CHAPTER 3

Key issues

3.1        Throughout the inquiry, the majority of participants expressed support for the Bill's stated objective, that is, to provide better protection for children and families at risk of violence and abuse.[1] However, submitters and witnesses expressed a diverse range of views about the proposed amendments, and provisions in the Act relating to equal shared parental responsibility.

3.2        This chapter discusses the key issues, including:

• addition of the Convention on the Rights of the Child as a new object of Part VII of the Act;
• primary considerations in determining a child's best interests;
• additional considerations of:
  • the 'friendly parent' provisions; and
  • family violence orders;
• new definitions of 'abuse' and 'family violence';
• provision of information to the Family Court of Australia by third parties;
• obligation of advisers to prioritise the safety of children;
• judicial duty to take prompt action in relation to allegations;
• judicial duty to inquire into abuse, neglect and family violence;
• repeal of the mandatory costs orders provision;
• retrospective effect of the application provision in item 45 of Schedule 1;
• resourcing implications for the Family Court of Australia;
• equal shared parental responsibility; and
• need for a public education campaign about the Bill's proposed measures.

Addition of the Convention on the Rights of the Child as a new object of Part VII of the Act

3.3        Proposed new subsection 60B(4) adds as an additional object of Part VII of the Act the Convention on the Rights of the Child (Convention) 'done' at New York on 20 November 1989.

3.4        Submissions commented briefly on this amendment, some expressing support for the proposed provision and others opposing its inclusion in the Act.[2]

3.5        Associate Professor Juliet Behrens and Professor Belinda Fehlberg, for example, welcomed proposed new subsection 60B(4) but noted that further legislation would be necessary to fully implement the Convention.[3]

3.6        The Women's Legal Centre (ACT and Region) considered it important for the Australian Government's international commitment to promote the best interests of children to 'be included in legislation [which] has such a profound impact on children'.[4]

3.7        As a minor matter of style, the Australian Law Reform Commission (ALRC) suggested:

[Proposed new subsection 60B(4)] be amended so that the current reference to [the Convention] being 'done' in New York on 20 November 1989 is replaced with a reference to it being 'opened for signature' or words to similar effect.[5]

3.8        In response to this suggestion, the Attorney-General's Department (Department) noted:

[P]roposed subsection 60B(4) reflects the wording of the Convention's formal attestation as well as the drafting practice of the Office of Parliamentary Counsel for referring to international instruments.[6]

Primary considerations in determining a child's best interests

3.9        Proposed new subsection 60CC(2A) inserts the following provision into the Act:

(2A) If there is any inconsistency in applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

3.10      In general, submitters agreed with the principle underpinning the proposed amendment, that is, the prioritisation of the protection of children from physical or psychological harm.[7] However, several submitters questioned the way in which the Bill seeks to give effect to this principle. The two main arguments concerned the practical application of the proposed provision and the wisdom of a two-tiered approach to determining what is in a child's best interests.[8]

3.11      Professor Richard Chisholm, author of one of the reports on which the Bill is based,[9] supported proposed new subsection 60CC(2A) but argued that it will not solve the current problems in balancing the two primary considerations. In addition, Professor Chisholm identified the following application problems:

The decision-maker still needs to decide whether a consideration is 'primary' or merely 'additional', and decide what special weight, if any, should be given to the former. With the new (2A), the decision-maker will also have to decide whether there is an inconsistency between (2)(a) and (2)(b). If there is, 'greater weight' must be given to paragraph (b)–but how much greater? These may not be insuperable difficulties, but the proposed (2A) seems certain, unfortunately, to increase the amount of complication and technicality relating to determining what is best for children.[10]

3.12      In a similar vein, the Family Law Council remarked:

[Proposed new subsection 60CC(2A)] assumes that the core failing of section 60CC is the relative weighting given by the courts to the primary considerations. Council considers this fails to recognise the broader problems associated with the two-tiered construction of section 60CC identified in the research reports. In Council's view, the addition of proposed subsection 60CC(2A) will not be adequate to challenge the present misperceptions of the law, and may add a further level of complexity to the process of decision-making.[11]

3.13      Professor Chisholm suggested that, if the proposed provision is to remain in the Bill, one layer of legislative complexity could be eliminated from section 60CC by redrafting proposed new subsection 60CC(2A) to eliminate the need for a determination of inconsistency between paragraphs 60CC(2)(a) and 60CC(2)(b). Professor Chisholm stated that the following proposal suggested by Ms Donna Cooper in a 2011 journal article merited careful consideration:

(2A) That when applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).[12]

3.14      Associate Professor Behrens and Professor Fehlberg preferred section 60CC to indicate that the overriding consideration in determining a child's best interests is the safety and protection of children from harm caused by family violence, neglect and abuse (effectively paragraph 60CC(2)(b)). In their view, proposed new subsection 60CC(2A) 'suggests that violent and abusive relationships can be meaningful and that children can benefit from them'.[13]

3.15      Dr Lesley Laing, a senior lecturer at the Faculty of Education and Social Work at the University of Sydney and a published author in the area of domestic violence, submitted:

The safety and protection of children should be prioritised above all else. Its priority should not be subject to proving an 'inconsistency' with other considerations.[14]

3.16      Instead of redrafting proposed new subsection 60CC(2A), some submitters advocated either amending current subsection 60CC(2) or abandoning the distinction between current subsections 60CC(2) and 60CC(3) (the primary and additional considerations, respectively, for determining a child's best interests) as a means of achieving the Bill's objectives.

3.17      For example, Associate Professor Helen Rhoades and Professor John Dewar submitted:

[T]he Government's aims would be better achieved by removing the demarcation between the two tiers of factors in section 60CC to create a single list of matters in which the safety of children is listed as the first consideration and given priority.[15]

3.18      A number of submitters agreed, the common viewpoint being comprehensively expressed by Women's Legal Services Australia as follows:

Preference 1

There should be no primary considerations at all but one list of factors for consideration:

• where the safety and protection of children is listed as the first   consideration and given priority;
• that having a meaningful relationship be listed as one of the many factors;
• that the courts should weigh up all of the factors on the list depending on the circumstances of each individual case.

Preference 2

If primary considerations are retained, there should only be one primary consideration which should be the safety and protection of children.

Preference 3

If neither of those options are accepted, at a minimum, the proposed subsection 60CC(2A) should be redrafted as follows:

In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).[16]

3.19      Domestic Violence Victoria, the Domestic Violence Resource Centre Victoria, the Federation of Community Legal Centres Victoria, Women with Disabilities Victoria, and the Victorian Women's Trust favoured the second option identified by Women's Legal Services Australia. Their joint submission emphasised the pre-eminence of a child's right to safety:

[T]he present Act, in its emphasis on shared parenting, often leads to contact orders that are inconsistent with expert knowledge about child development. Worse, where family violence is present, a child's right to safety can often come second. In practical effect, the Act currently tends to prioritise the first principle of meaningful involvement with each parent [paragraph 60CC(2)(a)] at the expense of children's and women's rights to safety [paragraph 60CC(2)(b)]. The framing of these criteria takes the focus away from the best interests of the child, and places the emphasis on parental rights.[17]

3.20      Family Relationship Services Australia also supported the need for current subsection 60CC(2) to place greater emphasis on a child's rights. However, its support was conditional on the child concerned being involved in the decision-making process:

Research by Mudaly & Goddard (2006) emphasises the importance of giving children and young people who have experienced abuse or neglect by a parent the opportunity to tell their story and participate in decisions about whether to maintain the relationship, albeit with appropriate safety precautions. For some children, maintaining their relationship with a parent who has been violent or abusive can be very important to the child's sense of identity and healing.[18]

Departmental response

3.21      A representative from the Department reiterated that proposed new subsection 60CC(2A) is based on several reports concerning the way in which the family law system responds to violence. A common theme in these reports is that unsafe parenting arrangements are still being made in respect of some families. The key piece of evidence cited by the Department was the findings of the Australian Institute of Family Studies in an evaluation of the 2006 family law reforms. Of particular note was that '[a]round one in five parents reported safety concerns associated with ongoing contact with the child's other parent'.[19]

3.22      Accordingly, the Department's brief in preparing the Bill was:

to come up with legislation that would prioritise the safety of children without winding back the shared care reforms. This is the balance that has been achieved to prioritise the safety of children without undermining the ability of children to have a meaningful relationship with both of their parents where that is safe.[20]

Additional consideration of the 'friendly parent' provisions

3.23      Many submitters supported the repeal of the facilitation aspect of the 'friendly parent' provisions (current paragraph 60CC(4)(b)) on the grounds that it discourages disclosures of family violence and child abuse.[21]

3.24      However, as observed by the Department, 'there are competing considerations with regard to the retention or removal' of current paragraph 60CC(4)(b).[22] Some inquiry participants did not support proposed new paragraph 60CC(3)(c), which re-enacts current paragraphs 60CC(4)(a) and (c) but not paragraph 60CC(4)(b). The two main reasons for this lack of support were the potential application of the proposed provision and the continuing relevance of the 'friendly parent' provisions.[23]

Opposition to removal of the 'friendly parent' provisions

3.25      In relation to the first argument, the Family Law Practitioners Association of WA, for example, submitted that proposed new paragraph 60CC(3)(c) does not take into account 'the potential, and capacity, of one parent to thwart the other's ability to take up the opportunities outlined'. The Family Law Practitioners Association of WA suggested redrafting the proposed provision to read:

(c) the extent to which each of the child's parents has facilitated the other taking, and has themselves taken, or failed to take, the opportunity...[24]

