already before the court that made
the order or injunction. Further, WLSA stated that this requirement for new
material may 'operate to obscure a history of violence and hence the context of
any new incidents'.[149]
3.208
Noting
WLSA's criticism of Division 11 of the bill, the Committee sought a response
from the Attorney-General's Department, as to why the FLC Recommendations were not
incorporated into the bill in their original form.
3.209
The Attorney-General's Department stated that in
drafting the amendments to Division 11 to implement the FLC Recommendations to
simplify and improve the division, 'it became clear that further simplification
was necessary to ensure consistency with other reforms in the bill'.[150]
The Department cited 2 specific issues which impacted on the adoption of
the FLC Recommendations.
3.210
Firstly, Division 11 as it currently appears in
the Act, has a number of complex definitions for various types of contact
orders. The Family Law Council recommended that these be replaced with a single
definition of 'contact order'. However, as part of the Government reforms to
the Act, references to 'contact' are being removed and replaced with 'family
friendly' terms such as 'spends time with' and 'communicates with'.[151]
3.211
Secondly, the Department noted that the bill
amended the purposes of Division 11, which was one of the issues raised in the
FLC Recommendations.[152]
3.212
The initial draft of the bill listed the 2
purposes of Division 11 as:
-
resolving inconsistencies between family law
orders and family violence orders; and
-
achieving the objects and principles in section
60B.
3.213
The
Attorney-General's Department noted the Government amendment was introduced to
clarify that one of the purposes of Division 11 is also to ensure that family
law orders do not expose any person to family violence. It was the view of the Attorney-General's
Department that this addressed the major concerns of WLSA in relation to Division
11.[153]
3.214
The Attorney-General's Department stated that an
additional purpose for the Division had been added to those in the FLC
Recommendations, namely, to achieve the objects and principles of Part VII as
listed in section 60B because:
[t]he Government considers it valuable to link the purposes of
Division 11 back to these objects, which also mirror the primary considerations
that must be considered by a court in determining the best interests of the
child.[154]
3.215
In relation to paragraph 68R(3)(b) the
Attorney-General's Department noted that the intention of the amendment is to ensure
that family law orders are not circumvented by revisiting the same evidence
before a State court – in the absence of new evidence, parties seeking to vary
family law orders will generally have to do this via the procedures set out in
the Act. The Attorney-General's
Department stated:
[t]he Government does not consider that the provision will
restrict the ability of the court to consider evidence of the seriousness or
chronic nature of the family violence alleged. The provision does not prevent
the court taking pre-existing violence into account so long as the court has
before it material that was not before the court that made the order or
injunction. In this sense the evidence
does not have to relate to instances which occurred after the original order
was made. It is appropriate to prevent
parties circumventing family law orders by applying to a State court where
there is no new evidence of violence or abuse.[155]
Committee view
3.1
The Committee concurs with the views of the
Attorney-General Department that the Government amendment to the purposes of
the Division 11, to include a statement to the ensure that no person is exposed
to family violence as a result of a family law order, addresses one of the
concerns raised by WLSA.
3.2
The Committee understands the rationale behind the
Government's decision to link the purpose Division 11 with the objects and
principles underlying Part VII of the Act.
3.3
However, the Committee is concerned with the inclusion
of 'to achieve objects and principles of section 60B', as a purpose of Division
11. While the Committee is confident that judicial officers of State and
Territory courts will be able to navigate the considerations, it feels that
others, particularly self-represented litigants, will find determining the
relevant considerations which a State or Territory Court must take into account
for the purposes of 68R(5) a convoluted and unwieldy process.
3.4
It was not clear in the response given by the
Attorney-General's Department how linking the purposes of Division 11 to the
objects and principles in section 60B would provide a clear and more succinct
statement of the principles to be applied in exercising their powers under
Division 11.
3.5
The Committee believes that finding the relevant
considerations should not require the reader to make several cross-references
through the legislation. Either all the
considerations should be listed in a single location or duplicated as necessary
to make navigation easier. Further, it
should be clear to the reader the weighting given to each consideration.
3.216
The Committee accepts the explanation of the
Attorney-General's Department in respect of the intention of paragraph
68R(3)(b).
Recommendation 15
3.217
The section 68R be reviewed to ensure the
considerations to be taken into account are clear to all readers, and similarly
the weighting to be given to each consideration, by the Court when exercising
its powers under the section must also be clear.
Recommendation 16
3.218
The Committee recommends that subject to the
preceding recommendations the bill proceed.
Senator
Marise Payne
Committee Chair
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