3.26      An example of a potentially inequitable application of proposed new paragraph 60CC(3)(c) was cited by the Australian Association of Social Workers. Its submission described the situation where a violent parent has obtained primary care of a child and a victim parent has been denied contact with that child:

We recognise that in such situations, the parent who is the victim of violence is in a powerless position as the cycle of control and coercion continue[s] to be perpetuated by the violent parent. This then can create unfair and unintended consequences as the victim is deemed to have 'failed' in their duties as a parent, without consideration of the complexity of the situation.[25]

3.27      Another three submitters argued that repealing the 'friendly parent' provisions rewards those parents who actively prevent non-resident parents from having contact with their children.[26]

3.28      The Hawkesbury Nepean Community Centre, among others, expressed particular concern with how proposed new paragraph 60CC(3)(c) might be applied in cases where a parent has restricted contact as a means of protection, rather than with malicious intent.[27] The Council of Single Mothers and their Children and The Benevolent Society, shared this concern, as did the Women's Legal Service Queensland who submitted:

[T]he proposed provision will still be used against women in domestic violence cases, where the mother will be forced to explain why she has chosen to limit her communications with the other parent about long-term decisions, spending time or communicating with the child or maintaining the child, when in fact the mother is acting to protect the child.[28]

3.29      A representative of the Council of Single Mothers and their Children contemplated that 'it would be understandable that the parent would not be required to facilitate the relationship' where family violence allegations had been made.[29] In its view, proposed new paragraph 60CC(3)(c) should be amended to clearly refer only to a parent's personal efforts regarding their relationship with, and obligations to, a child.[30]

Continuing relevance of the 'friendly parent' provisions

3.30      In relation to the argument that the 'friendly parent' provisions remain a relevant consideration, the Joint Parenting Association argued that it is good parenting for one parent to foster and maintain a child's relationship with a non-resident parent:

The removal of the factor regarding the willingness of each parent to encourage the child's relationship with the other parent moves in the opposite direction from comparable overseas jurisdictions and flies in the face of solid research about the importance of parents encouraging the child's relationship with both parents. Helping the child maintain a positive relationship with the other parent when the parents live apart from each other is considered a sign of good parenting, just as encouraging the child to achieve in school is a sign of good parenting. It falls within the category of meeting a child's emotional needs, which is one factor that courts consider in fashioning the parenting decree and the repeal of s60CC(3)(c) is not supported.[31]

3.31      FamilyVoice Australia likewise submitted:

This valuable provision [current paragraph 60CC(3)(c)] encourages each parent of a child to cooperate with the other parent to serve the best interests of the child in accordance with the objects and underlying principles of the Act set out in [section] 60B.[32]

3.32      The Non-Custodial Parents Party (Equal Parenting) concurred, submitting that proposed new paragraph 60CC(3)(c) 'reveals a diminished view of the importance of maintaining a healthy relationship between both parents and the child'.[33]

3.33      The Caxton Legal Centre acknowledged that the 'friendly parent' provision could unduly affect victims of family violence attempting to protect themselves and their children, and parties who, through no fault of their own or due to the actions of the other party, have lost contact with the other parent. Its submission suggested:

At the risk of burdening judicial officers with overly prescriptive legislative pathways, it is recommended that a parent's willingness and ability to facilitate children's relationship with the other parent be retained as a consideration in determining the best interests of a child, provided that, if the relationship has not been facilitated, consideration be granted to the reasons for this, including child abuse or family violence.[34]

3.34      At the public hearing, the Deputy Chief Justice of the Family Court of Australia, the Hon. John Faulks (Deputy Chief Justice) commented on the 'friendly parent' provisions as follows:

[T]he difficulty is that you have a section that would appear to be substantially aspirational, in the sense that it sets out a principle which would seem logically supportable by almost everyone involved in the family law system. It may be having consequences–which are at present undocumented but which are said to exist–which would be undesirable. If you choose to abolish the section to overcome those suggested consequences, it may send a message that is different from the aspiration that was previously encountered.[35]

Departmental response

3.35      The Department noted the importance of facilitation in separated families where parents are able to agree on parenting arrangements and families where safety is not a concern, but stated:

The benefits of retaining the 'facilitation' aspects of the 'friendly parent' provision are outweighed by the importance of protecting children from harm.[36]

3.36      The Department further noted that current paragraph 60CC(3)(m) allows the Family Court of Australia to take into consideration 'any other fact or circumstance which the court thinks relevant'. The Department suggested that the Explanatory Memorandum could be revised to state that the repeal of any paragraph is not intended to restrict the matters to which the court may have regard under paragraph 60CC(3)(m).[37] This means that paragraph 60CC(3)(m) would continue to allow the court to have regard to 'facilitation' as an additional consideration.

Additional consideration of family violence orders

3.37      Proposed new paragraph 60CC(3)(k) requires the court to have regard to any family violence order that applies to a child or a member of the child's family.

3.38      The Family Law Council supported the proposed amendment. Its submission argued that proposed new paragraph 60CC(3)(k) removes an unnecessary distinction between particular types of orders (interim/final, contested/consensual) and enables the court to consider all relevant matters in determining the best interests of the child:

Council is aware of the history of this provision and arguments that family violence orders are used to gain a strategic advantage in family law proceedings. However, evidence of family violence orders is relevant in determining safe parenting arrangements for the child.

...

It is important when assessing future risk that the court is able to consider all of the relevant information about the history of the parents' relationship, including past family violence orders.[38]

3.39      Associate Professor Behrens and Professor Fehlberg drew attention to an apparent contradiction between the word, 'any', and the word, 'applies', in proposed new paragraph 60CC(3)(k) in that the word 'applies' might:

result in the exclusion of information about orders that are no longer in place, which may be of relevance in determining possible risk to the child and understanding the type of parenting provided to a child and the nature of the relationship between the child's parents.[39]

3.40      Although there was some debate concerning the inclusion of past family violence orders, the main point of contention was whether proposed new paragraph 60CC(3)(k) should refer to family violence orders themselves or the factual circumstances giving rise to those orders.

3.41      In 2009-2010, the ALRC and NSWLRC conducted a major inquiry into family violence throughout Australia.[40] The inquiry examined the practical interaction between the Act and state and territory family violence and child protection laws,  along with relevant federal, state and territory criminal laws.

3.42      In the course of its joint inquiry, the ALRC and NSWLRC examined current paragraph 60CC(3)(k) and ultimately recommended that the paragraph be amended to read:

Recommendation 17-1 The 'additional consideration' in [section] 60CC(3)(k) of the Family Law Act 1975 (Cth), which directs courts to consider only final or contested protection orders when determining the best interests of a child, should be amended to provide that a court, when determining the best interests of the child, must consider evidence of family violence given, or findings made, in relevant family violence protection order proceedings.[41]

3.43      The ALRC reiterated Recommendation 17-1 in its submission to this inquiry.[42] However, at the public hearing, the ALRC conceded that an alternate proposal put forward by Professor Chisholm 'captures very well the gist of the idea that the ALRC was putting forward'.[43]

3.44      In a supplementary submission, Professor Chisholm described current and proposed new paragraph 60CC(3)(k) as having an underlying problem. In his view, family violence orders themselves are an item of evidence, not a consideration or factor. Accordingly, family violence orders do not belong in subsection 60CC(3). In addition, Professor Chisholm noted that there is a problem with the drawing of inferences from family violence orders: the making of a family violence order does not tell the court anything about the evidentiary basis for the order.[44]

3.45      Professor Chisholm submitted:

If a family violence order has been made, it is important that the family law court should know about it (section 60CF, appropriately, requires parties to inform the court of such orders). It should be treated as something that requires investigation, because it might well be an indicator of violence. What the family law court wants, of course, is evidence about the circumstances in which the order was made, and, most importantly, evidence about whether there really was violence, and if so what was its nature. The law should encourage people to provide that sort of evidence.

...

[P]aragraph (k) should be amended to read something like this:

(k) any relevant inferences that can be drawn from any family violence order that applies, or has applied, to the child or a member of the child's family, taking into account the nature of the order, the circumstances in which it was made, any evidence admitted and any findings made by the court that made the order, and any other relevant matter.[45]

3.46      The Deputy Chief Justice and Justice the Hon. Steven Strickland from the Family Court of Australia described Professor Chisholm's proposal as 'sensible',[46] but Women's Legal Services Australia was concerned with its complexity and expressed a preference for a more straightforward approach:

Any relevant family violence order as applies to the child or a member of the child's family [should be considered], including a consideration of the circumstances in which the order was made.[47]

Departmental response

3.47      When asked for its view on Professor Chisholm's proposed new paragraph 60CC(3)(k), the Department stated that the existence of current family violence orders is directly relevant to concerns about a child's safety. Further, the courts routinely 'look behind' family violence orders to consider their supporting evidence:

[Proposed new paragraph 60CC(3)(k)] arises from an objective fact that has a real connection to protecting the child from harm and ensuring the child's best interest. Retention of this factor does not constrain the court from considering the circumstances in which the order was made or apportioning certain weight in light of those circumstances.[48]

3.48      Consistent with its earlier advice, the Department noted that the Family Court of Australia could still have regard to past family violence orders under current paragraph 60CC(3)(m).[49]

New definitions of 'abuse' and 'family violence'

3.49      Submitters and witnesses provided the committee with considerable commentary regarding the proposed new definitions of 'abuse' and 'family violence'.

Definition of 'abuse'

3.50      The Bill redefines 'abuse' in subsection 4(1) to read:

abuse, in relation to a child, means:

...

(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

(d) serious neglect of the child.

3.51      Many submissions supported a broader definition and understanding of 'abuse', including, in particular, exposure to family violence.[50] However, proposed new paragraphs (c) and (d) drew comment in relation to the high threshold required by the inclusion of the word 'serious' and perceived inconsistencies with other provisions of the Act.

3.52      The Law Council of Australia, for example, did not support the inclusion of the qualifier 'serious' in proposed new paragraph (c):

Why should [psychological harm] be serious? How much psychological harm is acceptable? Removal of the word 'serious' would not affect the intent of the provision, as it would still be necessary to show that there was harm caused by family violence, and that should be enough to amount to abuse of a child.[51]

3.53      Men's Health Australia similarly submitted:

The proposed changes define abuse, in relation to a child, as meaning "causing the child to suffer serious psychological harm" or "serious neglect of the child" (our emphasis). We would argue that any psychological harm or neglect of children should be considered child abuse. Why does the government believe that only "serious" psychological abuse or neglect should be defined as child abuse, while physical assault and sexual abuse are defined as child abuse whatever their level of seriousness?[52]

3.54      The Family Law Council cautioned:

[A] message could be given to the general public that some forms of child abuse are not serious, whereas Council's view is that any form of child abuse – whether it be physical, emotional, psychological, sexual or neglect – is serious and therefore if a qualifier is put in, there is a concern some types of child abuse would become accepted in the community.[53]

3.55      The Law Council of Australia also drew attention to the apparently inconsistent use of the phrase 'serious neglect' in proposed new paragraph (d) and the use of the term 'neglect' in other key provisions of the Act:

Given that the new definition of 'abuse' in relation to a child encompasses assault, exposure to family violence and serious neglect, it is difficult to understand why the court is directed to examine 'abuse, neglect or family violence' [in other key provisions]. Given the broad definition of 'abuse' the court should in each case seemingly only have to take into account 'abuse and family violence' and [omit] the word 'neglect' (which is at odds with the  phrase 'serious neglect' in the definition of 'abuse' and so contradictory).[54]

Departmental response

3.56      The Department's response to these concerns was that the word 'serious' has been included in the proposed new definition of 'abuse' to avoid over-reporting:

The aim is to ensure that child welfare authorities only receive notification of serious cases of harm through exposure to family violence and neglect. Removing the word 'serious' would expand the definition to require a broader range of cases and may hinder these authorities from identifying and dealing with serious cases of harm due to excessive reporting.[55]

3.57      The Department agreed that the string of words, 'abuse, neglect or family violence' is used in a range of provisions throughout the Act. However, the Department told the committee that it is appropriate to retain references to the word 'neglect' as that term encompasses a broader range of omissions than 'serious neglect':

The Department acknowledges that there is overlap in the string of words, but notes that the overlap is incomplete and does not result in total redundancy unless the word 'serious' is removed from the definition of 'abuse'.[56]

Meaning of 'exposed'

3.58      Proposed new subsection 4AB(3) defines the meaning of the word 'exposed' in proposed new paragraph (c) of the new definition of 'abuse' in subsection 4(1):

(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.

3.59      Examples of situations that might constitute a child being exposed to family violence are non-exhaustively listed in proposed new subsection 4AB(4). Some submitters considered that the examples, or threats, of physical violence specified in proposed new subsection 4AB(4) might be interpreted in such a way as to restrict the meaning of 'experiences the effects of family violence' in proposed new subsection 4AB(3).

3.60      Women's Legal Services Australia, for example, warned:

Importantly, the proposed definition of exposure to family violence does not recognise the broader impact on children just from living in a family environment where their parent is the victim of family violence, in all its forms (as identified in the proposed new definition of family violence).

...

[Women's Legal Services Australia] recommends that the definition of 'exposure' to family violence include a specific reference to all the forms of family violence as defined in proposed [new subsections 4AB(1) and (2)].[57]

Definition of 'family violence'

3.61      Proposed new subsection 4AB(1) defines 'family violence' as follows:

(1)   For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.

Support for the new definition of 'family violence'

3.62      Many submitters and witnesses supported a new definition of 'family violence' within the Act. Among these supporters was the ALRC, which, together with the NSWLRC, recently examined the issue. In their 2010 report, Family Violence – A National Legal Response, the ALRC and the NSWLRC made the following recommendation:

Recommendation 6-4 The Family Law Act 1975 (Cth) should adopt the same definition as recommended to be included in state and territory family violence legislation (Rec 5-1). That is, 'family violence' should be defined as violent or threatening behaviour, or any other form of behaviour, that coerces or controls a family member or causes that family member to be fearful. Such behaviour may include but is not limited to:

(a) physical violence;

(b) sexual assault and other sexually abusive behaviour;

(c) economic abuse;

(d) emotional or psychological abuse

(e) stalking;

(f) kidnapping or deprivation of liberty;

(g) damage to property, irrespective of whether the victim owns the property;

(h) causing injury or death to an animal, irrespective of whether the victim owns the animal; and

(i) behaviour by the person using violence that causes a child to be exposed to the effects of behaviour referred to in (a)-(h).[58]

3.63      In submitting to this inquiry, the ALRC stated that the Bill substantially implements the definition of 'family violence' recommended by it and the NSWLRC. However, the ALRC, and other submitters, noted the omission and urged the inclusion of exposure to family violence in the Bill's definition of 'family violence'. Further:

The definition of family violence should also clarify that a child is exposed to the effects of family violence by the behaviour of the person using family violence, and not due to the failure of the victim parent to protect that child from such exposure.[59]

3.64      Many submitters supported proposed new subsection 4AB(1) due to its breadth and the removal of the objective test of 'reasonableness'.[60] In explaining the reasons for its support, the Victims of Crime Assistance League submitted:

[W]hat may be acceptable as reasonable to a person, professional, judge or magistrate as creating fear, on the evidence available, will not, and cannot incorporate all that frightens a victim. Much of it is not tangible, easily described. It is often the cumulative effect of many threats, actual violence, etc and issues, generally over time. A [knowledge] of what someone is actually capable of, from experience, a [knowledge] of what they are really like when not 'on show', a [knowledge] about their reliability and responsibility in practice, understanding the other's capacity for dishonesty, manipulation...all feed into that intangible fear.[61]

Opposition to the new definition of 'family violence'

3.65      However, there were submitters opposed to the amendment on precisely the same grounds – its breadth and the lack of objectivity.[62] For example, the Family Law Practitioners Association of WA argued that proposed new subsection 4AB(1) is over-inclusive:

The proposed definition is simply too wide and captures behaviour that goes well beyond that which most members of the community would define as "violence". The types of behaviour captured by the proposed definition are, in our experience, engaged in to a greater or lesser degree by one or both of the parties in the majority of relationship breakdowns and in almost every matter before the Court.[63]

3.66      Other submitters foreshadowed the potential misuse of the proposed provision. Dads on the Air Australia, for example, considered that proposed new subsection 4AB(1) facilitates the making of vexatious claims,[64] and the One in Three Campaign likewise argued:

Without [the element of reasonableness], anyone can claim to be in fear or apprehension of their (ex-)partner without any reasonable basis for this emotion.[65]

3.67      The Non-Custodial Parents Party (Equal Parenting) identified, as a further complication, the inability of a respondent to refute allegations of family violence:

[The new definition] will include any behaviour a party claims makes them feel threatened 'irrespective of whether that behaviour causes harm', or to feel unsafe. Such fears need not be reasonable but instead are to be totally subjective, based only on the complainant's claimed state of mind. The normal legal standard of the reasonable person test will not apply. Thus, it will be almost impossible for an accused to refute such claims.[66]

3.68      The Dads4Kids Fatherhood Foundation submitted:

These amendments are so broad that they may lead to the resources of the court being misused to assess how the parents behaved towards each other during the relationship, rather than examining the best interests of the child into the future and the child's right to a meaningful relationship with both of their parents. Children will suffer as a result.[67]

General characterisation test

3.69      The Law Council of Australia also expressed concern with the capacity of three examples listed in proposed subsection 4AB(2) to misdirect the Family Court of Australia:

Three of the examples contain what might be described as broadly framed scenarios that expand the concept of 'family violence' beyond that which has traditionally been its focus. The concern is that this expansion may lead the resources of the court being subsumed into an examination of incidents in individual matters which do not constitute a long term pattern of controlling or coercive behaviour.[68]

3.70      Two of the examples mentioned by the Law Council of Australia – proposed paragraphs 4AB(2)(g) and (i) relating to financial autonomy and financial support, respectively – drew comment from some inquiry participants.[69]

3.71      Professor Chisholm, for example, acknowledged that it is difficult to deal with issues of financial dependency – such as proposed paragraph 4AB(2)(i) – but that it is critical to bear in mind the 'filter' effect of proposed new subsection 4AB(1):

The critical thing is to look at those opening words in subsection (1) that define what family violence is. If you have words like 'coercive' and 'oppressive' or whatever those adjectives are, one view is that then it is okay to have the fairly open ended financial thing in the examples because it is only going to be family violence if it falls within those strong words of subsection (1). The main point I would make is that, if you read those examples on their own, you might think that could include all sorts of stuff that is not family violence but you have to read them together with the definition in subsection (1) and so it is very important to get that right.[70]

3.72      On this point, the Department noted the commentary contained in the Explanatory Memorandum:

The Explanatory Memorandum to the Bill explains that 'the inclusion of examples will not exclude any behaviour that is within the general characterisation set out in [proposed new] subsection 4AB(1)'. The Department is of the view that the provision includes a sufficient range of examples of behaviour that were suggested at the Committee hearing would be caught under [proposed new] subsection 4AB(1) where the behaviour fits within the general characterisation 'test'.[71]

Issue of over-inclusiveness

3.73      From a drafting perspective, Professor Chisholm considered that the overall structure of proposed new subsection 4AB(1) is 'pretty good' but, in his view, the opening words are over-inclusive:

Take the example of a family member who tells another family member correctly that the house is on fire causing the second person to become fearful. Obviously that is not family violence, as the house really is on fire. But let us look at the [proposed new definition]:

For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.

If you focus on the 'other behaviour', you have got 'family violence' means other behaviour – that is, behaviour – that causes a family member to be fearful. So any behaviour that causes a family member to be fearful literally really fits in with this definition.[72]

3.74      Professor Chisholm suggested that proposed new subsection 4AB(1) could be redrafted to read:

For the purposes of this Act, family violence means behaviour by a person towards a member of the person's family that is violent, threatening, coercive or controlling, or is intended to cause the family member to be fearful.[73]

3.75      At the public hearing, Professor Chisholm also referred to the 'interesting' solution proposed by Professor Parkinson:

Item 8:

(a) Rewrite the opening words of the definition of family violence in [subsection] 4AB(1) as follows:

"family violence means aggressive, threatening or other such behaviour by a person that is intended to coerce or control a member of the person's family (the family member), or that causes the family member to be fearful".[74]

3.76      Professor Parkinson's suggested approach incorporates an element of intent to address the perceived ambiguity of the proposed phrase, 'coerces or controls'.[75] However, Women's Legal Services Australia argued against incorporating intent, or any objective element, into the proposed new definition of 'family violence': instead, there needs to be more of a connection between the element of fear and the coercive or controlling behaviour. As one representative explained:

What Women's Legal Services Australia is really trying to do by emphasising that connection between coercion and control, and fear,...is to attempt to define and obtain a nuanced understanding of what is family violence. As legal professionals working within the court system, we often see cases where the court grapples to clearly define or understand what is family violence.

...

[W]e will not be opening up the floodgates [to vexatious or malicious claims], because, if we do have a very nuanced understanding and definition of family violence, there are certain guidelines and evidence that each party would be required to present to the court through their practitioner or in their capacity as self-represented litigants in order for the court to determine that there is a risk of family violence.[76]

An increase in vexatious and malicious claims?

3.77      Professor Chisholm told the committee that it would be hard, if not impossible, to predict whether the proposed new definition of 'family violence' will precipitate the making of vexatious and malicious claims:

The effect of this bill could easily be that there would be more allegations of family violence and that there would be more detailed ones, but that might be revealing real violence which has previously not been attended to. Whether the Act would produce a new set of false claims, I could not assert that it will not happen; other people cannot assert that it will happen. It is actually very difficult to predict.[77]

3.78      When questioned by the committee, other witnesses concurred with Professor Chisholm's comments,[78] and Women's Legal Services Australia referred to 'the clear and succinct synopsis of the research in this area' prepared and 'appropriately referenced' by Dr Michael Flood, a sociologist at the University of Wollongong:

He concludes that child abuse allegations in the context of family law proceedings have been researched in four Australian studies and have found that:

- The allegations rarely are made for tactical advantage;

- False allegations are rare;

- The child abuse often takes place in families where there is domestic violence;

- Any such allegation rarely results in the denial of parental contact.

In relation to [the] myth about false accusations of domestic violence and misuse of protection orders he again analyses the research succinctly and concludes:

- The risk of domestic violence increases at the time of separation;

- Most allegations of domestic violence in the context of family law proceedings are made in good faith and with support and evidence of their claims;

- Women living with domestic violence often do not take out protection orders and do so only as a last resort;

- Protection orders provide an effective means of reducing women's vulnerability to violence.[79]

Departmental response

3.79      In evidence, the Department informed the committee that the proposed new definition of 'family violence' was a policy decision based on evidence and closely aligned with the ALRC and NSWLRC recommendation in their 2010 report. The Department did not consider the proposed new definition of 'family violence' to be over-inclusive,[80] or that it would lead to an increase in vexatious or false allegations of family violence.[81]

3.80      Further, the Department referred to amendments proposed by Mr Michael Keenan MP in the House of Representatives,[82] noting the Attorney-General's response as follows:

The Government rejects any proposal that would require family violence to be hinged on how a reasonable person might react in a particular situation or what the violent perpetrator might have intended. To require reasonableness or intent as a precondition to family violence is to take a narrow approach to what is an insidious problem and would be particularly concerning in the context of a controlling relationship.[83]

Provision of information to the Family Court of Australia by third parties

3.81      Proposed new subsections 60CH(2) and 60CI(2) allow third parties to parenting proceedings to inform the court of care arrangements under child welfare laws; and to inform the court of notifications to, and investigations by, prescribed state and territory child welfare authorities.

3.82      Submitters and witnesses commenting on these two provisions supported their objectives – to indicate risks of harm to a child, to alert the court to evidence relevant to a child's welfare and best interests, and to assist the court in determining whether jurisdictional issues arise under section 69ZK of the Act.[84]

3.83      However, some inquiry participants considered that the amendments will not achieve their objectives. In their view, the proposed provisions will not adequately ensure that the Family Court of Australia has better access to evidence of abuse and family violence.

3.84      The Australian Family Association, Victoria Branch, for example, appeared to suggest that proposed new subsections 60CH(2) and 60CI(2) should specifically cover child protection and child welfare authorities:

It should be the relevant child protection and child welfare authorities who present such information to the court, not just a 'person' who is 'aware'. Immediately any allegation of abuse or family violence in relation to a child is made all child protection and child welfare agencies should be informed and asked to inform the court of any dealings with the child or any member of the child's family.[85]

3.85      Women Everywhere Advocating Violence Elimination went one step further calling for 'an obligation on State Child Protective Services to provide any files and reports to the Family Court'.[86] This view was shared by the Council of Single Mothers and their Children:

[I]f such care orders, notifications or investigations are made known to the Family Court, child welfare authorities must then be required to make available to the Family Court copies of files and orders pertaining to the child. Similarly children's representatives and child welfare authorities need to be required to give information to the Family Court.[87]

3.86      National Legal Aid cautioned that there must be processes in place to obtain copies of relevant orders, citing the current arrangements in Western Australia as a practical example:

In Western Australia the Family Court of WA (FCWA) has memoranda of understanding (MOU) in place with the Department of Child Protection (DCP) and Legal Aid WA (LAWA) for information sharing in relation to child welfare issues and with the Department of the Attorney-General, the Magistrates Courts, the Department of Corrective Services and LAWA for information sharing in relation to family violence issues. The experience of LAWA is that these memoranda of understanding work well, particularly with respect to the FCWA['s] access to information from DCP and the Magistrates' Court's database. In addition, DCP now has an officer permanently located at the FCWA to facilitate the information sharing process.[88]

3.87      The ALRC pointed out that, if information sharing arrangements were implemented, legislative amendments would be required at the state and territory level to allow the flow of information to the Family Court of Australia:

Family violence legislation in all states and territories prohibits the publication of certain information about persons involved in, or associated with, family violence order proceedings. In addition, child welfare legislation in all states and territories contains provisions for protecting the confidentiality of information collected by child welfare authorities or for precluding such information from being admissible in another proceeding. These provisions in state and territory legislation may constitute inappropriate legislative barriers to federal family courts in accessing information about family violence orders and related proceedings, and information held by child welfare authorities.[89]

3.88      To address such problems, the ALRC and NSWLRC have previously recommended:

Recommendation 30-3 Non-publication provisions in state and territory family violence legislation should expressly allow disclosure of information in relation to protection orders and related proceedings that contains identifying information in appropriate circumstances, including disclosure of family violence protection orders to the federal family courts under [section] 60CF of the Family Law Act 1975 (Cth).

Recommendation 30-4 State and territory child protection legislation should not prevent child protection agencies from disclosing to federal family courts relevant information about children involved in federal family court proceedings in appropriate circumstances.

Recommendation 30-5 Federal family courts and state and territory child protection agencies should develop protocols for:

(a) dealing with requests for documents and information under s 69ZW of the Family Law Act 1975 (Cth); and

(b) responding to subpoenas issued by federal family courts.[90]

Departmental response

3.89      A representative of the Department advised that the Commonwealth and the states and territories are currently working toward improved interaction between the federal family law system, and the state and territory child protection systems. One particular measure being examined is information sharing between the Family Court of Australia and child protection authorities:

An upcoming initiative in relation to that is that there is going to be a national meeting on 22 July between officers from each of the state and territory child protection authorities and the relevant local registrars of the Family Court. We will be hosting that here in Canberra. We certainly are aware of some of the issues that have been raised in relation to child protection and there is some work going on to try to address some of those issues.[91]

3.90      Specifically in relation to reporting obligations, the Department advised that it is not aware that the Australian Government has any plans to extend reporting obligations to any other class of person, for example, child welfare authorities or police.[92]

Obligation of advisers to prioritise the safety of children

3.91      Proposed new section 60D outlines an adviser's obligations when giving advice or assistance to a person about matters concerning a child and Part VII of the Act.

3.92      Although the proposed amendment is a composite of current section 60B, current subsection 60CC(2) and proposed new subsection 60CC(2A), it attracted less comment than did those provisions, with submitters again remarking on the legislative complexity.

3.93      Associate Professor Rhoades and Professor Dewar, for example, submitted:

We are concerned that the proposed 3-step approach to this advice is overly complicated and likely to confuse clients...[C]omplexity has made it more difficult for advisers, especially legal practitioners, to achieve developmentally appropriate arrangements for children's care. In our view, a less complicated formulation of the proposed obligation, which requires advisers to inform clients that the child's safety should be their highest priority when settling parenting arrangements, is preferable.[93]

3.94      Ms Zoe Rathus AM similarly remarked:

Although I understand the idea behind ensuring that advisers talk to parents about the best interests of children – I am not sure that this obvious requirement of professionals in the family law system needs to be legislated. One of the very clear messages of all of the reviews and evaluations is that the legislation is too complex and misunderstood by the community. Prescribing longer and longer 'scripts' that professionals are required to rehearse to parents will not make the law more comprehensible to them. These required statements stultify the nature of professional advice and detract from the nuanced tenor required when providing advice in the real dynamics of a family law interview.[94]

Judicial duty to take prompt action in relation to allegations

3.95      Proposed new section 67ZBB requires the court to take prompt action in relation to allegations of abuse or family violence. As noted in Chapter 2, the proposed provision replaces current section 60K of the Act.

3.96      Associate Professor Rhoades and Professor Dewar, the Council of Single Mothers and their Children, and Professor Chisholm supported the amendment.[95] However, the Chief Justice of the Family Court of Australia, the Hon. Diana Bryant (Chief Justice) drew the committee's attention to an apparent 'overlap' between current section 60K and the proposed new provision.

3.97      Item 46 of Schedule 1 of the Bill states:

Section 60K of old Act to continue to apply to certain documents

Despite the repeal of section 60K of the old Act by item 23 of this  Schedule, that section continues to apply in relation to a document that was, before commencement, filed in a court in accordance with subsection 60K(1) of the old Act.

3.98      The Chief Justice submitted that the effect of this item is to ensure that the obligation placed on the Family Court of Australia by section 60K to act promptly will continue to apply to any document filed in the court prior to the commencement of Schedule 1 of the Bill. However, the Chief Justice pointed out that the Bill does not clearly indicate whether a party having made that application would be also be required to file a prescribed notice under [proposed new] section 67ZBA in respect of the same allegation.[96]

3.99      The Chief Justice suggested that, to avoid confusion and provide delineation, the transitional provisions should be amended to state that (new) section 67ZBA does not apply to ongoing section 60K proceedings and applies only to those proceedings initiated on or after the commencement date.[97]

3.100         In response, the Department advised that 'the regulation-making power [item 48 of Schedule 1] could be enlivened to remove any duplication of reporting'.[98]

Judicial duty to inquire into abuse, neglect and family violence

3.101         Proposed new paragraph 69ZQ(1)(aa) imposes an obligation on the Family Court of Australia to ask each party to proceedings about the existence or risk of abuse, neglect and family violence.

Purpose of the new judicial duty

3.102         According to evidence provided by the Department:

New paragraph 69ZQ(1(aa) responds to a number of concerns raised in recent reports, in particular that victims of violence are unlikely to disclose violence unless they are directly asked about their experiences. Evidence from the [Australian Institute of Family Studies] Report (pp 328-9 and 334) and the Chisholm Report (p. 57) indicates that it is relatively rare that judicial officers use the powers provided to them by Division 12A to actively inquire into issues of family violence and child abuse...[The proposed provision] has been included in the Bill to encourage information about issues of child abuse and family violence to be presented to the court so the court can make appropriate and safe parenting arrangements.[99]

3.103         In general, submitters expressed reservations about the proposed judicial duty to inquire. The Chief Justice, for example, queried the objectives of the amendment. In Her Honour's view, the question to be posed by the court contemplates either an affirmative or negative answer but does not clearly state what action the court is to take if an affirmative answer is received:

All that section 69ZQ(1)(aa) appears to me to do is impose an obligation on the Court that is without consequence. I do not consider that the general duties in section 69ZQ, which are designed to give effect to the principles for the conduct of child related proceedings, are strengthened by the inclusion of sub-section (1)(aa) and in my view it could be removed from the Bill with no ill effects.[100]

3.104         In evidence, the Deputy Chief Justice acknowledged that it is implicit in proposed new paragraph 69ZQ(1)(aa) that the court would pursue an inquiry, if required to do so by an affirmative answer. However:

The Chief Justice's concern is that the legislation does not require it or tell the court what it should do in those circumstances...I could not imagine a judicial officer hearing a positive response leaving it at that. It simply would not happen. There would then be further questions and where they may lead we do not know, of course. Also one of the issues is at what time these questions are asked. Logically they should be asked at the very earliest stage of the matter but the legislation does not say that either.[101]

3.105         A further issue raised in respect of proposed new paragraph 69ZQ(1)(aa) is whether the proposed provision is too broad and should be narrowed to encompass only future acts of abuse and family violence. Professor Chisholm, for example, submitted:

This new provision would require the court to ask the parties about child abuse and family violence. I think there is merit in the idea of requiring the court to ask about these matters...But in its present form the provision requires the court to ask about every act of past abuse or family violence. This provision may prompt parties to bring up all sorts of old complaints that they might otherwise have decided not to raise, perhaps for good reasons. Raising such matters could increase the hostility and acrimony and length of the proceedings, and reduce the chances of settlement.[102]

Departmental response

3.106         A departmental representative responded to the concerns of the Family Court of Australia by explaining that proposed new paragraph 69ZQ(1)(aa) works in tandem with proposed new section 67ZBA, which requires a party making an allegation of family violence to file a prescribed form (currently Form 4):

[I]f the court asks the question about family violence and they get an answer to that question that indicates that, yes, there has been family violence and that that is relevant to the orders that are being made by the court...they would then go back to this section [67ZBA]...It would basically force people to file the Form 4s.[103]   

3.107         The Department elaborated on the need for this mechanism:

The reports that the government commissioned indicated that there was a very low incidence of people alleging family violence using the Form 4s, which is the current mechanism for making those allegations. In fact people make the allegations in affidavits. They file documents that indicate that there has been family violence but they do not actually use the Form 4 process which is the process that the court uses to highlight that a case involves family violence and to deal with [it] expeditiously.[104]

3.108         As to when the court should make the inquiry, the Department advised 'it will be a matter for the courts to develop practices around when and how this duty would be discharged'.[105]

3.109         Associate Professor Rhoades and Professor Dewar supported proposed new paragraph 69ZQ(1)(aa). However, their joint submission stated that the amendment will be effective only if judicial officers are familiar with the dynamics of family violence and skilled at using this knowledge to inform their practice:

[W]ithout specific training of judicial officers, non-disclosure may continue to occur, and...a mutualising approach to the parties' responses to the proposed questioning may play out. This potential is likely to be exacerbated in proceedings in the Federal Magistrates Court, where busy duty lists place considerable time pressures on the ability of Federal Magistrates to engage directly with the parties. We believe it will be critical to the success of this initiative for it to be supported by a dedicated training and professional development program for judicial officers.[106]

Training and education in the field of family violence

3.110         The sufficiency of specialist training and education for professional persons involved with the family law system, including judicial officers, family law consultants, family dispute resolution practitioners and legal practitioners, was a consistent theme in many submissions.[107]

3.111         A representative from Women's Legal Services Australia spoke about the creation of a uniform understanding of family violence and its dynamics as a beneficial training outcome:

At the current moment, as a legal practitioner who engages quite readily with the family law system, I feel there is a difference of understanding, if I may say so, between judicial officers. They sometimes apply different understandings of family violence, so the way they determine cases may differ depending on how they interpret family violence and what they consider to be the elements of family violence. Even different legal practitioners have different understandings of family violence. If a comprehensive training package were provided to all participants, there would be at least some uniformity in how family law violence is interpreted and applied in the family law system.[108]

3.112         Justice for Children considered that one way to improve standards would be to require those working within the family law system to possess specific qualifications in child development, and the impacts of trauma and abuse. In addition:

[W]e could ensure that [judges] adhered to particular principles around their decision making with regard to children's safety such that, for example, they would not place children with parents who would not themselves pass a 'working with children' check.[109]

3.113         Justice for Children favoured a mandatory set of principles focussed on the safety and well-being of a child once abuse or family violence has been established on a balance of probabilities. Representatives at the hearing referred to, but specifically rejected, the Family Violence Best Practice Principles currently used by judges of the Family Court of Australia:

Whilst those guidelines exist, nevertheless, we can identify judgment after judgment where child sex abuse has been established beyond reasonable doubt and children are placed in the care of the people or households that have perpetrated that. Those guidelines clearly do not prohibit those outcomes (a) as a conclusion and (b) those guidelines are not being adhered to. They are certainly not sufficient.[110]

3.114         Representatives of the Family Court of Australia questioned what common training for persons involved in the family law system would entail, as appeared to have been suggested by Women's Legal Services Australia. The Deputy Chief Justice remarked:

I am not quite sure how you would do it, who would do it, what would be the curriculum, how it would be carried out and what particular emphases would occur during the course of training. I am not opposed to it.[111]

3.115         More specifically, the Deputy Chief Justice responded to concerns that judges in the Family Court of Australia have insufficient training in the field of domestic violence:

[T]he court has a program of judicial education. It has an active and continuing committee that provides that. There have been a number of events in which judges have received training in and around the subject of domestic violence and the things that go with it.[112]

3.116         His Honour also commented on the extent to which domestic violence training can be applied in a courtroom:

I do not understand that by having some form of training I could recognise instantly when someone walks into my courtroom that they either have been the victim of violence or are a violent person. I do not think that is appropriate. Courts must operate on the evidence before them, and that evidence must be on the basis of witnesses put to the court and not some form of intuitive determination by a judge.

...

Any training that provides an understanding for judges and others involved in the system about how to interpret the responses and reactions from people who are engaged in proceedings before the court is obviously useful. What I do not think it represents is a substitute for a proper consideration of the relevant evidence in the relevant matter at that particular time.[113]

Repeal of the mandatory costs orders provision

3.117         The Bill repeals current section 117AB which requires the court to make a costs order against a party if satisfied that the party knowingly made a false allegation or statement in the proceedings.

Support for repeal of the provision

3.118         Many submitters supported section 117AB's removal either for the reason identified by the Australian Institute of Family Studies (that is, it discourages the disclosure of abuse and family violence) or due to the perceived adequacy of the Family Court of Australia's general costs discretion in subsection 117(2) of the Act.[114]

3.119         A few submissions also referred to the common misinterpretation of section 117AB and the need to eliminate that confusion.

3.120         The Family Law Practitioners' Association of Queensland (FLPA), for example, submitted:

[Section] 117AB has only ever applied in circumstances where a person knowingly makes a false allegation or statement. It has never applied where one person makes an allegation and the Court is unable to find that the act complained of actually occurred. [Section] 117AB has only applied where a person makes a malicious allegation that is found to be untrue.

FLPA understands that [section] 117AB has been misunderstood in that if allegations are made against a person which are not proven in Court an order for costs will be made against the person making the allegation. This is contrary to case law in relation to the section. If this is the view of litigants and/or practitioners, and [section] 117AB is seen as a major impediment to raising violence in family law proceedings then it should be repealed.[115]

Opposition to repeal of the provision

3.121         On the other hand, some submitters supported current section 117AB and were strongly opposed to its repeal.[116] The reasons for this support varied from the need to retain the provision as a deterrent, to belief in the ability of the court to distinguish between unsubstantiated allegations and false allegations.

3.122         Men's Health Australia, for example, submitted that a common legal strategy in family law proceedings is spurious allegations of family violence or abuse:

The proposed changes mean that there will be no penalties available for the court to discourage fabricated allegations of violence or abuse. It is absurd that this will be the only Australian Court unable to penalise those who deliberately lie in proceedings. The proposed changes encourage the use of hearsay and uncorroborated allegations by both parents and officers of government departments.[117]

3.123         Dads in Distress Support Services emphasised the importance of current section 117AB as a deterrent. Its submission argued that the repeal of this section will lead to an explosion of false allegations and an escalation of mental anguish for those falsely accused of family violence:

The negative psychological impact of false allegations cannot be over-estimated. A large percentage of people coming to us for support have been subjected to false allegations and suffer considerable anguish as a result. It is highly offensive to those who are victims of false allegations to suggest that there be no sanctions against those proven to have made false claims. The current sanctions would not appear to be strong enough in our view, but to repeal them would only add to the psychological pressures on many non-custodial parents.[118]

3.124         The Joint Parenting Association was not persuaded by the rationale offered in support of the repeal of current section 117AB. The Joint Parenting Association submitted that the Family Court of Australia correctly interprets the section and, if parties to proceedings believe otherwise, they are mistaken:

Not being able to substantiate an allegation is not the equivalent of a knowingly made false accusation. Further, an allegation based on a mistaken view of another party's words or behaviour does not amount to a false assertion and the court is able to discern the difference between good faith and malicious assertions designed to gain advantage in proceedings. Lawyers know this to be the case and if some are advising clients otherwise as critics assert they are in breach of their ethical cannons.[119]

Prevalence of mandatory costs orders

3.125         The Deputy Chief Justice advised the committee that adverse costs orders have been made under section 117AB in only a very small number of cases. However, His Honour spoke at length regarding the difficulty of quantifying the number of cases in which the court has found a party to have knowingly made false allegations:

People who come to the Family Court, in my experience, at least – and it may not be shared by others – generally try to tell the truth. They tell it as well as they can reasonably remember it, bearing in mind that the Family Court deals not with a specific instance on one particular day but with the period of the relationship, which may span many years.

3.126         His Honour continued:

It is not uncommon for people to report things with a particular focus. If it is in a highly emotional moment, then it is not uncommon for that to be quite different, depending on which side of the divide you on. Accordingly, there are not very many cases in my experience in the Family Court in which people are found to have deliberately perjured themselves in saying that either they did do something or did not do something or that someone had done something or someone had not done something. Hence, from our point of view it would be extraordinarily difficult to keep statistics about what were thought to be false allegations.[120]

3.127         His Honour also alluded to the difficulty in obtaining an accurate sampling for all family law matters:

Let me suggest this to you: approximately 50 per cent of all the matters that are listed for hearing in the Family Court actually get a judgment. That means that about one half of all the cases that come on for hearing are settled. Of the cases that are filed in the Family Court, something less than 12 per cent actually get a hearing date. So something like six per cent of all the cases before the Family Court are actually the subject of a judicial determination. In that context, to talk about whether or not someone has made a false allegation or not is very difficult because there are clearly no determinations about something like 94 per cent of the cases that are there. Those figures are rough; they vary from month to month and year to year, but they are approximately right.

3.128         The Deputy Chief Justice then described what occurs when a presiding judge believes that a party has, or may have committed perjury:

We of course have no power to deal with perjury, although, commonly, people in the community suggest that we should be putting people in jail for perjury. It is a criminal offence. If that situation occurs, the matters are referred to the Attorney-General for prosecution under the Crimes Act. I cannot recall the last time any reference to the Attorney-General was the subject of prosecution, successful or otherwise. It is a commonly argued matter about the court that we do not deal with people who commit perjury. The short answer is that we cannot. It is not within our jurisdiction to do so. Ultimately, it is a matter for the Attorney-General to prosecute – not personally, but for the officers of the Commonwealth – as a criminal offence.[121]

Retrospective effect of the application provision in item 45 of Schedule 1

3.129         Item 45 of Schedule 1 reads:

Amendments that apply to proceedings instituted on or after commencement

Subject to item 47, the amendments made by items 1 to 8, 11, 13, 17 to 21, 30 to 34, 37, 38 and 40 to 43 of this Schedule apply in relation to proceedings whether instituted before, on or after commencement.[122]

3.130         The Chief Justice noted that the substantive provisions of Schedule 1 of the Bill will apply to proceedings instituted before or on commencement of the Bill, including part-heard proceedings and those where judgement is pending. The Chief Justice submitted that the Bill will impose additional costs and delays for litigants in such proceedings:

I say this because it seems to me that the requirements of procedural fairness dictate that [persons involved in the proceedings] would need to be given the opportunity to consider and make submissions as to the effect of the amendments on the proceedings and the implications for determining what arrangements are in the best interests of the child.[123]

3.131         The Chief Justice further cautioned:

Cases involving actual violence or abuse or the risk of harm to children are precisely those cases that need to be brought on quickly, heard in a timely manner and finalised so that appropriate protective arrangements can be put in place.[124]

3.132         In June 2011, the Attorney-General responded to concerns similar to those of the Chief Justice raised by the Senate Standing Committee for the Scrutiny of Bills:

To ensure the best result for children, the [Bill] was cast to apply to as many family law cases as possible. I note that the Family Law Amendment (Shared Parental Responsibility) Act 2006, which introduced the 2006 family law reforms, contains a range of application provisions. Some apply to 'orders' made on or after the commencement date and similarly reach back to proceedings instituted before the commencement of that Act. The regulation making power in item 48 was drafted to ensure that certain proceedings, such as part-heard, reserved judgment and appeal matters, could be carved out from application.[125]

3.133         His Honour, Justice Steven Strickland, conceded that regulations might be one way of eliminating the retrospective application of item 45 of Schedule 1. However, Justice Strickland noted that no such regulations were made in respect of the 2006 family law reforms and further:

We do not know the detail of [the current proposal]. We have not seen any draft regulations. We initially had a concern about that. By that I mean: the Chief Justice wondered how regulations could override legislation. But, again, the Chief Justice understands that the Attorney-General has advice about this and that it can be done and it has been done before. If that is right – and, as I said, the Chief Justice has not seen any draft regulations yet – that certainly would be a way of dealing with this issue.[126]

3.134         However, it was the Chief Justice's suggestion that the Bill be amended to commence on Royal Assent or by proclamation and to apply only to those applications filed after the commencement date.[127]

Departmental response

3.135         According to departmental officers:

The way that the bill is currently drafted involves the bill commencing upon proclamation rather than upon assent. If the proclamation is not made within six months, then it would commence at the end of a six-month period. The thinking behind that was that there would be that time period to allow the court to get through as many matters as possible before the commencement of the legislation in order to have a fairly clear approach to the commencement of the provisions. Because we were not sure how the court might be going with that, we thought there would be an ability for the government to make an assessment about whether part-heard or fully-heard proceedings should be carved out [under item 48 of Schedule 1], or if there were not terribly many of them then it would not be an issue.[128]

3.136         The Department also confirmed that it had received advice from the Office of Parliamentary Counsel that regulation-making powers for matters of a transitional, savings and application nature are relatively common in Commonwealth legislation:

These powers are conferred in complex legislation and often in circumstances in which the Government is still to finalise transitional, savings or application arrangements or where there is a strong possibility that unexpected issues may arise after enactment of the legislation.[129]

3.137         In answer to a question on notice, the Department stated that its approach to commencement of the Bill and the approach proposed by the Family Court of Australia were not substantially different. However:

The approach taken by the Government does allow the new family violence measures to be applied to more matters and potentially protect more children and their families. The approach taken in the Bill also allows the Government to deal expeditiously with matters that may arise during the implementation of the new law.[130]

Resourcing implications for the Family Court of Australia

3.138         The Explanatory Memorandum states that the amendments proposed by the Bill will have negligible financial implications.[131] However, inquiry participants who addressed this issue expressed a contrary view.

3.139         The Chief Justice submitted that the confluence of amendments will have resource implications for the Family Court of Australia and expressed concern about the court's ability to fulfil its obligations under proposed new section 67ZBB (the requirement to take prompt action). The Chief Justice stated:

In the current financial climate, the Court is not in a position to accommodate an expansion of its workload unless more funding is forthcoming to assist the Court in managing that increase.[132]

3.140         The Law Council of Australia endorsed the comments of the Chief Justice:

The courts already struggle to meet the requirements of [section] 60K and this situation will only get worse with the introduction of [section] 67ZBB. It is the view of the Family Law Section that the courts will not be able to meet the requirements of [section] 67ZBB unless the Government commits significant further resources.[133]

3.141         More generically, some submitters stated:

The issue of family violence cannot be adequately addressed without looking at the issue of lack of resources – for court processes, support services and legal assistance – as all of these things are a major contributor to the failure of the court system to adequately protect victims of violence.[134]

3.142         When the issue of additional funding was raised with the Department, it responded:

The family courts will need to adapt their practices to deal with the reform as no additional funding is to be allocated in respect of the Bill.[135]

Equal shared parental responsibility

3.143         The Bill will affect two key features of the 2006 family law reforms: the presumption of equal shared parental responsibility (ESPR), as set out in current section 61DA; and the requirement to attend pre-filing family dispute resolution in parenting cases, as set out in current section 60I. Whereas only a few submitters commented on the latter issue,[136] the majority of inquiry participants commented on the ESPR provisions in the Act.

3.144         Current subsections 61DA(1) and (2) of the Act state:

(1) 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.

Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).

(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or

(b) family violence.

3.145         Some submitters and witnesses argued that the proposed new definitions of 'abuse' and 'family violence' constitute an attempt to 'roll back' the ESPR provisions of the Act.[137]

3.146         Dads4Kids Fatherhood Foundation, for example, submitted:

[T]he 2006 reforms were initiated due to too many children being denied the opportunity to develop a meaningful relationship with both of their parents. We are very disheartened to see the shared parenting legislation be reversed under the guise of reducing family violence.[138]

3.147         The Joint Parenting Association similarly submitted:

[We are strongly opposed to] the Federal Government's removal of the many common-sense provisions of the Family Law Act that were enacted in 2006 to bring a much needed balance between protecting families from violence and protecting children's human right to the love of their parents in equal measure following divorce.[139]

3.148         Men's Health Australia voiced its concerns as follows:

We are strongly opposed to the Federal Government's proposal to remove many of the sensible provisions of the Family Law Act that were instituted in 2006 to bring a much needed balance between protecting families from violence and protecting parents from false allegations of violence.

...

We have no doubt that the proposed changes will lead to increased rates of suicide, depression and self-medication in many separated fathers (and some mothers), and the potential damage to the lives of children denied access to one of their parents is unthinkable.

...

The Family Court must be allowed to act in the best interests of children, which means where possible encouraging substantial contact with both parents. The proposed changes do not do this, and in fact seem designed to abet malicious litigants.[140]

3.149         However, there were also diametrically opposed submitters and witnesses who argued that the Bill does not, but should, eliminate the ESPR provisions altogether. The reasons for this view included: each case must be determined on its own merits (rather than according to a statutory formula);[141] and the ESPR provisions continue to place children and families at risk of abuse and violence.[142]

3.150         The Explanatory Memorandum states:

The Family Violence Bill retains the substance of the shared parenting laws introduced in the Family Law Amendment (Shared Responsibility) Act 2006 (Cth) and continues to promote a child's right to a meaningful relationship with both parents where this is safe for the child.[143]

3.151         The Attorney-General has publicly reiterated that position as follows:

Despite the claims of some interest groups, the reforms do not repeal the shared care laws introduced in 2006.

The Family Violence Bill retains the substance of the shared parenting laws and continues to promote a child's right to a meaningful relationship with both parents–but the best interests of the child must always come first, particularly in situations of conflict.

The Australian Institute of Family Studies has found that shared care generally works well where the parents have little conflict, can cooperate and live close together.

A child's right to a meaningful relationship with both parents – where this is safe – should always be supported.[144]

Need for a public education campaign about the Bill's proposed measures

3.152         Associate Professor Rhoades and Professor Dewar stated that a key theme of the Australian Institute of Family Studies report was that many people who sought assistance from family law services possessed an inaccurate understanding of the law:

Surveys of service sector personnel revealed that on first seeking assistance, clients of both legal and family dispute resolution services 'failed to understand the distinction between the concepts of equal shared parental responsibility and time', and that many parents, particularly fathers, 'had an expectation of equal care-time arrangements' (Kaspiew et al, 2009: 207, 210). The research found that these misunderstandings of the law had led to unrealistic instructions from clients, impeding the ability of service sector professionals, especially lawyers, to achieve developmentally appropriate care arrangements for children (Kaspiew et al, 2009: 215)...[O]ur view is that the Government's proposed approach to prioritising safety from harm (by enacting a new section 60CC(2A) and new advisers' obligations regarding the best interests of the child in section 60D) may further complicate the legislation, creating added confusion for clients. We believe a public education campaign to accompany the introduction of the [Bill] is warranted to educate the wider community about the new provisions and to correct the present misunderstandings of the [Act].[145]

3.153         Psychologists and social workers within the family law system, community legal centres and other submitters agreed with this recommendation.[146]

Committee view

3.154         The committee commends the Australian Government for responding to reviews of the operation of the Family Law Amendment (Shared Parental Responsibility) Act 2006 and introducing the Bill to address ongoing concerns about the protection of children and families at risk of abuse and violence.

3.155         The committee notes that its inquiry into the provisions of the Bill generated considerable interest from both individuals and organisations. Irrespective of participants' views on specific issues, a common theme to emerge in much of the evidence was that the Family Law Act 1975 (Act) is too complex. In particular, submitters and witnesses described difficulties in interpreting and applying certain provisions in Part VII of the Act.

3.156         The Family Court of Australia requires clear legislative guidance from the Parliament. Australian families, and family law and child welfare professionals, equally require legislation which they can understand and readily apply. In the context of protecting a child from harm, this cannot be overemphasised.

3.157         For these reasons, the committee suggests that, at the first opportunity, the Australian Government renumber provisions in the Act to ease comprehension and make the legislation more 'user friendly'. The committee also believes that there is considerable merit in Associate Professor Rhoades and Professor Dewar's suggestion for an education campaign to accompany the introduction of the Bill. The campaign should specifically cover the critical amendments made by the Bill and the Bill's commencement date, and should clarify the distinction between the concepts of equal shared parental responsibility and time.

3.158         In respect of the substantive provisions proposed in the Bill, the committee comments as follows.

Prioritising the best interests of children in parenting matters

3.159         The committee strongly endorses prioritising the protection of children from all forms of harm. Accordingly, committee members have reservations concerning the need to determine an inconsistency between the two primary considerations prior to the Family Court of Australia being required to give greater weight to the need to protect a child from physical or psychological harm. There should be no such pre-requisite. The committee considers that the objective of proposed new subsection 60CC(2A) could be better met by redrafting the proposed provision as suggested by numerous submitters:

In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

3.160         The committee accepts the general principles that it is important for a child to have a relationship with his or her parents, and for each parent to facilitate a relationship with the other parent. However, the committee does not believe a relationship should be facilitated where there is a real risk of harm to a child. Nor should a parent feel compelled to conceal, or fail to disclose, that risk due to a fear of having a child removed from his or her care. The committee therefore supports proposed new paragraph 60CC(3)(c) but recommends that it be modified to require the Family Court of Australia to take into consideration the reasons why a relationship might not have been facilitated, including a risk of harm to a child.

3.161         The committee notes that existing section 60CF of the Act requires parties to inform the Family Court of Australia of any relevant family violence orders. If the Family Court of Australia becomes aware of such an order, the committee agrees that it is not the order itself but its evidentiary basis which is of interest to the Family Court of Australia. Accordingly, the committee, like the Australian Law Reform Commission and the Family Court of Australia, considers that the Bill should implement the provision proposed by Professor Chisholm as paragraph 60CC(3)(k):

(k) any relevant inferences that can be drawn from any family violence order that applies, or has applied, to the child or a member of the child's family, taking into account the nature of the order, the circumstances in which it was made, any evidence admitted and any findings made by the court that made the order, and any other relevant matter.[147]

3.162         One final point in relation to the additional considerations: the committee considers that it would be helpful for the Department to reissue the Explanatory Memorandum highlighting that the proposed amendments to subsection 60CC(3) are not intended to restrict the matters to which the court may have regard under current paragraph 60CC(3)(m).

Recommendation 1

3.163         The committee recommends that proposed new subsection 60CC(2A) in item 17 of Schedule 1 of the Bill be amended to read 'In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b)'.

Recommendation 2

3.164         The committee recommends that proposed new paragraph 60CC(3)(c) in item 18 of Schedule 1 of the Bill be amended to require the Family Court of Australia to give consideration to the reason(s) why one parent might not have facilitated a relationship with the other parent in accordance with that provision, including due to risk of harm to a child.

Recommendation 3

3.165         The committee recommends that proposed new paragraph 60CC(3)(k) in item 19 of Schedule 1 of the Bill be amended to read:

(k) any relevant inferences that can be drawn from any family violence order that applies, or has applied, to the child or a member of the child's family, taking into account the nature of the order, the circumstances in which it was made, any evidence admitted and any findings made by the court that made the order, and any other relevant matter.

New definitions of 'abuse' and 'family violence'

3.166         In the proposed new definition of 'abuse', the requirement for a child to suffer serious psychological harm or serious neglect concerned the committee. The committee agrees with the Family Law Council, and other inquiry participants, that by its very nature any form of child abuse is serious. The committee would much prefer that child abuse is caught in its earliest stages, rather than subject a child to more prolonged abuse in order to meet a statutory threshold. This is not the message that this committee, or the Australian Government, wishes to send to the Australian community.

3.167         The Attorney-General's Department explained the use of the qualifier 'serious' in paragraph (c) of the proposed new definition of 'abuse' as an attempt to avoid over-reporting. The committee is not persuaded by this argument. Child welfare authorities are properly responsible for investigating all allegations of child abuse and should be given the opportunity to do so. If there is a concern that a broader definition of 'abuse' will impede investigations, the committee would strongly urge all child welfare authorities to review and, if necessary, implement appropriate processes for granting priority to the most urgent cases and dealing with all other cases within a reasonable time frame. In this context, the committee notes that the Family Court of Australia is required to act promptly and, in any event, within eight weeks.

3.168         The committee commends the Australian Government for giving greater recognition to the breadth of behaviours which constitute family violence. As noted by the Attorney-General's Department, the proposed new definition of 'family violence' provides a more descriptive and subjective, but not exclusive, test, which requires decision makers to consider the personal experiences of family members.[148]

3.169         Some inquiry participants told the committee that the proposed new definition of 'family violence', and the repeal of the mandatory costs order provision in existing section 117AB, would result in an 'explosion' of malicious and vexatious claims. The committee does not agree with these assertions. According to the Family Court of Australia, existing section 117AB is seldom used. Further, the committee accepts the research findings of Dr Michael Flood and, in particular, the finding that false allegations are rarely made. This finding was supported by inquiry participants, and in this regard, the committee notes that allegations made by a party will be required to meet the thresholds set out in proposed new subsection 4AB(1), as well as the usual evidentiary standards.

Recommendation 4

3.170         The committee recommends that:

• proposed paragraph (c) in the new definition of 'abuse' in subsection 4(1) in item 1 of Schedule 1 of the Bill be amended by removing the reference to the word 'serious'; and
• the Attorney-General's Department review the provisions in the Family Law Act 1975 containing the words 'abuse' and 'neglect' to determine whether there are any legislative inconsistencies which need to be addressed.

Ensuring better access to evidence of abuse and family violence

3.171         One objective of the Bill is to ensure that the Family Court of Australia has better access to evidence of abuse and family violence. Submitters and witnesses presented a considerable amount of information to the committee suggesting that more could be done to achieve this objective. The committee agrees that there is room for improvement.

3.172         In July, the Standing Committee of Attorneys-General (SCAG) undertook to provide a national response to the Australian Law Reform Commission and New South Wales Law Reform Commission report, Family Violence – A national legal response.[149] That report made a number of findings regarding improvements to information sharing between the federal family law system and state and territory child protection systems. The committee supports improved interactions between these systems but considers it appropriate to wait for the SCAG response and the outcome of the current initiatives briefly mentioned in the evidence of the Attorney-General's Department.

3.173         The committee accepts the Department's explanation regarding what course of action the Family Court of Australia is to take should it receive an affirmative response to its inquiry into whether a party alleges abuse, neglect or family violence. However, the committee considers that this explanation should appear in the relevant provisions and accordingly suggests the inclusion of an appropriate note where necessary.

Training and education in the family law system

3.174         Throughout the inquiry, participants questioned the specialist knowledge of professional persons involved in the family law system. In particular, the committee heard concerns that judicial officers possess and apply various understandings of what constitutes family violence and its dynamics. The Family Court of Australia was not convinced that 'common training' would resolve any perceived deficiencies in judicial training. In its view, the Family Court of Australia judicial education program, supplemented by the recently updated Family Violence Best Practice Principles, provides judicial officers with adequate knowledge to fulfil their function. The committee accepts that the on-going education and internal procedures adopted by the Family Court of Australia and its officers sufficiently prepares the court to appropriately manage matters involving allegations of abuse and family violence.

3.175         The committee is aware of some concern that the Family Violence Best Practice Principles are not always implemented and, as a consequence, it is alleged that the Family Court of Australia is, in some instances, making unsafe parenting arrangements. Without overwhelming evidence to support these allegations, the committee accepts the evidence of the Law Council of Australia that such instances would be rare.[150]

Commencement provisions

3.176         The committee notes the Attorney-General's Department's advice regarding the commencement date of the Bill, and understands that it is the intention that Schedule 1 of the Bill commence six months after the Bill receives Royal Assent, if proclamation has not occurred within that six-month period (subclause 2(1) of the Bill). This time frame was chosen to allow the Family Court of Australia some lead time to put in place relevant processes and systems for the new measures.[151] 

3.177         The committee also notes that the key objective of the Bill is to provide better protection for children and families at risk of violence and abuse. For this reason, item 45 of Schedule 1 has been drafted to apply the substantive provisions of the Bill to as many family law cases as possible, including proceedings instituted in the Family Court of Australia prior to commencement of the Bill.[152]   

3.178         The committee strongly endorses the key objective of the Bill and therefore believes that the substantive provisions of the Bill should commence earlier than the maximum lead time of six months provided for in subclause 2(1) of the Bill. The committee considers that three months is sufficient time for the Family Court of Australia, and other stakeholders, to prepare for the changes to be introduced upon enactment of the Bill.

3.179         In addition, the committee is concerned with the proposal to allow the substantive provisions of the Bill to be proclaimed after Royal Assent but before expiration of the lead time. The committee believes that such a proposal introduces an element of uncertainty which is best avoided in order to establish a clear and specific commencement date for Schedule 1 of the Bill.

Recommendation 5

3.180         The committee recommends, in relation to the commencement date of Schedule 1 of the Bill, that column 2 of subclause 2(1) of the Bill be amended to delete reference to 'A single day to be fixed by Proclamation' and to provide that Schedule 1 will commence on the day after the end of the period of three months beginning on the day of Royal Assent.

3.181         The committee further notes that the regulation-making power in item 48 of Schedule 1 of the Bill could be invoked to make regulations of a transitional, application or savings nature relating to the substantive provisions of the Bill. It is arguable whether such a provision amounts to an inappropriate delegation of legislative power.[153]   

3.182         As a general principle, the committee does not consider that the use of 'Henry VIII' clauses is a preferred course of action, particularly when the precise content or nature of potential regulations is not known or unclear. The committee understands that no regulations have been drafted in relation to the Bill.[154]  In this circumstance, it is difficult for the committee to reach firm conclusions regarding the appropriateness of item 48 of Schedule 1.

3.183         However, the committee is persuaded that the regulation-making power in this instance would serve a useful and practical function. As noted by the Attorney-General's Department, the provision enables the Australian Government, in consultation with the Family Court of Australia, to assess categories of proceedings to which the substantive provisions of the Bill should not apply. Such categories could include part-heard, reserved judgement, appeal or filed matters which have not been disposed of by the court prior to the commencement date.[155] For this reason, the committee concludes that the regulation-making power in item 48 of Schedule 1 should remain in the Bill.

Equal shared parental responsibility provisions

3.184         The committee is not persuaded by arguments that the Bill 'winds back' the shared parenting reforms introduced by the Family Law Amendment (Shared Parental Responsibility) Act 2006. Upon examination, the Bill appears to strike a balance between a child's right to a meaningful relationship with both parents and a child's right to protection from harm. The committee chooses these words with care as Part VII of the Act promotes the rights and interests of children only.

Minor drafting issues

3.185         Finally, the committee notes two small drafting issues: first, the use of the word 'done' in proposed new subsection 60B(4); and second, the heading 'Amendments that apply to proceedings instituted on or after commencement' in item 45 of Schedule 1. In relation to the first point, the committee agrees with the Australian Law Reform Commission that the word 'done' is 'ugly' and 'inelegant',[156] but notes that the wording reflects the current drafting practice of the Office of Parliamentary Counsel. In relation to the second point, it is clear that the heading is meant to read 'Amendments that apply to proceedings instituted on or before commencement' and should be amended accordingly.

Recommendation 6

3.186         The committee recommends that the Attorney-General's Department, in conjunction with the family law courts and relevant professional organisations, institute an education campaign, to commence no less than two months prior to the expiration of any lead time, and to cover the critical amendments made by the Bill, including the Schedule 1 commencement date.

Recommendation 7

3.187         The committee recommends that the heading in item 45 of Schedule 1 of the Bill be amended to read 'Amendments that apply to proceedings instituted on or before commencement'.

Recommendation 8

3.188         Subject to the above recommendations, the committee recommends that the Senate pass the Bill.

                                                         

Senator Trish Crossin
Chair

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